IV. Supply Deadline – Supply Obstacles
1. Any dates and deadlines of supply are mandatory only if explicitly confirmed in writing, otherwise they in principle only constitute approximative indications. Supply deadlines start to run at the earliest upon the conclusion of a contract but not before all technical and commercial issues have been clarified; they require that all contractual obligations are being complied with by our contract partner. The agreed time of delivery is deemed met if the goods have left our facility or our preparedness of delivery has been communicated prior to the expiry of the deadline.
2. If we cannot meet mandatory supply deadlines for reasons beyond our liability (non-availability of performance), we will without delay inform our contract partner accordingly and likewise communicate the approximative new delivery deadline. If the performance is unavailable within the new delivery deadline as well, we are entitled to rescind the contract entirely or partially; we will without delay reimburse to our contract partner any consideration already made. In particular, any lack of timely supply by our suppliers is deemed to be a non-availability of our performance if we have entered into a congruent hedging and are not responsible for the non-timely supply or the supply of defective goods to us.
3. Any supply deadlines will be extended, including if we are in default already, appropriately in the case of measures in the context of labour disputes, in particular strikes and lockouts as well as the occurrence of unforeseeable obstacles beyond our will, to the extent such obstacles have demonstrably a significant impact on our contractual compliance towards our contract partner. This also applies if such circumstances arise at our suppliers. Unless these circumstances are obvious, we will inform our contract partner thereof as soon as possible. If the obstacle will take longer than three months, the contract partner is entitled, subject to the setting of a reasonable second deadline for supply, to rescind the contract with regard to the part not yet complied with. If the supply time is extended or if our contract partner becomes free of his obligation, he may not derive therefrom any damage claims.
4. Unless differently agreed (e.g. if the business is to be settled on a fixed date), any default in delivery will only occur if our contract partner has set in writing a reasonable second deadline for the supply which deadline must at least be two weeks. The running of the deadline will start with the receipt, by us, of the second deadline.
5. To the extent our contract partner will set in writing an appropriate second deadline and we had already been in default (cf. above at 3.), our contract partner is entitled to rescind the contract if the second deadline has lapsed without success and he may not assert any damage claims for default. The contract partner will have damage claims rather than performance claims solely if the default is based on intention or gross negligence. Any liability for damages is limited to damages arising in the typical course of events. The aforementioned limit of liability does not apply if a fixed time deal had been agreed.
6. If we owe a supply at call to a business, such call must be made within at most six months after order confirmation unless something different has been agreed in writing. We are entitled to deliver the goods to our contract partner even without a call if the aforementioned time call, as eventually amended, has lapsed, and we may then assert our claims. Our contract partner is then obliged to accept and pay for the goods delivered. Upon a call of delivery we will deliver, unless something different has been agreed, within 14 working days.
7. We are entitled to partial deliveries if those are of use for the contract partner within the frame of the contractual description of purpose, and the delivery of the remaining goods ordered is ensured, and no significant additional requirements or costs arise thereby against our contract partner.