3. a) Defect claims do not apply if there is only a minor deviation from the agreed nature of the goods or only a minor impairment of usability. b) The purchaser holds no rights relating to a defect if the defect is due to improper use of our products or use for a purpose for which they were not intended or failure to comply with our instructions for use or excess stress or natural wear and tear in view of their material substance, in particular with regard to parts that come into contact with workpieces, or to improper modifications, defective servicing or defective and negligent treatment or if a repair has been made without our written consent. c) In relation to repairs made without any legal obligation, the pur- chaser will only hold defect claims if expressly agreed. 4. a) Costs incurred for subsequent performance will be paid by the purchaser if they are increased because the goods have been moved to a different location after delivery, unless such a move complies with their intended purpose. b) Parts replaced in the course of the remedying of defects become our property when removed. 5. If nothing has been expressly agreed to the contrary, the period of limitation for claims and rights relating to defects in our goods is 1 year from supply to the purchaser. For repairs and replacements, we are liable to the same extent as for the supplied item, this being until the end of the limitation period applying to the original item for defect claims. IX. Damages Claims by the Purchaser and Rescission of Contract 1. a) We are liable in compliance with legal regulations in the event of intent or gross negligence by us or our representatives or vicarious agents. Apart from this, we are only liable under the German Product Liability Act, for loss of life, bodily injury or damage to the health of a person or for a culpable breach of major contractual obligations. However, a damages claim based on a breach of major contractual obligations will be limited to foreseeable damage typical of the con- tract concerned. Our liability in cases of gross negligence is also limited to foreseeable damage typical of the contract concerned if none of the exceptional cases listed in sentence 2 of this no. 1 lit. a) applies. b) To the extent that we are not liable for intent or gross negligence or for a culpable breach of major contractual obligations or for loss of life, bodily injury or damage to the health of a person or under the German Product Liability Act, we assume no liability for damage by the supplied item to the purchaser's legal property, e.g. to other items, loss of profit or other financial losses. c) The rulings in no.1 lit. a) and b) above extend to compensation in addition to performance and compensation in lieu of performance, for whatever legal reason, in particular for defects, breach of other obli- gations under the contract or liability in tort. They also apply to a claim to reimbursement of futile costs and to our liability for impossi- bility of performance and default. d) Possible claims for compensation are limited to the scope of our business and product liability insurance amounting to a max. of 1 million euros. This limit of liability does not apply in the case of intent, gross negligence, culpable breach of significant contractual obligations, in the case of injury to the life, body or health of a person or in the case of liability under the German Product Liability Act. e) The above rulings do not constitute any change in the burden of proof to the disadvantage of the purchaser. 2. The purchaser can only rescind the contract in compliance with legal regulations if there has been a breach of obligations for which we are responsible; for defects, legal requirements shall apply. The ruling in no. VIII.2 lit. b) sentence 1 of our Terms of Sale and Supply is not prejudiced. X. Period of Limitation 1. The period of limitation for claims and rights of the purchaser relating to defects in our products – for whatever legal reason – is 1 year. This also applies to damages claims of the purchaser, irrespec- tive of the legal basis of the claim and irrespective of whether the damages claim is connected with a defect or not, and to claims of the purchaser for futile costs and claims of the purchaser due to impossi- bility of performance.
VII. Shipment Risk, Place of Performance, Transportation, Pack- aging 1. The time of the passage of risk will be determined by the interna- tional rules for the interpretation of trade terms issued by the Interna- tional Chamber of Commerce (INCOTERMS 2000), the applicable version being that in German which is valid on the day of conclusion of the contract. If the contract does not contain any ruling on the type of sale, the supplied item will be deemed sold "ex works" (EXW). The place of performance is our supply plant. For sales "ex works", we undertake to notify the purchaser in writing of the time at which the shipment can be collected. This notification must be given in due time for the purchaser to take the action normally necessary. 2. If nothing has been agreed to the contrary, we reserve the right in special cases to dispatch shipments in the interest of the purchaser at the latter's risk and expense and to insure them against transportation damage at said purchaser's expense. If the goods are damaged or lost during transportation, an appraisal must be instigated immediately and notification given to us. 3. If no other ruling has been agreed, we will decide on the type and size of packaging. The packaging will be chosen with due care to the best of our knowledge. Disposable packaging becomes the property of the purchaser. VIII. Defect Claims by the Purchaser 1. If nothing has been agreed to the contrary, solely the relevant German legal rulings, such as protection laws and other safety regula- tions, and the recognised rules of engineering and technology shall apply to the development, production, sale, delivery and nature of our products. In relation to the nature of the goods, only our product description is deemed agreed. If not expressly agreed to the contrary, our products can be used in one-shift operation if treated properly. No defect claims can be made for merely minor deviations from the agreed nature of the goods. Public statements, promotion or advertis- ing by the manufacturer do not constitute contractual information on the nature of the goods. The customer receives no guarantees from us in the legal sense. Unless considered information on the nature of goods as defined in Section 434 of the German Civil Code, informa- tion in product descriptions and product specifications does not represent a guarantee for the nature of the item or for it retaining a certain quality for a specified time. 2. a) If one of our products is found to have a defect and we have received a written request from the purchaser, we are entitled at our discretion to either remedy the defect or supply a new product. With- out obtaining our prior written consent, the purchaser must not repair the supplied item himself, even in urgent cases. b) As long as we meet our obligation to render subsequent perform- ance (remedying the defect or supplying a new product), the pur- chaser has no right to require a reduction in the purchase price or to rescind the contract, unless two attempts at subsequent performance have proved unsuccessful or if the purchaser cannot be expected to accept subsequent performance for other reasons. The right of the purchaser to claim damages instead of performance in compliance with the legal provisions and these General Terms of Business is not prejudiced. c) Following delivery of the goods ordered, the purchaser must in- spect them immediately for discrepancies in quality and quantity and any obvious defects, such as transportation damage, and send us a written notice of any defects found. A notice of obvious defects is only considered to have been submitted in due time if we receive it within 5 working days of delivery of the goods, whereas a notice of hidden defects is considered to have been submitted in due time if we receive it within 5 working days of such defects having been discov- ered. d) If there are alleged to be defects in goods, the purchaser has no right to withhold payment unless our goods are obviously defective. In such a case, the purchaser only has the right to withhold payment to the extent that the amount withheld is in a reasonable proportion to the defects and the probable costs of subsequent performance, in particular the remedying of defects. The purchaser only has the right to assert claims and rights relating to defects if he has made due payments and the amount he has paid is in a reasonable proportion to the value of our defective goods.
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General Terms of Sale and Supply of SMW-electronics GmbH in Meckenbeuren, status March 2023
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