General Terms and Conditions Venner Medical (Deutschland) GmbH
A. Scope of application, conclusion of contract: (1.) Our quotations are subject to change; the contract arises when we accept the order. (2.) Orders are executed solely on the basis of these Terms and Conditions. Contrary terms of the purchaser or terms that differ from ours will not be accepted unless we expressly and in writing agree to their validity. Unless otherwise agreed, the purchaser acknowledges at the latest upon ordering or upon our first delivery or provision of service that these terms apply exclusively. (3.) Provisions deviating from these General Terms and Conditions must be in a legally valid written form. (4.) These General Terms and Conditions apply between entrepreneurs and end-user as well.
B. Prices: (1.) Terms of supply contracts: (1.1.) Our prices (as per price list or order confirmation) are quoted ex works and are subject to VAT at the prevailing rate and packing costs. Unless fixed prices are expressly agreed in the contract, we reserve the right to adjust the agreed prices to reflect changes in wage and material costs at the time of supply, provided that the supply is due to be effective at least four months after conclusion of the contract. (1.2.) Orders with a net goods value of up to € 600.00 are delivered within Germany at a flat-rate shipping cost and handling fee of €15 per order. (2.) Terms of repair contracts: Our prices are quoted net and are subject to VAT at the prevailing rate. The costs of transporting goods so that repairs can be carried out are borne by the purchaser, except in the case of liability for defects. The costs of transport also include the costs of packing. The flat-rate shipping cost within Germany is €20 per delivery and journey leg. Express shipment will be invoiced separately.
C. Transfer of risk and type of despatch: (1.) Risk transfers to the purchaser when the supplied or repaired goods have left our works or distribution centre; this applies even if delivery carriage free has been agreed. If the supplied or repaired goods are ready for despatch and consignment or acceptance is delayed for reasons for which we are not responsible, risk transfers to the purchaser upon receipt of the notification of readiness for despatch. Despatch is regarded as having been effected at this time.
D. Delivery: (1.) The delivery term for export commences in principle upon despatch of the order confirmation, but not before the purchaser has provided the documents, approvals etc. that are to be procured by him and/or has fulfilled the contractual and payment obligations that are incumbent upon him and material to the order. The delivery term is extended by an appropriate period if delivery is delayed for reasons connected with labour disputes, in particular strike and lockout, or because of the occurrence of unforeseen obstacles that are outside our control. Such obstacles include in particular delays in delivery by an upstream supplier, transport or operational breakdown, and lack of materials or energy; provided that it can be shown that these circumstances have a significant influence on the manufacture or delivery of the item supplied. (2.) Partial deliveries are permissible, provided that they are reasonable for the purchaser. (3.) If it becomes apparent after conclusion of the contract that the purchaser’s financial standing has fallen significantly or was already poor when the contract was concluded without this being apparent to us, we may halt further execution of the contract until the customer makes full payment in advance or provides a bank guarantee or comparable security as specified by us. The same applies if the customer falls into arrears of payment repeatedly and/or to a significant extent.
E. Returns: (1.) The return of goods that have been sold is in principle excluded if there is no statutory or contractually agreed legal reason for it. (2.) If we nevertheless in exceptional circumstances take back goods that have been sold, we shall refund the price that is appropriate to the condition of the goods, not exceeding the net price applicable at the date of return deducted by a restocking fee of 20 % of net price. If the net price applicable at the date of delivery is below the net price at the date of return, the maximum we shall refund is the net price at the date of delivery.
F. Retention of title: (1.) We retain ownership of all goods supplied by us including accessories and spare and replacement parts until all claims against the purchaser arising from these business dealings – including conditional and future claims – have been met. (2.) The purchaser must not pledge or assign as security any goods supplied under retention of title. The purchaser must notify us immediately of any infringement of our title to the goods by third parties. (3.) If the purchaser sells goods that are under retention of title without receiving the full purchase price in advance or concurrently in exchange for handover of the item sold, he must agree retention of title with his customer in accordance with these conditions. The purchaser’s claims arising from the re-sale of the goods under retention of title are assigned to us with immediate effect together with all ancillary rights. If the assigned claim against the purchaser’s customer is included in a cumulative invoice, the agreed assignment also applies to the claims from the current account. At our request the purchaser must notify the customer of the assignment, provide the information necessary for our rights against the customer to be asserted and hand over documents. (4.) Processing and finishing of our delivery must always take place in our name and on our behalf. If processing is carried out with items that do not belong to us, we acquire co-ownership of the new object in the ratio of the value of the goods supplied by us to the other items processed. (5.) If the value of the securities obtained for us exceeds our claims by more than 10%, we shall at the request of the purchaser or a third party who is adversely affected by the transfer of security release securities to the corresponding value as selected by us.
G. Payment, set-off, retention: (1.) Terms for supply contracts and work performance contracts:
(1.1.) Our invoices are due for payment 30 days after invoice date free of postage and bank charges. Deductions that are not expressly agreed will not be accepted. If payment is delayed we are entitled to charge interest on arrears at the rate of 8% p.a. above the applicable base interest rate. (1.2.) We are not obliged to accept bills of exchange. Payments by bill of exchange are not classed as cash payments and can only be accepted against payment of the associated bank charges. The term of the bill must not exceed 90 days. (1.3.) If the purchaser’s own bills are protested or if protested third-party bills are not immediately paid we are entitled to return all bills that are still current. At the same time all our claims become due. (1.4.) We do not pay interest on advance payments or instalments. (1.5.) The purchaser does not have set-off or retention rights unless his counter-claim is uncontested or legally established.
(2.) Terms for repair contracts: (2.1.) For domestic transactions our invoices for repairs are payable immediately at invoice date without deduction; for foreign transactions they are payable within 30 days of invoice date without deduction. (2.2.) We can exercise a right of retention in respect of the repaired goods if the purchaser defaults on payment.
(3.) Expiration: Our rights to payment expire in five years.
H. Liability for defects: (1.) Noticeable defects must be notified in writing immediately but at the latest within 10 days of acceptance of the item supplied, concealed defects must be notified in writing at the latest 10 days after discovery. The provision of Section 377 of the German Commercial Code (§ 377 HGB) for merchants remains unaffected. Inspection by us of an alleged defect does not constitute acceptance of it. (2.) On account of a defect the purchaser can require remedial action or replacement delivery (supplementary performance) as selected by us; the same applies to work performance contracts. The purchaser must grant us appropriate time and opportunity for supplementary performance; if he does not do so we are released from our liability for defects in this respect. Parts replaced in the course of supplementary performance become our property. (3.) We are not liable for defects arising from natural wear and tear, use, improper handling or storage, or use of the goods for a purpose not intended under the contract or with unsuitable accessories unless we have given consent in writing in a specific instance. We are not liable for faults arising from improper maintenance by the purchaser or third parties. (4.) To the extent that a defect exists, we shall bear the costs of supplementary performance. Costs of the purchaser’s staff will only be covered if this can reasonably be expected. We shall not cover any excess costs of supplementary performance arising from the fact that the item supplied has been moved to a location other than that specified in the order, if this was not provided for under the contract. (5.) If the supplementary performance has failed at least three times, the purchaser can at his discretion require a reduction in the price or cancellation of the contract (withdrawal). Withdrawal is excluded for only minor defects. Except in the situations listed in Section J, claims for compensation are excluded. (6.) If in exceptional circumstances compensation is to be paid to the purchaser in connection with the situations listed in Section J, the delivery is retained by the purchaser provided that this can reasonably be expected of him. Compensation is limited to the difference between the purchase price and the value of the defective delivery. This does not apply if we have caused the breach of contract maliciously. (7.) In the case of repairs our liability for defects relates only to the new parts provided in the course of carrying out the repair. In addition, we warrant only that the repair has been properly carried out. We do not warrant that the repair extends the lifetime of the used item repaired by us. (8.) Subject to the exceptions in Section H. (1.) we accept no liability for defects in relation to used items supplied by us. (9.) Warranties in respect of defects expire one year after delivery.
I. Entrepreneur’s recourse in the case of sale to commercial re-sellers. (1.) If the purchaser re-sells the item supplied in the course of his commercial operations to a customer and as a result of the defective nature of the item has to take it back or reduce the sale price, he can assert claims for liability for defects against us. (2.) The purchaser can in addition require reimbursement of the expenses that he has incurred in relation to the customer provided that the defect asserted by the customer was already present at the time of transfer of risk to the purchaser. (3.) The purchaser has no right to compensation from us under this entrepreneur’s recourse.
J. Liability in other situations. (1.) If the item supplied or the item that is the subject of the repair contract cannot be used by the purchaser in accordance with the contract through our fault as a result of omitted or faulty execution of suggestions and advice received after conclusion of the contract or through breach of other contractual subsidiary obligations – in particular misleading instructions regarding use of the item supplied – the provisions of Section H and of paragraph (2) below apply and any further claims of the purchaser are excluded. We are not responsible for damage that may occur if the purchaser fails to follow our instructions and warnings. The purchaser agrees to release us from all claims, compensation claims and liabilities that could arise in this connection. (2.) For damage that has not occurred on the item supplied or the object that is the subject of the repair contract and that is not covered by liability for defects under Section H we are liable – for whatever legal reasons – only in the following situations: wilful intent; gross negligence of our organs or managerial staff, culpable injury to life, limb or health; defects that have been maliciously concealed or whose absence has been warranted or defects of the item supplied that are covered under product liability law by mandatory liability for damage or injury to persons or goods in relation to privately used objects. In cases of culpable breach of material contractual obligations we are also liable for gross negligence of non-managerial staff and for ordinary negligence, in the latter case limited to damages that are reasonably foreseeable at the time of concluding the contract. (3.) Any further claims are excluded.
K. Place of performance, place of jurisdiction, data protection: (1.) Place of performance and sole place of jurisdiction is Kiel/Germany. However, we also reserve the right to take legal action against the purchaser at the court responsible for his place of residence. (2.) German law applies exclusively excluding internationally agreed law such as the UN Sales Convention (CISG). (3.) The fact that individual terms may be invalid does not affect the validity of the remaining terms. (4.) The purchaser authorizes us to process personal data without notification as permitted by the German Data Protection Act and insofar as is necessary for execution of the contractual relationship and to pass such data to departments within the company involved in execution of the contractual relationship. We expressly reserve the right to take out credit insurance in relation to any transactions concluded with the purchaser and in this connection to pass the necessary data relating to the purchaser to the insurer; the purchaser acknowledges this and consents to it.