General conditions of sale and terms of delivery
§ 1 Scope of Applicability
1.1 The present General Terms of Sale shall apply to all deliveries, services and offers by the Seller, ultraMEDIC & Co.KG, to its customer, insofar as the customer is a businessman, a legal entity of the public law or a special authority under public law. The said Conditions shall also apply to Buyers who are based in Germany as well as those based abroad (hereinafter referred to as international transactions).
1.2 Divergent Conditions of Sale of the Customer with regard to the Seller shall not be valid unless agreed upon in writing by the Seller.
1.3 The present Conditions of Sale shall be applicable to all future transactions with the Buyer insofar as these con- cern related legal transactions and were negotiated with the Purchaser in a previously stipulated contract, or in the case that the General Conditions of Sale represent a common practice between the Parties.
1.4 Furthermore, Incoterms, in their current version, shall be applicable.
§ 2 Offer and Contract Conclusion
2.1 All offers and indications shall be subject to change and without obligation. Contracts and agreements shall be binding on the Seller only subject to written confirmation of the Contract. The Seller, however, shall be entitled to accept a delivery contract by executing the order and dispatching the goods within one week from order receipt without prior confirmation.
2.2 The sales representatives of the Seller shall only be authorised to receive orders and not to conclude contracts of sale.
2.3 Verbal, individual agreements regarding mode of delivery, price, guaranteed quality and deviations from the present General Conditions of Sale shall be valid only subject to written confirmation by the Seller. The aforemen- tioned provision is an essential requirement.
2.4 Any declaration of intent by the Seller, generated by computer and not manually signed, can be retracted by the Seller within 48 hours.
2.5 Dimensions, weight and performance, as well as diagrams, included in the Seller‘s offer, shall be purely appro- ximative. The Seller shall reserve the right to make technical changes to his products.
§ 3 Documentation provided
All documentation, e.g. calculations, diagrams, drawings, sketches, etc., provided to the Buyer within the context of the present Contract, shall be the property of the Seller who shall also hold the intellectual property rights for the said items. The said documentation shall not be provided to third parties unless express written permission is given by the Seller and shall be returned free of charge upon request of the Seller.
§ 4 Delivery, Transport, Acceptance, Risk Transfer
4.1 Delivery is subject to availability. Delivery timelines or schedules shall be agreed only in writing and shall be subject to the aforementioned reserve. In order for the Seller to be in a position to observe the indicated delivery timeframes, all technical issues must be clarified as well as the Buyer‘s obligations prompt and satisfactory executed. The right of defence of non-performance shall be reserved.
In the event of a delay by the Seller with regard to international transactions, the Buyer shall allow an appropriate extension of time of at least 4 weeks. The Buyer shall not be entitled to terminate the contract unless the delay constitutes a fundamental breach of contract.
4.2 Delivery shall be ex works (EXW) to the production plant or storage facilities of the Buyer unless otherwise specified in a delivery clause of the contract confirmation or another delivery site is specified. The transport of the goods to the Buyer, the execution of the related formalities, as well as the associated costs, charges and insuran- ces, shall be incumbent upon the Buyer unless expressly attributed to the Seller in a delivery clause of the contract confirmation. Once the goods are dispatched to the Buyer, the risk of accidental perishing or deterioration of the goods shall be transferred to the Buyer.
4.3 In the event that the Buyer is in default of acceptance or of obligation to co-operate, the Seller shall be entitled to demand reimbursement for damages incurred, including any additional expenditure. . The right to further claims shall remain reserved.. With regard to the aforementioned prerequisites, the risk of accidental perishing or deterioration of the purchased goods shall be transferred to the Buyer from the moment in which the Buyer is in default of acceptance.
In the case of international transactions, a default of acceptance shall constitute a fundamental breach of contract. 4.4 Force majeure, actions by government authorities, as well as strikes, lock-outs and other unforeseeable events, which cannot be attributed to the Seller and hinder or cause considerable hindrance or aggravation with regard to delivery, shall entitle the Seller to an appropriate extension of delivery time, including the necessary lead-time. In the event that the abovementioned events prevail for longer than 6 weeks, the Seller shall be entitled to terminate the contract. The same provision shall apply to similar circumstances affecting the sub-suppliers of the Seller. The Buyer shall be entitled to request from the Seller information on whether the contract will be terminated or the goods delivered within a specific period. The Buyer shall be entitled to terminate the contract in the case that no indications are provided in this regard. Compensation for damages incurred by the Buyer shall not be permitted in the case of international transactions.
4.5 The Seller shall be entitled to defer his obligations, in the event that it transpires after conclusion of the Contract that the Buyer has not fulfilled a substantial part of his obligations, be it in the case that the Seller becomes aware of circumstances which call into question the credit worthiness of the Buyer, in particular through the failure to honour cheques or interruption in payments, or on the basis of the attitude of the Buyer in fulfilling the Contract requirements. If the Seller has already dispatched the goods before the aforementioned circumstances arise, the Seller can refuse to surrender the goods. If the goods have already been delivered, the Seller shall be entitled to claim the remaining amount due, even if he has accepted payments beforehand for all or a part of the remaining amount due. In the latter case, the Seller shall also be entitled to request advance payment or payment of a security. In addition to a claim for reserve of title, the Seller shall also be entitled to terminate the Contract or claim for damage.
§ 5 Prices and terms of payment
5.1 The prices specified by the Seller shall be expressed in
Euros, excluding VAT. In the case of international transactions, the Buyer shall undertake to provide the Seller with his VAT number at the latest after having received the contract confirmation.
5.2 Unless otherwise specified in writing, the Seller shall be bound to the agreed prices up to four weeks after the date of contract confirmation. Deliveries performed after the aforementioned date shall be subject to the current price list at the time of the delivery. In the event that the Buyer does not receive a contract confirmation or the con- tract confirmation does not include a price list, the current price list of the Seller shall apply at the time of delivery. 5.3 Unless otherwise specified in writing, the prices shall be understood ex works (EXW) excluding delivery and packaging costs, as well as taxes and other expenses relating to transport.
5.4 Unless otherwise specified in writing, payment of the purchase price shall take place net within 10 days from delivery. Discounts shall only be permitted if agreed upon in writing. The purchase price shall be considered paid on the date that payment is received in the account of the Seller and not on the date on which it is deposited. Bank transfers shall be free of costs and deductions. The Buyer can also pay by cheque or bill of exchange. Payments made by a bill of exchange issued by the Seller and accepted by the Buyer shall be considered valid only when redeemed by the Buyer and the Seller is released from obligation. The agreed reserve of ownership as well as other reserved entitlements shall remain valid at least until redemption of the bill of exchange in favour of the Seller. Cheques and bills of exchange shall be accepted only subject to being honoured.
5.5 The Seller shall be entitled, without prejudice, to legal remedy and to request interest of up to 8% points per annum above the basic interest rate of the European Central Bank. The Buyer shall be entitled to produce evidence to indicate that the loss of interest was considerably lower.
5.6 The Buyer shall not be entitled to withhold the purchase price or to setoff any counterclaims unless the counter- claim is acknowledged by the Seller or legally established by the judgement of the Court of jurisdiction.
§ 6 Retention of Title
6.1 The goods shall remain the property of the Seller until all requirements are met (including all current account balance payment requests), to which the Seller is legally entitled with regard to the Buyer now or in the future, and in particular until the full payment of the purchase price. The Buyer shall be obliged to handle the goods with care until full ownership passes to him. The Buyer shall be entitled to use the reserved goods in normal operations on condition that he does not fall in arrears. The Buyer shall not be entitled to pledge or assign the goods as security. Claims (including all current account balance payments) arising from the re-sale or other legal grounds (insurance, unauthorised use) regarding the reserved goods are hereby agreed in advance to be fully surrendered as security by the Buyer to the Seller without the need for a specific agreement.
6.2 The transfer of title which is subject to payment, by bill of exchange for instance, shall not be valid as payment in terms of the previous clause. The original claim of the Seller from the Buyer shall remain valid together with all related securities until fulfilment of the bill of exchange. Such provision shall also apply to the reserve of ownership. 6.3 If, for purposes of financing the purchase of the reserved title goods, the Buyer has already surrendered the claims which would fall under the extended reserve of ownership, by way of factoring, the Buyer hereby fully assigns his credit claims against factoring as security without the need for a specific agreement. The surrender shall be limited to the credit amounts applicable to the purchase of the goods of the Seller. The Buyer shall be obliged to immediately inform the Seller of any collaboration with a factoring bank.
6.4 The Seller grants the Buyer the revocable authority to collect the claims for the account and in the name of the Buyer. The said authorisation shall only be revoked if the Buyer does not meet his payment obligations, in particular, if the Buyer is in arrears, insolvent or bankrupt, or if other security interests of the conditional supplier are at risk. In order to guarantee the advance assignment, the Buyer shall deal with the re-sale of the reserved goods separately from other goods.
6.5 In the event that third parties gain access to the reserved goods, the Buyer shall make reference to the ownership of the Seller and immediately inform the same accordingly.
6.6 In the event that the Buyer acts contrary to the present Contract, in particular with reference to late payments, and in the case of a substantial deterioration of his financial situation, the Seller shall be entitled to recover the reserved goods or request the surrender of the claims of the Buyer against third parties if deemed necessary. The Buyer hereby declares his agreement that the persons authorised by the Seller to recover the said goods, shall be permitted to enter and access the premises and buildings on or in which the reserved goods are held, for the said purposes. The recovery and attachment of the reserved goods by the Seller shall not constitute the termination of the contract.
6.7 In the event that the Buyer does not meet his payment obligations towards the Seller, the Buyer shall be obliged to provide the Seller upon request and within three days, a list of the reserved goods still available as well as a list of his purchasers with copies of invoices, indicating which claims against the end purchasers remain open.
6.8 The Buyer shall provide at all times all the required information and documentation in order to give effect to the advance claims on the re-sale.
6.9 The Seller shall be entitled to notify third parties of the assignment and request direct payment. Similarly, the Buyer shall be obliged to do the same upon request of the Seller.
6.10 If, in the case of international transactions, the retention of title clause is not valid according to the applicable legal regulations, the said clause shall be replaced by a security permitted by law which corresponds the most to the retention of title clause. Furthermore, the Buyer shall undertake to implement all necessary measures in accordance with the applicable legal regulations for the substantiation and authorisation of the said securities and to provide evidence thereof upon request by the Seller. Failure to observe the aforementioned shall constitute a fundamental breach of contract.
6.11 The retention of title clause shall not affect the transfer of risk. In this regard, reference is made to Article 4.
§ 7 Buyer‘s rights due to goods in violation of the contract
7.1 The rights of the Buyer in the event that the goods are in violation of the contract shall be enforceable on condi- tion that the Buyer has met his obligations regarding inspection and defect notification. Evident defects shall be indi- cated in writing to the Seller within 8 days of receipt of the goods at the latest. Undetected defects shall be notified in writing to the Seller immediately after they are identified. In all other cases, the goods shall be considered approved. 7.2 The rights of the Buyer due to goods in violation of the contract shall expire within 12 months after transfer of the goods to the Buyer. Determination of the condition of the goods shall be based on the date of risk transfer. 7.3 All claims due to goods in violation of the contract shall become invalid in the event that the Buyer does not permit the Seller or a third party authorised accordingly by the Seller to inspect the goods on site or does not provide a sample to the Seller or a duly authorised person.
7.4 In the event of goods being in violation of the contract and notification being given promptly and the related rights not having expired, the Seller shall have the option of remedying the defective goods or replacing them. The Seller shall always be given the opportunity to remedy or replace the goods within a specified period. The said period shall be determined by the Buyer and be at least 4 weeks.
In the case of international transactions, the Buyer shall not be entitled to terminate the contract, unless the violation constitutes a fundamental breach of contract and is not remedied by the Seller within a period specified by the Buyer, which must be at least 6 weeks. The Buyer requires the agreement of the Seller in order to claim a reduction in purchase price.
7.5 The Buyer‘s rights in the case of goods in violation of the contract shall not be applicable in the case of merely negligible deviations from the agreed supply. The said rights shall also not be applicable in the case of negligible impairment of serviceability due to normal wear and tear. Equally, the said rights are not applicable in the case of damage following the transfer of risk due to incorrect or negligent use by the Buyer, excessive strain, inappropriate equipment, defective building work or due to specific external factors which were not premised in the contract. In the event that the Buyer or third parties perform improper restoration work or alterations, the consequences thereof shall not result in an entitlement of the Buyer towards the Seller.
7.6 In the event of the re-sale of the goods by the Buyer, recourse to the Seller shall be possible only in so far as the Buyer has concluded no agreement with his purchaser with regard to the legally binding claims on defects.
In the case of international transactions, the Buyer shall not have recourse to the Seller.
§ 8 Compensation for damages
8.1 The Seller shall not be held liable for damage compensation unless the damage was a result of deliberate actions, gross negligence or fundamental breach of contract. The aforementioned clause shall not be applicable to cases of damages to life, body or health. The prescriptions of the product liability laws shall remain applicable. Damage compensation claims shall be limited to the aforementioned damages.
In the case of international transactions, damage compensation claims are limited to an insured amount of 2,000,000.
8.2 Within the context of limiting product liability, the Buyer shall be obliged to provide the Seller immediately with all relevant information which may indicate the presence of product defects (in particular, customer complaints), and to promptly and fully support the Seller in any recall actions.
8.3 In the event that the Seller refuses to grant damage compensation, any claims for damage compensation by the Buyer shall lapse if the Buyer has failed to legally validate the said claims within three months of the refusal.
§ 9 Defects of Title
In the case of international transactions, the Seller shall not be liable with regard to the exemption of the goods from rights or claims of third parties based on commercial or intellectual property. The Buyer shall be exclusively responsible for verifying the industrial property rights in the country of destination. The Seller shall inform the Buyer upon written request of any information in his possession regarding such rights in the country of destination.
§ 10 Applicable law
The present contract and the legal relationship between the parties shall be subject to the law of the Federal Republic of Germany. In addition, international transactions shall also be subject to the United Nations agreement on the international purchase of goods of 11.04.1980 (UN Convention on the Contracts for the International Sale of Goods). Issues regarding the goods in question, which are not governed by the said convention or which cannot be settled in terms of the principles of the Convention, shall be subject to the laws of the Federal Republic of Germany
§ 11 Place of execution
Unless otherwise agreed, the place of execution of all the obligations in terms of the present contract, in particular the Buyer‘s obligation to pay, shall be the domicile of the Seller.
§ 12 Court of jurisdiction
12.1 The Court in the domicile of the Seller shall be the court of jurisdiction for all legal disputes arising from the conclusion, interpretation, performance and termination of the contract.
12.2 The Seller shall reserve the right to lodge legal action against Buyer with the Court of Jurisdiction in the domicile of the Buyer‘s company or residence.
§ 13 Other
13.1 In the event that individual provisions of the present Contract are or become invalid or contain omissions, the other provisions shall remain unaffected. The Parties shall undertake to replace the invalid clause with a similar, legally permitted clause which is the most consistent with the commercial purpose of the invalid clause.
13.2 The Buyer declares to agree and to be aware that all data concerning the Buyer within the context of the present business relationship will be stored in the Seller‘s data processing systems.