VI. installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply for the installation and assembly:
- The purchaser shall bear his costs and submit in good time:
- all earthwork, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled workers, building materials and tools,
- the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels and lubricants,
- energy and water at the point of use, including connections, heating and lighting,
- suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities appropriate to the circumstances; furthermore, the Purchaser shall take the same measures to protect the possessions of the Supplier and of the erection personnel on the site as it would take to protect its own possessions,
- protective clothing and protective devices which are necessary due to special circumstances at the installation site.
- Prior to the start of the installation work, the customer shall provide the necessary information on the location of concealed power, gas and water lines or similar installations as well as the necessary structural data without being asked.
- Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be level and clear.
- If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
- The Purchaser shall certify to the Supplier on a weekly basis the duration of the working hours of the erection personnel as well as the completion of the erection, assembly or commissioning without undue delay.
- If the Supplier demands acceptance of the delivery after completion, the Purchaser shall carry out such acceptance within two weeks. If this is not done, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the delivery has been put into use - if necessary after completion of an agreed test phase.
The customer may not refuse to accept deliveries due to minor defects.
VIII. material defects
The supplier is liable for material defects as follows:
- All those parts or services which show a material defect within the limitation period - irrespective of the operating time - shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
- Claims for material defects shall become time-barred after 12 months. This shall not apply where longer periods are prescribed by law according to Sections 438 para. 1 No. 2 (buildings and things used for buildings), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (defects of a building) of the German Civil Code (BGB) as well as in cases of injury to life, body or health, or where the Supplier intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a Defect. The statutory provisions on suspension of the statute of limitations, suspension and recommencement of the periods remain unaffected.
- The Purchaser shall immediately notify the Supplier in writing of any material defects.
- In the event of notices of defects, payments by the purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The customer may only withhold payments if a notice of defect is asserted, the justification of which is beyond doubt. If the notification of defects is unjustified, the Supplier shall be entitled to demand reimbursement of the expenses incurred by the Purchaser.
- Initially, the supplier must be given the opportunity for subsequent performance within a reasonable period of time.
- If the supplementary performance fails, the customer may - without prejudice to any claims for damages according to Art. XI - withdraw from the contract or reduce the remuneration.
- Warranty claims shall not exist in the event of insignificant deviation from the agreed quality, insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to particular external influences which are not provided for under the contract, as well as non-reproducible software errors. If the Purchaser or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the consequences thereof.
- Claims of the Purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded if the expenses increase because the object of the delivery has subsequently been taken to a place other than the Purchaser's branch office, unless the transfer corresponds to its intended use.
- The Purchaser's right of recourse against the Supplier pursuant to Sec. 478 BGB (recourse of the entrepreneur) shall exist only to the extent that the Purchaser has not concluded any agreements with its customers exceeding the scope of the statutory provisions governing claims based on defects. Furthermore, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Sec. 478 para. 2 BGB.
- For claims for damages Art. XI (Other claims for damages) applies. Further or other claims than those in this Art. VIII against the Supplier and its agents on account of a defect as to quality shall be excluded.