CIMCO - Main Catalogue Strana 394
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Technical appendix, numerical lisT, index, sales 1 2 3 Vi. Transfer of risk 1. Risk is transferred to the buyer, even in the case of carriage-free delivery, when shipping the delivery starts or it is collected, but no later than when the delivery leaves the warehouse. This also applies if the delivery is transported on our lorries. Upon the buyer’s request and at their expense, the deliveries shall be insured against the usual transport risks. 2. If shipment or delivery is delayed for reasons attributed to the buyer or if the buyer delays acceptance for other reasons, then the risk passes to the buyer. Vii. acceptance 1. The buyer may not refuse acceptance of deliveries due to negligible defects. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Viii. material defects The supplier is liable for material defects as follows: 1. All parts or performances that display a material defect within the limitation period without regard to operating time, shall, at the discretion of the supplier, be remedied, replaced or rendered again free of charge, provided the cause of the defect occurred before the risk transfer. 2. Material defect claims have a limitation period of 12 months. This does not apply if legislation dictates longer periods. 3. The buyer shall inspect the received goods immediately after arrival for quantity, condition, and any assured characteristics. The buyer shall immediately inform the supplier about material defects in writing. Acknowledgement of material defects must always be made in writing. 4. In the event of a defect notification, then the buyer may retain a portion of the payment due which corresponds to the proportion of the material defects found. The buyer may retain payments if a defect notification is made provided there is no doubt about the validity of the claim. If the defect notification is shown to be unjustified, the supplier has the right to demand that the buyer compensate the supplier for cost incurred. 5. Initially the supplier is always to be given the opportunity for supplementary performance within an appropriate period. 6. If the supplementary performance is unsuccessful, the buyer can withdraw from the contract – without affecting any claims for damages in accordance with Art. XI – or can reduce the payment. The buyer’s legal right to withdraw does not require that the supplier is responsible for an existing defect of a purchased good. In all other cases, the buyer may only withdraw if there is a breach of duty for which the supplier is responsible. 7. There shall be no claims for defects in the case of negligible deviations from the agreed condition, or for negligible impairments of usability, of natural wear or of damages that occur after the transfer of risk as a result of improper or careless treatment, overloading or unsuitable operating materials or due to particular external influences which are not presupposed by the contract. If the buyer or a third party makes unsuitable changes or performs improper maintenance work, there shall also be no claims for defects arising from this or from its consequences. 8. Claims by the buyer for the necessary expenses incurred for the purpose of supplementary performance, in particular transport, infrastructure, labour and material costs, are excluded insofar as the expenses increase because the delivery item is subsequently relocated to a different place than the buyer’s place of business, unless the relocation is in keeping with its intended use. 9. The buyer has statutory rights of recourse against the supplier only insofar as the buyer has not reached any agreements with their customer which go beyond the statutory claims for defects. Furthermore, number 8 applies correspondingly for the extent of the buyer’s right of recourse against the supplier. 10. In other respects, Art. XI applies for claims for damages. (Other claims for damages). Additional claims or claims other than those regulated by Art. VIII, which are made by the buyer against the supplier and their vicarious agents, and which are based on a material defect, are excluded. iX. Commercial property rights and copyrights; defects of title 1. Unless otherwise agreed, the supplier is obligated to provide the delivery free from third-party commercial property rights and copyrights (hereinafter: property rights) in the supplier’s country only. Insofar as a third party asserts justified claims against the buyer owing to the infringement of property rights through deliveries provided by the supplier which are used as per contract, the supplier shall be liable to the buyer within the period defined in Art. VIII No. 2 as follows: a) At their discretion and cost, the supplier shall either obtain a right of use for the relevant deliveries, change the delivery so that property rights are not infringed, or exchange the delivery. If this is not possible at reasonable conditions, the buyer shall be entitled to the statutory rights of withdrawal or reduction. The buyer cannot demand compensation for useless expenditures. b) The supplier’s obligation to provide compensation for damages is governed by Art. XI. c) The aforementioned obligations of the supplier apply only if the buyer promptly notifies the supplier in writing about claims asserted by third parties, if the buyer does not acknowledge an infringement and if the supplier retains all rights to all defensive actions and settlement talks. Should the buyer discontinue the use of the delivered items in order to mitigate damages or for other important reasons, then they are obliged to notify the third party that the discontinuation of use does not imply the acceptance of an infringement of property rights. 2. Claims of the buyer are excluded insofar as they are responsible for the infringement of property rights. 3. Claims of the buyer are also excluded insofar as the infringement of property rights is caused by special specifications of the buyer, by an application which was not foreseeable by the supplier, or due to the fact that the delivery is changed by the buyer or used together with products which were not delivered by the supplier. 4. In the case of property rights infringements, the provisions of Art. VIII No. 4, 5, and 9 correspondingly apply to the claims of the buyer set out in No. 1 a). 5. In the case of other defects of title, the provisions of Art. VIII apply correspondingly. 6. Irrespective of their legal bases, additional claims and rights or other claims and rights (e.g., amendment, reduction, withdrawal) other than those regulated by this article that are made by the buyer against the supplier and the supplier’s vicarious agents on the grounds of material defect are excluded. X. impossibility; amendment 1. To the extent that supply is not possible, the buyer is entitled to demand compensation unless the supplier is not responsible for the impossibility. However, the claim for compensation by the buyer shall be confined to 10% of the value of the part of the delivery which cannot be put to its intended use, due to the impossibility. This does not apply where liability is mandatory as in cases of wilful intent, gross negligence, or due to death, physical injury or damage to health; this is not associated with a change in burden of proof to the disadvantage of the buyer. The right of the buyer to withdraw from the contract is not affected. 2. Insofar as an unforeseeable event within the meaning of Art. V No. 3 changes the commercial importance or the contents of the delivery or has substantial implications on the operation of the supplier, the contract shall be readjusted in accordance with the principles of good faith. Insofar as this is commercially unjustifiable, the supplier has the right to withdraw from the contract. If the supplier intends to withdraw from the contract, they shall notify the buyer of this without undue delay after recognising the implications of the event, even if an extension of the delivery time was initially agreed with the buyer. Xi. Other claims to compensation for damages 1. Claims for compensation for damages on the part of the buyer, regardless of their legal basis, but in particular on account of breach of duties derived from contractual obligation and from impermissible acts, are excluded. 2. This does not apply where liability is mandatory, e.g. in accordance with the Product Liability Act, in cases of wilful intent, gross negligence, or due to death, physical injury or damage to health, or due to infringement of essential contractual obligations. Compensation for damages for infringement of essential contractual obligations is, however, limited to contract-typical, foreseeable damages, unless liable due to wilful intent or gross negligence, or due to death, physical injury or damage to health. The aforementioned stipulations do not imply a change in the burden of proof to the disadvantage of the buyer. 3. Insofar as the buyer is entitled to compensation for damages in accordance with Art. XI, these expire at the end of the limitation period valid for material defect claims in accordance with Art. VIII No. 2. Xii. Place of jurisdiction and applicable law 1. If the buyer is a merchant, then the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship (including claims concerning cheques and bills of exchange) is the domicile of the supplier. The supplier, however, has the right to bring legal action at the buyer’s domicile. 2. Contractual relations are governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Xiii. binding nature of the contract If individual provisions of this contract are or become legally invalid, the remaining sections of the contract shall remain binding. This does not apply if abiding by the contract would represent an unreasonable hardship for one of the parties. 24 25 26 394 Advice and ordering: Phone: 02191 3718-01, Fax: 02191 3718-85, E-Mail: [email protected]
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