Terms and conditions

General Terms and Conditions of DOMMEL GmbH

I. General provisions for sale and purchase

§ 1 General, Scope

(1) The following provisions shall govern the special terms and conditions of sale under item II and the special terms and conditions of purchase of DOMMEL GmbH under item III. As far as in the following the term “Buyer” is used, our customers who buy goods and services from us are meant. As far as in the following the term “Seller” is used, our business partners and suppliers from whom we purchase services are meant.
(2) These General Terms and Conditions (“GTC”) shall apply to all our business relations with our customers (“Buyer”) as well as to all business relations with our business partners and suppliers (“Seller”). The GTC shall only apply if the Buyer or the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(3) These GTC shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Purchaser or the Seller shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Purchaser without reservation in knowledge of the Purchaser’s GTC or accept the Seller’s deliveries without reservation in knowledge of the Seller’s GTC.
(4) These GTC shall also apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers, or irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers, §§ 433, 651 BGB. Unless otherwise expressly agreed, these General Terms and Conditions shall apply in the version valid at the time of the Buyer’s order or in the version valid at the time of our order (Buyer’s order) or, in any case, in the version last communicated to the Buyer in text form, as a framework agreement also for similar future contracts, without our having to refer to them again in each individual case.
(5) Individual agreements made with the Buyer or the Seller in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(6) Legally relevant declarations and notifications to be made to us by the Customer or the Seller after conclusion of the contract (e.g. setting of deadlines, notifications of defects, reminders, declarations of withdrawal or reduction) must be made in text form to be effective. Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
(7) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

§ 2 Choice of law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and the contractual relationship between us and the Customer or the Seller, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Purchaser or the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Wassertrüdingen (court district Ansbach). The same shall apply if the customer or the seller is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation pursuant to these GTC or a prior individual agreement or at the general place of jurisdiction of the Purchaser or the Seller. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.

II. special conditions of sale

§ 3 Conclusion of contract

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) The order of the goods by the Purchaser shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 3 weeks of its receipt by us.
(3) If we send confirmations of receipt (in writing, in text form), this shall not constitute a binding acceptance of the order unless, in addition to the confirmation of receipt, the acceptance is declared at the same time.
(4) Acceptance may be declared by us either in writing, in text form (e.g. by order confirmation) or by delivery of the goods to the Customer.
(5) If, after conclusion of the contract, we become aware of facts, in particular default of payment with regard to existing business relations, which, according to due commercial discretion, indicate that the purchase price claim is at risk due to the Purchaser’s lack of ability to pay, we shall be entitled, after setting a reasonable deadline, to demand from the Purchaser, at the Purchaser’s option, concurrent payment or corresponding securities. In the event of refusal, we may withdraw from the contract, whereby invoices for partial deliveries already made shall become due immediately.

§ 4 Delivery period or delivery time and delay in delivery / partial deliveries

(1) The delivery period or delivery time shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period or delivery time is approximately 12 weeks from the conclusion of the contract.
(2) We shall be entitled to make partial deliveries insofar as this is reasonable for the Customer.
(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Customer of this without delay and at the same time notify the Customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(4) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the purchaser shall be required.
(5) The rights of the Purchaser pursuant to § 9 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

§ 5 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the goods shall be shipped to another destination (“sale by delivery to a place other than the place of performance”). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass as soon as the goods are handed over to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Purchaser is in default of acceptance.
(3) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). The delay in acceptance shall commence with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch. Our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected.

§ 6 Prices and terms of payment

(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 5 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. We shall invoice the transport costs actually incurred in the individual case. Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser.
(3) Payment of the purchase price shall be made within 7 calendar days after invoicing without deduction. We shall be entitled to grant the Purchaser a longer or different payment period in individual cases; the granting of longer or different payment periods shall be made by separate agreement or in the respective order confirmation. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(4) Upon expiry of the aforementioned payment period, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(5) The Purchaser shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, the Purchaser’s counter rights shall remain unaffected, in particular pursuant to § 8 para. 6 sentence 2 of these GTC.
(6) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Purchaser’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

§ 7 Retention of title

(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The purchaser must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of conduct by the Purchaser in breach of the contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with (c) below, the Customer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Purchaser hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the purchaser stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The Purchaser shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the reservation of title by exercising a right in accordance with para. 3. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the customer’s authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the Purchaser.

§ 8 Claims for defects of the orderer

(1) The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title, unless otherwise provided below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB). Claims arising from supplier recourse shall be excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by incorporation into another product.
(2) The basis of our liability for defects is above all the agreement made on the quality of the goods. The product descriptions designated as such (including those of the manufacturer), which are the subject of the individual contract and were provided to the customer prior to his order, shall be deemed to be an agreement on the quality of the goods.
or have been included in the contract in the same way as these GTC.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (§ 434 para. 1 p. 2 and 3 BGB).
(4) The Purchaser’s claims based on defects shall be subject to the condition that the Purchaser has complied with its statutory obligations to inspect the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or at a later date, we must be notified thereof in writing without delay. The notification shall be deemed to be made without delay if it is made within two weeks, whereby timely dispatch of the notification shall suffice to meet the deadline. In any case, obvious defects shall be notified to us in writing within two weeks of delivery and defects which are not apparent upon inspection shall be notified within the same period of time after discovery. Timely dispatch of the notification shall be sufficient to meet the deadline. If the Purchaser fails to duly inspect the goods and/or give notice of defects, our liability for the defect not notified or not notified in due time or not notified in due form shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Purchaser shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
(7) The Purchaser shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we shall be entitled to demand reimbursement from the Purchaser of the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Purchaser.
(9) If the subsequent performance has failed or if a reasonable period to be set by the Purchaser for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(10) Any claim of the Purchaser against us pursuant to Section 445a of the German Civil Code (BGB) as amended on January 1, 2018 shall be limited to 10% of the purchase price. If the costs to be borne by the Purchaser in relation to its customer are lower, the Purchaser may only assert these lower costs against us. The Purchaser shall have no claims under Section 445a of the German Civil Code (BGB) if it has failed to comply with its obligation to inspect the goods and give notice of defects under Section 377 of the German Commercial Code (HGB).
(11) Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 9 and shall otherwise be excluded.

§ 9 Other liability

(1) Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in our own affairs) only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the not inconsiderable breach of a material contractual obligation (obligation the fulfillment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or for the benefit of persons for whose fault we are responsible in accordance with statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.
(4) The Purchaser may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we are responsible for the breach of duty. Any free right of termination on the part of the Purchaser (in particular pursuant to §§ 650, 648 BGB) shall be excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.

§ 10 Limitation

(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If, however, the goods are a building structure or an item which has been used for a building structure in accordance with its customary manner of use and has caused the defectiveness thereof (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages of the Purchaser pursuant to § 9 para. 2 p. 1 and p. 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

III. Special Conditions of Purchase

§ 11 Conclusion of contract

(1) Our order shall be deemed binding at the earliest upon written submission or confirmation. The Seller shall point out obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents to us for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not concluded.
(2) The Seller shall be obliged to confirm our order in writing within a period of 1 week or to execute it without reservation, in particular by dispatching the goods (acceptance).
A delayed acceptance shall be deemed a new offer and requires acceptance by us.

§ 12 Delivery time and delay in delivery

(1) The delivery time specified by us in the order is binding. If the delivery time is not specified in the order and has not been agreed otherwise, it shall be 2 weeks from the conclusion of the contract. The Seller shall be obliged to notify us in writing without undue delay if it is likely that it will not be able to meet agreed delivery times – for whatever reason.
(2) If the Seller does not perform or does not perform within the agreed delivery time or if it is in default, our rights – in particular to rescission and damages – shall be determined in accordance with the statutory provisions.

§ 13 Performance, Delivery, Transfer of Risk, Default of Acceptance

(1) Without our prior written consent, the Seller shall not be entitled to have the performance owed by it rendered by third parties (e.g. subcontractors). The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) Delivery shall be made “free domicile” within Germany to the place specified in the order. If the place of destination is not specified and nothing else has been agreed, the delivery shall be made to our place of business in Wassertrüdingen. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
(3) The delivery shall be accompanied by a delivery bill stating the date (issue and dispatch), the contents of the delivery (Seller’s article number, our article number and quantity) and our order identification (date and number). If the delivery bill is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch bill with the same content must be sent to us separately from the delivery bill.
(4) The risk of accidental loss and accidental deterioration of the item shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis in the event of acceptance. If we are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(5) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the Seller must expressly offer us his performance even if a specific or determinable calendar time has been agreed for an action or cooperation on our part (e.g. provision of material). If we are in default of acceptance, the Seller may demand compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract relates to a non-representable item to be manufactured by the Seller (individual production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
(6) We shall not be in default of acceptance in the event of force majeure or operational disruptions which significantly impair our operational processes and for which we are not responsible.

§ 14 Prices and terms of payment

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(1) The price stated in the order is binding. All prices are exclusive of statutory value added tax if this is not shown separately.
(2) Unless otherwise agreed in the individual case, the price includes all services and ancillary services of the Seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).
(3) Unless otherwise agreed, the agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. If payment is made within 21 calendar days, the Seller shall grant us a 3% discount on the net amount of the invoice, unless otherwise agreed. In the case of bank transfer, payment shall be deemed to have been made in due time if our transfer order is received by our bank before the expiry of the payment deadline; we shall not be responsible for any delays caused by the banks involved in the payment process.
(4) We do not owe any interest on arrears. Default in payment shall be governed by the statutory provisions.
(5) We shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, we shall be entitled to withhold payments due as long as we are still entitled to claims against the Seller arising from incomplete or defective performance.
(6) The Seller shall have a right of set-off or retention only in respect of counterclaims that have been established by declaratory judgment or are undisputed.

§ 15 Secrecy and retention of title

(1) We reserve the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents are to be used exclusively for the contractual performance and – subject to statutory storage obligations – are to be returned to us after completion of the contract. The documents must be kept secret from third parties, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known.
(2) The above provision shall apply mutatis mutandis to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items which we provide to the Seller for production. Such items shall – as long as they are not processed – be stored separately at the Seller’s expense and insured to a reasonable extent against destruction and loss.
(3) Any processing, mixing or combination (further processing) of provided items by the Seller shall be carried out on our behalf. The same shall apply in the event of further processing of the goods supplied by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
(4) The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. If, however, we accept in an individual case an offer of the Seller to transfer ownership conditional on payment of the purchase price, the Seller’s retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorized to resell the goods in the ordinary course of business even prior to payment of the purchase price with advance assignment of the claim arising therefrom (alternatively, the simple reservation of title extended to the resale shall apply). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to further processing.

§ 16 Defective delivery

(1) The statutory provisions shall apply to our rights in the event of material defects and defects of title of the goods (including wrong and short delivery as well as improper assembly, defective assembly, operating or operating instructions) and in the event of other breaches of duty by the Seller, unless otherwise stipulated below.
(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality at the time of transfer of risk to us. In any case, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these GTC shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the seller or from the manufacturer.
(3) Notwithstanding Section 442 (1) sentence 2 of the German Civil Code (BGB), we shall also be entitled without restriction to claims for defects if the defect remained unknown to us at the time of conclusion of the contract as a result of gross negligence.
(4) The statutory provisions (§§ 377, 381 HGB) shall apply to the commercial duty to inspect and give notice of defects with the following proviso: Our duty to inspect shall be limited to defects which become apparent during our incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong delivery and short delivery) or which are recognizable during our quality control in the random sampling procedure. Insofar as acceptance has been agreed, there shall be no obligation to inspect. Otherwise, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later shall remain unaffected. Notwithstanding our duty to inspect, our notice of defect shall be deemed to have been given without undue delay and in good time if it is sent within 8 working days of discovery or, in the case of obvious defects, of delivery.
(5) Subsequent performance shall also include the removal of the defective goods and the reinstallation of defect-free goods, provided that the goods have been installed in another item or attached to another item in accordance with their type and intended use. Our statutory claim for reimbursement of corresponding expenses shall remain unaffected. The Seller shall bear the expenses necessary for the purpose of inspection and subsequent performance even if it turns out that there was actually no defect. Our liability for damages in the event of an unjustified request to remedy a defect shall remain unaffected; in this respect, however, we shall only be liable if we recognized or were grossly negligent in not recognizing that there was no defect.
(6) Notwithstanding our statutory rights and the provisions in para. 5, the following shall apply: If the Seller fails to meet its obligation to remedy the defect – at our option by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery) – within a reasonable period set by us, we may remedy the defect ourselves and demand reimbursement from the Seller of the expenses required for this purpose or a corresponding advance payment. If subsequent performance by the Seller has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Seller of such circumstances without undue delay, if possible in advance.
(7) Otherwise, in the event of a material defect or defect of title, we shall be entitled to reduce the purchase price or to rescind the contract in accordance with the statutory provisions. In addition, we shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.

§ 17 Supplier recourse

(1) We shall be entitled to our legally determined recourse claims within a supply chain (supplier recourse pursuant to §§ 445a, 445b, 478 BGB) without limitation in addition to the defect claims. In particular, we shall be entitled to demand from the Seller exactly the type of subsequent performance (repair or replacement delivery) that we owe to our customer in the individual case. Our statutory right of choice (§ 439 para. 1 BGB) shall not be restricted hereby.
(2) Before we acknowledge or fulfill a claim for defects asserted by our customer (including reimbursement of expenses pursuant to Sections 445a (1), 439 (2) and (3) of the German Civil Code), we shall notify the Seller and request a written statement, briefly setting out the facts of the case. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. In this case, the Seller shall have the burden of proof to the contrary.
(3) Our claims from supplier recourse shall also apply if the defective goods have been further processed by us or another contractor, e.g. by incorporation into another product.

§ 18 Producer liability

(1) If the Seller is responsible for product damage, it shall indemnify us against third-party claims to the extent that the cause lies within its sphere of control and organization and it is itself liable in relation to third parties.
(2) Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code (BGB) arising from or in connection with a claim by third parties including recall actions carried out by us. We shall inform the Seller about the content and scope of recall measures – to the extent possible and reasonable – and give him the opportunity to comment. Further legal claims shall remain unaffected.
(3) The Seller shall take out and maintain product liability insurance with a lump sum coverage of at least € 5 million per personal injury/property damage.

§ 19 Limitation

(1) The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims for defects shall be 3 years from the transfer of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The 3-year limitation period shall also apply mutatis mutandis to claims arising from defects of title, whereby the statutory limitation period for claims in rem of third parties for surrender of goods (Section 438 (1) No. 1 BGB) shall remain unaffected; claims arising from defects of title shall not become time-barred in any case as long as the third party can still assert the right against us – in particular in the absence of a limitation period.
(3) The limitation periods of the law on sales including the above extension shall apply – to the extent provided by law – to all contractual claims for defects. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (§§ 195, 199 BGB) shall apply for this, unless the application of the limitation periods of the law on sales leads to a longer limitation period in individual cases.