MedTec Medizintechnik GmbH General Terms and Conditions
Our deliveries, performances and offers take place on the basis of the following conditions only; namely for all types of delivery contracts. The General Terms and Conditions also apply, insofar as they are not expressly agreed again, for all future business relationships. These General Terms and Conditions are considered to have been accepted at the latest upon receipt of goods or performance. Conditions to the contrary on the part of the purchaser are hereby not accepted; they are also non-binding for us even if we execute the delivery without specific reservations.
§ II. Offers and Performances
1. All offers and agreements including side agreements are subject to change and non-binding until our written confirmation. This also applies to agreements and sales by our representatives.
2. We reserve ownership and copyright rights to illustrations, drawings, calculations and other documents, in addition to individual units, prototypes, and pilot runs in smaller batch sizes provided for inspection and testing. These aforementioned items must not be accessible for third parties. This particularly applies to such written files, documents and drawings designated as „confidential“ or which are to be considered as such under specific circumstances. The purchaser requires our written agreement before such items may be transmitted to third parties. We expressly reserve the right to register our own patents and other property rights on developments and other products and designs created by our company. Non-executed offers and documents must be returned to us immediately upon our request.
§ III. Prices
1. Insofar as we do not expressly confirm the contrary, prices are given as net-cost without packaging carges, Ex-Works, INCOTERMS 2010.
2.If the delivery date is later than six months after order receipt, a price increase is permissible if this is based on circumstances which only arose after order receipt.
3. In the case of merchants, we have the right to increase prices between contract conclusion and delivery insofar as the initial costs in this period of time subsequently increase by more than 15 %.
4. Insofar as nothing to the contrary is agreed, the net purchase price is due for payment (in full) within 30 days as of the invoice date. If the purchaser falls into payment arrears, we have the right to demand default interest at the rate of 8% points above the respective base interest rate of the German Bundesbank. We reserve the right to make a claim for default damage in excess of this.
5. The purchaser may offset claims only if its counterclaims have been legally determined, are undisputed or acknowledged on our part. A right of retention applies only if the purchaser‘s counterclaim is based on the same contractual relationship.
6. Check payments and rediscountable bills are accepted only on account of performance; bills also require specific agreement. Discount charges are generally met by the purchaser. Our claims become due irrespective of the duration of a bill if circumstances become known appropriate to cast justifiable doubt on the credit worthiness of the purchaser.
§ IV. Delivery Time
1. Commencement of the delivery time stated on our part is subject to the clarification of all technical questions; timely receipt of all documents, drawings, devices, approvals, specifications and other cooperation to be rendered by the purchaser. The delivery time is considered to be extended appropriately if these pre-requisites are not met.
2. In cases of force majeure or other events beyond our control, the delivery times shall be extended by the duration of the disturbances.
3. If we fall into arrears with delivery, the purchaser has the right to declare an appropriate period of grace (a minimum of 2 weeks) and threaten to refuse delivery. If this period expires without success the purchaser may withdraw from the contract. The purchaser has the right to compensation due to non-fulfilment only if the delay is based on intentional or grossly negligent actions. Incidentally, liability for compensation is limited to the delivery value.
4. I f the purchaser enters default of acceptance or contravenes other duties of cooperation, we have the right to demand the damages sustained on our part including all types of additional expenses. In this case, the transfer of risk for accidental loss or deterioration of the goods to the purchaser takes place at the point in time in which we inform the purchaser of delivery readiness, or the point in time in which the default of acceptance arises. We have the right to execute partial deliveries.
§V. Transfer and Risk
1. The transfer of risk to the purchaser takes place as soon as the shipment has been transferred to the transport company, or has left our warehouse for the purpose of shipping. The goods are shipped at the purchaser‘s risk, even if we assume transport costs to the location of use.
2. Insofar as this is desired by the purchaser, we shall take out shipping insurance for the shipping; associated costs arising shall be borne by the purchaser.
§ VI. Statutory Warranty and Liability
1. The statutory warranty rights on the part of the purchaser are subject to the purchaser‘s due fulfilment of inspection and reproval obligations as stated in §377, 378 of the German Commercial Code.
2. Insofar as there is a defect of a delivery object for which we are responsible, or a guaranteed characteristic is lacking, we have the right and are duty bound to rectify the fault gratuitously or execute a replacement delivery, as we desire. The pre-requisite hereby is that the reproved goods are provided for inspection.
3. If we are not prepared to or are not in a position to rectify the fault or execute a replacement delivery, or if this situation extends beyond appropriate periods of grace for reasons within our control or fails in another manner, the purchaser has the right to demand redhibitory action or reduction in the purchase price.
4. Insofar as this is not regulated differently, more extensive claims on the part of the purchaser – regardless of the legal bases – are excluded. Therefore, we are not liable for damages that do not arise on the delivery object itself; in particular, we are not liable for lost profit or other financial losses on the part of the purchaser; for example, in respect of contractual penalties, loss of operation, salaries and other consequential damages.
5. The aforementioned liability waiver does not apply if the cause of damages is based on intentional or grossly negligent actions. Furthermore, this does not apply if the purchaser claims compensation for non-fulfilment due to the lack of a guaranteed characteristic. To this extent, however, our duty of replacement is limited to contractually-typical, foreseeable damage.
6. The statutory warranty obligation has a duration of twelve months as of the transfer of risk. This is a limitation period and also applies to claims for compensation due to consequential fault damages arising from positive contractual contravention, culpa in contrahendo, insofar as no claims are made due to prohibited actions.
§ VII. Overall Liability
1. More comprehensive liability for compensation than contained in section VI., irrespective of the legal nature of the claim being made, is excluded. This does not apply to claims according to §§1, 4 of the Product Liability Act, in addition to cases of inability or impracticality.
2. If our liability is excluded or limited, this shall also apply to the personal liability of our employees and agents.
§ VIII. Reservation of Title
1. All deliveries are executed under reservation of title until payment is made in full. Insofar as the purchaser is a merchant, we reserve the ownership of the goods delivered by us until all claims we have against the purchaser resulting from the business relationship have been fulfilled. In the case of a running account, the reservation applies as security for our balance claim. Our rights arising from reservation of title also apply until the complete release from possible liabilities, particularly loan guarantees or exchange obligations which we have entered into in the interest of the purchaser in connection with a cheque/bill covering transaction.
2. Processing or reshaping the reserved goods by the purchaser is always carried out on our behalf. If our reserved goods are processed with other goods not belonging to us, we acquire co-ownership of the new object in the ratio of the value of the reserved property to the other processed objects at the time of processing. The identical provisions apply to the object created as part of processing as for the purchased object delivered under reservation.
3. The purchaser has the right to sell on the reserved property as part of normal business proceedings. However, the purchaser assigns to us now all claims to the value of our invoice to which it is eligible from its purchaser arising from the further sale. This takes place irrespective of whether the reserved property is sold on before or after processing. We are duty bound not to demand the assigned claim insofar as the purchaser is meeting its payment obligations, is not falling into payment arrears, and, particularly, if no application for opening bankruptcy or composition proceedings has been filed or suspension of payments has come into force. If this is the case, we may demand that the purchaser informs us about the assigned claims and its debtors, states all information necessary to collect them, hands over the associated documents, and informs the debtors about the assignment.
4. This advance assignment also applies to other proceeds or surrogates to which the purchaser is eligible, regardless of the legal basis, and arising from damage or loss, for example.
5. If the case of pledges or other interventions by third parties, the purchaser must inform us immediately in writing so that we are able to ensure our right of ownership. The costs for all types of intervention are borne by the purchaser.
6. We are duty bound to release securities to which we are eligible upon the request of the purchaser to such an extent that the realisable value of our securities exceeds the demands to be guaranteed by more than 10 %.
§ IX. Place of performance, place of jurisdiction
1. Insofar as the purchaser is a merchant, our Head Office is the place of performance; however, we have the right to take legal action against the purchaser at its place of residence.
2. Insofar as a provision to the contrary is not stated in the order confirmation, our Head Office is the place of performance.
3. The law of the Federal Republic of Germany applies to the contractual relationship only; however, this excludes the United Nations Convention on Contracts for the International Sale of Goods.
§X Severability Clause
If one or more provisions of these General Terms and Conditions should become ineffective, the validity of the remaining provisions remains unaffected. In this case, a replacement clause applies which legally and commercially reflects the ineffective provision as closely as possible.