M&C shall be liable for defects as to quality (“Sachmängel”, hereinafter referred to as “Defects”,) as follows:
6.1. Claims based upon defect are subject to Purchaser complying with its legal duty of examining the received goods and giving notice of lack of conformity to M&C. Notifications of Defect by the Purchaser shall be given in written form without undue delay.
6.2. Defective parts or defective services shall be, at M&C’s discretion, repaired, replaced or provided again free of charge, provided that the reason for the Defect had already existed at the time when the risk passed.
6.3. Claims for repair or replacement are subject to a limitation period of 12 months calculated from the start of the statutory limitation period; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) of the German Civil Code (“Bürgerliches Gesetzbuch”), in the case of intent, fraudulent concealment of the Defect or in case of non‑compliance with guaranteed characteristics („Beschaffenheitsgarantie“). The legal provisions regarding suspension of the limitation period (“Ablaufhemmung”, “Hemmung”) and recommencement of limitation periods shall be unaffected.
6.4. In the case of notification of a Defect, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the Defect. The Purchaser, however, may withhold payments only if the subjectmatter of the notification of the Defect involved (which notification must be made in specified form, describing in details the alleged defects, after proper examination of the goods received), is justified and without reasonable doubt incontestable. The Purchaser has no right to withhold payments to the extent that its claim of a Defect is time‑barred. Unjustified notifications of Defect shall entitle M&C to demand from the Purchaser reimbursement of its expenses and costs caused by the examination of the Defect notice and attempts to remedy the Defect.
6.5. M&C shall be given the opportunity to repair or to replace the defective good (“Nacherfüllung”) within a reasonable period of time.
6.6. If repair or replacement is unsuccessful, the Purchaser is entitled to rescind the contract or reduce the remuneration; any claims for damages the Purchaser may have according to No. 10 of this Article 6 shall be unaffected.
6.7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works or claims based on particular external influences not assumed under the contract, or from non‑reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties or attributable to spare parts or other items sourced from other M&Cs without M&C’s approval and the consequences thereof are likewise excluded.
6.8. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel, transport, labor, and material, to the extent that expenses are increased because the subject‑matter of the Supplies has subsequently been brought to another location than the Purchaser’s branch office or the agreed location of erection and/or operation, unless doing so complies with the normal use of the Supplies.
6.9. The Purchaser’s right of recourse against M&C pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Moreover, No. 8 of this Article VIII above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against M&C pursuant to Sec. 478 para. 2 BGB.
6.10. The Purchaser shall have no claim for damages based on Defects. This shall not apply to the extent that a Defect has been fraudulently concealed, that guaranteed characteristics are not complied with, in the case of loss of life, bodily injury or damage to health, and/or intentionally or grossly negligent breach of contract on the part of M&C and in all cases where there is compulsory liability as prescribed by applicable law (e.g. product liability law). In case of gross negligence, M&C’s liability is limited to the kind and amount of damage which is typical and foreseeable. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
Any other or additional claims of the Purchaser exceeding the claims provided for in this Article VI, based on a Defect, are excluded.