General Terms and Conditions of Delivery and Payment of inomed Medizintechnik GmbH
§ 1 General, scope of application
1. Our General Terms and Conditions are valid for all present and future business relationships. Our goods and services, including information, offers, advice and repairs, are provided exclusively on the basis of the following General Terms and Conditions.
2. Any differing, contradictory or supplementary General Terms and Conditions shall not become an integral part of the contract, even if we are aware of such General Terms and Conditions when we make a delivery, unless we have expressly agreed to their validity in writing.
3. Our offer is exclusively intended for commercial customers. When placing an order with us, the customer affirms that they are acting in the exercise of a commercial activity. Orders via the webshop are only possible after prior registration with us.
§ 2 Conclusion of the contract, commitment period
1. Our webshop offer does not represent a binding offer to conclude a contract. It merely invites the customer to make an offer to us through an order on their part.
2. By sending their order to the webshop, the customer makes a binding offer with the aim of concluding a contract concerning the products contained in the shopping basket. By sending the order, the customer also acknowledges these General Terms and Conditions as having sole authority with regard to the legal relationship with us.
3. If we confirm reception of the customer’s order by sending a confirmation email, this order confirmation does not yet represent acceptance of the offer of a contract by us. It simply serves to inform the customer that we have received the order. Acceptance of the offer of the customer’s contract is declared by the delivery of the goods or an explicit declaration of acceptance.
4. The customer is bound by their offer to conclude a contract for a period of 3 weeks after reception by us. Within this timescale, we are entitled to accept the offer of a contract contained in the order.
5. Subsidiary agreements and amendments to a contract must be made in writing to be valid. This requirement can only be waived in writing. Faxes and emails with a confirmation of receipt shall fulfil the requirement for the written form.
6. We reserve all property rights and copyrights to illustrations, drawings, calculations and any other documents which may have been conveyed by us. Any dissemination of these documents to third parties is only permissible with our prior express agreement. Any drawings and other documents that may be associated with offers are to be immediately returned to us without any request being needed, if the order is not placed with us.
§ 3 Prices
1. The price is the one stated by us or, in individual cases where this has not occurred, the price shown in our price lists as valid at the time of the order. Prices are understood to be ex-works, excluding packaging. Delivery is made freight collect. Prices (including those for packaging, shipment, etc.) are understood to be subject to addition of the statutory value added tax at the applicable rate.
2. Cash discounts or other reductions which are not explicitly noted in the offer are not permissible.
3. Any other costs, especially those for shipment, insurance, customs clearance, import duties / levies, along with costs for monetary transactions shall be borne by the customer.
§ 4 Payment, default of payment, deterioration in financial situation
1. Unless otherwise agreed in writing, the due date for payment of our invoices shall be governed by the statutory regulations. The customer shall bear all additional banking costs.
2. Payment is due in full on delivery or acceptance. The customer shall be in default of payment at the latest 30 days after the due date without any need for further explanation, insofar as they have not paid. In the event of the existence of defects, the customer shall not have a right of retention, unless the delivery is clearly defective or the customer clearly has a right to refuse acceptance of the works. In such a case, the customer is only entitled to retention to the extent that the amount retained is appropriately proportionate to the defects and to the likely costs of supplementary performance (particularly rectification of defects). The customer is not entitled to assert claims and rights due to defects if they have not made due payments and to the extent that the due amount (including any payments already made) is appropriately proportionate to the value of the – defective – delivery or works.
3. We are entitled to demand part payments and only to provide goods and services in return for advance payment.
4. In the event of part deliveries, the customer shall undertake to make payments of an amount which corresponds to the proportion of the part delivery to the overall delivery planned in the contract.
5. If the customer is in default of payment, we are entitled to claim statutory default interest at a rate of 8 percent above the base rate. We still reserve the right to claim higher damages.
6. If a significant deterioration in the customer’s financial circumstances becomes apparent after the contract is concluded, which may put our claim for consideration at risk, we can delay our performance until the consideration is paid or we are provided with security for this, even where an obligation for performance in advance exists. If after a reasonable time period set by us, the customer is not willing to accept step-by-step fulfilment or to provide security, we are entitled to withdraw from the contract.
§ 5 Offsetting, right of retention
1. Offsetting with the customer’s counterclaims is only permissible when and to the extent that these are recognised by us as existing and due or their justification has been established as legally valid.
2. The customer is only authorised to exercise a right of retention when and to the extent that their counterclaim is based on the same contractual relationship.
§ 6 Delivery periods, leadtimes, part deliveries
1. Leadtimes are only legally binding if we expressly confirm them as binding in the order confirmation.
2. Adherence to leadtimes presupposes timely clarification of all technical and commercial details, along with submission of any approvals required. Any modifications to the performance of the delivery or the delivery item demanded by the customer during the delivery period shall delay the deadline and extend the delivery period appropriately.
3. The occurrence of unforeseen events, force majeure or a failure to deliver on the part of our sub-suppliers which is no fault of ours shall entitle us to postpone the delivery for the duration of the hindrance and an appropriate start-up time.
4. If our suppliers do not make correct deliveries and/or deliver late to us, and if we are not responsible for this failure to deliver, then we are also entitled to withdraw from the contract as far as the customer is concerned. In such a case, the customer shall be informed immediately that the goods and services are not available. In such a case, the consideration shall immediately be returned, but the customer has no right to make further claims.
5. If the customer suffers loss due to a delay in delivery which is attributable to us, then our obligation to pay compensation shall be limited in accordance with the provisions in § 12.
6. We are entitled to make part deliveries.
§ 7 Acceptance of the delivery item
1. If the customer refuses acceptance after a reasonable additional period set for them or explicitly states that they do not wish to accept, we can withdraw from the contract and claim damages. A lump sum of 40% of the gross order amount may be claimed as damages. The customer is free to provide evidence that we incurred no loss or significantly lower losses. In the case of us incurring higher losses, we are entitled to claim these instead of the fixed amount for damages.
2. If the conditions of point 1 clause 1 are met and if it is not possible for us to return the goods to the manufacturer/supplier (for instance because the goods were specially produced for the customer in question or because the goods are by nature nonreturnable) or if, where goods have been produced by us, they are of a kind that has been specially made for the customer and cannot be sold elsewhere, the customer must pay the full price in accordance with our invoice as compensation, if they refuse to accept these goods.
3. If the conditions of point 1 clause 1 are met and we do not withdraw from the contract, we are entitled to demand reasonable charges at the standard local rate for storage of the goods.
§ 8 Provisions for the supply of goods and services of a work and labour nature
Insofar as our obligation to provide goods and services is not limited to the fulfilment of a sales contract concluded with the customer, the following supplementary provisions shall apply in this respect:
1. The customer undertakes to accept our goods and services if they are substantially provided free of defects. Minor defects in the provision of goods and services do not prevent acceptance. § 640 of the BGB [German Civil Code] shall apply.
2. Formal acceptance is not required, tacit acceptance is also possible. In particular, start of use without any written reservations is deemed to be tacit acceptance.
3. § 641a BGB [German Civil Code] shall apply.
4. The customer has to accept parts of our goods and services separately at our request, if it is reasonable for them to do so. This shall apply in particular if our provision of goods and services is divisible and the customer only has objections to raise concerning the freedom from defects of the goods and services with regard to individual parts.
§ 9 Place of performance / transfer of risk
1. The place of performance of our duty to deliver shall in each case be the relevant commercial premises where the delivery is to be made in accordance with the contractual agreement. The delivery item shall be shipped at the customer’s request. The choice of shipping route and method of shipment shall be at our discretion.
2. The delivery item shall be shipped at the customer’s risk. The risk shall be transferred to the customer on surrender of the item to the carrier, haulier or any other institution tasked with carrying out the shipment. If the shipment is delayed due to the customer’s conduct, the risk shall be transferred to the customer as from the point when they are informed that the goods are ready for shipment.
§ 10 Retention of title, extended retention of title
1. Delivered goods shall remain our property until full settlement of all outstanding debts arising from an ongoing business relationship.
2. If the customer’s conduct is in violation of the contract, in particular where they are in default of payment, we shall be entitled to take back the delivered goods. After taking back the goods, we shall be authorised to dispose of them and the proceeds from the disposal shall be offset against the customer’s liabilities – minus any reasonable disposal costs.
3. The customer is entitled to resell the delivered goods in the ordinary course of business; however, they shall assign to us as of now all receivables arising from the resale which are owed by their purchasers or third parties. We hereby accept such assignment. The assignment shall be carried out irrespective of whether the delivered goods have been resold without or after further processing. The customer shall remain authorised to collect the assigned receivables even after assignment. Our authority to collect the receivables ourselves shall remain unaffected by this.
4. If the customer does not comply with their payment obligations to us, they shall be in default of payment, if an application to open insolvency proceedings regarding their assets is filed or if they cease making payments, the customer undertakes, at our request, to notify us immediately of the assigned receivables and the respective debtors, to provide all information required for collection, to hand over the associated documents and to inform the debtors of the assignment.
5. In the event of attachments or any other interventions by third parties, the customer must immediately notify us in writing so that we can assert our rights.
6. We undertake to release the securities due to us at the request of the customer insofar as the realisable value of our securities exceeds the receivables which are to be secured by more than 10%. The choice of securities to be released is at our discretion.
7. Goods purchased from us shall always be treated and processed by a customer in our name and on our behalf. If processing takes place together with items that do not belong to us, this means we acquire the co-ownership of the new article in proportion to the value of the goods supplied by us (final invoice amount including value added tax) with respect to the other processed items (at the time of the processing). The same applies accordingly if the goods are mixed with other items that do not belong to us.
§ 11 Liability for defects / notification of defects / burden of proof
1. Claims regarding defects shall not be permissible where there is only slight deviation from the agreed properties, for natural wear and tear, normal wear damage or damage which arises after the transfer of risk due to improper or negligent handling, excessive loads, unsuitable equipment or as a result of other external influences which are not provided for according to the contract. In particular, no claims regarding defects shall be permissible where there are problems which occur due to failure to comply with the information in our operating manual and especially the technical specifications contained in it.
2. The customer must examine the delivery item immediately after its arrival with the due care which is reasonable in the given circumstances and must immediately notify any defects which can be detected during this process in writing. If a defect which could not be detected initially becomes apparent later, this is to be notified in writing immediately after it is discovered. If the customer omits to make the notification, the delivery is deemed to have been approved. The burden of proof for the defect itself, the time of the detection of the defect and the punctuality of the notification of the defect lies with the customer.
3. Insofar as a defect exists, we are entitled to rectify the defect or make a new delivery at our discretion. We can refuse supplementary performance as long as the customer does not fulfil their payment obligations to us for an amount appropriate to the part of the goods and services provided which is free from defects.
4. If supplementary performance fails (unless there are special circumstances this is the case after a second failed attempt), if our refusal of supplementary performance is not justified or if this is unacceptable to the customer, the customer can demand either reduction of the payment (lowering) or cancellation of the contract (rescission) at their discretion. If there is only a minor infringement of the contract, in particular where there are only minor defects, the customer does not however have any right to cancel the contract.
5. If the customer chooses to withdraw from the contract due to a legal or material defect in accordance with point 4, they have no right to make any additional compensation claim regarding the defect. If the customer makes a compensation claim due to a defect, the goods remain with the customer if this is acceptable to them. The compensation shall be limited to the difference between the purchase price and the value of the defective goods. This shall not apply if we have caused the infringement of the contract maliciously.
6. Any return of the goods to us which may be required in the event of a defect can only be carried out with our prior consent and using the shipping route specified by us. Returns which are carried out without our prior consent need not be accepted by us. In such a case, the customer shall bear the costs of the return.
7. In terms of the quality of the goods, as a matter of principle only the product description which appears in the offer is deemed to have been agreed. Public statements, promotions or advertisements shall not constitute any additional contractual information concerning the quality of the goods. We have to be responsible for public statements, particularly in advertising, if needs be where we have initiated these. Otherwise, an obligation to assume liability for advertising statements shall only exist when the advertisement has also actually influenced the customer’s decision to purchase. The burden of proof for this lies with the customer.
8. The purchaser shall receive no warranties from us in the legal sense, unless otherwise expressly agreed. A reference to standards or other legal product specifications shall only be for the purpose of product description and shall not represent any warranty.
9. The warranty covering materials and processing is for 12 months.
10. If the customer indicates a defect to us and if we initiate measures in the context of our assumed warranty obligation, the customer undertakes to refund expenses incurred and costs arising in this connection, if it emerges that, contrary to the customer’s statement, there was actually no defect in the goods we supplied.
11. At the site of any plant/machinery which is operated using goods supplied by us, the customer must ensure that staff are present who have sufficient training to be able to determine the cause of the fault when there are operational problems and to undertake replacement of the goods supplied by us, if applicable. We are not liable for any costs arising from the fact that the customer does not comply with these requirements.
12. The limitations of liability for defects contained in the preceding provisions shall not apply in the cases of § 12 point 4.
§ 12 Limitation of liability, burden of proof
The following limitations of liability shall also apply where there are breaches of duty by our legal representatives or vicarious agents:
1. The burden of proof that there is a breach of duty on our part and that we are responsible for this lies with the customer.
2. We shall not be liable in the event of a breach of non-material contractual obligations involving minor negligence. Otherwise, our liability in the event of minor negligence shall be limited to foreseeable losses which are typical of the contract in accordance with the nature of the goods. In this case, we shall not be liable for loss of profit or other financial losses either. Our liability in the event of minor negligence shall be further limited to the amount of the purchase price for the (individual) delivery concerned.
3. We shall not be liable in the event of a breach of non-material contractual obligations involving ordinary negligence. Otherwise, our liability in the event of ordinary negligence shall be limited to foreseeable losses which are typical of the contract in accordance with the nature of the goods. In this case, we shall not be liable for loss of profit or other financial losses either. Our liability in the event of ordinary negligence shall be further limited to the amount of the purchase price for the (individual) delivery concerned.
4. The aforementioned exclusions of liability / limitations of liability shall not apply to losses arising from any loss of life, physical injury or harm to health which are a result of a culpable breach of duty on our part or on the part of one of our legal representatives or vicarious agents. Neither shall they apply to other losses which arise from an intentional or grossly negligent breach of duty on our part or from an intentional or grossly negligent breach of duty on the part of one of our legal representatives or vicarious agents. The aforementioned exclusions of liability / limitations of liability shall likewise not apply where a warranty has been assumed or where guaranteed properties are absent. However, compensation claims can only be made in these cases insofar as the guarantee of properties / warranty covers consequential loss and the loss which has occurred arises from the absence of the property or from a factor covered by the warranty. Compensation claims under the product liability law remain unaffected.
5. The provisions of paragraphs 1 to 4 above shall apply to all claims for damages (especially damages in addition to performance and damages in lieu of performance), and indeed irrespective of the legal basis, particularly as a result of defects and of breach of duties arising from contractual obligations or from tort. They shall also apply to claims for compensation for wasted expenditure. Liability for delay shall however be determined according to the provision in point 6 following this paragraph.
6. We shall be liable for delay in performance in cases of wilful intent or gross negligence on our part or on the part of our legal representatives or vicarious agents, as well as in the event of loss of life, physical injury or harm to health brought about culpably, in accordance with the legal provisions. However, in the event of gross negligence our liability shall in such cases be limited to foreseeable losses which are typical of the contract. Apart from the cases in clauses 1 and 2 above, our liability as a result of delay shall be limited for damages in addition to performance to a total of 5% and for damages in lieu of performance (including compensation for wasted expenditure) to a total of 15% of the full contract price. Further claims against us shall be excluded – even for example after expiry of a period of time set for us for performance. The limitation shall not apply where there is culpable breach of material contractual obligations. Damages for culpable breach of material contractual obligations shall however be limited to the foreseeable losses which are typical of the contract, unless there is a further case in line with clause 1 of this paragraph at the same time. The right of the principal to withdraw from the contract where the conditions relating to this matter exist remains unaffected.
§ 13 Partial invalidity
If one or more provisions of these Terms and Conditions are or become invalid, the validity of the remaining provisions shall not be affected by this. The fully or partially invalid provision shall be replaced by a provision whose commercial result comes as close as possible to that of the one which is invalid. The same shall apply in the case of a loophole.
§ 14 Place of jurisdiction, applicable law
1. Freiburg im Breisgau in Germany is the sole place of jurisdiction for all disputes arising from contracts concluded with us. However, we are also entitled to take legal action against the customer at the court of their place of residence or at the court of their subsidiary.
2. German law shall apply exclusively, to the exclusion of conflict of law regulations. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
3. Contractual language These general terms and conditions of business have been drawn up in the German language. Only the German version is authoritative.