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General terms and conditions
of Raipolen Profilwerk GmbH & Co. KG
– Extract - 7. Warranties in Respect of Material Defects Should the delivered goods contain a defect as to quality (“material defects”) then the customer shall have the following rights: 7.1. Rights of Purchaser: If the goods delivered by RAIPOLEN are defective then the purchaser shall have the following rights: Definition of Defective Product: A product is defective if it carries a defect that already existed at the time that the risk passed to customer. Rights of private consumer (not being enterprises): If purchaser is a consumer who is not an enterprise or entrepreneur then the customer may choose between repair or delivery of a new product. The consumer is not entitled to reduce the purchase price if he has not given RAIPOLEN the chance to repair or replace the good. Rights of enterprises or entrepreneurs: If the purchaser is an enterprise or an entrepreneur then RAIPOLEN has the right to choose between repairing the defect or delivering a new product. The customer may not claim a reduction of the purchase price before having giving RAIPOLEN the possibility to either repairing the good or to deliver a new good. Rights of purchasers if repair fails to remedy the defect or if RAIPOLEN fails to deliver replacements: If RAIPOLEN did not manage to repair the goods twice or did twice deliver again a defective good then the customer is entitled to cancel the agreement totally or to keep the product and declare an adequate reduction of the purchase price. Utilisation of the product by the customer: If the customer has used the goods before presenting the claim for defects then the use of the product shall be taken into account as follows: when RAIPOLEN delivers a new good in replacement of the defective goods then RAIPOLEN is entitled to reduce the quantity of the goods in order to reflect the value of the use of the good by the customer. If a reduction of the purchase price is due then RAIPOLEN is entitled to deduct therefrom an adequate amount of money reflecting the value of the use of the products by the customer. Collateral Cost If a claim is well founded then RAIPOLEN shall also reimburse to the purchaser the ancillary cost like cost of transport etc.. 7.2. Exclusion of Warranty: The following shall not give rise to any claims based on defects:
7.3. Presentation of claims by customer: In order to enable Raipolen to check the defect the customer should present a claim for defects to Raipolen GmbH & Co KG by sending to Raipolen the defective good together with a fully completed form of complaint describing the defect. If Raipolen finds the complaint non founded and rejects the claim then RAIPOLEN undertakes to sent the goods back to the customer at customer’s demand and at customer’s cost provided customer request the goods back within 14 days after receipt of the rejection. If customer does not request to get the goods back within the aforementioned 14 days or if customer does not oblige itself to reimburse to RAIPOLEN the cost of the transport then RAIPOLEN is entitled to destroy the goods. Any such claim should be presented by the customer without delay. Merchants and Enterprises are required to present a claim within 8 days after receipt of the good if the defect is evident. Nonevident hidden defects have to be presented with 8 days after discovery of the defect. Otherwise the goods shall be deemed accepted and all claims by the customer shall be excluded unless the defect was the result of wilful act or gross negligence. 7.4. Time bar Claims on the basis of defects as to quality ("material defects") shall become statute-barred as follows after delivery of our goods to our customer - 2 years if the goods were new - 1 year if the goods were overhauled - 1 year for second-hand goods. The aforementioned periods of limitation start at the moment of handing over of the goods to our customer. However any statutory claim for damages (in accordance with § 437 Nr. 3 BGB) shall not be subject to the time bar of 1 year if the defect was the result of wilful default or gross negligence committed by ourselves. 8. Other Claims for Compensatory Damages 8.1 In the event of a breach of a pre-contractual, contractual and/or non-contractual obligation, including unsatisfactory delivery, tortious conduct and manufacturer's liability, we shall be liable for compensatory damages and the reimbursement of costs – subject to further contractual or statutory liability requirements – only in the case of wilful conduct, gross negligence or breach of a material contractual duty ("condition") (contractual duty, the infringement of which jeopardises the ultimate purpose of the contract) where such breach was due to ordinary negligence. However, except in the case of wilful conduct, our liability shall be limited to typical contractual loss or damage that was foreseeable at the time the contract was entered into. The customer is not permitted to make a claim for expenses incurred in vain. 8.2 For loss or damage caused by delay due to ordinary negligence, we shall be liable for up to only 5% of the purchase price agreed with us. 8.3 Except in the case of breach of a condition, liability for ordinary negligence is excluded. This shall not affect Item 8.2. 8.4 The exclusions and limitations of liability set forth under Items 8.1 through 8.3 shall not apply in the event that a warranty is given with respect to the condition of the goods within the meaning of § 444 BGB , a defect is fraudulently concealed, or in the event of injury to life, physical injury or injury to health, or strict liability under the German Product Liability Act (Produkthaftungsgesetz).
Bergheim, den 1.1.2004 pdf-Format |
