9.6 The customer is obligated to examine the goods immediately on receipt of the goods or services for obvious defects, and to report these to BVS in writing immediately, at the latest within 24 hours. Crucial for this calculation are the dates of delivery and BVS’ receipt of the complaint. If a defect in the contractual object delivered is found later, the customer is similarly obligated to notify the defect to BVS immediately. For latent defects, the customer bears the burden of proof for showing that the defect could not have been determined earlier and that the goods have defects, which already existed on transfer of risk, without prima facie evidence applying. Otherwise, the goods are deemed approved.
9.7 If the goods show a defect on transfer of risk from BVS to the customer, BVS is entitled to resolve the defect by repairing it. The customer first becomes entitled to additional guarantee rights if BVS does not resolve the defect within a reasonable period or the repair fails, is unreasonable or impossible, or BVS refuses to repair it. If the defect cannot be determined during the attempt to repair it or at a later point in time, or it falls within the customer’s area of responsibility, the customer will bear the costs for the examination and repair carried out by BVS under the current generally applicable rates of pay in accordance with the price list. The warranty claims only apply to the component showing the defect. The statements above also apply to defects occurring after transfer of risk and within the warranty period.
9.8 The customer has to grant BVS or a third party obliged to carry out the work under the warranty, 22 working days to carry out the work. Except in the circumstances of § 637, the customer is only entitled to carry out such work personally with permission from BVS. BVS bears the required expenses for rectification to a certain extent; these must be in reasonable proportion to the value of the item in a fault-free condition, to the importance of the defect and/or the possibility of obtaining another type of solution. The customer bears any additional costs.
9.9 BVS is not liable for malfunctions or damage to the contractual objects after the transfer of risk which arise based on inappropriate or improper use or operation, defective assembly or set-up by the customer or a third party, on a lack of compatibility with other systems or modules, on normal wear and tear, on defective or negligent treatment, and for the consequences of alterations or repair work carried out improperly by the customer or a third party and without BVS’ consent.
9.10 Claims based on defects lapse after twenty-four (24) months, if not otherwise agreed in individual cases by disclosure using a supporting document. The service type “Cleaning and inspection” is not covered by any warranty. The limitation period for material defects begins with the delivery of the item or after notification that it is ready for collection from BVS, but at the latest within two days after collection of the goods or with acceptance of the work. The limitation period is neither delayed nor suspended for the time needed for rectification. It does not begin afresh. Further liability, in particular for damage not occurring to the goods directly, cannot be accepted unless intent, gross negligence or the breach of essential contractual obligations can be proven.
9.11 For goods produced by third parties (“third-party goods”), the customer is entitled to warranty rights against BVS in accordance with the following: BVS shall either (i) assert warranty rights concerning third-party goods in its own name and on the customer’s behalf against the third party, or (ii) assign BVS’ warranty rights against the third party to the customer to fulfil the compensation claim. If and insofar as it is not possible to enforce resolution of the defect against the third party, Clauses 9.1 to 9.9 apply.
10. No assumption of the procurement risk; right of rescission
BVS has the right to rescind the contract if it is impossible for BVS to deliver the goods because its suppliers and/or contractors do not deliver the goods or parts thereof, it would only be possible for BVS to procure a replacement with disproportionate/unreasonable expenditure, and BVS is not responsible for this impossibility, if these circumstances first occur after conclusion of the contract, were not foreseeable at the time the contract was concluded, and BVS shows that it has undertaken the procurement of similar goods in a reasonable way. BVS shall notify the Customer of any such event.
11.1 The customer is obligated to treat as highly confidential business secrets all non-public commercial, technical and other information that was obtained or became known within the scope of the business partnership, and not to make it accessible to third parties without prior approval from BVS. Passing on information to the customer’s own employees can take place under the condition that knowledge of the relevant information is required to carry out the assignment. The obligation for non-disclosure continues after the business partnership has ended.
11.2 If BVS provides the customer with documentation, data, information used for data processing, software, material, type-related tools or equipment and objects (e.g. samples, models), to exercise contractual obligations, all existing and/or future rights will remain with BVS. There will be no transfer of ownership. Without prior written approval from BVS, the customer is not permitted to use, reproduce and/or make accessible in any way to third parties the object provided by BVS, in particular drawings, models, templates, samples or similar for any other purpose than the contractual purpose agreed between BVS and the customer. After the development is complete, the customer is obligated to return said objects to BVS.
11.3 The regulations above apply in particular in the event that the customer obtains such material from third parties exclusively to carry out the assignment awarded by BVS, or where the customer owns the material but the material or the product to be manufactured using the material contains or embodies specialist knowledge belonging to BVS.
11.4 The customer must obligate potential subcontractors in accordance with the previous regulations.
11.5 The customer can only advertise the business connection with prior written approval from BVS.
11.6 If required, further stipulations concerning confidentiality will be regulated in separate agreements.
12. Limitations of liability; force majeure
12.1 The liability of BVS and its representatives and vicarious agents for injuries to life, limb, and health, for breaches of essential contractual obligations, under the Product Liability Law; or where BVS fraudulently conceals a defect, has expressly accepted a guarantee, or has intentionally caused damage; is unlimited.
12.2 Subject to BVS’ liability under Clause 11.1, its liability is limited (i) in all causes of negligence, (ii) for breaches of secondary obligations, (iii) lack of economic success, (iv) consequential losses, and (v) losses from third-party claims against the Customer, to an amount equal to the insured sum of the product liability insurance and liability insurance policy concluded by BVS, failing which, to the foreseeable losses typical for the contract. BVS is not liable for indirect damage or subsequent damage such as lost profits, loss of production (idle times, staffing costs, down times), costs for an external service technician or data loss if this is not based on intent or gross negligence by the legal representatives or agents, if defects were not fraudulently concealed or based on injury to life, body or health, or the acceptance of a warranty or a procurement risk or where liability is legally mandated for other legal reasons, in particular the product liability law.
12.3 Subject to the above, BVS is not liable for service disruptions which have been caused by unforeseeable events, particularly including business disruptions, strikes, lawful lockouts, shortages of labour, energy, difficulties procuring necessary official permits, official interventions, or the lack of, incorrect/unpunctual delivery from suppliers, unless attributable to FBS’s intent/gross negligence. If BVS’ delivery or service under the contract is significantly impeded or impossible due to such events not caused by BVS intentionally or by gross negligence, and this difficulty is for more than a temporary period, BVS is entitled to rescind the contract.
12.4 Clause 11 also applies for the benefit of all of BVS’ employees, institutions, and vicarious agents.
13. Retention of title; work contractor’s right of lien
13.1 BVS retains title to the goods (“Reserved goods”) until the Customer has fulfilled all claims from the contract underlying these claims (“Retention of title”). The Retention of title also expands to the share of items created through processing, combining, mixing, or installing the Reserved goods, calculated using the value of the particular Reserved goods (“Expanded retention of title”), and also to claims which the Customer acquires against third parties from resale of the Reserved goods (“Extended retention of title”).
13.2 The Customer is obligated to handle the Reserved goods with care, to insure them sufficiently for their replacement value at his own expense against losses from fire, water damage, and theft, to carry out maintenance and repair work on the Reserved goods on time and at his own expense, and neither to use them as security or pledge them without BVS’ consent.
13.3 The Customer is obligated to inform BVS immediately in writing of pledges and other procedures interfering with BVS’ title, and to indemnify BVS against the costs BVS incurs in securing/realising its rights.
13.4 The Customer is obligated to expressly notify third parties of the Retention of title.
13.5 The Customer is to notify BVS immediately in writing of changes of address or changes in the location of the Reserved goods or parts thereof.
13.6 The Customer grants BVS a contractual work contractor’s right of lien in accordance with Section 1204 et seq. of the German Civil Code (BGB) to the goods kept in BVS’ ownership.
14. Compliance with legal requirements
14.1 In the case of the engagement of employees, agents and contractors, the client warrants that all required regulatory approvals (such as work permits, residence permits) are present. The client exempts BVS from all legal consequences arising from non-compliance with these requirements.
14.2 The client guarantees compliance, both by himself and his contractors, with all legal requirements (health and safety, business license, etc.), and in particular the minimum wage law. In this context, the client is obliged, upon written request from BVS, to present evidence of minimum wage payments made by the client or his contractors. The client exempts BVS from all claims relating to minimum wage requirements; this also applies to any accrued fines. The client also undertakes to inform BVS promptly if there is a suspicion that he or one of his contractors has contravened statutory minimum wage requirements.
15. Final provisions
15.1 Subject to an agreement between the parties, the place of performance is the registered office of BVS.
15.2 The international place of jurisdiction is Germany. The local place of jurisdiction for all disputes about the contract is - if and insofar as this can be validly agreed - Hanau, Germany.
15.3 This contract is subject to German law, to the exclusion of UN Sales Law (CISG).