THE NONSTANDARD FASTENER COMPANY VIII. Liability for material defects The supplier shall assume full liability for any damage or loss arising from personal injury such as the loss of lives, physical injuries or damage to health which may have arisen from the supplier’s intentional or negligent failure to comply with its duties or an intentional or negligent failure of a representative by operation of law or vicarious agent of the supplier to comply with its duties as well as for any damage or loss caused by a grossly negligent failure of the supplier to comply with its duties or an intentional or grossly negligent failure of a representative by operation of law or vicarious agent of the supplier to comply with its duties. If any defects in material and/or manufacturing defects were to be detected, the supplier shall assume liability pursuant to the country-specific statutory provisions for ma- terial defects as well as expressly warranted characteristics and faultlessness of products supplied in accordance with the respective state of the art technology. Any modifications in design or construction generally carried out by us prior to delivery of an order shall not give rise to a complaint. The supplier recommends keeping the operator’s manual, the notes on safety, the list of spare parts and the receipt in a safe place. The supplier shall assume liability as follows for any shortfall in expressly warranted characteristics: 1. The period of liability for the supplier’s products and merchandise shall, in general, be twelve months and shall come into effect at the date of delivery to the user and at the latest twelve months after despair of the goods to the customer. Within the EU, in contrast, the supplier shall assume a 12-month liability for material defects vis-à-vis industrial or com- mercial customers and a 24-month liability for material defects vis-à-vis customers who exclusively use the products for private purposes. 2. Any undertaking by the supplier to the user extending the period of liability for material defects remains unaffected by the provisions of paragraph 1. 3. Within the framework of the provisions stated below, the supplier shall assume a 12month liability from the date of purchase for material defects in adunox -branded pro- ducts and merchandise sold within the EU both vis-à-vis private and commercial/ indust- rial users. Otherwise, the supplier shall, however, assume liability for the aforementioned adunox -branded products and merchandise in conformity with the national regulations concerned over a period of at least twelve months. 4. Any claims arising from liability for material defects shall become statute-barred upon expiry of the periods mentioned in paragraph 1 after notification of complaints; the supplier must promptly upon discovery be notified in writing of any defects discovered. 5. Liability for material defects shall comprise gratuitous rectification of any defects which might be discovered within the period of liability for material defects and the supply shall at its discretion have the option to either have the rejected products repaired or replaced. Any parts, which may be replaced, shall become the supplier’s property. 6. One condition for the recognition of a liability claim based on a material defect shall be that the machine was purchased within the EU and that the claim for liability for material defects is still valid. The user must submit evidence of purchase in the form of an origi- nal machine-printed receipt indicating the address of the buyer and the seller, the date of purchase and the exact model name of the product. The rejected product shall be sent to the supplier or the nearest official service center of the supplier for repairs. It shall neither be opened nor disassembled. If the complaint proves to be justified, the supplier shall bear the costs of the most reasonable method of dispatch to and from the customer’s premises. Otherwise, Clause V applies. 7. The customer shall allow enough time for the rectification of defects and shall give the supplier sufficient opportunity to rectify defects. If this is denied, the warranty no longer applies. The manufacturer’s original spare parts must be used in any case. 8. The customer does not have the right to cancellation or a reduction in purchase price unless the supplier is unable to remedy the defect or deliver a substitute, or unless the sub- sequent improvement or delivery of a substitute are deemed to have been unsuccessful. 9. The warranty does not extend to natural wear or damage which may have occurred after the passage of risk resulting from inappropriate use, improper handling and/or non-profes- sional use or careless handling, excessive or inappropriate use of equipment. In particular, the supplier is not liable for any changes to the condition of products or the operating mode of products, due to inappropriate storage or climatic conditions or any other external impact. Moreover, complaints are only permissible if the equipment was duly serviced and cleaned at regular intervals. 10. The warranty is also null and void if the customer or a third party have carried out improper modifications or repair work or installed components obtained from third parties and the supplier shall not assume liability for any consequences thereof. 11. The period of warranty is not renewed if defects are rectified or if substitute deliveries are effected or substitute services are rendered. 12. Any other warranty claims which may be asserted by the customer against the supplier and its vicarious agents shall be excluded. IX. Industrial property rights and copyrights 1. Insofar as a third party makes a justified claim against the customer due to an infringe- ment of an industrial property right or copyright (hereinafter: protected rights) as a result of products supplied by the supplier and used as per agreement, the supplier shall at his cost either secure a right of use for the product, modify the product in such a way that it does not violate the protected right or replace the product. 2. The above mentioned obligations of the supplier apply only if the customer has informed the supplier immediately in writing of the claims (allegedly) made by a third party, does not recognize an infringement and all insulating measures and settlement negotiations (in court and out-of-court) remain. However, the above mentioned obligations end 5 years after delivery to the customer. 3. Claims by the customer are precluded insofar as the customer has to substantiate a pro- tected right infringement. Claims by the customer are further precluded insofar as the pro- tected right infringement has been caused by special specifications by the customer, by an application not foreseeable by the supplier or caused as a result of the customer modifying the product or the product being used together with products supplied by a third party. 4. Any other claims against the supplier are precluded; however, article XI (liability) remains unaffected as is the right of the customer to claim rescission of contract. X. Impossibility, adjustment of contract 1. The customer has the right to claim compensation in damages, if it becomes impossible for the supplier to provide the incumbent delivery for reasons to be justified by the supplier. However the claim for damages by the customer is limited to 10% of the value of the part of the total delivery, which cannot be used for relevant operation due to the impossibility. This limitation of liability does not apply in cases of intent, gross negligence or where liability is a mandatory provision for the impossibility of performance; this does not entail a change of the burden of proof to the disadvantage of the customer. The right of the customer to withdraw from the contract remains unaffected. 2. In the event of unforeseen events in the sense of clause IV No. 2, insofar as these ch- ange the economic significance or the substance of the service or affect the business of the supplier, the contract shall be adapted accordingly in good faith. The supplier has the right to withdraw from the contract insofar as this is not economically justifiable. If the supplier wishes to make use of this right to withdraw, he has a duty to inform the customer immediately and even in cases where an extension of the delivery date has been agreed with the customer. XI. Liability The customer does not have the right to claim compensation in cases of positive breach of contract, violation of obligations during contractual negotiations or unlawful action. This does not apply to cases of gross negligence or intentional action, or absence of guaranteed features of the product liability law, at the loss of lives, physical injuries or damage to health or violation stipulates liability or breach of essential contractual obligations. The claim for damages for breach of essential contractual obligations is limited to reasonably foreseeable damage of contractual nature, except in cases of intent or gross negligence. The above provisions do not entail a change of the burden of proof to the disadvantage of the customer. XII. Place of jurisdiction 1. The sole place of jurisdiction for all disputes arising directly or indirectly from the con- tractual relationship shall be the main headquarters or the principal place of business of the supplier to be decided at the discretion of the supplier, if the customer is an accredited merchant and does not have a general domestic place of jurisdiction, or if the customer transfers his residence or usual residence to another country at the time of concluding the contract or his usual residence at the time of bringing action. 2. The law of the Federal Republic of Germany shall apply for the contractual relations- hip. The use of legal norms of the German collision law, insofar as this refers to a foreign system of law, as well as the Hague Standard Purchasing Laws, the UN purchasing law or any other conventions regarding the law relating to the sale of merchandise, is excluded. 3. The contract and in particular the terms and conditions of sale is binding in all its remai- ning sections even if individual points become legally null and void. This shall not apply if adherence to the contract and terms and conditions of sale constitute undue hardship for one of the parties. if individual regulations of these terms of delivery become null and void due to statutory provisions, then such effective terms agreed in lieu of these shall apply which most closely relate to the sense and purpose of the null and void provision. Insofar as this is necessary, the customer undertakes to take all necessary measures to achieve this objective. 4. The above provisions also apply in the case of export business, if the provisions of the importing countries conflict with these terms and conditions of sale. Indication of source (images): adunox GmbH arte logo gmbh – www.arte-logo.de fotolia: page 1 / 3 / 15 / 16 / 17 / 18 / 21 / 22 / 32 / 33 / 35 / 36 / 40 page 43