Common use of Warranty and liability for defects Clause in Contracts

Warranty and liability for defects. (1) In case of defects, WILO is entitled to the statutory claims without restriction. The warranty period starts at delivery or, in case clearance is required, approval by WILO by means of an acceptance report. (2) The defective delivery items are to be returned to WILO’s contracting partner upon request by a third party (freight and carriage paid). In case of a legitimate notification of defects, the contracting partner shall offer to refund the most favourable dispatch type; this applies in particular also if the costs increase because the delivery item is located at a different place than the place of intended use. (3) In case of quality defects of the supplied items, the contracting partner is firstly obliged and entitled to choose to either rectify the defect or provide for a replacement delivery within an appropriate period of time. In case of failure, i.e. if such rectification or replacement is impossible, unreasonable, unsuccessful, refused or unreasonably delayed, WILO may withdraw from the agreement or reduce the purchase price by an appropriate amount. (4) If a defect is culpably caused by the contracting partner, WILO, as principal, is entitled to damage claims. (5) In case of defects in parts provided by other manufacturers the contracting partner is incapable of rectifying for licensing or factual reasons, the contracting partner may assert its warranty claims against the manufacturers and contractors on account of the principal. For the duration of the legal dispute, the limitation period concerning the corresponding warranty claims by WILO against the contracting partner is suspended. (6) Quality and quantity deviations are considered as reported in good time if WILO communicates them to the contracting partner within a period of 7 working days after receipt of the goods at WILO. Latent material defects are considered as reported in good time if the contracting partner is notified thereof within a period of 7 working days after discovery of the defect. (7) Acceptance based on the acceptance report or approval of samples does not represent a waiver of warranty claims on the part of WILO. (8) The limitation period of warranty claims is suspended upon receipt of the written notice of defect by the contracting partner. In case of replacement delivery and rectification of defect, the warranty period for replaced and rectified parts starts over again, unless agreed otherwise. (9) The contracting partner guarantees that any and all components it supplies and all services it delivers are in compliance with the state of the art, the respective regulations and provisions and guidelines by the authorities, the relevant professional and industry associations and EU standards. Any and all product properties are guaranteed to be accordance with the relevant EU standards and material data sheets, respectively, unless other standards have been expressly agreed with WILO in writing. In case there are no relevant EU standards or material data sheets available as point of reference or if these have ceased to be valid, the corresponding DIN standards shall apply; if no such DIN standards exist, the standards of common practice shall apply unless they fall short of the state of the art. The content and scope of technical documentation is governed by the EU directives and the regulations of the EU member states the product is sold to. References to standards, material data sheets or test certificates as well as specifications concerning quality, measurements and usability on the part of the contracting partner are guaranteed to WILO by the contracting partner. (10) If, as an exception, deviations from these provisions become necessary, the contracting partner is obliged to obtain written approval by WILO in good time. The contractual duties of the contracting partner are not affected by such an approval. If the contracting partner has reservations with respect to the type of performance requested by WILO it has to notify WILO thereof in writing, specifying the reasons. (11) Defects WILO is not obliged to examine the goods and open any packaging. The contracting partner’s statutory rights in case of obvious defects remain unaffected. Payment of invoice does not represent an acknowledgement that the goods have been ordered and are complete or free of defects and shall represent no waiver of claims arising from warranty or default. All quality defects, differing amounts and dimensions are considered latent defects and make the contracting partner liable for defects, also if such defects are determined only by WILO’s final customers, unless they are obvious. In case of delivery of defective goods, the contracting partner is thus entitled to refer to the lack of notification on the part of WILO if it initially requested WILO, as soon as possible after delivery and within an appropriate period of time, to examine the delivered goods to determine whether they were free of defects and provide a corresponding report. In case of defects and in case of non-approved partial delivery, WILO is entitled to request subsequent performance from the contracting partner, either consisting in the delivery of an item free of defects or by repairing the defect. The contracting partner is to bear all expenses required to perform above subsequent performance. This includes, inter alia, transport, infrastructure, labour and material costs as well as shipping costs. If the subsequent performance fails, WILO is entitled to continue to request subsequent performance. The contracting partner may only refuse the type of subsequent performance requested by WILO if such is only feasible in association with unreasonable costs. In this case, WILO’s claim is limited to the other type of subsequent performance provided the contracting partner provides proof of the unreasonable costs in writing. If the contracting partner fails to meet its obligations with respect to subsequent performance within an appropriate period as determined by WILO, WILO is entitled to either obtain a replacement at the contracting partner’s expense or repair the goods' defect itself or have them repaired otherwise at the contracting partner’s expense. Moreover, WILO may also reduce the price in case a reduced value is the consequence. Xxxxxx claims on the part of WILO remain unaffected of the above. The warranty period for defects begins with the handover of the goods to WILO or third parties specified by WILO or the respective place of receipt or place of use, unless no later date has been expressly determined. Unless otherwise agreed in writing, the warranty period for defects as of this date amounts to a minimum of 3 years and 5 years as of this date in case the items concerned are delivery items that are used for a building in accordance with their customary purpose. The above regulation also applies to the delivery of spare parts. In case parts are delivered or repaired within the scope of subsequent performance, the general provisions apply for the beginning of the respective limitation period set forth herein. Unless expressly provided otherwise above, the statutory provisions shall apply otherwise or instead. (12) The contracting partner shall implement the appropriate extent and type of quality assurance in accordance with the state of the art and be able to provide proof thereof upon request. If required by WILO, it shall conclude a corresponding quality assurance agreement according to the Annex “WILO SE Quality Guideline” with WILO. (13) Costs incurred by additional expenses caused by sorting, providing parts for return shipping, compiling delivery notes, remedies and supplementary deliveries such as for travelling, transportation, infrastructure, labour, packaging and material costs as well as assembly and disassembly costs in the plant, in storage or in the field are to be borne by the contracting partner. The contracting partner shall be liable for all damages caused by its defective or poor quality parts and materials; it shall in particular be liable for damages occurring at WILO’s customers and which are asserted against WILO by the customer. If, based on a risk analysis performed as a consequence of defective products, the contracting partner learns that WILO arrangements including defective products of the contracting partner have already been delivered and, as a consequence of these defects, may give rise to warranty and product liability claims, WILO is entitled to perform precautionary measures. To the extent that it is possible, WILO shall notify the contracting partner of the reason, scope and type of measures prior to carrying out these measures. The parties to this agreement agree that pre-emptive measures are such measures that do not relate to individual defective products but comprise all products manufactured during a certain period. Pre-emptive measures are, in particular, but not limited to: recall or remodelling activities, preventive measures such as replacement, etc. These measures may also apply to the entire series. The costs of such a pre-emptive measure such as, e.g. transport, labour, assembly and disassembly are borne by the contracting partner. The contracting partner further assures that an appropriate liability or product liability insurance is in place to cover potential liability obligations and particularly product liability claims as well as recalls, the minimum coverage being 10 million EURO for each individual case. The contracting partner shall supply a confirmation of insurance upon request by WILO.

Warranty and liability for defects. (1) In case of defects, WILO is entitled to the statutory claims without restriction. The warranty period starts at delivery or, in case clearance is required, approval by WILO by means of an acceptance report. (2) The defective delivery items are to be returned to WILO’s contracting partner upon request by a third party (freight and carriage paid). In case of a legitimate notification of defects, the contracting partner shall offer to refund the most favourable dispatch type; this applies in particular also if the costs increase because the delivery item is located at a different place than the place of intended use. (3) In case of quality defects of the supplied items, the contracting partner is firstly obliged and entitled to choose to either rectify the defect or provide for a replacement delivery within an appropriate period of time. In case of failureFailure, i.e. if such rectification or replacement is impossible, unreasonable, unsuccessful, refused or unreasonably delayed, WILO may withdraw from the agreement or reduce the purchase price by an appropriate amount. (4) If a defect is culpably caused by the contracting partner, WILO, as principal, is entitled to damage claims. (5) In case of defects in parts provided by other manufacturers the contracting partner is incapable of rectifying for licensing or factual reasons, the contracting partner may assert its warranty claims against the manufacturers and contractors on account of the principal. For the duration of the legal dispute, the limitation period concerning the corresponding warranty claims by WILO against the contracting partner is suspended. (6) Quality and quantity deviations are considered as reported in good time if WILO communicates them to the contracting partner within a period of 7 working days after receipt of the goods at WILO. Latent material defects are considered as reported in good time if the contracting partner is notified thereof within a period of 7 working days after discovery of the defect. (7) Acceptance based on the acceptance report or approval of samples does not represent a waiver of warranty claims on the part of WILO. (8) The limitation period of warranty claims is suspended upon receipt of the written notice of defect by the contracting partner. In case of replacement delivery and rectification of defect, the warranty period for replaced and rectified parts starts over again, unless agreed otherwise. (9) The contracting partner guarantees that any and all components it supplies and all services it delivers are in compliance incompliance with the state of the art, the respective regulations and provisions and guidelines by the authorities, the relevant professional and industry associations and EU standardsstandards or standards that prevail in the respective countries. Any and all product properties are guaranteed to be accordance with the relevant EU standards or standards that prevail in the respective country of WILO subsidiary and material data sheets, respectively, unless other standards have been expressly agreed with WILO in writing. In case there are no relevant EU standards or material data sheets available as point of reference or if these have ceased to be valid, the corresponding DIN standards shall apply; if no such DIN standards exist, the standards of common practice shall apply unless they fall short of the state of the art. The content and scope of technical documentation is governed by the EU or relevant Standard of respective country of WILO Subsidiary (with latest edition) directives and the regulations of the EU or member states the product is sold to. References to standards, material data sheets or test certificates as well as specifications concerning quality, measurements and usability on the part of the contracting partner are guaranteed to WILO by the contracting partner. (10) If, as an exception, deviations from these provisions become necessary, the contracting partner is obliged to obtain written approval by WILO in good time. The contractual duties of the contracting partner are not affected by such an approval. If the contracting partner has reservations with respect to the type of performance requested by WILO it has to notify WILO thereof in writing, specifying the reasons. (11) Defects Defects: WILO is not obliged to examine the goods and open any packaging. The contracting partner’s statutory rights in case of obvious defects remain unaffected. Payment of invoice does not represent an acknowledgement that the goods have been ordered and are complete or free of defects and shall represent no waiver of claims arising from warranty or default. All quality defects, differing amounts and dimensions are considered latent defects and make the contracting partner liable for defects, also if such defects are determined only by WILO’s final customers, unless they are obvious. In case of delivery of defective goods, the contracting partner is thus entitled to refer to the lack of notification on the part of WILO if it initially requested WILO, as soon as possible after delivery and within an appropriate period of time, to examine the delivered goods to determine whether they were free of defects and provide a corresponding report. In case of defects and in case of non-approved partial delivery, WILO is entitled to request subsequent performance from the contracting partner, either consisting in the delivery of an item free of defects or by repairing the defect. The contracting partner is to bear all expenses required to perform above subsequent performance. This includes, inter alia, transport, infrastructure, labour and material costs as well as shipping costs. If the subsequent performance fails, WILO is entitled to continue to request subsequent performance. The contracting partner may only refuse the type of subsequent performance requested by WILO if such is only feasible in association with unreasonable costs. In this case, WILO’s claim is limited to the other type of subsequent performance provided the contracting partner provides proof of the unreasonable costs in writing. If the contracting partner fails to meet its obligations with respect to subsequent performance within an appropriate period as determined by WILO, WILO is entitled to either obtain a replacement at the contracting partner’s expense or repair the goods' defect itself or have them repaired otherwise at the contracting partner’s expense. Moreover, WILO may also reduce the price in case a reduced value is the consequence. Xxxxxx claims on the part of WILO remain unaffected of the above. The warranty period for defects begins with the handover of the goods to WILO or third parties specified by WILO or the respective place of receipt or place of use, unless no later date has been expressly determined. Unless otherwise agreed in writing, the warranty period for defects as of this date amounts to a minimum of 3 years and 5 years as of this date (currently, it is 12 – 18 months as a standard practice) in case the items concerned are delivery items that are used for a building in accordance with their customary purpose. The above regulation also applies to the delivery of spare parts. In case case, parts are delivered or repaired within the scope of subsequent performance, the general provisions apply for the beginning of the respective limitation period set forth herein. Unless expressly provided otherwise above, the statutory provisions shall apply otherwise or instead. (12) The contracting partner shall implement the appropriate extent and type of quality assurance in accordance with the state of the art and be able to provide proof thereof upon request. If required by WILO, it shall conclude a corresponding quality assurance agreement (QAA) according to the Annex “WILO SE Quality Guideline” with WILO. (13) Costs incurred by additional expenses caused by sorting, providing parts for return shipping, compiling delivery notes, remedies and supplementary deliveries such as for travelling, transportation, infrastructure, labour, packaging and material costs as well as assembly and disassembly costs in the plant, in storage or in the field are to be borne by the contracting partner. The contracting partner shall be liable for all damages caused by its defective or poor quality parts and materials; it shall in particular be liable for damages occurring at WILO’s customers and which are asserted against WILO by the customer. If, based on a risk analysis performed as a consequence of defective products, the contracting partner learns that WILO arrangements including defective products of the contracting partner have already been delivered and, as a consequence of these defects, may give rise to warranty and product liability claims, WILO is entitled to perform precautionary measures. To the extent that it is possible, WILO shall notify the contracting partner of the reason, scope and type of measures prior to carrying out these measures. The parties to this agreement agree that pre-emptive measures are such measures that do not relate to individual defective products but comprise all products manufactured during a certain period. Pre-emptive measures are, in particular, but not limited to: recall or remodelling activities, preventive measures such as replacement, etc. These measures may also apply to the entire series. The costs of such a pre-emptive measure such as, e.g. transport, labour, assembly and disassembly are borne by the contracting partner. The contracting partner further assures that an appropriate liability or product liability insurance is in place to cover potential liability obligations and particularly product liability claims as well as recalls, the minimum coverage being 10 million EURO for each individual case. The contracting partner shall supply a confirmation of insurance upon request by WILO.