Common use of Supplementary performance Clause in Contracts

Supplementary performance. 6.1 No warranty is assumed for damage due to the following reasons: Unsuitable or improper use, faulty assembly by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, defective construction work, unsuitable foundation soil, substitute materials, chemical, electrochemical or electrical influences, improper modification or repair work carried out by the Purchaser or third parties without prior approval by the Seller. 6.2 Insofar as there is a defect in the purchased item and the Buyer has fulfilled its obligation under Section 5 of these Terms and Conditions, the Buyer shall be entitled, at its option, to remedy the defect or to deliver an item free of defects (subsequent performance). If the type of supplementary performance chosen by the Buyer is disproportionate, the Seller shall be entitled to refuse this type of supplementary performance without prejudice to its rights under Section 275 (2) and (3) of the German Civil Code (BGB). In this case, the Buyer's claim shall be limited to the other type of supplementary performance; the Seller's right to refuse this type of supplementary performance as well under the conditions of the preceding sentence shall remain unaffected. If the Buyer does not declare which of the two rights he chooses, the Seller may set a reasonable deadline for this. If the Buyer does not make the choice within the deadline, the right of choice shall pass to the Seller upon expiry of the deadline. 6.3 Furthermore, subsequent performance may be refused as long as the Buyer does not fulfill its payment obligation towards the Seller to an extent corresponding to the defect-free part of the services rendered. This shall not apply if the defective performance is of no value to the Buyer. 6.4 The Buyer shall give the Seller the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective goods to the Seller in accordance with the statutory provisions. 6.5 If the supplementary performance fails, the Buyer shall have the option either to reduce the purchase price accordingly or to withdraw from the contract in accordance with the statutory provisions, setting a grace period. In the case of an insignificant defect, however, there shall be no right of withdrawal. Failure shall only be deemed to have occurred after the second unsuccessful attempt at subsequent performance, unless the nature of the item or defect or other circumstances indicate otherwise. 6.6 The statutory cases of dispensability of setting a grace period shall remain unaffected. 6.7 The Seller shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, if a defect actually exists. However, if a request by the Buyer to remedy a defect turns out to be unjustified, the Seller may demand reimbursement of the costs incurred from the Buyer.