General Terms & Conditions
General Terms and Conditions of the company delta T Gesellschaft für Medizintechnik mbH
Industriestr.13, D-35463 Fernwald
This translation serves as a guideline, the German AGBs apply.
A - Orders and deliveries
- Orders, whether made by telephone or in writing, are only valid and are on-ly deemed accepted after written confirmation by us or as soon as an invoice has been issued. The same shall apply for changes and additions to orders.
- Offers from us are always non-binding. The buyer is bound to his order offer for three weeks, calculated from the date of the order. Ancillary agreements, reservations, amendments or supplements to the contract require our written confirmation to be valid.
- Our offers are always subject to change. Delivery, performance and invoicing shall be effected at the prices and conditions valid on the day of dispatch or collection of the goods. Changes in costs not provided for shall entitle us to make corresponding price adjustments. The prices are ex works including the usual packaging, unless otherwise expressly agreed.
- Irrespective of the place of dispatch, the goods travel at the risk of the customer, are ready for dispatch and if dispatch or acceptance is delayed for reasons for which we are not responsible, the risk is transferred to the customer upon receipt of the notification of readiness for dispatch. Shipment shall be effected by the most cost-effective route.
- We reserve the right to accept small orders and to determine minimum purchase quantities or minimum invoice amounts. In the case of call orders, we are entitled to procure the material for the entire order and to manufacture the entire order quantity immediately. Any change requests can therefore no longer be taken into account after the order has been placed. Partial deliveries are permitted.
- Dates or delivery periods stated by us are not binding. Binding dates must be expressly confirmed as such by us in writing. An obligation to adhere to agreed delivery and performance is only assumed under the condition of an undisturbed operating process. In particular cases of force majeure and other disruptive events affecting us, our suppliers or the transport companies, for example operational or traffic disruptions, fire, flood, shortage of labour, energy or raw materials, strike, lockout, official measures, release us from timely delivery or performance and also give us the right to discontinue our delivery without a subsequent delivery period. To the extent permitted by law, claims for damages for delay or non-performance are excluded. A statutory right of the customer to withdraw from the contract remains unaffected, provided that the prerequisites for this are met. If, in the case of orders, the fulfilment consists of several services, non-fulfilment, defective or delayed fulfilment of one delivery shall not affect the other deliveries of the order.
- The packaging of delta T products is at our expense. The customer bears the costs for special packaging requests. The choice of means and route of transport shall be made at our reasonable discretion, unless a specific means of transport has been agreed in writing. At the request of the customer the goods will be insured at his expense. The risk of transfer or deterioration shall pass to the buyer upon handover to the person or institution carrying out the transport. This also applies to dispatch and transport with our own vehicles or within the place of performance, regardless of who bears the freight costs in individual cases. If the acceptance or dispatch of a delivery ready for dispatch or collection is delayed for reasons for which we are not responsible, the risk shall pass to the buyer upon receipt of the notification of readiness for dispatch or collection.
- The return of sold goods is generally excluded. If, in exceptional cases, goods are taken back, the net price valid on the day of return will be credited. If the net price on the day of delivery is lower than the net price on the day of return, the net price valid on the day of delivery will be credited. The above shall not apply in the event of the exercise of the retention of title.
- In the event of bankruptcy or composition proceedings being filed, an affidavit being issued in accordance with § 807 of the German Code of Civil Procedure (ZPO), payment difficulties arising or a significant deterioration in the customer's financial circumstances becoming known, we shall be entitled to suspend delivery immediately and refuse to fulfil current contracts.
- We reserve the right of ownership and copyright to all cost estimates, drafts, drawings and other documents. They may only be made available to third parties with our express consent. All documents belonging to offers must be returned to us on request, but in any case if the order is not placed. If we have manufactured or delivered items according to plans or other documents of the buyer, the buyer must guarantee that the rights of third parties are not affected by this. If we are prohibited by third parties from manufacturing and supplying such items by invoking an industrial property right, we shall be entitled, without being obliged to carry out further checks on this claim, to stop manufacturing or supplying and to claim damages from the customer. Furthermore, the customer shall indemnify us against all claims of third parties in connection with the order.
- If special materials or items are required for the execution of an order, these are to be delivered by the buyer free to the factory in good time and in perfect condition with the agreed, otherwise a reasonable additional quantity for any rejects. Otherwise, we are entitled to charge the customer for any costs incurred by us, whereby any cessation or interruption of production is at our discretion and claims for damages by the customer are excluded. Costs for test parts and the manufacture of necessary tools can be charged. This is done by agreement, but all tools remain our property.
- We reserve title to all goods delivered by us until all claims, including conditional and future claims, which we have against the customer from the respective business relations have been fulfilled (§§ 455, 362 ff. BGB)
- The assertion of the reservation of title, in particular by taking back the goods, permissible in the event of default in payment or the endangerment of our claim to ownership, shall not be deemed to be a withdrawal from the contract.
- We shall be entitled, without the customer's obligation to pay being waived, to sell the returned goods by private contract at the best possible price and to credit the proceeds, or to credit them at the contract price (less discounts, rebates and other rebates and less a reduction in value of 10% - basic contract price). We are also entitled to deduct our redemption costs of 10% of the credited amount from the credit note. The buyer is free to prove that the actual reduction in value is lower and that the costs of taking back the goods are lower.
- The buyer must inform us immediately of the seizure or any other impairment of our property rights by third parties and confirm the right of ownership both to third parties and to us. The buyer is prohibited from pledging or assigning the goods delivered under reservation of title as security.
- The goods subject to retention of title shall be adequately insured by the customer, e.g. against fire and theft in particular, whereby the claims arising from a case of damage affecting these goods shall be assigned to us here and now in the amount of the value of the delivered goods and the insurance company shall be informed of the assignment of the claim by the customer.
- In the event that the goods subject to retention of title are treated or processed, acquisition of ownership by the purchaser pursuant to § 950 BGB is excluded. These treated and processed goods serve as security, whereby the treatment or processing by the ordering party is carried out for us without any obligation arising for us as a result. In the event of combination, mixing or blending within the meaning of §§ 947, 948 BGB (German Law), we shall be entitled to co-ownership of the new item in the ratio of the value of the goods subject to retention of title used for the manufactured item to the sum of all invoice values of the other goods used in the manufacture. If the customer acquires sole ownership of the new item, the customer shall grant us co-ownership of the new item in proportion to the value of the processed, combined, mixed or blended goods subject to retention of title. For the purposes of these terms and conditions, the new item shall be deemed to be reserved goods. The customer is obliged to keep this new item for us with commercial care and to provide the information required to exercise the right and to allow us to inspect its records and business documents.
- The purchaser's claims from the resale of the goods subject to retention of title are already assigned to us now with all ancillary rights, irrespective of whether the goods subject to retention of title are resold without or after processing, machining, mixing or combining and whether they are resold to one or more purchasers. The agreed assignment refers to the claims from the current account if the assigned claim against the third-party debtor has been included in a current account. The assigned claims serve to secure all our rights and claims in accordance with B1. a).
- If the reserved goods are sold by the Purchaser together with other goods which do not belong to us, without or after combination, mixing, treatment or processing, the assignment of the purchase price claim in accordance with B2. a) in the amount of the contractual price of the reserved goods plus 20%, the offsetting of which against the interest and costs after receipt of the amount, shall be deemed agreed. The excess amount not used shall be remunerated in this respect.
- If the customer uses the reserved goods to fulfil a contract for work and services or a contract for work and materials, his claim on this contract shall be assigned to us in advance to the same extent.
- The purchaser is only entitled and authorised to resell or otherwise use the reserved goods if the claims described under B 2. a) to c) are transferred to us. The customer is not entitled to dispose of the reserved goods in any other way.
- The purchaser is authorised to collect the claims from the resale despite the assignment, whereby our authority to collect remains unaffected by the purchaser's authorisation to collect. We shall not collect the claims as long as the customer duly fulfils his payment obligations towards us. The customer shall inform us of the debtors of the assigned claims, provide us with the necessary information and notify the debtors of the assignment.
- The purchaser's authority to resell the goods subject to retention of title and to collect the claims assigned to us shall expire in the cases specified A7 below.
- Even if individual claims are included in a current account and the balance has been struck and acknowledged, the retention of title shall remain in force in accordance with the above conditions.
- Ownership of the reserved goods shall pass to the Purchaser and the Purchaser shall be entitled to the assigned claims when all claims listed under B1 a. have been fulfilled and the reservation of title thus expires in accordance with the above provisions.
- We are obliged to release securities at the request of the customer if the value of all securities existing for us exceeds our claims by more than 20% in total, whereby securities are released at our discretion.
- Our invoices are to be paid free of postage and charges:
- strictly net without any deduction for payments no later than after 30 days (due date of the invoice) from date of invoice=date of dispatch
- A cash account shall only be granted if all due payment obligations from previous deliveries have been fulfilled and if the invoice amount has been received by us punctually in cash or credited to our account by the aforementioned due dates. Therefore, the handing over of bills of exchange cannot lead to the granting of a cash account. In the case of cashless payments, in particular in the case of cheques, the date of the credit entry shall be decisive in all cases. If payments or credit notes are made subject to reservation, condition or any other restriction, cash discount cannot be granted. The risk of the payment method lies with the orderer.
- Bills of exchange or cheques shall only be credited subject to the correct receipt of the full amount, whereby we reserve the right to accept third-party or our own acceptances and costs and discount charges shall be borne by the customer. We do not assume any guarantee for presentation and protest. We are authorised to return all bills of exchange still in circulation if the customer's own bills of exchange are protested or if protested third-party bills of exchange are not immediately covered, whereby all our claims become due at the same time. Postdated cheques are not accepted.
- After expiry of the due date (see C1.b), we shall be entitled to charge interest in the amount of the respective bill discount rate of Deutsche Bank plus 4% p.a., without prejudice to our right to claim damages for default.
- We reserve the right at any time to give up granting credit, even if it is in the form of granting payment periods within the scope of these terms and conditions. We may at any time demand sufficient security for an existing claim at our discretion, whereby all our claims shall be due if our demand for security is not granted.
- No interest shall be paid on advance payments and payments on account.
- Offsetting or withholding of payments may only be made by the customer if his counterclaims based thereon are undisputed or have been legally established.
- Payments with debt-discharging effect can only be made to us directly or to employees of our company who are provided with a power of collection.
- We are entitled to transfer the rights arising from this contract to third parties, in particular to a banking or financing company or to a pre-supplier.
- In the case of obvious defects, a notice of defects shall only be admissible within two weeks; the date of delivery and the date of receipt of the letter of complaint shall be decisive for the calculation of the period. For fully qualified merchants, §§ 377 ff. HGB (GERMAN COMMERCIAL CODE) shall apply. The buyer shall enable us to determine the notified defects on site. Upon request, the rejected items shall be returned to us; we shall bear the costs of transport in the event of justified defects.
- We only assume warranty for our deliveries and services in accordance with the following provisions:
- We shall, at our discretion, cover not insignificant defects by subsequent delivery or replacement delivery. A claim for rescission or reduction of the purchase price shall only be given if, at our discretion, subsequent improvement or replacement delivery cannot be made or if the deadline for this has not been met. If rectification or replacement delivery fail, or if warranted characteristics are missing, the customer may, at his discretion, demand a reduction of the remuneration or rescission of the contract. As far as legally permissible, further claims, especially claims for damages of any kind, are excluded.
- Our information on the object of delivery and performance for the intended use, such as dimensions, weights, utility values, etc., are only to be regarded as descriptions or markings, but not as guaranteed properties; they are therefore only to be regarded as approximate. Deviations customary in the industry remain reserved, unless otherwise expressly agreed. As far as it is technically possible for us, we shall try to avoid deviations from samples or previous deliveries. Insofar as the delivery item is not substantially changed, we reserve the right to make changes within the scope of what is reasonable for the customer, in particular if these changes serve technical progress. A warranty claim in accordance with D1 is therefore only given in the case of really significant deviations.
- In the event of damage not occurring on our premises due to improper handling, in particular also storage, in the event of natural wear and tear or if a defect becomes apparent during a special use of the goods which we have not agreed to in writing, a defect for which we are responsible shall not be deemed to exist.
- In any case, the statutory duties of inspection and notification of defects as well as the statutory limitation periods shall apply to our deliveries and services. In the event of a notice of defect, the customer shall, at our request, return the rejected goods to us carriage paid, whereby in the event of a justified notice of defect, we shall bear the costs for the most cost-effective mode of shipment.
- There is no warranty obligation for goods that are no longer new.
- As far as legally permissible, claims for damages of all kinds, irrespective of the legal grounds, also from culpa in contrahendo, positive breach of contract and tort against us, our legal representatives, vicarious agents and employees are excluded, unless the damage has been caused by intentional or grossly negligent action. In particular, liability for indirect and consequential damage, such as the spoilage of temperature-sensitive goods, is excluded. The suitability of the goods for the intended use must be checked by the customer himself.
- If the buyer withdraws from the contract or does not fulfil his contractual obligations despite setting a deadline with a threat of refusal, we are entitled to demand compensation for damages in the amount of 20% of the net order value, without this excluding the possibility of assertion of higher actual damages by us or proof of lower damages by the customer.
- The place of performance for all claims arising from the business relations, especially from our deliveries, is Gießen. The place of jurisdiction is, at our discretion, Gießen or the court at the registered office of the customer (purchaser). This place of jurisdiction shall also apply in particular to dunning proceedings and to disputes concerning the origin and validity of the contractual relationship. This agreement on the place of jurisdiction applies regardless of the value of the disputed item or claim.
- The law of the Federal Republic of Germany shall apply exclusively to the exclusion of the uniform laws on the sale of goods.
- All agreements and offers are based on the business relations and are deemed to be accepted by placing the order or accepting the delivery. We are entitled to amend the terms and conditions at any time. Any terms and conditions to the contrary, unless they have been accepted by us in writing in individual cases, shall be ineffective, even if we do not expressly object to them.
- Agreements made by telephone or verbally must be confirmed in writing to be legally effective.
- For deliveries to countries outside Germany, it is agreed that the civil law of the Federal Republic of Germany shall apply
- In the case of export transactions, payment shall generally be made by irrevocable letter of credit in favour of the seller.
Version: 10th October 2022