Common use of Material Defects Clause in Contracts

Material Defects. 8.1 The vendor guarantees to the customer that the deliveries and services, when used in accordance with the contract, conform with the agreements outlined in point 3.1. 8.2 No claims of material defects may exist for merely insignificant deviations from the contractually agreed quality. Claims of material defects are also excluded if the deviation from the contractually agreed quality is based on excessive or improper use or natural wear. The same applies to such deviations that result from special external influences which are not provided for in the contracted. This also includes the use of deliveries and services in a usage environment not approved of by the vendor. Furthermore, claims are excluded with regard to the sale of second-hand articles. 8.3 The customer is to communicate in writing any material defects in comprehensible and detailed format, providing the information necessary for determining and analysing the defect. If nothing other has been agreed to, the customer shall use the vendor’s relevant forms and procedures to do this. Point 12.1, line 3 applies accordingly. Furthermore, the customer is also to support the vendor in eliminating the defects, where required. 8.4 If the customer is entitled to claims for defects, it first only has the right to remedial action within an appropriate period of time. At the vendor’s discretion, remedial action could entail the elimination of defects or a new delivery. The interests of the customer are to be considered properly in the vendor’s choice. If remedial action is performed, ownership of the objects exchanged as part of the remedial action is transferred to the vendor at the time of the exchange. The processing of the customer’s notification of material defects by the vendor shall only lead to a suspension to the period of limitation if statutory regulations for this exist. Remedial action can only influence the limitation period of the defect caused by the remedial action. 8.5 If the remedial action is unsuccessful or is not performed for other reasons, the customer may, in accordance with statutory requirements, reduce the remuneration, withdraw from the contract and/or demand compensation for damages or expenses in line with points 10.1–10.3. The customer can exercise its right – to which it is entitled – to choose what to do within an appropriate time period. This is usually taken as 14 calendar days from the opportunity to announce the chosen option by the customer. 8.6 If the customer withdraws, the vendor will take the goods back and reimburse monies paid by the customer minus the value of the usage possibilities granted to the customer. 8.7 The period of limitation for claims of material defects is one year from the statutory commencement of that period. Statutory time periods remain unaffected, as far as the law in § 438, para. 1, no. 2 of the BGB [German Civil Code] (buildings and items used for buildings) prescribes longer periods, and in the event of deliberate or grossly negligent breach of duty on the part of the vendor, especially its legal representatives or agents, in the event of a fraudulent concealment of a defect, and in cases of loss of life, personal injuries and harm to health, as well as claims from product liability law. 8.8 Provided nothing other has been agreed to, the customer is to bear any additional expenses necessary for the purpose of the remedial action, especially additional transport, travel, work and material costs, resulting from the fact that it has housed the owed good/ service in a different location to the location of usage mentioned to the vendor when the contract was concluded. The regulation of § 000 XXX (Xxxxxx Civil Code) remains otherwise unaffected. 8.9 The vendor may demand remuneration for its efforts, provided - It follows up on a notification without a defect existing, unless the customer was not able to recognise that there was no defect with reasonable effort, or - Additional efforts are required as a result of the customer failing to properly fulfil its obligations, especially in accordance with lines 8.2 and 8.3. 8.10 The regulations for customer recourse in line with § 478 and 479 of the BGB (German Civil Code) remain unaffected.