The term of delivery commences on confirmation of an order, not however before the customer has delivered all documentation, approvals and releases and clarified all technical issues, and not prior to receipt of any advance payments due.
The delivery deadline is deemed to have been complied with if the delivery item has left the works by the deadline or if notification has been given that it is ready for shipping.
Where an acceptance procedure is required, the date of acceptance shall – except in cases in which refusal of acceptance is justified – be decisive, or the date of notification that the acceptance procedure can be carried out.
Compliance with the delivery deadline is conditional upon correct and timely supply of Technology Valley itself. Technology Valley has the right to rescind the contract if Technology Valley does not receive the delivery item on time,
despite having entered into a corresponding purchase agreement in good time. Technology Valley will notify the customer of any impending delays or non-deliveries and will reimburse any consideration received in the case of rescission.
The delivery deadline shall be reasonably extended in the event of industrial action, in particular strikes and lockouts, and in the case of occurrence of unexpected hindrances which fall outside the sphere of influence of Technology Valley, insofar as such hindrances affect the manufacture and/or delivery of delivery items. The same applies where such circumstances occur in relation to the suppliers of Technology Valley. The circumstances described above
shall also be deemed not to be within the sphere of influence of v if they occur during a delay that had already begun. Technology Valley will notify the customer of commencement and ending of such hindrances as quickly as possible.
Compliance with the delivery deadline requires the timely and orderly performance by the customer of all his/its duties. Technology Valley reserves the right to claim lack of performance of contract.
If the customer is a consumer, Technology Valley retains title in the delivery items until all receivables owed to Technology Valley have been paid in full by the customer.
If the customer is a business, Technology Valley retains
title in the delivery items until all receivables owed to
Technology Valley by the customer which stem from their business relationship are settled,
including all future liabilities arising from contracts entered into at the same time or later, even if the actual delivery items in question have already been paid. The same applies where individual or all receivables owed to Technology Valley have been enumerated in one combined receivable account that includes payments made and whose balance has been approved by the customer. The customer is entitled to sell the delivery item in the course of his regular business operation. It hereby assigns by way of security any claims against his customers arising from such selling-on of goods which are subject to retention of title to Technology Valley. In the case of processing, transformation or combination with other goods which are subject to retention of title, Technology Valley directly and unconditionally acquires legal title in the goods so created. The goods in question are then subject to retention of title. The customer is entitled to collect its claims even after title has been assigned. This shall not affect the right of Technology Valley to collect its claims; however, Technology Valley undertakes not to collect its claims as long as the customer honours its payment obligations in due course, is not in arrears and in particular as long as no application for the initiation of insolvency proceedings has been filed or no cessation of payments is given. Technology Valley may require that the customer discloses the assigned claims and the identity of the respective debtors, and all details necessary for collection, hands over all related documentation and notifies the creditor of such assignment. If the delivery item is being sold on together with other goods which are not the property of Technology Valley, the claims of the customer against his end consumers are deemed to have been assigned in the amount of the initial contract price. The retention of title and other collateral to be provided for the benefit of Technology Valley persist as long as Technology Valley has been fully released from any liabilities which it incurred in the interest of the customer. If the value of the collateral exceeds the value of Technology Valley’s
claims by more than 20%, Technology Valley is, upon the
request of the customer and at the discretion of Technology Valley, obliged to release collateral belonging to Technology Valley in the value of the respective amount.
The customer must not pledge the delivery item nor assign it by way of
security. The customer must notify Technology Valley of any third party compulsory
execution measures relating to goods which are subject to retention of title without delay,
and in doing so must provide the documentation required for any related legal intervention; the same applies in the case of other types of detriments.
Irrespective of this, the customer must specify existing rights in the goods to such third parties. The customer must bear the costs of such intervention by Technology Valley to the extent in which the third party is unable to reimburse these.
If the customer is a consumer, Technology Valley’s liability for defects is in keeping with the respective statutory provisions.
In the context of such specific performance, Technology Valley is, at its sole discretion, entitled to rectify the defect or to provide a replacement.
Parts which have been replaced become the property of Technology Valley. Technology Valley shall be granted at least two opportunities to perform specific performance.
The customer shall grant the time and opportunity required for the implementation of all repairs and replacement deliveries which in the opinion of Technology Valley are necessary, following consultation with Technology Valley; otherwise Technology Valley shall be released from its liability. In case of urgency arising from imminent danger to industrial safety or for the purposes of preventing unreasonably high damages, or should Technology Valley be in default of specific performance, the customer may be granted the right to rectify the defect himself or to let third parties perform such cure and to invoice Technology Valley with the costs so incurred, provided, however, that Technology Valley has given its prior written consent.
If the customer decides to assert a warranty claim, it must immediately return the delivery item to Technology Valley’s premises. Technology Valley shall bear the costs of return and of the most economical shipment of the rectified delivery or of the replacement part. If the complaint is justified, Technology Valley shall bear the costs of the replacement part ex works. Where delivery items (electric generators and other aggregates and components) have been installed and dismantling and return to Technology Valley entail an unreasonable effort, it may be agreed that a Technology Valley technician or an authorised sub-contractor shall repair the defect on-site. Other than the costs for the replacement, including the costs for least expensive shipping, the customer shall bear all other related costs, including any travel costs or costs of assembly.
Any costs of installation and/or dismantling shall not be borne by Technology Valley.
Should Technology Valley fail to render specific performance within the reasonable grace period granted by the customer or should specific performance definitively fail after several attempts, or should Technology Valley refuse such specific performance, the customer shall be entitled to reduce the agreed remuneration and claim reimbursement of any related expenses incurred or to rescind the contract. If the defect in question is insignificant, the customer may merely ask for a reduction of the purchase price.
Technology Valley is not liable for defects which are caused by inappropriate or inexpedient use or by faulty installation or commissioning by the customer or by third parties who have not been instructed or authorised by Technology Valley, or which represent regular wear and tear, or which stem from faulty or negligent treatment, lack of proper maintenance, inappropriate working materials, defective construction works, inappropriate foundation soil, or a chemical, electrochemical or electrical interference which does not fall within Technology Valley’s sphere of influence. Where the specific performance rendered by the customer or by a third party proves to be inappropriate, Technology Valley does not assume any liability for the consequences so caused. The same applies where the delivery item has been modified without the prior consent of Technology Valley.
If the customer is a consumer, the warranty period for delivery of a new item is two years, and one year in the case of a second hand item. The limitation period commences upon the passing of risk. This shall not apply to claims for damages arising from defects.