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
medentis medical GmbH doesn’t assume any liability for all information in our programs, especially the topicality and completeness of the deposited price lists, comments, miscellaneous and legal texts.
1 General – Area of Application
(1) All arrangements made between us and the purchaser for the purpose of implementing this contract,have been set down 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 shall not recognize 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. Unless we have expressly agreed to them in writing, our terms and conditions of sale shall apply exclusively; we do not recognize 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 them in writing. Our terms and conditions shall also apply to all future transactions with the supplier.
2 Offer – Offer Documents
(1) Any order placed by the purchaser,shall be a binding offer, which we have the right to accept within 2 weeks by sending an order confirmation or by sending the goods. We may accept the order from merchants within 4 weeks, provided that it qualifies as an offer pursuant to § 145 of the German Civil Code (BGB).
(2) In the case of programs, contents, structures, source codes, logic, illustrations, drawings, calculations and other documents, we reserve the property rights and copyrights. This also applies in particular to such written documents, which are designated as “confidential”. Before passing them on to third parties, the purchaser must obtain our express written approval.
- Prices – conditions of payment – returning back
(1) Provided that nothing to the contrary is stated in the order confirmation, all prices are “ex works” excluding packaging.
(2) The statutory value added tax isn’t included in our prices; it is separately shown in the invoice in the statutory amount on the day of invoicing.
(3) The withdrawal of cash discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the net purchase price (without deductions) is due for payment immediately after invoicing. In case the customer is in delay of payment, we are entitled to claim default interest 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 default, we are entitled to claim this. The customer is entitled, however, to prove to us that we have incurred no or significantly lower damages as a result of the delay in payment.
5) The customer is only entitled to set-off rights if his counterclaims, have been legally established, are undisputed or have been approved by us. Besides, he is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
- Shipping time
(1) The beginning of the delivery time stated by us requires the clarification of all of the technical questions.
(2) Furthermore, compliance with our delivery obligations is subject to the timely and proper fulfillment of the customer’s obligation. The objection of non-performance of the contract remains reserved.
(3) If the purchaser is in default of accepting delivery or if he violates other obligations to cooperate, we are entitled to demand compensation for the damage, incurred by us in this respect, including any additional expenses. Additional claims are reserved.
(4) Provided that the conditions of paragraph (3) are met, 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 latter is in default of acceptance or debtor’s delay.
(5) We are liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date in the sense of § 361 of the German Civil Code (BGB) or § 376 of the German Commercial Code (HGB). In accordance with the statutory provisions, we shall also be liable if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that his interest in the further performance of the contract has expired.
(6) Moreover, we shall be legally liable if the delay in delivery is due to an intentional or grossly irresponsible breach of contract for,which we are responsible; any fault on the part of our representatives or vicarious agents must be attributed to us. If 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) In addition, we shall be liable in accordance with the statutory provisions if the delay in delivery for which we are responsible is due to a culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) Insofar as the delay in delivery is only due to a culpable breach of a non-essential contractual obligation, the customer has the right to demand a lump-sum compensation for delay in the amount of 3% of the value of the delivery for each full week of delay, but not more than 15% of the value of the delivery.
- Transfers of risk – Packaging charges
(1) Provided that there is no written agreement to the contrary, we will ship the goods at the buyer’s risk. We reserve the right to choose the transport route and the means of transport, unless otherwise agreed.
(2) With the transfer of the goods to be dispatched to the purchaser, the forwarding agent, the carrier or the company otherwise designated to carry out the shipment, at the latest, any risk shall pass to the purchaser when the goods leave our company premises.
(3) Packaging for transport and all other packaging in accordance with the regulations on packaging won’t be taken back, with the exemption of pallets. The purchaser undertakes to dispose of the packaging at his own expense.
(4) In case of a return of the goods for which we aren’t responsible, we don’t provide insurance coverage; in this case, the buyer carries the risk of the uninsured return of the goods.
6 Warranty for defects, compensation
(1) The customer’s warranty rights are subject to the condition, that the latter has duly complied with his obligations to examine the item and to give notice of defects in accordance with §§ 377, 378 of the German Commercial Code (HGB).
(2) To the extent we are responsible for a defect in the object of sale, we are entitled, at our discretion, to remedy the defect or to make a replacement delivery. In the case of rectification of the defect, we are obligated to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, unless these are increased by the fact that the purchased item has been taken to a place other than the place of performance.
(3) In case the remedy of the defect/replacement delivery fails, the customer has the right, at his option, to demand cancellation (rescission of the contract) or a corresponding decrease of the purchase price (reduction). If the purchased item lacks a warranted quality, we will be liable in accordance with the statutory provisions of §§ 463, 480 para. 2 BGB (German Civil Code) for damages due to non-performance.
(4) According to the statutory provisions, we shall be fully liable to the extent, that the customer claims damages based on intent or culpable negligence, including intent or culpable negligence on the part of our representatives, or vicarious agents. As far as we aren’t accused of intentional contract violation, the liability for damages is limited to the predictable, typically occurring damage.
(5) In accordance with the statutory provisions, we are liable insofar as we culpably breach a material contractual obligation, however, only for the foreseeable, typically occurring damage.
(6) In all other respects, liability for damages shall be excluded; to this extent, we shall in particular not be liable for damage, that hasn’t occurred to the delivery item itself.
(7) Mandatory provisions of the Product Liability Act shall remain unaffected.
(8) Warranty period is six months, calculated from the transfer of risk. This period is a limitation term 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.
- Full liability
(1) A further liability for compensation for damages other than provided for in § 6 is excluded – regardless of the legal nature of the asserted claim.
This applies in particular to claims for damages, arising from negligence when entering into a contract, positive breach of contract or tortious claims according to § 823 BGB.
(2) Damage claims due to the impossibility of performance or due to incapacity remain untouched.
(3) This also applies insofar as liability is mandatory on the basis of the provisions of the Product Liability Act.
(4) To the extent that liability for damages against us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
- Retention of title security
(1) Property in the object of sale shall remain with us until receipt of all payments arising from the business relationship with the customer. Ownership shall not be transferred,until the respective invoice has been paid in full. In case of breach of contract by the customer, in particular in case of default of payment, we are entitled to take back the object of sale. If we take back the object of sale, this doesn’t constitute a withdrawal from the contract unless, we have expressly declared this in writing. The attachment 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 expenses.
(2) The purchaser is obliged to treat the object of sale with care; in special, he is obliged to insure it adequately at his own expense against fire, water and theft damage at replacement value. Where maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(3) In case of seizure or other third-party interventions, the purchaser must inform us immediately in writing so we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). If the third party isn’t in a position to compensate us for the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the purchaser is responsible for the loss incurred by us.
(4) The purchaser 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 authorised to collect this claim even after the assignment. This is without prejudice to our right to collect the claim ourselves. Nevertheless, we undertake to refrain from collecting the claim as long as the purchaser 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 is filed or payments have not been suspended. However, if this is the case, we may demand that the customer notifies 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) Any processing or transformation of the object of sale by the customer is always carried out on our behalf. If the purchased item is processed with other items, that don’t belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. Furthermore, the same shall apply to the object created by the processing as to the object of sale delivered under reservation of title.
(6) If the purchase item is combined inseparably with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchase item (final invoice amount, including VAT) to the other combined items at the time of combination. 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 agreed that the customer transfers co-ownership to us on a pro rata basis. The purchaser shall hold the resulting sole ownership or co-ownership in safe custody for us.
(7) The purchaser 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 commit ourselves to release the securities to,which we are legally entitled at the request of the purchaser, insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %; the selection of the securities to be released is the responsibility of us.
- Customized products
(1) The customer shall assume liability in the event of infringement of patent rights and other industrial property rights of third parties for programs or program parts, for products manufactured according to drawings, samples or other specifications of the customer and shall indemnify us against such claims.
(2) Any drawings, samples or models of ours will remain our property and may be made available to third parties for inspection only and with our written consent. Moulds and devices remain our property, also if the customer has paid pro rata manufacturing costs. We are obliged to store moulds and devices for repeat orders. The duty to store expires, if no further orders are received from the customer within two years after the last delivery. The storage obligation expires immediately, if the customer doesn’t pay for the delivered items or doesn’t pay for them in time.
(10) Place of jurisdiction – place of fulfilment
(1) If the customer is a registered trader, our place of business shall be the place of jurisdiction; nevertheless, we shall also be authorised to sue the customer at the court of his place of residence.
(2) Provided that nothing to the contrary is stated in the order confirmation, our registered office shall be the place of performance.