General Terms and Conditions (GTC) of medentis medical GmbH,
Walporzheimer Str. 48-52,
53474 Bad Neuenahr/Ahrweiler,
HRB: 4940, Koblenz Local Court,
Ust-IdNr.: DE-219121001, St-Nr.: 01/663/1214/6
Tel: +49 (0)2641 9110-0,
Fax: +49 (0)2641 9110-120
For all information in our programs, especially the topicality and completeness of the deposited price lists, comments, miscellaneous and legal texts, the company medentis medical GmbH does not offer any guarantee.
- General – Scope
(1) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(2) Our Terms and Conditions of Sale shall apply both to merchants within the meaning of § 24 of the German General Terms and Conditions of Business (AGBGB) and to non-merchants, unless their application is expressly limited to merchants in the following.
(3) Our terms and conditions of sale shall apply exclusively to merchants within the meaning of § 24 of the German General Terms and Conditions of Business Act (AGBG); we do not recognise any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions of sale. Our terms and conditions shall also apply to all future transactions with the supplier.
- Offer – offer documents
(1) The order placed by the customer is a binding offer which we are entitled to accept within 2 weeks by sending an order confirmation or by sending the goods. With respect to merchants, we may accept the order within 4 weeks, provided that it qualifies as an offer pursuant to § 145 BGB.
(2) We reserve the property rights and copyrights to programs, contents, structures, source codes, logic, illustrations, drawings, calculations and other documents. This also applies in particular to such written documents that are designated as “confidential”. The purchaser requires our express written consent before passing them on to third parties.
- Prices – Terms of payment – Taking back
(1) Unless otherwise stated in the order confirmation, our prices are “ex works” excluding packaging.
(2) The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The deduction of a discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) shall be due for payment immediately after invoicing. If the customer is in default of payment, we shall be entitled to demand interest on arrears in the amount of 8% above the respective discount rate of the Deutsche Bundesbank p.a.. If we are able to prove a higher damage caused by delay, we are entitled to claim this. However, the customer is entitled to prove to us that we have incurred no damage or significantly less damage as a result of the delay in payment.
5) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
- Delivery time
(1) The start of the delivery time stated by us presupposes the clarification of all technical questions.
(2) Compliance with our delivery obligations further presupposes the timely and proper fulfilment of the purchaser’s obligations. We reserve the right to plead non-performance of the contract.
(3) If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved.
(4) Provided that the requirements of para. (3), the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
(5) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of § 361 of the German Civil Code or § 376 of the German Commercial Code. We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further performance of the contract has ceased to exist.
(6) We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be attributed to us. Insofar as the delivery contract is not based on an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) If the delay in delivery is only due to a culpable breach of a non-substantial contractual obligation, the Purchaser shall be entitled to demand a lump-sum compensation for delay in the amount of 3% of the delivery value for each full week of delay, but not more than 15% of the delivery value.
- Transfer of risk – packaging costs
(1) Unless otherwise agreed in writing, we shall ship the goods at the risk of the Buyer. We reserve the right to choose the transport route and the means of transport, unless otherwise agreed.
(2) The risk shall pass to the Buyer when the goods to be delivered are handed over to the Buyer, the forwarding agent, the carrier or any other company designated to carry out the shipment, but no later than when the goods leave our company premises.
(3) Transport packaging and all other packaging in accordance with the Packaging Ordinance shall not be taken back, with the exception of pallets. The customer is obliged to dispose of the packaging at his own expense.
(4) In the event that we are not responsible for the return of the goods, we do not provide insurance cover; in this case, the customer bears the risk of the uninsured return of the goods.
- Warranty for defects, compensation for damages
(1) The purchaser’s warranty rights presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with §§ 377, 378 of the German Commercial Code (HGB).
(2) Insofar as there is a defect in the purchased item for which we are responsible, we shall be entitled to choose between rectification of the defect or replacement delivery. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
(3) If the rectification of the defect/replacement delivery fails, the customer shall be entitled, at his discretion, to demand rescission (cancellation of the contract) or a corresponding reduction of the purchase price (abatement). Insofar as the object of sale lacks a warranted quality, we shall be liable in accordance with the statutory provisions of §§ 463, 480 para. 2 BGB for damages due to non-performance.
(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation, but only for the foreseeable, typically occurring damage.
(6) In all other respects, liability for damages is excluded; in this respect, we shall in particular not be liable for damage which has not occurred to the delivery item itself.
(7) The mandatory provisions of the Product Liability Act shall remain unaffected.
(8) The warranty period is six months, calculated from the transfer of risk. The period is a limitation period and also applies to claims for compensation for consequential harm caused by a defect, insofar as no claims in tort are asserted; the statutory limitation period applies to these.
t and several liability (1) Any further liability for damages than provided for in § 6 is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, positive breach of contract or claims in tort pursuant to § 823 BGB.
(2) Claims for damages due to impossibility or inability to perform shall remain unaffected.
(3) The same shall apply insofar as liability is mandatory on the basis of the provisions of the Product Liability Act.
(4) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
- Retention of title
(1) We retain title to the object of sale until receipt of all payments arising from the business relationship with the customer. The transfer of ownership shall only take place upon full payment of the respective invoice. In the event of conduct in breach of contract on the part of the purchaser, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer’s liabilities – less reasonable realisation costs.
(2) The purchaser is obliged to treat the object of sale with care; in particular, he is obliged to insure it adequately at his own expense against damage by fire, water and theft at its replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain entitled to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no petition in bankruptcy or composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. For the rest, the same shall apply to the object created by processing as to the object of sale delivered under reservation.
(6) If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a plot of land.
(8) We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is incumbent on us.
- Custom-made products
(1) For programs or program parts, for goods manufactured according to drawings, samples or other specifications of the customer, the customer assumes liability in the event of infringement of patent and other industrial property rights of third parties and indemnifies us against such claims.
(2) Our drawings, samples or models shall remain our property and may only be made available to third parties for inspection and with our written consent. Tools and devices remain our property, even if the purchaser has paid pro rata manufacturing costs. We undertake to keep moulds and jigs for repeat orders. The obligation to retain the goods shall expire if no further orders are received from the customer within two years of the last delivery. The obligation to store the goods shall expire immediately if the customer does not pay for the goods delivered to him or does not pay on time.
- Place of jurisdiction – place of performance
(1) If the customer is a merchant, our registered office shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.
(2) Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
General Terms and Conditions of medentis medical GmbH – Rev 04