9.2 Payments must be made exclusively to one of Infraserv’s paying agencies. They must be made on the due date free of postage and charges and without any deductions. Fees, expenses or other costs that Infraserv may incur due to separately agreed acceptance of bills of exchange or cheques shall be borne by the principal. For the determination of the due date, the date of the invoice / date of the notification that the goods are ready to be shipped shall be decisive. For payments of any kind the date of fulfilment shall be deemed the date when Infraserv can dispose of the amount in question.
9.3 Retaining payments due to counterclaims or setting off with counterclaims shall only be permissible if the counterclaims are undisputed or have been established with legally binding effect.
10. Retention of ownership
10.1 The subject of the delivery shall remain Infraserv’s property until all receivables of any kind, including accessory claims, arising from the business relationship that exist upon the issuance of the invoice have been paid in full. If the principal delays in making its payments, Infraserv shall have the right, without issuing a reminder, to take back the subject of the delivery for security. The assertion of retention of ownership and the pledging of the subject of the delivery by Infraserv shall not be deemed to constitute rescission of the contract unless the German Consumer Credit Act (Verbraucherkreditgesetz) applies. Insofar as the effectiveness of the retention of ownership in the principal’s country is subject to special formal regulations or other requirements, the principal must ensure that they are fulfilled.
10.2 The principal shall have the right to dispose of delivered goods in the normal course of business. Any receivables that arise for the principal during the period of retention of ownership from such a disposal or an unauthorised disposal are assigned to Infraserv already now. The principal shall be authorised to collect the receivables, subject to revocation at any time.
10.3 The principal shall carry out any working or processing of the subject of the delivery for Infraserv, without any obligations arising for Infraserv as a result. If the subject of the delivery is processed or connected to or combined or blended with items that do not belong to Infraserv (Article 947 et seq. BGB), Infraserv shall be entitled to a co-ownership share of the new item in the ratio of the value of the subject of the delivery to the other processed goods just prior to the processing, connection, combination or blending. For the event that the principal acquires sole ownership by operation of law, it hereby grants Infraserv an appropriate co-ownership share. It shall safekeep the item for Infraserv to that extent.
10.4 In the event of attachments or other interventions by third parties, the principal must immediately notify Infraserv to that effect.
10.5 The principal must adequately insure the subject of the delivery during the retention of ownership at its own expense against theft and breakage and fire and water damage, and it must provide proof of such insurance to Infraserv at its request. If the requested proof is not submitted within a reasonable time limit, Infraserv will be able to insure the subject of the delivery at the principal’s expense.
11.1 In the event of defects in the subject of the delivery that occur as a result of a circumstance that occurs before the transfer of risk (e.g. design or material defects, the absence of guaranteed properties), Infraserv shall have the right, according to its choice, to carry out repairs or provide a replacement delivery.
11.2 In the event the rectification or replacement delivery fail, the principal shall have the right to demand cancellation of the contract or a reduction of the purchase price.
11.3 Complaints regarding defects must be submitted within three weeks from delivery. Notwithstanding the above, defects that were not identifiable even upon an examination of the subject of the delivery must be promptly reported after they are identified. The complaint must state what defects have been identified and whether they were noticed immediately or only after further processing of the parts. Infraserv shall have the right to verify the defects through its own employees.
11.4 After making an arrangement with Infraserv, the principal must provide it with the necessary time and permission to carry out all repairs or replacement deliveries which it deems necessary according to its reasonable discretion, otherwise Infraserv shall be released from liability for the defects. Only in urgent cases, where there is a threat to operational safety or to prevent disproportionate damage, in which case Infraserv must be immediately notified, or if Infraserv delays in eliminating a defect, the principal shall have the right to eliminate the defect itself or have it eliminated by third parties and demand compensation for the necessary costs from Infraserv.
11.5 From the direct costs that arise from the repairs or replacement delivery Infraserv shall bear – insofar as the complaint turns out to be legitimate and was submitted correctly and in good time – the costs of the replacement part including the costs of shipping, as well as the reasonable costs of dismantling and installation of the defective part if, according to the circumstances of the individual case, this can be reasonably demanded. Otherwise the principal shall bear the costs.
11.6 The time limitation period for claims due to defects in the subject of the delivery amounts to six months from the beginning of commissioning, but no more than 12 months from delivery / placement in storage. It shall be extended by the duration of the interruption of the productive use of the subject of the delivery caused by rectification work.
11.7 Warranty claims with regard to the replacement part and the repairs shall expire after three months, but not before the end of the time limitation period for the subject of the delivery.
12. Liability for infringements of intellectual property rights
12.1 Unless Infraserv specifically indicates otherwise, the subject of the delivery is free from third-party property rights according to its knowledge of the state of the art of technology in the Federal Republic of Germany. If the subject of the delivery or a part thereof nevertheless breach a property right already issued and published in the Federal Republic of Germany upon the conclusion of the contract or, if the subject of the delivery explicitly encompasses a particular process right, infringes such a process right and as a result litigation is initiated against the principal, at its expense and according to its choice Infraserv shall, within a reasonable time limit, either acquire the right of further use for the principal or change the subject of the delivery / the relevant part or the process such that no infringement of third-party rights occurs any longer, or rescind the contract. Infraserv does not accept any further liability, particularly for processes, applications, products, etc.
12.2 If third-party property rights are infringed by drawings submitted by the principal or information provided by it, the principal shall be deemed responsible for the infringement of rights and indemnify Infraserv in the event that legal action is taken.
13. Other liability of Infraserv; the principal’s right of rescission
13.1 Any further claims or claims other than those explicitly specified in these terms and conditions, irrespective of the legal basis, particularly based on lost profits and consequential damage due to defects, are excluded, unless mandatory liability arises due to wilful misconduct, gross negligence or breaches of key contractual obligations or under the German Product Liability Act (Produkthaftungsgesetz) for personal injury and damage to privately used property or in the absence of explicitly guaranteed properties, if the guarantee is specifically aimed at securing the principal against damage that does not occur to the subject of the delivery itself.
13.2 The principal’s statutory rescission right in the event of delay or impossibility remains unaffected.
14. Place of performance, place of jurisdiction and applicable law
14.1 The place of performance and place of jurisdiction is Munich, Germany. Infraserv shall also have the right to take legal action against the principal at the location of its registered office.
14.2 This contract and all the legal relationships between the parties are subject on a supplementary basis to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.