Conditions of sale and delivery VIII. Rescission, compensation and time-barring 1. The purchaser can withdraw from the contract if the entire service provided by the supplier becomes impossible to provide before the risks are transferred. A claim from the purchaser for damages due to complete inability to provide the service is excluded, unless the supplier is very clearly at fault for this. Any claims for damages shall be limited to damage which was foreseeable at the time of concluding the contract because it resulted from normal circumstances and the amount of the damages payable shall not exceed 15 % of the contractual amount. The purchaser can also withdraw from the contract if, when ordering similar items, the execution of part of the delivery becomes in possible due to the amount, and it is in the purchaser’s interests to reject this partial delivery. If this is not the case, the purchaser can reduce their contractual fulfilment accordingly. 2. If the impossibility of receiving part of the delivery is established when delaying the acceptance or due to the fault of the purchaser the purchaser is still obliged to fulfil their part of the contract. 3. The purchaser can withdraw from the contract if the supplier is late in fulfilling their part of the contract, and, if applicable, the purchaser has issued an appropriate deadline to the supplier without success and the supplier is therefore responsible for non-fulfilment of the contract. A claim from the purchaser for damages due to late fulfilment by the supplier is excluded, unless the supplier is clearly at fault. Any claim for damages shall be limited to damage which occurred through normal circumstances and which was foreseeable when the contract was concluded and the amount payable shall not exceed 1 ⁄2% for every full week affected by the delay. It shall not exceed a total of 5 % of the value of the part of the delivery which could not be used on time due to the delay. 4. The purchaser’s right to withdraw from the contract in accordance with the legal regulations and due to breach of obligations by the supplier and not relating to a product fault remains unaffected - over and above the cases covered in sections 1 and 3. 5. All further claims from the purchaser, particularly those relating to termination and claims for damages, including claims for damages in place of services and claims for rectification of damage of any kind and with any legal basis, also resulting from breach of pre-contractual and contractual obligations and from unauthorized actions carried out at the beginning of the contract or when developing or concluding the contract namely, for rectification of damage not caused to the item itself are excluded. This exclusion of liability shall not apply if the supplier suffers gross negligence. This exclusion of liability shall also not apply when the supplier has breached their contractual obligations. This exclusion of liability shall also not apply for any claim from the purchaser for damages, which relate to death, injury to health or to physical injury as a result of intent or negligence. This exclusion of liability shall not apply in cases where liability is greater in accordance with product liability legislation and relates to personal injury or damage to privately-used items. If the supplier’s liability is proven in accordance with the above or - in deviation from the conditions below - is also justified in other cases on contractual or legal grounds, this liability shall be limited to the replacement of foreseeable damage which occurred through normal circumstances and can be proved as individual cases. This limitation of liability shall not apply for any liability in accordance with product liability legislation resulting from personal injury caused by items delivered or for damage to privately-owned items. This limitation of liability shall also not apply if the supplier incurs a malicious act intent or gross negligence. 6. Claims for damages filed against the supplier by the purchaser - whether due to breach of pre-contractual and contractual obligations due to unauthorized actions carried out during the initiation, development or conclusion of the contract or from any other time-barred legal basis within a year from the end of the year during which the claim arose and the purchaser from whom the circumstances justifying the claim and from whom information is obtained or should be obtained without gross negligence. If the debtor is the victim of gross negligence or a malicious act, the legal regulations shall apply. The legal regulations shall also apply for claims for damages relating to injury to life, health or physical injury resulting from intentional acts or gross negligence. 7. The supplier’s managing director and his colleagues shall be liable to the purchaser for any unauthorized actions carried out when beginning, developing or concluding the contract, if these actions were intentional or were due to gross negligence. Section 6 above shall apply in relation to the time-barring of claims made by the purchaser against the supplier’s managing director and his colleagues. 8. If <strong>Putzmeister</strong> makes a claim for damages due to non-acceptance of the purchased item the sum of these damages shall amount to 15 % of the sales price of new appliances and 10 % of the sales price of used appliances unless damages amounting to a higher cost can be proven. The relevant <strong>Putzmeister</strong> trading partner shall be entitled to prove that the damage did not occur at all or that the damage was significantly lower than the amount given if necessary. IX. Safeguarding 1. The item delivered shall remain the property of the supplier until completion of payment of the price agreed and of all other payments necessary under the commercial relationship with the purchaser. If payment of the sales price justifies that the supplier has a liability in the form of bills of exchange the proprietorial rights shall not be affected until the purchaser has completely redeemed all the bills of exchange. 2. The purchaser shall transfer payments due from the resale of the item delivered as well all additional rights to the purchaser and these payments shall match the value of the item delivered. The purchaser shall be entitled to collect these debts. The supplier’s authority to also collect debts owed to them shall remain unaffected. 3. The supplier is obliged to release securities at their own choice, provided that the achievable value of the securities exceeds the sum of the payments due under the commercial transaction by more than 10 %. 4. Provided that the purchaser fulfils his obligations towards the supplier, the purchaser is entitled to possess the item delivered within the normal commercial process and within the terms of conditional sale, as long as the payments set out in section 2 have physically been transferred to the supplier. Extraordinary forms of ownership such as deposits, appropriation of securities and other transferrals are not permitted. Third party claims to the item delivered or to the payments transferred, in particular for deposits, must be notified to the supplier in writing immediately. 5. During the conditional sale, the purchaser is wholly entitled to possess the item delivered and to use it as designated. If the purchaser breaches the contract - particularly if the purchaser is behind in their payments - and in cases where section IV. 2 applies, the supplier can appropriate the item to be delivered and can proceed with collecting payments due to him from resale of the product. The purchaser shall then be obliged to submit the item to the supplier - except if the purchaser’s rights to retain the item apply. All costs of retrieving the item and costs arising from its depreciation in value shall be borne by the purchaser. The supplier shall be entitled to sell the item on tender. On request, the purchaser must immediately provide the supplier with a list of surrendered claims as per Section 2 and with all other information and documentation necessary for the assertion of the supplier’s rights and must indicate this act of transfer to any debtors. 6. The purchaser shall keep the delivered item in good condition during the conditional sale and ensure that all the maintenance and servicing works specified by the supplier are carried out by the supplier or a workshop approved by the supplier immediately - except in emergencies. 7. For truck-mounted concrete pumps, the supplier has the right to ownership of the vehicle registration certificates during the period of conditional sale. 8. Enforceability of the conditional sale and also seizure of the item supplied by the supplier are not considered to be a rescission of the contract. 9. If the condition sale or transfer is not enforceable in law in the country where the goods are located then the security which proceeded the conditional sale or the transfer in this country shall be considered as binding. If the purchaser’s co-operation is necessary in this case, the purchaser must then implement all legal processes required to justify and to obtain such rights. 74 X. Intellectual property If the supplier must produce according to drawings or models, samples or using components supplied by the purchaser, then the purchase shall commit to ensuring that third property rights are not breached. The purchaser shall absolve the supplier from all claims from third parties relating to breach of property rights and shall reimburse the supplier for damages payouts, and the costs and expenses incurred. If the purchaser is not allowed to produce or deliver due to exercising of property rights by a third party, the supplier is entitled to terminate the work without closer scrutiny of their legal position. In this case, the supplier can withdraw from the contract and demand compensation for the damage as well as the costs and expenditure occurred. XI. Software usage If software is included in the goods supplied, the purchaser shall be granted a non-exclusive right to use the software supplied together with the documentation. The software shall be left for using on the specified item supplied. Using the software on more than one system is forbidden. The purchaser may only reproduce, revise, translate the software or convert it from object into source coding within the legally permitted scope (§§ 69 a ff. German Copyright Act). The purchaser is obliged not to remove manufacturer’s information - particularly copyright qualifiers -and not to change them without first obtaining express agreement of the supplier. All other rights relating to software and documentation including copies thereof shall remain with the supplier or with the software supplier. The issuing of sub-licenses is not permitted. XII. Law of jurisdiction, place of jurisdiction, court of jurisdiction 1. The law in force in the Federal Republic of Germany shall apply exclusively. In cases of doubt, the Germanlanguage version of all contractual provisions shall take precedence. The harmonized purchasing legislation shall not apply. 2. The place of execution shall be 72629 Aichtal. 3. If the purchaser is a trader, a public law professional or a government special asset, Stuttgart shall be the place of jurisdiction for all disputes arising from this contractual relationship, including those relating to how the relationship arose and those relating to its enforceability and for complaints relating to bills of exchange and to cheques. The supplier can telephone any other competent court in accordance with the legal regulations. 4. If one of the provisions in these conditions of sale and delivery is partially or totally invalid, the enforceability of the above conditions shall not be affected. <strong>Putzmeister</strong> Mörtelmaschinen <strong>GmbH</strong> D-72629 Aichtal · Postbox 2152 Tel. +49 (0) 7127 599-0 · Fax +49 (0) 7127 599-520 Internet www.moertelmaschinen.de · e-mail mm@putzmeister.de
<strong>Putzmeister</strong> Mörtelmaschinen <strong>GmbH</strong> Max-Eyth-Straße 10 · D-72631 Aichtal P. O. Box 2152 · D-72629 Aichtal Telefon +49 (0) 71 27 599-0 Telefax +49 (0) 71 27 599-743 Internet www.mortarmachines.com E-Mail mm@putzmeister.de MM 2599/12 GB The picture shows some of the special accessories · Subject to technical changes, errors and alterations Technical data may be changed without prior notice. · For safe and correct operation of the machine, please refer to the appropriate operating manual. · © <strong>2012</strong> by <strong>Putzmeister</strong> Mörtelmaschinen <strong>GmbH</strong> · All rights reserved
Change language