8.1 Picavi warrants the contractual quality of the contractual items per statutory regulations, and that the use of said items by the Customer as set out in the Contract will not violate any third-party rights. The warranty that usage of the contractual items will not violate third-party rights is only valid for the destination country in which the items are to be used, as agreed between the parties. Unless otherwise expressly agreed, the warranty applies for the country in which the Customer has established its business.
8.2 In the case of material defects, Picavi shall initially fulfil its warranty obligation through supplementary performance. For supplementary performance with regard to software, Picavi shall at its discretion provide the Customer with new, defect-free software or a remedy of the defect; remedy of defect is also constituted by Picavi showing the Customer reasonable and effective ways to avoid the effects of the defect.
8.3 In the case of defects of title, Picavi shall likewise initially fulfil its warranty obligation through supplementary performance. To this end, Picavi shall at its discretion provide the Customer with either a legally sound means for using the contractual items, or a replaced or modified equivalent of the contractual items.
8.4 Picavi is entitled to make supplementary performance contingent upon the Customer’s payment of at least a reasonable part of the remuneration due.
8.5 The Customer is obligated to install new software versions if the contractual scope of features is in accordance with the Contract and the change does not lead to significant disadvantages.
8.6 In the event that two separate attempts at supplementary performance fail, the Customer is entitled to set a reasonable deadline for the remedy of defects. The Customer must expressly indicate in writing that it reserves the right upon failure of another attempt at supplementary performance to either withdraw from the Contract and/or make a claim for damages.
If the rectification of defects during the grace period fails, the Customer may withdraw from the Contract or reduce payment, except in case of a minor defect. Picavi shall pay damages or reimburse futile expenditures caused by defects within the framework of the limits laid down in Section 9. Upon expiration of the deadline as set forth in sentence 1, Picavi can demand that the Customer exercise its rights arising from expiration of the deadline within two weeks after submitting its demand. After expiration of the deadline, the right to choose transfers over to Picavi.
8.7 If Picavi provides services during the troubleshooting or rectification without being so obliged, Picavi may charge for such services at its usual rates. This applies in particular when a defect is not detectable or is not attributable to Picavi. Compensation is also due when expenditures are borne by Picavi and the Customer has not fulfilled its obligations in accordance with Section 7.
8.8 The Customer must notify Picavi immediately, in writing and in detail, of any third-party claims that prevent the Customer from exercising the rights granted under the Contract. The Customer hereby authorizes Picavi for all actions against third parties, both in court and extra-judicially. If the Customer is subject to legal action either in court or extra-judicially, the Customer agrees to liaise and coordinate with Picavi, undertaking any procedural measures, in particular admissions or settlements, only with Picavi’s prior consent. The Customer shall support Picavi in its in court or extra-judicial measures by providing the appropriate assistance and information.
Picavi is obliged to defend itself against claims at its own expense and to release the Customer from all related costs and damages, unless such are based on faults attributable to the Customer. Picavi is also entitled, at its discretion, to either settle third-party claims or to exchange for the relevant performance an equivalent performance in keeping with the contractual terms, taking into consideration the reasonable interests of the Customer.
8.9 The Customer may only assert claims arising from other breaches of duty by Picavi where such claims are notified to Picavi in writing and Picavi is granted a grace period to remedy such breaches. This shall not apply where the nature of the breach precludes remedial action. Damages or reimbursement of expenses shall be subject to the limits laid down in Section 9.
8.10 The period of limitation for any claims arising from defects (with the exception of claims for damages or reimbursement of expenses for which Section 9 applies) is two years. This does not apply to the delivery of hardware, which is subject to a limitation period of one year. For the delivery of used hardware, claims for defects are subject to a period of limitation of six months. The limitation periods begin with the date of delivery of the contractual items. Statutory limitation periods shall apply if Picavi has fraudulently concealed the defect.
8.11 The Parties may conclude a separate maintenance contract for the software.