§ 7 Product features, quantity and claims for defects by the purchaser
- Our products are not suitable for use in the aerospace or nuclear power industries. We approve their suitability for medical products on a case-by-case basis, particularly in the context of the medical products law, and the purchaser is obligated to check with us before using them.
- Manufacturing exact quantities is not possible in mass production, especially for client-specific products; in any case, deliveries of up to 10 percent more or less than the quantity ordered are permitted. In the case of excess or shortfall deliveries, the total price is adjusted to correspond to unit price and quantity delivered.
- In the case of defects of quality and title (including wrong or shortfall deliveries, improper installation or defective assembly instructions) the legal provisions apply, unless stipulated otherwise in these GSCs. In all cases, special legal provisions for final delivery of unprocessed goods to a consumer remain unaffected, even if the latter has processed them (supplier regress according to §§ 478 BGB). Supplier regress claims are excluded if the defective goods have been processed by the purchaser or another contractor, e.g. by installing them in another product.
- The quality of the goods as described in our order confirmation is decisive for the assessment of an existing defect. Also relevant, but of subsidiary importance for the agreement on the quality of the goods, are all product descriptions and manufacturer’s specifications, which form part of the individual contract or had been made public by us at the time of the contract conclusion.
- No guarantee is given for quality requirements over and above the quality standards defined in the technical documents or which exceed the recognized technical state-of-the-art. This applies in particular to material quality requirements and similar components of the contract over which we have no influence.
- Insofar as the quality was not agreed, whether a defect exists or not, has to be assessed in accordance with the statutory provision (§ 434, section 1, p 2 and 3 BGB). However, we are not liable for public statements of the manufacturer or other third parties (e.g. advertising messages), which the purchaser has not informed us were a critical factor in his purchase decision.
- We are not liable for defects known to the purchaser when the contract is concluded, or is not aware of through gross negligence (§ 442 BGB). Furthermore, a precondition of defect claims by the purchaser is that he has performed his legal inspection and complaint obligations (§§ 377, 381 HGB). In the case of building and other materials to be installed or otherwise processed, an inspection has to take place immediately before further processing steps. If a defect is apparent on delivery, during inspection or at any later stage, this has to be notified to us immediately in writing. In all cases, obvious defects have to be notified in writing within 10 working days of delivery and defects, which were not recognizable as such during the inspection, within the same period following their discovery. If the purchaser neglects to carry out a proper inspection and/or give notification of defects, then according to statutory provisions our liability is excluded for the defect which was not properly notified, or not notified in time.
- If the item which has been delivered is defective, we can first of all choose whether to rectify the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse rectification in accordance with legal provisions remains unaffected.
- We are entitled to make the rectification owed to the purchaser conditional on his payment of the purchase price due. However, the purchaser is entitled to withhold part of the purchase price in proportion to the extent of the defect.
- The purchaser has to give us the requisite time and opportunity to carry out the rectification, in particular to give us the disputed goods for inspection purposes. In the case of a replacement delivery, the purchaser has to return to us the defective item, according to legal provisions. Rectification does not include either the removal of the defective item, or a new installation, if we were not originally commissioned with the installation.
- We will bear or reimburse all necessary expenses in accordance with legal requirements for the purpose of inspection and rectification, in particular transport, travel, labor and material costs as well as removal and installation costs if necessary, providing it is shown that a defect does exist. Otherwise we can claim reimbursement of the costs incurred from the purchaser (in particular, inspection and transport costs) for any unjustified request for rectification, unless the absence of a defect was not recognizable for the purchaser.
- In urgent cases, e.g. if operational safety is endangered, or to prevent disproportionate damage, the purchaser has the right to rectify the defect himself and claim from us reimbursement of the costs objectively considered necessary to perform the task. If the purchaser proposes to take such remedial action himself, he has to inform us immediately, if possible beforehand. The purchaser’s right to rectify defects does not apply, if we were entitled to refuse such rectification according to legal provisions.
- If rectification is unsuccessful, or the reasonable deadline set by the purchaser for the rectification passes without progress being made, or is unnecessary according to legal provisions, the purchaser can withdraw from the purchase contract or demand a reduction of the purchase price. However, there is no right of withdrawal in the case of a minor defect.
- Claims for damages or replacement by the purchaser for wasted expenditure are only possible for defects as stated in § 8, and are otherwise excluded.
§ 8 Other liability
- Insofar as nothing to the contrary is stated in these GSCs, including the terms below, our liability for the infringement of contractual and non-contractual obligations is in accordance with legal provisions.
- We are liable for damages – irrespective of the legal grounds – in the context of encumbrance liability in the case of willful intent and gross negligence. We are liable in the case of simple negligence, subject to legal liability restrictions (e.g. the same diligence exercised in our own affairs; insignificant breach of obligations), only
- for damages arising from injury to life, body or health,
- for damages arising from the breach of a substantial contractual obligation (an obligation, the fulfillment of which makes the proper execution of the contract possible and compliance with which the contractual partner regularly relies on and is entitled to rely on); however, in this case, our liability is limited to reimbursement of predictable damages, typically incurring.
- The liability limitations specified in paragraph 2 also apply vis-à-vis third parties, and in the case of obligation infringements by persons (also in their favor), for whose mistakes we are responsible according to legal provisions. They do not apply insofar as a defect is fraudulently concealed, or a guarantee for the quality of the goods has been assumed and for claims of the purchaser, according to the product liability law.
- For a breach of obligation which is not attributable to a defect, the purchaser can only withdraw or cancel if we are responsible for the breach of obligation. A free right of cancellation of the purchaser (in particular, acc. to §§ 650, 648 BGB) is excluded. Otherwise, the legal preconditions and consequences apply.
§ 9 Limitation period
- The general limitation period for claims arising from material and legal defects differs from § 438, section 1, no. 3 BGB: it is one year after delivery. Insofar as an acceptance date is agreed, the limitation period begins on that date.
- If the goods in question are an item which is firmly attached to a building, causing its defectiveness in the first place, the limitation period is extended to 5 years after delivery (§ 438, section 1, no. 2 BGB). Further special legal provisions regarding the limitation period also remain unaffected (esp. § 438, section 1, no. 1, section 3, §§ 444, 445b, § 479 BGB).
- The above-mentioned limitation periods of sales law also apply to contractual and noncontractual claims for damages on the part of the purchaser, based on a defect of goods, unless the application of the regular legal limitation period (§§ 195, 199 BGB) leads to a shorter limitation period in individual cases. Claims for damages on the part of the purchaser, according to § 8, section 2, sentence 1 and sentence 2(a) and the product liability law, expire exclusively after the legal limitation periods.
§ 10 Force majeure
Force majeure, labor disputes, disturbances, measures taken by authorities, absence of deliveries from our suppliers, epidemics, pandemics and other unforeseeable, unavoidable and serious events release the contract partners from their performance obligations for the duration of the disturbance and the extent of its effects. This also applies if these events occur at a time in which the contractual partner concerned is in default, unless he has caused the defaults with willful intent or through gross negligence. The contractual partners are obligated to share the necessary information immediately within reasonable bounds and adjust their obligations to the changed circumstances in good faith.
§ 11 Protective rights of third parties
For the manufacture of a product which has been ordered on the basis of construction drawings and/or instructions from the purchaser, the purchaser declares that these documents do not infringe on any rights the purchaser is aware of, and, in particular, not on any special industrial property protection rights of third parties. In the case that a product manufactured according to the instructions of the purchaser infringes on the rights of third parties, the purchaser indemnifies us from all claims arising from this.
§ 12 Applicable law, contract language and place of jurisdiction
- For these GSCs and the contractual relationship between us and the purchaser, the law of the Federal Republic of Germany applies, excluding international uniform law, in particular UN Sales Law.
- If the purchaser is a business person in the sense of the German Commercial Code (HGB), a public legal entity, or a special fund under public law, the exclusive place of jurisdiction – i.e. also the international venue – for all disputes arising either directly or indirectly from the contractual relationship is the seat of our company in Lüdenscheid. The same applies if the purchaser is a business person in the sense of § 14 BGB. However, in all cases we are entitled to file a suit at the place of fulfillment for the delivery in accordance with these GSCs, or according to an overriding separate agreement, or at the general place of jurisdiction of the purchaser. Overriding legal provisions, in particular, governing exclusive jurisdictions remain unaffected.
Status quo of GSCs: February 2022