6. Limitation of liability and conditions for claims based on defects
Warranty claims are not valid for an insignificant deviation from the quality, which has been agreed on, or for an insignificant impairment of usefulness. Usual differences in the surface structure of leather covers are no defects.
In addition, warranty claims shall only be valid if notification of recognizable defects is made in writing before transfer of possession or delivery to the end customer. Every complaint about a defect must be in writing. Each complaint must be made promptly. This means that the notification of a defect must be received in writing by W.SCHILLIG no later than 10 (ten) calendar days after the delivery and for overseas deliveries 30 (thirty) calendar days. The fulfilment of this obligation to notify in writing is also a prerequisite for claims according to paragraph 478 of the German Civil Code.
In all cases W.SCHILLIG shall be entitled to choose between rectifying the defect and supplying new goods. If the subsequent fulfilment is unsuccessful, the Customer shall consequently be entitled to reduce the price or to withdraw from the contract. If the Customer demands compensation for damages instead of performance, or carries out a repair himself, W.SCHILLIG shall be allowed a second attempt to effect subsequent fulfilment. Only once this second attempt has failed shall subsequent fulfilment be regarded as having been unsuccessful.
This expenditure required for the purposes of subsequent fulfilment shall be borne by the Customer, in so far as they increase as a result of the goods and services having to be rendered to a place other than the Customer’s premises.
In cases of intent or gross negligence W.SCHILLIG shall be liable in accordance with the law. Moreover W.SCHILLIG shall only be liable in accordance with the (German) Product Liability Law, on account of loss of life, physical injury or impairment of health or on account of a culpable breach of important contractual obligations. The right to compensation for the breach of important contractual duties and in all cases of gross negligence is however, limited to damages which are foreseeable for this type of contract.
W.SCHILLIG’s liability shall also be limited in all cases of gross negligence to damages which are foreseeable for this type of contract. Liability for damage to the Customer’s legal property is ruled out. This shall only not apply in cases of intent or gross negligence or on account of loss of life, physical injury or impairment to health.
The exclusion of liability shall also cover compensation for damages plus performance and compensation for damages instead of performance, regardless of the legal reason, in particular on account of defects, the breach of duties under the obligation or illegal act.
Moreover, W.SCHILLIG’s liability on account of delay in performance for compensation for damages in addition to performance shall be limited to 5% and for compensation for damages instead of performance to 10% of the value of the goods or service. Claims by the customer over and above this shall be ruled out. Liability by W.SCHILLIG on account of impossibility for compensation for damages and to the reimbursement of expenditure spent unsuccessfully shall be limited to a total of 10% of the value of the goods and services. Claims over and above this by the customer on account of impossibility of supply are ruled out. These limitations shall not apply in cases of intent, gross negligence or on account of loss of life, physical injury or impairment to health. The Customer’s right to withdraw from the contract on account of impossibility shall not be affected as a result of this.
The limitation period for defect claims concerning deliveries and services amounts to one year from the time of delivery. This does, however, not apply to cases under Section 479(1) of the Bürgerliches Gesetzbuch (‘German Civil Code’), unless the recourse claims of the customer against W.SCHILLIG are effectively excluded.
Claims and rights arising due to defects in the deliveries of used articles – regardless of the legal grounds – are excluded. This exclusion provision for the deliveries of used articles also applies to all claims for damages against W.SCHILLIG which are connected to the defects, regardless of the legal ground for the claim. To the extent that claims for damages of any kind exist against W.SCHILLIG which are not connected to a defect, these shall be excluded.
The provision on the limitation period and the exclusion provision are not generally applicable in the case of intent, if W.SCHILLIG has maliciously not disclosed a defect, for claims for damages in cases of injury to life, limb, health or freedom, for claims stemming from the Produkthaftungsgesetz (‘Product Liability Law’), in the case of a gross negligent breach of duty or in the case of a violation of essential contractual duties.
The Customer shall not have any right of recourse against W.SCHILLIG in accordance with § 478 BGB, because W.SCHILLIG grants a discount on the purchase prices charged to date in line with the net purchase list in force at that time.