8. Party Ordering’s claims due to defects
(1) The statutory regulations shall apply to the Party Ordering’s rights in the case of material defects or defects in title (including false or shortfall in delivery or improper assembly or deficient assembly instructions) inasmuch as nothing else has been determined in the following. The special statutory regulations for final delivery of the Goods to a consumer (supplier’s recourse in accordance with sections 478, 479 BGB) shall remain unaffected.
(2) The basis of our liability for defects is, above all, the agreement made concerning the quality of the Goods. All product descriptions which are the object of the individual contract shall be regarded as agreements concerning the quality of the Goods; no difference shall be made here as to whether the product description originates from the Party Ordering, the manufacturer or from us.
(3) Inasmuch as a particular quality has not been agreed, judgement shall be made in accordance with statutory regulations as to whether there is a defect or not (section 434 sub-section 1 pages 2 and 3 BGB). We shall, however, not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising slogans).
(4) Prerequisite for the Party Ordering’s claims for defects is that he has fulfilled his duties concerning inspection and complaint (sections 377, 381 HGB [German Commercial Law]). If a defect becomes apparent during inspection or thereafter, we shall be notified in writing without delay. Such notice shall be regarded as having been given without delay if it takes place within two weeks whereby, to maintain the period, it is sufficient if notice is sent in good time. Independent of this duty concerning inspection and complaint, the Party Ordering shall give notice of obvious defects (including false or shortfall in delivery) within two weeks of delivery in writing whereby, here also, to maintain the period, it is sufficient if notice is sent in good time. If the Party fails to carry out inspection and/or give notice, our liability for the defect, which has not been notified to us, is excluded.
(5) If the delivered item is defective, we shall have the option of subsequent performance by way of elimination of the defect (subsequent improvement) or by way of delivery of an item without defect (replacement delivery). Our right to refuse the selected type of subsequent performance, as stated in the statutory prerequisites, is not affected.
(6) We are entitled to make the subsequent performance to which we are obliged dependent on the Party Ordering’s payment of the purchase price. The Party Ordering is, however, entitled to retain a portion of the purchase price reasonable in ratio to the defect.
(7) The Party Ordering shall give us the time and opportunity necessary for the subsequent performance to which we are obliged, in particular to hand over the Goods which are the object of complaint for the purposes of examination. In the case of replacement delivery, the Party Ordering shall return the defective item in accordance with the statutory regulations.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular shipping, route, labour and material costs, if there is actually a defect. If, however, any demand for elimination of a defect by the Party Ordering evolves as unjustified, we may then demand the costs arising from this to be refunded by the Party Ordering.
(9) In cases of urgency, e.g. in the case of operating safety being endangered or to ward off disproportionate damage, the Party Ordering shall have the right to eliminate the defect itself and to demand compensation from us for the expenses objectively necessary for this. We shall be notified without delay if the Party Ordering resorts to its own action, if possible, previously. The Party Ordering shall not have the right to carry out elimination itself if we had had the right to refuse such subsequent performance in accordance with the statutory regulations.
(10) If subsequent performance has failed or if the date set by the Party Ordering for subsequent performance has elapsed without success or is dispensable according to the statutory regulations, the Party Ordering may withdraw from the purchase contract or reduce the purchase price. In the case of a negligible defect, there shall be no right to withdrawal.
(11) The Party Ordering has a claim to damages or refund of expenses incurred without avail only in accordance with the stipulation contained in no. 9; it is otherwise ruled out.