PRESSOL Catalogue Lubrication equipment Page 303
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always in the name and on behalf of us. If the goods are processed or combined with other items that are not our property, we shall acquire joint ownership in the ratio of the objective value of the goods we have supplied to the other objects processed at the time of processing. The same applies if the goods are mixed with other items that do not belong to us. 6. The customer shall be entitled to resell or rent out the goods in the proper course of business. He assigns to us already at this time all claims which accrue to him through the resale or renting against others, in the amount of the value of our final invoice (including valueadded tax). This shall apply irrespective of whether the customer resells or rents out the goods without or after further processing, mixing or other alterations. We accept the assignment. After the assignment, the customer shall remain authorized to collect the debt. Our allowance to draw the demands ourself shall remain unaffected thereby. We, however, undertake not to collect the debt as long as the customer duly complies with his payment obligations towards us and does not fall under default of payment. We further undertake to release the securities due to us on demand of the customer, as far as the realizable values of these securities exceed the debts to be safeguarded by more than 20 %; the choice of the securities to be released is within our scope of responsibility. 7. Determination of defects 1. For defective goods, we will provide rectification or replacement of the defect items in accordance to the customer’s choice. We are, however, entitled to refuse the type of the subsequent performance chosen, if it is only possible with disproportionate costs or if the other type of the subsequent performance remains without considerable disadvantage for the customer. 2. In the event the subsequent fulfilment fails, the customer may, at his option, require a reduction of the purchase price (reduction) or the cancellation of the contract (recission). In the event of a minor infringement of the contract agreement, in particular in case of only insignificant defects, the customer shall not have the right of recission. 3. The customer must notify us in writing of apparant defects within a period of 2 weeks from receipt of the goods, in case of shortfalls immediately upon receipt of the items; otherwise the enforcement of the liability for defects is excluded, in particular with regard to subsequent fulfilment, reduction or recission. Sending the notice in time is sufficient for compliance with the deadline. The customer shall bear the full burden of proof for all pre-requisites for claims, in particular for the defect itself, for the date of detection of the defect and for the timely report of the defect. 4. Should the customer choose to withdraw from the contract because of the failure of attempts to rectify a fault, he will not have a right to compensation of damages on acount of the fault. If, following failed subsequent performance, the customer should opt to compensation, the goods shall remain with the customer, if this can be reasonably expected of him. The compensation shall be limited to the difference between the purchase price and the value of the defective goods. This shall not apply if the violation of contract is due to fraudulent intent on our part. 5. As far as the customer uses the goods for his own purposes or sells the goods completely to entrepreneurs, the period of limitation for warranty claims shall be one year from the dispatch of the goods, provided that the customer has notified us of the defect in good time according to paragraph 3 of these provisions. 6. If the customer is in default as regards a payment or a loan, we shall not be obliged to satisfy claims for defects as long as the customer fulfils his obligations corresponding to the invoice value of the goods delivered by us, less a reduction of the purchase price in proportion to the defects. 7. The above paragraphs 1 to 6 of these provisions shall not constitute any guarantee declaration from our side. Any claims based on the warranty provided separately by us shall remain unaffected. 8. Limitation of liability 1. In case of slightly negligent violations of obligations, our liability shall be limited to foreseeable, direct and average damage typical for the contractual nature of goods. This shall also apply to minor breaches of duty owing to negligence by our statutory representatives or vicarious agents. 2. The aforementioned liabilty restrictions do not apply to claims of the customers arising from product liability. Furthermore, the limitations of liability shall not apply for physical injury, or for the impairment of health or death of the customer, if this can be attributed to us. 3. Claims for damages by customers due to defects are limited to one year from the date of dispatch of the goods. This shall not apply if we can be accused of malice. 9. Prohibition of assignment and pledging 1. Claims of the customer under the business relationship with us must not be assigned or pledged without our prior express written consent. 10. Place of jurisdiction 1. The exclusive place of jurisdiction for all disputes arising out of the business relationship shall be Freiburg. 2. The same applies if the customer has no general place of jurisdiction in Germany or if his domicile or habitual abode is not known when the suit is filed. 3. We are, however, entitled to call upon any legally competent court. 11. Applicable law 1. Solely the laws of the Federal Republic of Germany shall apply. 2. Neither the Hague Convention relating to Uniform International Sales Laws of July 1, 1964 nor the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Law) of April 11, 1980 shall find application. 303 N
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