VII. Liability for defects of the goods delivered
The Supplier shall be liable for defects of the goods delivered to the exclusion of further claims and taking the regulations stipulated in section X into account as follows:
- Unless no other agreement has been made, the Supplier shall grant a warranty period of 12 months in the case of proper use within the parameters specified following installation of the system by the Supplier and acceptance of the system by the Purchaser. We shall not assume any liability/warranty for wear and tear of wearing parts, e.g. sealings, bearings, abrasive wear in corrosion protection, transport chains, control shafts, slide bars at the rake cleaner etc.. The Supplier shall be immediately informed in writing of the identification of defects. The Purchaser shall grant the Supplier the opportunity to examine the damage case. Title in the replaced parts shall pass on to the Supplier. The Supplier shall only warrant for defects in the material supplied by the Purchaser, if he had been able to identify the defects on applying due professional care.
Warranty claims shall not arise if the error is due to a violation of operating resp. maintenance regulations or to non-compliance with the performance parameters, unsuitable or improper use, faulty or negligent treatment and natural wear resp. wear and tear or for any intervention into the delivery item by the Purchaser or by any third party.In the event of production in compliance with drawings presented by the Purchaser, the Supplier shall only warrant for a construction in line with the drawing.
- Warranted and service life properties have to be designated individually and explicitly in writing as such.
- No warranty shall be assumed for damages arising in consequence of the following reasons:- faulty assembly resp. installation by the Purchaser or third party,- unsuitable operating facilities and tools,- chemical, electrochemical or electrical influences, unless these are due to negligence on the part of the Supplier.
- To undertake any and all remedies and substitute deliveries which are deemed to be necessary at the discretion of the Supplier, the Purchaser shall be given the time and opportunity required after coming to an agreement in this respect with the Supplier, otherwise the Supplier shall be exempt from warranty for defects. Only in urgent cases of danger to the operational safety and to avert inappropriately large damages, whereby the Supplier shall be immediately informed, or if the Supplier defaults in eliminating the defect, shall the Purchaser have the right to remedy the defect himself or to have the defect remedied by a third party and shall be entitled to demand compensation of the necessary costs by the Supplier.
- Of the costs directly incurred as a result of remedy of the defects resp. substitute delivery the Supplier shall bear the costs for the substitute item including installation hereof at the installation site in so far as the complaint is deemed to be justified. For the rest, the Purchaser shall bear the costs.
- For the substitute item and the remedied parts the warranty period shall be 12 months; it shall be in force at least to the end of the original warranty period specified for the delivery item.
- The agreed warranty shall be forfeited for the consequences incurred as a result of improper modifications or maintenance operations made on the part of the Purchaser or any third party without previous approval by the Supplier.
- Further claims on the part of the Purchaser, in particular claims for compensation of damage which was not incurred to the delivery item itself, shall be excluded. This regulation also covers claims from lacking resp. reduced energy generation. This disclaimer of warranty shall not apply in the event of intent, gross negligence of the owner or executive employee, or in the case of any culpable infringement of substantial contractual obligations. In the event of culpable infringement of substantial contractual obligations the Supplier shall warrant only for the contractually typical and reasonably foreseeable damage – with the exception of cases of intent and gross negligence of the owner or executive employee. The exemption from liability shall furthermore not apply in the cases in which a warranty is applicable for defects in the delivery item according to the product liability act for damage to persons or property in privately used objects. It shall also not apply if properties which have been explicitly guaranteed are lacking, and in particular if the purpose of the warranty had been to protect a Purchaser against damage which did not arise in the delivery item itself.
VIII.Warranty for secondary obligations
If as a result of negligence on the part of the Supplier the object delivered cannot be used by the Purchaser as a result of omitted or faulty workmanship, on the grounds of proposals and advice given before or after undersigning the agreement, as well as other contractual secondary obligations, in particular instructions for use and operation of the delivery item, the regulations specified n Sections VII and IX shall apply accordingly to the exclusion of further claims on the part of the Purchaser.
IX. Use of production means, drawings and confidential specifications of the Purchaser
Models, matrices, drawings, samples, production means as well as confidential information made available to the Supplier by the Purchaser or in the costs of which the Purchaser was substantially involved, shall only be used for the purpose of fulfilling the respective agreement with the Purchaser and only with previous written approval by the Purchaser for the Suppliers own purposes and for deliveries to third parties.
X. Purchaser’s right to rescission and other liability of Purchaser
- Within the scope of legal regulations the Purchaser shall be entitled to rescission from the agreement if the Supplier – taking the statutory cases of exception into account – allows an appropriate period set by him for the purpose of remedy or subsequent delivery on the grounds of a material defect to lapse fruitlessly. If only an insignificant defect is given, the Purchaser shall only be entitled to reduce the contractually agreed price. The right to reduce the contractually agreed price shall otherwise be excluded.
X. General terms and conditions
In so far as the Supplier’s liability is given, irrespective of the legal grounds herefor, this liability shall be limited to a maximum of 5 % of the value of the delivery volume in concern. This limitation of liability shall not apply in the case of intent, gross negligence on the part of the owner or of an executive employee, in the case of a violation of substantial contractual obligations, if agreed properties are lacking and in cases in which a warranty is applicable for defects in the delivery item according to the product liability act for damage to persons or property in privately used objects. In such a case the economic situation of the Supplier, type, scope and duration of the business relationship, possible degree of responsibility and/or default on the part of the Purchaser in compliance with § 254 BGB (German Civil Code) and a particularly unfavourable installation situation of the delivery part shall be taken into appropriate account for the benefit of the Supplier. Compensation, costs and expenses to be borne by the Supplier have to be in an appropriate ratio to the value of the delivery item.
XI. Place of fulfilment, place of venue, legal effect
- Place of fulfilment for the delivery and for all other contractual obligations including payment shall be Renchen.
- The District Court of Oberkirch (Amtsgericht Oberkirch) shall be agreed as place of jurisdiction for any and all disputes, also for lawsuits on the grounds of trials of record and summary procedures on bills of exchange. The Supplier shall also be authorised to institute legal proceedings at the address of the Purchaser’s headquarters.
- The laws of the Federal Republic of Germany shall apply exclusively unless no other agreement is made. The application of the Treaty undersigned by the United Nations on agreements concerning the international sale of goods shall be excluded.
- In the event of an invalidity of any one or more terms stipulated herein the legal force of the remaining terms and conditions shall not be affected.
- These General Terms and Conditions can be downloaded from our homepagewww.wb-wasserkraft.de and saved in a reproducible form.