Purchasing conditions (Status 05.12.2002) (Continuation)
VII. Delay
- The supplier shall be committed to compensate the purchaser for all damages caused by delay. There shall be no right of recovery for loss of profit and damages resulting from interruption of business.
- In case of minor negligence damages shall be limited to additional freight costs and additional assembly costs or to the additional costs resulting from purchases from alternative sources in the event the supplier fails to meet an extended term or if the purchaser's interest in the delivery has become frustrated.
VIII. Force majeure
In case of Act of God, labour disputes, civil commotion, governmental or official actions and other non-foreseeable, inescapable and serious events the contracting parties shall be temporarily relieved from their obligations during the period of time such events continue and to the extent their liabililities are affected. The afore-stated shall also be applicable in case the contracting party concerned is already in default. The contracting parties are committed to give each other the necessary information which may reasonably be expected without delay, and to adjust their obligations in good faith to the changed circumstances.
IX. Quality and Documentation
- Concerning his deliveries the supplier shall comply with the acknowledged standards of engineering, the safety regulations and the agreed technical data. Changes to the goods to be delivered are subject to the previous written consent of the purchaser. Concerning the first sample inspection, reference is made to the VDA-publication "Sicherung der Qualität von Lieferungen - Lieferantenauswahl/Produktionsprozeß - und Produktfreigabe/Qualitätsleistung in der Serie", Frankfurt am Main 1998. Notwithstanding the afore-stated the supplier shall permanently control the quality of the goods delivered. The contracting parties shall inform each other of the possibilities of improving the quality of the goods to be delivered.
- In the event the kind and extent of testing, as well as the instruments and testing methods, are not agreed between the supplier and the purchaser, the purchaser shall, if the supplier so desires, agree to discuss the testing with the supplier pursuant to his Know-how, experiences and possibilities in order to find out the requisite state of testing techniques in the case being considered. In addition, the purchaser shall, upon request, inform the supplier about the applicable safety regulations.
- Concerning the parts especially marked in the technical documentation or designated by separate agreement, for instance with "D", the supplier is, moreover, required to keep special records as to when, in what manner and by whom the supplied goods have been tested with regard to the characteristics required to be recorded and which results were achieved by the quality tests so required. The test records have to be kept for ten years and have to be presented to the purchaser in case of need. The supplier is required to obligate any sub-suppliers to the same extent if legally possible. As a manual, reference is made to the VDA publication "Nachweisführung - Leitfaden zur Dokumentation und Archivierung von Qualitätsforderungen", Frankfurt am Main 1998.
- In the event any authorities responsible for vehicle safety, emissions standards and the like, demand inspection of the manufacturing process and disclosure of the test records of the purchaser, to scrutinize certain requirements, the supplier shall, upon request of the purchaser, concede to such authorities the rights which they have with regard to the purchaser and provide them with the support which may reasonably be expected.
X. Warranty
- If defective goods are delivered the purchaser is entitled, according to the relevant legal requirements and the following clauses unless otherwise agreed upon, to claim the following:
a) Before start of production (processing or fitting) the supplier shall first be given the opportunity by the purchaser to sort out as well as rework or replace them unless this cannot reasonably be expected from the purchaser. In case the supplier is unable to accomplish the afore-stated or in case he does not conform with it without undue delaly, the purchaser is entitled to rescind the contract to this extent and return the goods at the supplier's risk. In urgent cases he may, after consultation with the supplier, accomplish the rework himself or have it done by a third party. Any costs resulting therefrom shall be borne by the supplier. In the case the same goods are repeatedly supplied in a defective condition, the purchaser shall be entitled to rescind the contract also with respect to the goods not yet supplied if, upon written notification, the supplier has again delivered defective goods.
b) In the event the defect is discovered only after start of production and the purchaser has observed article IV (notification of deficiencies), then he is entitled - according to § 439 para. 1, 3 and 4 BGB to claim after- fulfillment and indemnification for cost of transport (without towing cost) as well as cost of dismantling and installation (cost of labour; cost of material only if agreed upon), which are required for the after-ulfillment, or - to reduce the sales price.
c) If in addition to the delivery of defective parts the supplier has violated culpably further contractual obligations (e.g. obligations of information, consultation, or examination), the purchaser can claim indemnification according to article XI for the consequential harm caused by the defect. This consequential harm caused by a defect is determined by the damages which the purchaser suffered from the delivery of defective goods at other objects of legal protection. Further claims regarding expenses and damages because of delivery of defective goods on the basis of § 437 BGB or directly on the basis of the rules named therein may only be claimed by the purchaser, if this has been agreed by contract. Regarding new agreements article XV para.1 is to be observed.
- At his request the parts to be replaced shall be made available immediately to the supplier at his cost.
- The warranty expires at the end of 24 months after the first vehicle registration or the installation of the replacement part, at the latest, however, 30 months after delivery to the purchaser. The legal rules of expiry of warranty apply to parts for commercial vehicles unless the parties have agreed otherwise.
- A warranty claim does not arise if the defect is attributable to the non-observance of operation, service or installation instructions, inappropriate or unsuitable use, incorrect or careless treatment, normal wear and tear as well as to engagements to the good supplied made by purchaser or a third party.
- If defective goods are delivered claims of the purchaser on the basis of the Product Liability Act, and the civil law of torts and acting without mandate shall remain unaffected by this article X. Guarantees regarding quality and durability have to be designated expressly and individually in writing.
