Common use of Claims for defects Clause in Contracts

Claims for defects. 43.1 The contractor guarantees that the server software will meet the agreed-upon quality as per this contract, including the attachments, and in particular, the availability as promised in Attachment SLA (Service Level Agreement) will be maintained during the term of this contract. 43.2 Only the provisions of this section 43.2 shall apply in case of a shortfall in the promised availability. In the event of a shortfall in the promised availability, the client is entitled to reduce the compensation by the percentages specified in section 2 of Attachment SLA (Service Level Agreement). 43.3 The contractor shall be liable for defects in the services provided under the contract that do not affect the availability (“other defects”) in accordance with sections 43.4 to 43.8. 43.4 The contractor is obligated to rectify other defects within a reasonable period of time after receiving a defect notice. In general, only reproducible defects can be rectified. Warranty claims for defects in third-party software licensed by the contractor for use by the client are excluded, unless rectification can be provided through the procurement and installation of generally available upgrades, updates, and service packs, or through service calls. 43.5 If a defect is not successfully rectified within a reasonable period of time set by the client for reasons attributable to the contractor, the client may reduce the agreed-upon compensation by a reasonable amount. The right to reduce compensation is limited in amount to the monthly compensation attributable to the defective part of the service. 43.6 The client shall cooperate free of charge in rectifying other defects and shall, in particular, provide all necessary documents, data, etc. that the contractor requires for analysis and rectification of the defects. 43.7 The client is obligated to promptly report all defects in the software as well as any disruptions occurring during its use, as described in section 3 of Attachment SLA. If the failure of the client to cooperate in a timely manner makes it impossible for the contractor to fulfill its performance obligations, the contractor shall be released from its duty to perform. 43.8 The right to rescind the contract for ongoing use of the software due to defects is excluded. The right to terminate for cause shall remain unaffected by this provision.

Claims for defects. 43.1 The contractor guarantees 1. DMG MORI hereby warrants (gewährleistet) that the server software will shall be of the agreed quality and that the user may use the Licensed Software without breaching third party rights. The warranty for mate- rial defects (Sachmängelgewährleistung) shall not apply to defects based on the Licensed Software being used within a hardware and software environment that does not meet the agreed-upon quality as per this contract, including requirements set out in the attachments, and in particular, the availability as promised in Attachment SLA (Service Level Agreement) will be maintained during the term of this contractuser documentation. 43.2 Only 2. The user shall be required to check the provisions Licensed Software for apparent defects immediately follow- ing receipt and to notify DMG MORI of this section 43.2 the existence of any such defects immediately. Failure to do so shall result in such defects being excluded from warranty. The same shall apply in case where any such defects become apparent at a later time. Section 377 of a shortfall in the promised availabilityGerman Commercial Code (Han- delsgesetzbuch) shall apply. 3. In the event of a shortfall material defect, DMG MORI shall first be entitled to supplementary performance (Nacherfüllung), in other words to rectify the defect ("rectification") (Nachbesserung) or offer a re- placement at its own discretion (Ersatzlieferung). For replacement, the user shall accept a new ver- sion of the Licensed Software, where applicable, except where this would result in unreasonable adverse effects. In the case of defects in title, DMG MORI shall, at its own discretion, either provide the user with a lawful means of using the Licensed Software or shall modify the latter such that it no longer infringes any third party rights. 4. DMG MORI shall be entitled to undertake warranty-related services at the user's premises. DMG MORI shall also be deemed to have satisfied its rectification obligation by providing updates to download on its homepage equipped with an automatic installation routine and offering the user tel- ephone support or remote support to resolve any installation problems which may occur. 5. The user's right to a reduction in the promised availabilitypurchase price or to withdraw from the agreement in the event of two failed rectification or replacement attempts shall remain unaffected. No right to withdraw shall arise in the case of minor defects. Where the user claims compensation for damages or xxxx- bursement for any costs, the client is entitled to reduce the compensation by the percentages specified in section 2 of Attachment SLA (Service Level Agreement). 43.3 The contractor DMG MORI shall be liable for defects in the services provided under the contract that do not affect the availability (“other defects”) in accordance with sections 43.4 to 43.8Article 7. 43.4 The contractor is obligated to rectify other defects within a reasonable period 6. With the exception of time after receiving a defect notice. In general, only reproducible defects can be rectified. Warranty claims for damages, warranty claims on the grounds of material defects in third-party software licensed by shall lapse within one year. Where DMG XXXX is liable for damages pursuant to Article 7, the contractor for use by statutory limitation period shall apply. The limitation period shall commence upon delivery of the client are excluded, unless rectification can be provided through the procurement Licensed Software and installation of generally available upgrades, updates, and service packs, or through service callslicence code. 43.5 If 7. Where there is a defect is not successfully rectified within a reasonable period of time set by software maintenance agreement between the client for reasons attributable to the contractorparties, the client may reduce the agreed-upon compensation by a reasonable amount. The right to reduce compensation is limited in amount to the monthly compensation attributable to the defective part of the service. 43.6 The client shall cooperate free of charge in rectifying other rectification period for defects and shall, in particular, provide all necessary documents, data, etc. that the contractor requires for analysis and rectification of the defects. 43.7 The client is obligated to promptly report all defects in the software as well as any disruptions occurring during its use, as described in section 3 of Attachment SLA. If the failure of the client to cooperate in a timely manner makes it impossible for the contractor to fulfill its performance obligations, the contractor shall be released from its duty to performin accordance with the periods stipulated within such maintenance agreement. 43.8 The right to rescind the contract for ongoing use of the software due to defects is excluded. The right to terminate for cause shall remain unaffected by this provision.