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Customer modifying the goods or using them together with goods not delivered by us. 7.4 In the event of an infringement of a Proprietary Right and regarding claims by the Customer arising according to clause 7.1 a), the provisions set forth under clauses 6.3 and 6.7 shall otherwise apply accordingly to the Customer’s claims. 7.5 If other title defects exist, then the provisions of clause 6 shall apply mutatis mutandis. 8. Claims for Compensatory Damages; Limitation of Liability 8.1 In the event of a breach of a pre-contractual, contractual and/or other 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 or gross negligence and in the event of a breach of a material contractual duty only (i.e. being a contractual duty, the infringement of which jeopardises the ultimate purpose of the contract and whose fulfillment the Customer can under regular circumstances expect) also due to ordinary negligence. However, our liability for simple and gross negligence as well as in the event of liability that arises regardless of negligence or fault, shall be limited to typical contractual loss or damage that was foreseeable at the time the contract was entered into. 8.2 The exclusions and limitations of liability set forth under clause 8.1 shall not apply in the event that a guarantee is given within the meaning of § 443 BGB with respect to the condition of the goods at the time the Risk passes to the Customer or the durability of the goods (i.e. a declaration by the seller that the object of the purchase as of the time the Risk passes possesses a certain quality or will maintain a certain quality and that the seller is willing to assume responsibility for any consequences arising from the fact that such quality does not exist regardless of negligence or fault),or a defect is fraudulently concealed, in the event of injury to life, physical injury or injury to health, or mandatory liability under the German Product Liability Act (Produkthaftungsgesetz). In the event of fraudulently concealing a defect or in respect of any guarantee pursuant to § 443 BGB, the Customer´s rights shall solely be determined according to the statutory law or the content of the guarantee. 8.3 Irrespective of the Customer´s claims regarding compensatory damages and the reimbursement of costs set out in clause 8.1, any further claims or other claims than the rights set out in clauses 6 and 7 regarding any defect or title defects by us or against any of our agents shall be excluded.
delivery of our goods to our Customer. The foregoing provisions shall not apply to the extent that longer limitation periods are mandatorily prescribed by statute pursuant to § 438(1) No. 2 of the German Civil Code (Bürgerliches Gesetzbuch, or “BGB” –Physical Structures and Physical Objects used for Physical Structures), § 479 (1) BGB (Recourse Claim), and § 634a (1) BGB (Construction Defects). 6.3 Delivered goods which are returned to us because the wrong goods were delivered or due to a defect (“Returned Goods”) shall only be accepted if we are notified of the Returned Goods before their dispatch and the following conditions are satisfied: a) Upon notification of any Returned Goods, the Customer shall be issued a processing number relating to the Returned Goods; such processing number must be entered on the documentation for the returned items; b) Any Returned Goods must be reported to our freight centre by delivering appropriate carriage documents with a reference to the processing number relating to the Returned Goods attached. 6.4 If, despite all care being taken, the delivered goods contain a defect that already existed at the time that the Risk passed, then we will, in our sole discretion and subject to receiving notification of the defect within the required time period, repair the goods or deliver substitute goods. We must always be given the opportunity to render supplementary performance (Nacherfüllung) within a reasonable time period. 6.5 If the supplementary performance fails to rectify the defect, the Customer may – notwithstanding any claims for compensatory damages – rescind the agreement or reduce the amount of the purchase price. 6.6 The following shall not give rise to any claims based on defects: merely immaterial deviations from the agreed condition of the goods, merely immaterial impairments to their utility, natural wear and tear, or loss or damage that arises after the Risk has passed as a result of incorrect or careless treatment, overuse, unsuitable operating resources, defective building work, unsuitable building foundations or special external influences that are not included or catered for in the contract. In addition, if the Customer or a third party improperly (in a non- workmanlike manner) carries out maintenance work on or makes modifications to the goods, then no further claims based on defects may be made in respect of such works or modifications or the consequences resulting therefrom. 6.7 Claims on the part of the Customer for expenses necessary to enable supplementary performance, particularly transport, tolls and other road and transport charges, labour costs and the cost of materials, are excluded to the extent that such expenses are increased because the goods delivered by us were
subsequently taken to a location other than the Customer’s business premises, unless such displacement is consistent with the authorised use of the goods. 6.8 Any recourse claims on the part of the Customer against us shall exist only to the extent that the Customer has not entered into any agreements with its customers going beyond the mandatory statutory claims regarding defects. Clause 6.6 shall apply accordingly in respect of any such recourse claim by the Customer against us. 7. Industrial Property Rights and Copyright; Title Defects 7.1 Unless otherwise agreed, we have an obligation (although such obligation exists only in the country in which the place of delivery is located) to deliver the goods free from the industrial property rights and intellectual property rights of third parties (hereinafter referred to as “Proprietary Rights”). In the event that a third party makes legitimate claims against the Customer for infringement of Proprietary Rights based on the goods delivered by the supplier and used in accordance with the contract, we shall be liable to the Customer within the period specified in clause 6.1 above as follows: a) In our sole discretion and at our own expense, we will either secure a licence for the goods concerned, modify them so that the Proprietary Right is not infringed, or exchange them. If we are unable to do any of the above on reasonable terms, then the Customer shall be entitled to the statutory rights of rescission and reduction of the purchase price. b) The provisions of clause 8 shall apply to any claims for compensatory damages or claims for the reimbursement of expenses. c) Our obligations as described above shall exist only on the condition that the Customer notifies us in writing without delay of the claims asserted by the third party, the Customer does not admit to the infringement and leaves in our hands any defence of the claims and settlement negotiations. If the Customer discontinues using the delivered goods in order to mitigate loss or for any other good reason, then the Customer shall notify the third party of the fact that discontinuing use of the goods in no way constitutes an admission of an infringement of Proprietary Rights. 7.2 Claims on the part of the Customer are excluded if the Customer is responsible for the infringement of the Proprietary Rights. 7.3 Claims on the part of the Customer shall be further excluded if the infringement of the Proprietary Rights is a result of special instructions issued by the Customer, an application or use of the goods that was not foreseeable by us, or as a result of the
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