INTRODUCTION

425. Obligation to ensure the availability of the product/service as main obligation of the PSS supplier – The main obligation of the PSS supplier in a PSS contract is to ensure the availability of the product and/or the service to the PSS user. This obligation falls into two sub-obligations. First, the PSS supplier must make the product/service available to the PSS user, which generally implies a delivery obligation. Depending on the contractual qualification of this obligation, the risk regime, which essentially boils down to the question which party bears the risk of loss or damages to the product due to force majeure, will also diff er. These questions are discussed for the main three types of PSS in section 4.2. Second, it does not suffice to make the product/service available to the PSS user, this delivered product/service must also be in conformity with the PSS contract. Therefore, section 4.3. analyses the conformity requirements, the rules on liability for non-conformity and the available remedies for non-conformity for the three main types of PSS contracts. Section 4.4 evaluates the legal framework for these two sub-obligations and proposes normative solutions. Finally, section 4.5 sets out model clauses on the obligation to ensure the availability of the product/service for both use-oriented and result-oriented PSS contracts.