if in the cases of § 478 BGB (recourse in the supply chain with consumer as final customer), § 438 para. 1 No. 2 BGB (erection of structures and delivery of items for structures) and § 634a para. 1 No. 2 BGB (German Civil Code) (construction defects) or insofar as a longer limitation period is otherwise mandatory by law. § Section 305b of the German Civil Code (priority of the individual agreement) shall remain unaffected. A reversal of the burden of proof is not associated with the above provision.
(5) Unless otherwise agreed, only our specifications in the order confirmation, the product description or such specifications which we have given in the form of a separate confirmation shall be deemed to be the agreed quality of the delivery item. In case of contradictions between the order confirmation, the product description and a separate confirmation, the separate confirmation shall prevail. In the event of a contradiction between the order confirmation and the product description, the order confirmation shall prevail. The customer does not receive guarantees in the legal sense from us, unless these are expressly designated as such. A reference to DIN standards serves only to describe the goods and does not constitute a guarantee.
(6) Our warranty (claims arising from breaches of duty in the form of poor performance in the case of material defects) and the liability resulting therefrom shall be excluded insofar as defects and related damage are not demonstrably based on defective material, defective design, defective workmanship, defective manufacturing materials or, insofar as owed, defective instructions for use. In particular, the warranty and the resulting liability due to material defects are excluded for the consequences of incorrect use, unsuitable storage conditions, and for the consequences of chemical, electromagnetic, mechanical or electrolytic influences which do not correspond to the average standard influences provided for in our product description or a deviating agreed product specification or the respective product-specific data sheet on our part or on the part of the manufacturer. The foregoing shall not apply in the event of fraudulent, grossly negligent or intentional acts on our part, or injury to life, limb or health, the assumption of a guarantee, a procurement risk in accordance with § 276 BGB (German Civil Code) or liability in accordance with a statutory mandatory liability. Claims for defects shall not exist in the event of only insignificant deviations from the agreed or customary quality or usability. If the customer or a third party improperly repairs the delivered products, we shall not be liable for the resulting consequences.
(7) The acknowledgement of breaches of duty in the form of material defects shall always require the written form. § Section 305b of the German Civil Code (priority of the individual agreement) shall remain unaffected.
(8) Further claims of the customer due to or in connection with defects or consequential damage caused by defects, irrespective of the reason, shall only exist in accordance with the provisions in § 7 of our GTC.
§ 7 Other claims for damages
(1) Subject to the following exceptions, we shall not be liable, in particular not for claims of the customer for damages or reimbursement of expenses – irrespective of the legal grounds – in the event of a breach of duties arising from the contractual obligation.
(2) The above exclusion of liability pursuant to para. 1 does not apply:
– for its own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
– for the breach of essential contractual obligations; “essential contractual obligations” are those whose fulfillment characterizes the contract and on which the customer may rely;
– in case of injury to body, life and health also by legal representatives or vicarious agents;
– in the event of default, insofar as a fixed delivery and/or fixed performance date was agreed; – insofar as we guarantee the quality of our goods or the existence of a performance success or a procurement risk
within the meaning of Section 276 of the German Civil Code (BGB);
– in the case of mandatory statutory liability, in particular the Product Liability Act.
(3) In the event that we or our vicarious agents are only guilty of slight negligence and there is no case of the above paragraph. 2, there 4., 5. and 6. indent, we shall only be liable for the contract-typical and foreseeable damage, even in the event of a breach of essential contractual obligations.
(4) Our liability is limited to a maximum liability amount of 10,000.00 euros for each individual case of damage. This shall not apply if we are guilty of malice, intent or gross negligence, for claims due to injury to life, limb or health and in the case of a claim based on a tortious act or a guarantee or the assumption of a procurement risk in accordance with § 276 BGB or in cases of legally mandatory deviating higher liability amounts. Any further liability is excluded.
(5) The exclusions or limitations of liability pursuant to the above paras. 1-4 shall apply to the same extent in favor of our corporate bodies, our executive and non-executive employees and other vicarious agents as well as our subcontractors.
(6) A reversal of the burden of proof is not associated with the above provisions.
§ 8 Retention of title
(1) The items of the delivery (reserved goods) shall remain our property until complete fulfillment of all claims to which we are entitled against the customer from the business relationship. If a current account relationship has been agreed between the customer and us, the retention of title shall also apply to the respective recognized balance. The same applies insofar as a balance is not recognized but a balance is drawn because, for example, the customer becomes insolvent or goes into liquidation.
(2) During the existence of the reservation of title, the customer is prohibited from pledging or transferring ownership by way of security. The customer is permitted to resell the goods in the ordinary course of business on condition that he receives payment from his customer or makes the reservation that ownership is not transferred to the customer until he has fulfilled his payment obligations.
(3) The claims arising from a resale or any other legal reason (e.g., resale of goods) shall be excluded. B. Insurance contract, tort General Terms and Conditions of Delivery and Payment of Schmitter Hydraulik GmbH for Business Customers The customer hereby assigns to us, by way of security, all claims arising from any other action or act in respect of the goods subject to retention of title in their entirety. We hereby accept the assignment. If we are only entitled to co-ownership, only that part of the claim shall be assigned to us which corresponds to the value of the item belonging to us or to our co-ownership share at the time the claim arises.