Latest update: February 2013
Section 1 – General / Area of Applicability
- These Standard Terms and Conditions of Business (hereinafter referred to as ‘STCB’) are an integral part of all sale, supply and service contracts, agreements, offers, provision of information and consultancy (hereafter referred to as ‘Services’) between us and the customers unless otherwise agreed in writing in a specific contract. They shall be deemed to be acknowledged by the customer through the acceptance of the offer, purchase order placement or no later than the acceptance of the delivery/supply.
- Our offers are aimed exclusively at entrepreneurs pursuant to Section 14 of the German Civil Code (BGB), for use in their self-employed, commercial or professional activity. By placing a purchase order or accepting the delivery/supply, the customer simultaneously declares that he is an entrepreneur pursuant to Section 14 of the German Civil Code (BGB).
- These STCB shall also apply, within the scope of long-term business relations with the customer, for future similar contract awards or purchase orders without the need for us to provide the customer with the STCB again in each specific case. Individual agreements that differ from the STCB shall apply only for the specific contract and not for the entire business relationship unless such is expressly agreed in writing with the customer.
- All agreements between us and the customer for the purpose of fulfilment of the contract are laid down in writing in such contract.
- We expressly reject all conditions of purchase or contract award and similar standard terms and conditions of business of the customer that differ from, contradict or supplement our STCB; such other terms and conditions shall not be an integral part of the contract even if we are aware of them unless we have expressly agreed to their applicability. Our STCB shall also apply even if we carry out the supply to the customer without reservation although we know that the customer’s standard terms and conditions conflict with, or deviate from, our STCB.
Section 2 – Services / Scope of Services
- The subject of our Services is not only the sale of human, dental and veterinary medical products but also especially individual customer consultancy in connection with the development of suitable products for the customer and the development of the products themselves and customer consultancy and support in connection with the finding of product copies of the products of the customer.
- The specific content and scope of the specific Services to be rendered by us are laid down in the separate individual contracts to be concluded with the customer, for which, in each case, our individually produced offers/quotations in line with the requirements of our customer shall be decisive. Amendments of, or deviations from, our offers/quotations must be made in writing to be effective.
Section 3 – Conclusion of Contract
- All our offers/quotations are made subject to change and are not binding in accordance with our availability.
- By placing a purchase order or awarding a contract, the customer bindingly declares that he wants to acquire the ordered goods or wants to have the services rendered to him. Purchase orders and contract awards shall only be binding on us if they include the name and address and, if applicable, the VAT identification number of the customer and, if applicable, a different destination of the goods in Germany or abroad, unless such data is already known to us.
- We shall be entitled to accept the contractual offer mentioned in the purchase order or contract award within 2 weeks following its receipt by us. The acceptance can be declared in writing or by delivery of the goods to the ordering party or a third party designated by the ordering party. A timely dispatch by us shall be sufficient. A confirmation of the receipt of the purchase order or contract award by electronic means, e.g. e-mail, shall not constitute a purchase order or contract award acceptance. The confirmation of receipt can however also include a binding declaration of acceptance.
- The contract conclusion shall be subject to our own correct and timely supply by our suppliers. This shall only apply if the non-supply is not our fault, particularly in the case of conclusion of a corresponding cover transaction with our suppliers. The customer shall be informed immediately about the unavailability of the Service and any payment already made by the customer shall be refunded immediately.
Section 4 – Peculiarities of Electronic Contract Conclusion
- If a customer orders goods by electronic means, particularly via our website, the receipt of the purchase order will be confirmed to the customer immediately.
- If a customer orders goods by electronic means, the purchase order data and contract text will be stored by us and, if requested, then sent to the customer together with these STCB.
Section 5 – Prices, Price Lists and Payment Terms, Storage of the Goods
- All listed prices apply ex-works our place of business or in the case of a direct delivery by one of our suppliers ex-works the place of business or warehouse of such supplier, in each case plus the applicable statutory VAT. The VAT shall be shown on the invoice in accordance with the statutory provisions.
- The prices shown in our valid price list applicable on the day of the delivery shall apply unless otherwise agreed in writing. All old prices lose their validity upon new publication of a catalogue, a price list or similar. Purchase orders already confirmed by us at that time shall be fulfilled at the agreed prices unless otherwise agreed. However, in the case of purchase orders for which a delivery time longer than 6 months was agreed or is necessary, we shall be entitled to invoice the list prices applicable at the time of delivery.
- The customer shall additionally pay for packing costs exceeding that for a standard packaging, and freight and shipping costs, extra charges and payable public charges and customs duties, unless otherwise agreed. We shall be entitled to separately invoice the customer for such incurred costs.
- We shall be entitled to separately invoice the customer for extra work necessary for the proper fulfilment of the contract. This especially applies in the case of short-term or fixed delivery dates demanded by the customer. We shall immediately inform the customer about anticipated cost due to extra work if possible and foreseeable.
- We reserve the right to fulfil purchase orders only subject to payment in cash on delivery, direct debit authorisation, payment in advance or direct debiting.
- Cheques and bills of exchange are only accepted on account of performance subject to cashing and without obligation of timely presentation and entering a protest. Costs and expenses incurred from such shall be borne by the customer.
- All payments shall be made in euros only. Foreign currency payments shall be converted to euros at the official selling rate for such currency listed by Deutsche Bank on the day of invoicing unless the invoice is made out in such foreign currency.
- The customer may only offset our claims with counterclaims that we do not dispute or have become res judicata. The exercise of a right to refuse performance or a right of retention in respect of the selling price payment or remuneration shall be excluded for entrepreneurs.
- If the customer’s financial situation significantly worsens, we shall be entitled to make the rendering of our services under the contract subject to the prepayment of the agreed remuneration or the furnishing of adequate security. After having set a reasonable period of time, we shall be entitled to withdraw from the contract and demand damages.
- The customer undertakes to initiate cashless payment of the purchase price or remuneration in full and without any discounts (such as an early payment discount or similar) and free of postage and costs for us to one of the payment points named by us after receipt of the goods or our performance of the service within ten (10) days of invoice receipt at the latest.
- After expiry of this period but in any case no later than 30 days after invoice receipt, the customer shall automatically be in default of payment without the need for a separate reminder. The date of payment receipt at our company or the credit entry in one of our bank accounts shall be decisive for this.
- If the customer is in default of payment, we shall be entitled to charge dunning costs at EUR 3.00 per reminder plus default interest at the statutory rate or at the actual rate if such is proven by us. The assertion of damages beyond that is not excluded thereby and we expressly reserve the right to claim such. The customer shall be entitled to prove to us a lesser damage caused by default than that claimed by us.
Section 6 – Transfer of Risk and Shipping
- The risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon hand-over, or in the case of a sale by delivery to a place other than the place of performance (at the request of the purchaser), upon delivery to the forwarding agent, the carrier or the person or establishment chosen for the performance of the shipping.
- In the case of contract work to be performed by us, the risk passes to the customer upon the customer’s acceptance of the work.
- The above subsection 1 shall also be applicable if deliveries and services are performed by instalments, if further services, like shipping costs or transport are taken over by us, and if the goods are delivered directly to the customer by a third party (drop shipping).
- The hand-over or acceptance shall also be deemed to have taken place if the customer is in default of acceptance, if the customer carries out the transport of the goods himself or if the delivery or service is delayed at the customer’s request or if a delay in the delivery or service is due to circumstances for which the customer is responsible. In such a case, the decisive point in time shall be the date of notification of the readiness for dispatch or service performance by us.
- In the absence of an agreement on a particular shipping method, we can choose one at our discretion.
- Transport costs can be subsequently invoiced.
Section 7 – Delivery and Service Performance, Delivery by Instalments, Periods of Time, Force Majeure
- We reserve the right to deliver products and render services other than those stated in the purchase order provided that such a replacement exclusively serves for the improvement of the product or service, does not jeopardise the contents of the contract and is reasonable for the client.
- We reserve the right to fulfil a purchase order through delivery by instalments provided that such is reasonable for the customer and is in his probable interest. After an instalment delivery, if we do not fulfil the outstanding delivery within a reasonable time limit despite the customer’s request to this effect, the customer can only demand damages in lieu of performance in full or demand the rescission of the contract if he has no interest in partial performance of the contract. Each instalment delivery can be invoiced separately by us. The same applies for contract services or work to be performed by us.
- The delivery or service performance time period does not start before the date of our order acknowledgement and also not before receipt of any agreed deposit payment and not before unambiguous clarification of all details of the purchase order and the submission of all required certificates by the customer. The time period shall be deemed to be complied with upon our notification of the readiness for dispatch or service performance if the goods are not timely received by the customer, or the service is not timely rendered, through no fault of our own.
- All delivery or service performance time periods stated by us are not binding unless otherwise agreed in writing. If a binding delivery time was agreed, such shall be deemed complied with if the delivery item left the place of dispatch or the customer was notified of the readiness for dispatch or service performance in writing before the end of the delivery time period.
- In the case of deadlines and deliveries that were not expressly agreed in writing as being binding, the customer undertakes to set us a reasonable deadline for the fulfilment of our contractual obligations.
- In the event of force majeure, weather disasters or other unforeseeable situations for which we are not responsible (such as epidemics, strike, lockout, business disruption of any type, war, war-like events, delays caused by governmental measures), an agreed period shall be suspended for the duration of the hindrance. If such circumstances make the delivery or service performance impossible, we shall be released from the obligation to perform the delivery or service. The customer cannot claim any damages in such a case. The same shall apply if the aforementioned circumstances occur at our suppliers. The same shall apply notwithstanding our further rights arising from default aspects if the customer does not timely meet his obligations towards us.
Section 8 – Third-Party Performance of Obligations
- Unless otherwise expressly agreed, we shall be entitled to use the services of subcontractors and vicarious agents for the fulfilment of our obligations towards the customer and to contract them for the performance of all, or some of, our contractual obligations.
Section 9 – Insurance of the Goods
- We shall be entitled to insure delivery items against theft, breakage, fire, water damage, transport damage and other damage at the customer’s expense provided that such insurance appears necessary for the protection of the goods, particularly due to a retention of title (Section 10 of these STCB) on our part and provided that the customer does not prove to us upon our request that he has taken out such insurance.
- Apart from the above, adequate insurance will only be taken out at the specific request and expense of the customer.
Section 10 – Retention of Title, Processing, Combining and Mixing, Resale, Assignment
- We retain title to all supplied goods until all claims have been settled in full, regardless of the legal ground, from a current business relationship including all associated incidental claims (Goods subject to retention of title / reservation of ownership are hereinafter referred to as “Reserved Goods”). The retention of title shall continue if some of our claims are included in a current account and the balance is struck and accepted. This applies regardless of the repayment terms used by the customer for individual payments.
- The customer is obliged to take good care of the Reserved Goods at no cost for us. This particularly includes a correct storage of the goods – and if possible separate from other goods. The goods shall be marked as being supplied by us.
- Subject to the following provisions, the customer shall be entitled to use or consume; process and combine (with other items) and resell the Reserved Goods in the ordinary course of business and as intended, provided that he is not in default of payment.
- The customer is not allowed to make any other disposition in respect of the Reserved Goods. In particular, he shall not be allowed to pledge the Reserved Goods, or to transfer them as security, to a third party. The customer hereby assigns to us in advance any rights he obtains against a third party as a result of a pledging, transfer as security or any other disposition. We hereby expressly accept such assignment.
- The processing or transformation of the Reserved Goods by the customer or a third party contracted by the customer shall always be in the name and on behalf of ourselves as manufacturer (Section 950 of the German Civil Code (BGB)) without any obligation being placed on us as a result.
- If the Reserved Goods are inseparably mixed, blended or combined with other items not owned by us, to form integral parts of a new single item (Sections 947 and 948 of the German Civil Code (BGB)), we shall acquire joint ownership of the new item in the ratio of the value of the goods supplied by us to the value of the other goods. If the goods not owned by us are deemed to be the main item and such goods are owned by the customer, the customer is obliged to assign to us a joint ownership of the new item in accordance with the relevant ratio. The co-ownership rights due to us shall be regarded as Reserved Goods within the meaning of subsection 1. Subsection 2 analogously applies for the newly created item.
- If the customer resells the Reserved Goods by extension of the term of payment of the purchase price, he shall be obliged to claim retention of title himself, in respect of the accounts receivable resulting from such resale, against the buyer in accordance with this subsection.
- The customer hereby assigns to us, in advance, all his accounts receivable in connection with a resale of the Reserved Goods. We hereby expressly accept such assignment. The assigned accounts receivable serve as security for our accounts receivable to the same extent as the Reserved Goods.
- If the Reserved Goods are sold by the customer together with other goods not supplied by us at a total price or if the assigned accounts receivable are charged in a current account, the accounts receivable arising from the sale are assigned at the invoice amount of our Reserved Goods or at the ratio of our Reserved Goods to the balance, including the closing balance of the current account.
- In the case of a resale of the Reserved Goods, we revocably authorise the customer to collect the accounts receivable assigned to us. We shall be entitled to cancel this authorisation particularly if the customer does not properly meet his payment obligations arising from the business relationship with us or if we become aware of circumstances that are likely to significantly reduce the creditworthiness of the customer. In the case of revocation of the direct collection authorisation, the customer shall immediately upon our request notify us of the assigned accounts receivable and their debtors, to provide all information required for the collection of the accounts receivable, to hand over all associated documents and to advise the debtor about the assignment. We shall also be entitled to advise the debtor about the assignment. The customer shall not be entitled to otherwise assign the accounts receivable or to assign such on the basis of the direct collection authorisation granted by us. This prohibition of assignment does not apply in the case of an assignment by means of genuine factoring, about which the customer must inform us in advance and for which the factoring proceeds exceed the value of our secured accounts receivable. Our accounts receivable shall become due immediately upon the crediting of the factoring proceeds.
- The customer is obliged to immediately notify us of a third-party seizure of our Reserved Goods, for example in the case of distraint, any damage to, or the destruction of, the Reserved Goods, and to advise us of the name and address of the third party. The customer shall immediately notify us of a change in possession and relocation of his place of business.
- If a third party seizes our Reserved Goods, all costs incurred by us for the justifiable assertion of our rights associated with the retention of title, regardless of whether in court or out of court, shall be borne by the customer if such claims for costs cannot be asserted against the third party.
- If the customer’s conduct is in breach of the contract, particularly in the case of default in payment or an infringement of an obligation under subsections 2 to 11 of this provision, we shall be entitled to withdraw from the contract and to demand the surrender of the Reserved Goods.
- If the nominal value (invoice amount of the goods or nominal amount of the right to the accounts receivable) of the security held by us (Reserved Goods or assigned accounts receivable and rights) exceed our secured accounts receivable by more than 20%, we shall be obliged to release equivalent security of our choice upon the customer’s request with due consideration given to the justified interests of the customer in the release.
- In the event that we assert rights arising from our retention of title, such shall only be deemed to be a withdrawal from the contract if such is specifically stated in writing. The customer’s right of possession of the Reserved Goods extinguishes upon such assertion.
Section 11 - Rights based on Defects, Warranty
- We warrant that the goods are free of both material defects and manufacturing defects and have the contractually warranted qualities at the time of transfer of risk. Slight deviations (particularly in terms of shape, colour and design) of the goods from our pictures or descriptions on our website or in our brochures are possible and do not constitute a defect. We do not assume any liability for fitness of our services for a particular purpose expected by the customer unless expressly agreed in writing.
- The customer shall inspect the delivered goods for defects and completeness immediately after receipt. We must be notified of obvious defects in writing immediately after receipt of the goods; if such a defect is only identified later, the notification shall be given immediately after discovery (Section 377 of the German Commercial Code (HGB)). The assertion of a warranty claim shall otherwise be excluded. The timely receipt of the notification of defects at our company shall be decisive for compliance with the time limit. The customer shall have the full burden of proof for eligibility for the claim and particularly for the defect itself, the time of discovery of the defect and the timeliness of the notification of defect.
- In the case of performance of contract work, the customer shall inform us immediately after discovery about any defects arising after the acceptance of the work. The above provisions on the burden of proof and the notification of defects relating to purchases shall analogously apply. Our field staff are not authorised to receive notifications of defect.
- The above subsection 2 shall analogously apply for excess delivery and wrong delivery. If excess delivery or wrong delivery is not complained about immediately after receipt of the goods or immediately after discovery, the excess delivery or wrong delivery shall be deemed accepted and can be subsequently invoiced by us in accordance with the price list valid on the day of the delivery.
- If the customer accepts defective goods in the knowledge that they are defective, he shall be entitled to assert rights in connection with liability for defects solely pursuant to Section 442 of the German Civil Code (BGB) and if applicable in combination with Section 651 of the German Civil Code (BGB).
- Damage in transit shall be immediately notified to the responsible forwarding agent, carrier or the person or establishment chosen for the performance of the shipping.
- In the case of justified and timely notified defects of the goods, we shall fulfil the warranty claim, at our option, through repair of the defective goods or supply of defect-free replacement goods or re-performance of the work. In such a case, we shall pay for the expenses necessary for the purpose of subsequent performance provided that such correspond to the usual cost rates.
- If subsequent performance fails or if we seriously and finally refuse such, the customer may, at his discretion, demand a reduction in remuneration (reduction in price) or rescission of the contract (cancellation). However, the customer shall not be entitled to cancel the contract in the case of a minor violation of the contract, particularly in the case of minor defects or an insignificant restriction in usability.
- If the customer opts for rescission of the contract based on a defect of title or material defect after subsequent performance failed, he shall not be entitled to claim damages due to the defect.
- If a customer opts for damages after subsequent performance failed, the goods shall remain with him if such is reasonable. The damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we maliciously caused the breach of contract.
- The warranty period shall be one year from the date of delivery, hand-over or acceptance of the goods. This shall not apply if the entrepreneur did not timely notify us of the defect (subsection 2). This shall not apply in the case of the customer’s bodily injury or damage to health or death caused by us.
Section 12 – Liability, Exclusion of Liability
- Our liability shall be limited to wilful and grossly negligent breach of duties. This shall also apply for breach of duties on the part of our legal representatives and vicarious agents.
- Claims for damages based on a defect shall become statute-barred one year after delivery of the goods or, in the case of contract work, after acceptance. This shall not apply if we can be blamed for gross negligence, or for causing bodily injury to, or damage to the health of, or the death of, the customer.
- Claims for damages based on faulty information in our brochures, price lists or similar are excluded. If we become aware of such faulty information, we shall point out such to the customer prior to fulfilment of the purchase order.
- Our liability for damages shall be limited to the typical damage or loss which was foreseeable on the basis of circumstances known at the time of contract conclusion but in any case not exceed the respective value of the underlying purchase order. This especially applies to lost profit, indirect damage and consequential damage of defects and damage/loss arising from third-party claims against the customer.
- The above liability limitations and liability exclusions shall analogously apply to the compensation of futile expenses (Section 284 of the German Civil Code (BGB)).
- The limitations on liability under these STCB shall not apply for claims of the customer based on bodily injury to, or damage to the health of, or death of, the customer, for which we are to blame, or slightly negligent breach of essential obligations under the contract. The liability under the Product Liability Act shall be unaffected by these provisions.
- No change in the burden of proof shall result from the above provisions.
Section 13 – Collateral Agreements, Written Form Requirement
- All contractual provisions, collateral agreements, contract amendments and agreements deviating from these STCB shall be made in writing or be subject to a written confirmation by us. This also applies to a waiver of the written form requirement.
Section 14 – Applicable Law, Place of Jurisdiction, Place of Performance
- The laws of the Federal Republic of Germany shall be applicable for all legal relations between the customer and us to the exclusion of the provisions of the conflict of laws. Provisions of the UN Sales Convention (CISG) or other international treaties or conventions shall not apply.
- The customer acknowledges that in the case of a translation of contractual agreements and/or these STCB the respective German-language version and legal opinion shall be decisive in cases of doubt or interpretation issues.
- If the customer is a businessman (a ‘Kaufmann’ pursuant to German law), a legal entity under public law, or a special asset under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be our place of business. The same shall apply if the customer has no general place of jurisdiction in Germany or his place of residence or habitual abode is unknown at the time of bringing an action. We however reserve the right to bring action at the customer’s place of business.
- The place of performance for businessmen and legal entities under public law shall be our place of business or warehouse. If one of our suppliers effects delivery directly to the customer, the place of performance shall be his place of business or warehouse.
Section 15 – Data Protection
- The customer agrees that his business or personal data necessary within the scope of the contractual relationship and for the fulfilment of the purchase order, may be collected, stored and processed in compliance with the German Federal Data Protection Act. We point out that such customer data will only be used for the mentioned purpose and not disclosed to any unauthorised third parties. The customer data can be forwarded to business partners and suppliers carefully selected by us in accordance with Section 11 of the German Federal Data Protection Act (BDSG) and contracted by us to perform the shipping.
- If we provide the customer with data, particularly a customer log-in and a password for access to our website, such data shall be treated by the customer as strictly confidential. A liability for the misuse or unauthorised use of such data shall be excluded.
- The customer can obtain, at any time, free-of-charge information about the stored data relating to him by sending an e-mail request to email@example.com. For data protection reasons, the e-mail can only be answered to the e-mail address stored with us.