Common use of Defective delivery Clause in Contracts

Defective delivery. (1) Unless stipulated otherwise below, statutory provisions are applica- ble to our rights for material and legal defects in the Goods (including incorrect or incomplete delivery, as well as improper assembly and de- fective instructions regarding assembly, operation, or use) and to other breaches of duty by the Seller. (2) The Seller is liable under statutory provisions, in particular, for the Goods having the agreed nature and quality upon transfer of risk to us. In particular, such product descriptions as form part of the respective contract – in particular, through their being designated or referred to in our order – or are included in the contract in the same manner as these General Terms and Conditions of Purchase are considered to constitute agreement as to nature and quality. In this regard, it makes no difference whether the product description originated from us, the Seller, or the manufacturer (3) We will not, on conclusion of the contract, be obligated to inspect the Goods or to make specific enquiries about possible defects. Our claim for defects will therefore, in partial deviation from § 442 Para. 1 Cl. 2 BGB, be unlimited even should we on conclusion of the contract be unaware of a defect, due to gross negligence. (4) The statutory provisions of §§ 377, 381 HGB [German Commercial Code] shall apply in terms of the commercial duty of inspection and no- tification of defects, with the following proviso: Our duty of inspection shall be limited to defects that are clearly apparent under external exa- mination, including the delivery documentation, by our incoming goods inspection and that random sampling by our quality control (e.g. trans- port damage, wrong and shortfall in delivery) clearly exposes. No duty of inspection exists where acceptance has been agreed. The feasibility of an inspection in the normal course of business, also taking into account individual circumstances, will for the rest also be a factor. Our obligation to give notice of subsequently discovered defects shall remain unaffec- ▇▇▇. Our complaint (notification of defects) shall in all events be deemed prompt and timely if sent within 12 working days after discovery of a defect or, for obvious defects, after delivery. (5) Our warranty claims shall not be waived by acceptance or approval of submitted samples or specimens. (6) Subsequent performance shall also include removal and reinstalla- tion of defective Goods, provided that such Goods were installed in or attached to another item in accordance with their type and intended use; our legal claim to reimbursement of relevant expenses shall remain un- affected thereby. Sellers shall bear the cost of inspection and remedia- tion of defects even should it turn out that no defect in fact exists. Our liability for damages in the event of unjustified requests for the removal of defects shall remain unaffected; we shall in this respect be liable only should we have recognised or through gross negligence failed to recog- nise that no defect existed. (7) Notwithstanding our statutory rights and the provision in Para. 6, the following shall apply: Should sellers fail to fulfil their obligation to sub- sequent performance – at our discretion either by remediation of the defect (subsequent remediation) or by supply of an item free of defects (substitute delivery) – within our reasonable respite, we shall be entitled to remedy the defect ourselves and to demand reimbursement of the necessary expenditure or a corresponding advance payment by Sellers. No respite is required should subsequent performance by sellers fail or be deemed unreasonable by us (e.g. due to particular urgency, endanger- ment of operational safety or imminent occurrence of serious damage) and sellers must be informed immediately and in advance, if possible. (8) In addition, in the event of material or legal defects, we are entit- led under statutory provisions to reduce the purchase price or rescind the contract. Furthermore, we are entitled under statutory provisions to claim damages and expenses.

Defective delivery. (1) Unless stipulated otherwise belowstipulated, statutory provisions are applica- ble to shall apply regarding our rights for with respect to material and legal defects in the Goods goods (including incorrect or incomplete wrong and shortfall delivery, as well as improper assembly and de- fective instructions regarding inexpert assembly, operation, deficient assembly or useoperating instructions) and to regarding other breaches of duty by on the Sellerpart of the seller. (2) The Seller According to the law, the seller in particular is liable under statutory provisions, in particular, for ensur- ing that the Goods having goods have the agreed nature and quality properties upon transfer of risk to us. In particular, such The product descriptions as form part which, in particular through designation or reference in our order, are the subject matter of the respective contract – in particularagreement, through their being designated or referred to in our order – or are included in which were incorpo- rated into the contract agreement in the same manner way as these General Terms and Conditions of Purchase GTC, are considered to constitute agreement regarded as to nature and qualityan agreement. In this regardThereby, it makes no does not make any difference whether the product description originated originates from us, from the Seller, seller or from the manufacturer. (3) We will notNotwithstanding section 442, on conclusion paragraph 1, clause 2, of the contractGerman Commercial Code, be obligated to inspect the Goods or to make specific enquiries about possible defects. Our claim for we may assert claims regarding defects will therefore, in partial deviation from § 442 Para. 1 Cl. 2 BGB, be unlimited even should if we on conclusion were unaware of the defect at the time of entering into the contract be unaware as the result of a defect, due to gross negligence. (4) The statutory provisions of §§ regulations (sections 377, 381 HGB [of the German Commercial Code] ) shall apply in terms with respect to the com- mercial duties of the commercial duty examination and notice of inspection and no- tification of defectsnon- conformity duties, with the following provisoas follows: Our duty of inspection examination shall be limited to defects that are clearly apparent under external exa- mination, including the delivery documentation, by come to light during our incoming goods inspection inspec- tion involving a visual examination of the goods and that a check of the delivery documents as well as during our random sampling by our sample-based quality control inspection (e.g. trans- port damagetransport dam- age, wrong and shortfall in delivery) clearly exposes). No duty With other defects, it de- pends to what extent an examination which takes into account the circumstances of inspection exists where acceptance has been agreed. The feasibility of an inspection the individual case will be possible in the normal course of business. If an acceptance has been agreed upon, also taking into account individual circumstances, will for the rest also be a factorthere is no obligation to conduct an inspection. Our obligation ob- ligation to give notify defects discovered at a later date shall remain unaffected. In all cases, such a complaint (notice of subsequently discovered defects shall remain unaffec- ▇▇▇. Our complaint (notification of defectsdefect) shall in all events be deemed considered prompt and timely in due time if sent it reaches the seller within 12 working days after discovery of a defect or, for obvious defects, after delivery2 weeks. (5) Our warranty claims shall not be waived by acceptance or approval Rectification of submitted samples or specimens. (6) Subsequent performance shall defects includes also include removal the disassembly and reinstalla- tion re-assembly of the defective Goodsgoods, provided that such Goods the goods were installed incorporated in or attached to another item other things in accordance with their type and intended use; our legal claim to reimbursement of relevant expenses shall remain un- affected thereby. Sellers shall bear The costs incurred by the cost of seller for inspection and remedia- tion of defects even should rectification must be borne by the seller if it turn turns out that in fact no defect in fact existsexisted. Our liability for damages in Any regulation to the event of unjustified requests for the removal of defects contrary shall remain unaffected; we shall in this respect be liable apply only should if we have recognised recognized or through if gross negligence failed to recog- nise negligent have not recognized that no defect existed. (76) Notwithstanding our statutory rights and If the provision in Para. 6, the following shall apply: Should sellers fail to fulfil their seller does not fulfill his obligation to sub- sequent of supplementary performance – at our discretion option either by remediation remedy of the defect deficiencies (subsequent remediationrectification) or by supply delivery of an item goods free of defects from defect (substitute deliveryre- placement) – within our reasonable respitean adequate period stipulated by us, we shall be entitled to remedy the defect may carry out remedial actions ourselves and to demand reimbursement of claim com- pensation for the necessary expenditure expenditures or a corresponding advance payment respective ad- ▇▇▇▇▇ payments from the seller. If the supplementary per- formance by Sellers. No respite the seller has failed or if it is required should subsequent performance by sellers fail or be deemed unreasonable by not reasonable for us (e.g. due to in particular urgencyurgent cases, endanger- ment danger of operational safety se- curity or imminent occurrence disproportional loss), stipulation of serious damage) and sellers must be informed immediately and a deadline is waived; we shall inform the seller of such circum- stances immediately, if at all possible in advance, if possible. (8) In addition, in the event of material or legal defects7) Moreover, we are entit- led entitled, under statutory provisions the law, to reduce a reduction of the purchase price or rescind to withdraw from the contractcontract in case of ma- terial or legal defects. Furthermore, we are entitled under statutory provisions to claim com- pensation for damages and expensesreimbursement of expenses ac- cording to the law.

Defective delivery. (1) Unless stipulated otherwise below, statutory provisions are applica- ble to our 8.1 Our rights for material and legal in the case of defects in quality or title of the Goods (including incorrect goods or incomplete delivery, as well as improper assembly and de- fective instructions regarding assembly, operation, or use) and to any other breaches breach of duty by the Seller. (2) The Seller is liable under Supplier are governed by the statutory provisions, in particular, for unless stipulated otherwise hereinafter. 8.2 As to the Goods having the agreed nature and quality upon transfer of risk to us. In particular, such product descriptions as form part of the respective contract – in particular, through their being designated or referred to in our order – or are included in the contract in the same manner as these General Terms and Conditions of Purchase are considered to constitute agreement as to nature and quality. In this regard, it makes no difference whether the product description originated from us, the Seller, or the manufacturer (3) We will not, on conclusion of the contract, be obligated obligation to inspect the Goods or to make specific enquiries about possible defects. Our claim for defects will therefore, in partial deviation from § 442 Para. 1 Cl. 2 BGB, be unlimited even should we on conclusion goods and give notice of the contract be unaware of a defect, due to gross negligence. (4) The statutory provisions of §§ 377, 381 HGB [German Commercial Code] shall apply defect in terms of commercial law, the commercial duty of inspection and no- tification of defects, statutory provisions apply with the following fol- lowing proviso: Our duty of inspection shall be obligation to inspect is limited to defects that become evident and are clearly apparent under external exa- mination, perceptible when conducting an outward inspection of the incoming goods including the delivery documentation, by our incoming goods inspection and that random sampling by our shipping documents or when conducting a quality control by taking random samples (e.g. trans- port transport damage, wrong and shortfall in delivery/ aliud delivery) clearly exposes, short delivery). No duty of inspection exists where acceptance has been agreed. The feasibility of Apart from that, the point is to what extent, with regard to the specific circumstances given from time to time, an inspection in can be considered as reasonably necessary within the normal limits of the ordinary course of business, also taking into account individual circumstances, will for the rest also be a factor. Our obligation to give notice of subsequently discovered defects shall remain unaffec- ▇▇▇any defect which is detected later remains unaffected. Our complaint In any case, our notice of defect (notification of defects“Mängelanzeige”) shall is deemed given without undue delay (“unver- züglich”) and thus in all events be deemed prompt and timely due time if sent it is received by the Supplier within 12 10 working days after discovery of a defect or, for obvious defects, after delivery(“Werktage”). 8.3 Any costs and expenses incurred by the Supplier for examination, verification and subsequent performance (5“Nacherfüllung”) Our warranty claims shall not (including the costs of de-installation/ disassembly and reinstallation/ reassembly, if any) are borne by the Supplier even if the goods finally prove to be waived by acceptance or approval of submitted samples or specimens. (6) Subsequent performance shall also include removal and reinstalla- tion of defective Goods, provided that such Goods were installed in or attached non-defective. This is without prejudice to another item in accordance with their type and intended use; our legal claim to reimbursement of relevant expenses shall remain un- affected thereby. Sellers shall bear the cost of inspection and remedia- tion of defects even should it turn out that no defect in fact exists. Our liability for damages in the event case of an unjustified requests request for the removal of defects shall remain unaffecteddefect remedy; we shall however, in this respect context, we can only be held liable only should if we have recognised were positively aware or through unaware due to gross negligence failed to recog- nise that no defect existedthe goods were not defective. (7) Notwithstanding our statutory rights and 8.4 If the provision in Para. 6, the following shall apply: Should sellers fail Supplier fails to fulfil their comply with his obligation to provide sub- sequent performance – at our discretion choice either by remediation of the defect remedy (subsequent remediationsub- sequent improvement – “Nachbesserung”) or by supply delivery of an item free of defects non-defective goods (substitute deliverydelivery – “Ersatzlieferung”) – within our a reasonable respitetime limit fixed by us, we shall will be entitled to remedy the defect ourselves on our own and to demand claim from the Supplier reimbursement of the necessary expenditure or a corresponding expenses incurred by us for such purpose resp. claim an appropriate advance payment by Sellerspayment. No respite is required should If the subsequent performance by sellers fail the Supplier has failed or be deemed unreasonable by is reasonably unacceptable for us (e.g. due to particular for reasons of urgency, endanger- ment endangerment of operational the operating safety or imminent occurrence threatening unreasonable damage), the granting of serious damagean additional time limit is dispensable; we will 8.5 From the time of receipt (“Zugang”5) of our written notice of defect, the limitation period for warranty claims is suspended until the Supplier either rejects our claims or declares the defect remedied or otherwise refuses to continue negotiations on our claims. In the case of substitute delivery and sellers must defect remedy the warranty period commences anew for any substituted or subsequently improved parts, unless we can rea- sonably be informed immediately and in advance, if possibleexpected to conclude from the Supplier’s acts that the latter did consider himself under any obligation to provide substitute delivery or defect remedy but only did so as a gesture of goodwill or obliging- ness or for similar reasons. (8) In addition, in the event of material or legal defects, we are entit- led under statutory provisions to reduce the purchase price or rescind the contract. Furthermore, we are entitled under statutory provisions to claim damages and expenses.

Defective delivery. (1) Unless stipulated otherwise belowstipulated, statutory provisions are applica- ble to shall apply regarding our rights for with respect to material and legal defects in the Goods goods (including incorrect or incomplete wrong and shortfall delivery, as well as improper assembly and de- fective instructions regarding inexpert assembly, operation, deficient assembly or useoperating instructions) and to regarding other breaches of duty by on the Sellerpart of the seller. (2) The Seller According to the law, the seller in particular is liable under statutory provisions, in particular, for ensuring that the Goods having goods have the agreed nature and quality properties upon transfer of risk to us. In particular, such The product descriptions as form part which, in particular through designation or reference in our order, are the subject matter of the respective contract – in particularagreement, through their being designated or referred to in our order – or are included in which were incorporated into the contract agreement in the same manner way as these General Terms and Conditions of Purchase GTC, are considered to constitute agreement regarded as to nature and qualityan agreement. In this regardThereby, it makes no does not make any difference whether the product description originated originates from us, from the Seller, seller or from the manufacturer. (3) We will notNotwithstanding section 442, on conclusion paragraph 1, clause 2, of the contractGerman Commercial Code, be obligated to inspect the Goods or to make specific enquiries about possible defects. Our claim for we may assert claims regarding defects will therefore, in partial deviation from § 442 Para. 1 Cl. 2 BGB, be unlimited even should if we on conclusion were unaware of the defect at the time of entering into the contract be unaware as the result of a defect, due to gross negligence. (4) The statutory provisions of §§ regulations (sections 377, 381 HGB [of the German Commercial Code] ) shall apply in terms of with respect to the commercial duty duties of inspection examination and no- tification notice of defectsnon- conformity duties, with the following provisoas follows: Our duty of inspection examination shall be limited to defects that are clearly apparent under external exa- mination, including the delivery documentation, by come to light during our incoming goods inspection involving a visual examination of the goods and that a check of the delivery documents as well as during our random sampling by our sample-based quality control inspection (e.g. trans- port transport damage, wrong and shortfall in delivery) clearly exposes). No duty With other defects, it depends to what extent an examination which takes into account the circumstances of inspection exists where acceptance has been agreed. The feasibility of an inspection the individual case will be possible in the normal course of business. If an acceptance has been agreed upon, also taking into account individual circumstances, will for the rest also be a factorthere is no obligation to conduct an inspection. Our obligation to give notify defects discovered at a later date shall remain unaffected. In all cases, such a complaint (notice of subsequently discovered defects shall remain unaffec- ▇▇▇. Our complaint (notification of defectsdefect) shall in all events be deemed considered prompt and timely in due time if sent it reaches the seller within 12 working days after discovery of a defect or, for obvious defects, after delivery2 weeks. (5) Our warranty claims shall not be waived by acceptance or approval Rectification of submitted samples or specimens. (6) Subsequent performance shall defects includes also include removal the disassembly and reinstalla- tion re-assembly of the defective Goodsgoods, provided that such Goods the goods were installed incorporated in or attached to another item other things in accordance with their type and intended use; our legal claim to reimbursement of relevant expenses shall remain un- affected thereby. Sellers shall bear The costs incurred by the cost of seller for inspection and remedia- tion of defects even should rectification must be borne by the seller if it turn turns out that in fact no defect in fact existsexisted. Our liability for damages in Any regulation to the event of unjustified requests for the removal of defects contrary shall remain unaffected; we shall in this respect be liable apply only should if we have recognised recognized or through if gross negligence failed to recog- nise negligent have not recognized that no defect existed. (76) Notwithstanding our statutory rights and If the provision in Para. 6, the following shall apply: Should sellers fail to fulfil their seller does not fulfill his obligation to sub- sequent of supplementary performance – at our discretion option either by remediation remedy of the defect deficiencies (subsequent remediationrectification) or by supply delivery of an item goods free of defects from defect (substitute deliveryreplacement) – within our reasonable respitean adequate period stipulated by us, we shall be entitled to remedy the defect may carry out remedial actions ourselves and to demand reimbursement of claim compensation for the necessary expenditure expenditures or a corresponding respective advance payment by Sellerspayments from the seller. No respite is required should subsequent If the supplementary performance by sellers fail the seller has failed or be deemed unreasonable by if it is not reasonable for us (e.g. due to in particular urgencyurgent cases, endanger- ment danger of operational safety security or imminent occurrence disproportional loss), stipulation of serious damage) and sellers must be informed immediately and a deadline is waived; we shall inform the seller of such circumstances immediately, if at all possible in advance, if possible. (8) In addition7) Moreover, we are entitled, under the law, to a reduction of the purchase price or to withdraw from the contract in the event case of material or legal defects, we are entit- led under statutory provisions to reduce the purchase price or rescind the contract. Furthermore, we are entitled under statutory provisions to claim compensation for damages and expensesreimbursement of expenses according to the law.