I. General Provisions
Section 1 Scope of Application
(1) These Terms and Conditions of Business contain the terms and conditions exclusively governing the business relationship between you and ourselves, Dannoritzer Medizintechnik GmbH & Co. KG (Sattlerstr. 25, 78532 Tuttlingen, Germany; Commercial Register number: HRA 451028), represented by our managing directors, Sigrun Dannoritzer and Axel Dannoritzer (Imprint), to the extent that these are not amended by any individual agreements concluded by the Parties. No divergent or conflicting terms and conditions shall be acknowledged by ourselves, unless we have expressly consented to their application.
(2) We shall notify you of any amendments to these Terms and Conditions of Business in advance in writing, via fax or via e-mail. Where you do not object to these amendments within 2 months of your receipt of the notification, they shall be deemed to have been accepted by you.
In the event of any amendment of these Terms and Conditions of Business, we shall inform you of your right of objection and the legal consequences of (tacit acceptance by) silence in a timely manner.
Section 2 Quotations and cost estimates
(1) All prices and other information in offers or cost estimates are subject to change without notice, unless expressly stated otherwise. The documents belonging to the offer, such as illustrations, drawings, weight and dimensional data, are only approximate unless they are expressly designated as binding.
(2) We reserve title and copyright to cost estimates, drawings and other documents; they may not be made available to third parties.
Section 3 Payment Terms
(1) Payment of the purchase price shall fall due upon receipt of the invoice. Payment deadlines shall be deemed to have been complied with where funds are received within the payment period.
(2) The stated prices shall be denominated in euros, unless otherwise indicated, and net of VAT, which shall be invoiced as a separate item in accordance with the current rate pursuant to the applicable provisions of tax law.
No discounts shall be granted for cash payments.
(3) Provided that no fixed prices have expressly been agreed upon, we reserve the right to make reasonable changes to our prices to reflect changes in our wage, material and distribution costs.
However, this shall only apply to the extent that the performance of our contractual obligations is affected, 4 months or more, after the conclusion of the contract in question and we have no control over the changes to our costs.
(4) A set-off of our claims with contested or not legally binding counterclaims is excluded.
(5) If you are obliged to pay us from several debt relationships and one payment is not sufficient to settle all debts, the debt due will be settled first, among several debts due the one which offers us the lower security, among several equally secure the one which is more annoying to you, among several equally annoying the older debt and, in case of the same age, each debt will be settled proportionately. If interest and costs are to be paid in addition to the respective main performance, then any performance that is not sufficient to pay off the entire debt will first be credited against the costs, then against the interest and finally against the main performance.
Section 4 Default
(1) Should you fall into arrears on a payment, should a cheque or bill of exchange not be properly cashed, should payment by means of direct debit not be effected or should there be a material deterioration in the financial circumstances of one of the contractual partners, all outstanding accounts receivable, including any deferred accounts receivable, shall fall due for immediate payment.
(2) Should you fall into arrears on part or the entire amount of a payment, you shall from that point in time onwards be obligated – without prejudice to any other rights we may have – to pay interest on arrears at the annual rate of 9 percentage points above the effective base interest rate of the European Central Bank (ECB). We reserve the rights to enforce any claims for compensation for any further damage.
(3) Should you default on the acceptance or taking of a delivery or should you in any other manner culpably breach your duty of cooperation, we shall be entitled to demand compensation for any damage, including any additional expenses, incurred by us as a result. We reserve the right to enforce any further claims in this regard. Should any of the aforementioned situations arise, the risk of any accidental loss or accidental deterioration of the purchased goods shall pass to you, at the time of your failure to accept or take delivery thereof.
Section 5 Limitation of Liability
We shall be liable for any damage due to willful intent or gross negligence on our part. Furthermore, we shall be liable for the negligent breach of any duty the performance of which is essential for the proper implementation of the contract in question, the breach of which is prejudicial to the achievement of the purpose of the contract, and compliance with which you as a customer are generally entitled to rely upon.
In the latter case, however, we shall only be liable for foreseeable damage, typically occurring in the context of the type of contract in question.
The foregoing exclusions of liability shall not apply in the case of death, physical injury or damage to health. Our liability pursuant to the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected hereby.
Section 6 Documents and data storage
(1) We hereby retain, without reservation, the proprietary rights and the right of exploitation pursuant to copyright law with regard to cost estimates, diagrams or other documents; these may not be made available to any third parties without our consent. Any diagrams and other documents relating to quotations must be returned to us without delay upon our request where the contract in question is not awarded to us. This shall apply correspondingly to your documents. However, these may be made available to any third parties to whom we have permissibly assigned the performance of our contractual obligations.
(2) The customer agrees that his data relevant to the performance of the contract may be stored by us. We refer here to our data protection declaration (available at: www.danmed.com).
Section 7 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
(2) Place of performance and exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Tuttlingen.
II. Additional Provisions Relating to Purchase Agreements, Online Sales of Goods and Contracts for Work and
Section 1 Registration as a User for Online Sales
(1) Your registration with regard to our online sales operations shall be free of charge. There shall be no entitlement to admittance to our online sales operations. Only entrepreneurs within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) shall be entitled to participate therein. In order to gain admittance, you should complete the electronic registration form available on our website and send it to us via e-mail. You must provide the data required for registration purposes, including your VAT identification number, completely and truthfully. Upon registration, you shall select a personal user name and password. The user name may not infringe any third-party rights or any other rights to names or brands, or offend common decency. You shall be obligated to keep your password secret and not to disclose it to third parties under any circumstances.
(2) Your registration shall not give rise to any obligations apart from the declaration of your consent to the application of the General Terms and Conditions of Business. The mere fact of your registration with us shall not give rise to any obligation on your part to purchase any of the goods offered for sale by us.
(3) Should your personal information change, you shall be responsible for updating your registration data accordingly. Once you are registered, any changes may be made online under “My Account”.
Section 2 Conclusion of Contract in the Online Sales Context
(1) The presentation of our goods for sale shall not constitute a binding offer on our part. Such a binding offer shall only arise upon the placing of an order by yourselves, pursuant to Section 145 of the BGB.
(2) Should this offer be accepted, we shall send you written confirmation of your order via e-mail.
Section 3 Special Payment Terms
(1) Goods shall be paid for by way of advance payment, unless we agree on different payment terms with you.
(2) You may incur additional costs for the packaging and shipping of your items or for insurance against damage in transit, breakage, fire damage or water damage insurance, where requested by yourselves.
(3) The general payment terms (Part I., Section 3) shall apply in all other respects.
Section 4 Retention of Title
(1) The goods shall remain our property until the purchase price, including all ancillary accounts receivable, and all existing and future accounts receivable, has been paid in full.
(2) You shall be entitled to resell the goods subject to our retention of title in the ordinary course of business. You shall hereby assign all receivables owed by the purchaser as a result of the resale or leasing of the goods to us in the amount of the final amount agreed upon, including VAT. This assignment shall be valid irrespective of whether the goods are sold in an unprocessed or a processed state. You shall remain entitled to collect on the receivable, even following the assignment thereof. This shall be without prejudice to any authorisation to collect on the receivable yourselves, as issued by us. We shall not collect on the receivable as long as you meet your payment obligations on the basis of the realised proceeds, do not fall into arrears on your payments and, in particular, no application is brought for commencement of insolvency proceedings and no suspension of payments occurs.
(3) In the case of any adaptation, processing or alteration of the goods, we are, with respect to the matter of ownership, to be considered the manufacturer thereof, with the goods remaining our property. In this case, your inchoate title to the goods/altered goods shall persist. Should the goods be processed together with items not owned by us, we shall acquire co-ownership of the new goods in the ratio of the objective value of the goods to the other processed items at the time of the processing.
The same shall apply with regard to any amalgamation of the goods. Should the form taken by this amalgamation be such that your goods are to be considered the primary component of the end product, it shall be deemed to have been agreed that you shall assign co-ownership thereof to us, on a pro rata basis and hold the resultant sole or co-ownership in safe custody for us. As a means of securing the accounts receivable owed to us, you shall also assign any accounts receivable, vis-à-vis any third parties, accruing to you as a result of the incorporation within real property of the goods subject to our retention of title. We hereby accept such assignment.
(4) To the extent that the value of the above-mentioned collateral exceeds that of the accounts receivable to be secured by more than 10%, we shall be obligated to release the collateral at our discretion upon your request.
(5) Until ownership of the goods forming the subject matter of the contract passes to you, you shall be obligated to handle said goods with care and to carry out timely maintenance on them at your own expense or to subject them to an inspection, where necessary. Until ownership of the goods passes to you, you shall be obligated to inform us in writing and without delay should the delivered or incorporated goods forming the subject matter of the contract be seized or subject to any other third-party intervention. To the extent that any such third party is not in a position to reimburse us for court and out-of-court expenses arising in connection with an action pursuant to Section 771 of the German Code of Civil Procedure (Zivilprozeßordnung – ZPO), you shall be liable for any shortfall incurred by us in this regard.and hold the resultant sole or co-ownership in safe custody for us. As a means of securing the accounts receivable owed to us, you shall also assign any accounts receivable, vis-à-vis any third parties, accruing to you as a result of the incorporation within real property of the goods subject to our retention of title. We hereby accept such assignment.
Section 5 Delivery Terms
(1) Our stated delivery periods are generally non-binding. Delivery dates and delivery periods shall only be deemed binding if they have been confirmed in writing as binding.
(2) The delivery period shall commence upon payment of the pro forma invoice in advance, otherwise upon receipt of the order confirmation, but not before you have provided any documents, materials and other items, permits and releases which you may need to procure.
(3) In the event of force majeure or other unforeseen obstacles, such as riots, operational disturbances, strikes, lockouts, the delivery period shall be extended in accordance with the duration of the obstruction. The same shall apply in the event of delays in the delivery of essential materials, insofar as these delays can be proven to have a considerable influence on the completion or delivery of the delivery item and are not our responsibility and the goods cannot be delivered or procured elsewhere with reasonable effort.
(4) The delivery period shall be deemed to have been complied with if the delivery item has left the factory or readiness for dispatch has been notified before the period expires.
(5) After a non-binding delivery date or delivery period has been exceeded, you shall be entitled to request us in writing to deliver within a reasonable period if you, for your part, have fulfilled all due contractual obligations.
(6) If dispatch is delayed at your request, you will be charged the costs incurred by storage, starting one month after notification of readiness for dispatch, but at least 0.5% of the invoice amount per month. We shall be entitled, after setting and fruitless expiry of a reasonable deadline, to dispose otherwise of the delivery item and to supply you only at a later date.
Unless expressly agreed otherwise, we are entitled to fulfil orders in partial deliveries, which are to be paid separately in each case. If the payment of a partial delivery is delayed, we are entitled to suspend the further execution of the order.
Section 6 Warranty
(1) Should the performance of our contractual obligations be defective, you shall be entitled, in accordance with the relevant statutory provisions, to demand subsequent performance, in the form of the rectification of the defect or the delivery of non-defective goods. The selection of the means of subsequent performance shall be at our discretion.
Should we fail to effect subsequent performance, you shall be entitled to demand a price reduction or to withdraw from the contract. All warranty rights shall be contingent upon the proper performance of all of your obligations with regard to the inspection of the goods and the notification of any defects pursuant to Section 377 of the German Commercial Code (Handelsgesetzbuch – HGB), to the extent that you are a trader within the meaning of the HGB.
(2) The limitation period for the assertion of any warranty claims, with regard to the delivered goods, shall – except in the case of claims for damages – be twelve months from the date of the receipt of the goods.
(3) Data communication via the Internet cannot be guaranteed to be error-free and/or available at all times given the current state of technology. We do not guarantee the constant and uninterrupted availability of our online trading system.
(4) If necessary, you undertake to provide us immediately on request with all information about the purchasers of our medical devices (in particular other distributors, affected operators and users within the meaning of § 14 MPSV) which is necessary for the preparation and execution of a recall of the affected medical devices or production batches on the basis of the current medical device regulations.
III. Additional Provisions Relating to Repairs, Maintenance Services and Other Performance of Work
Section 1 Special Payment Terms
(1) Payment of the remuneration for the performance of work shall fall due upon the acceptance of said work.
(2) Our prices shall apply from the place where the work is performed, plus packaging, shipping and travel costs.
(3) Prices shall be calculated on the basis of working time and material costs, unless it has been agreed that they are to be invoiced at flat rates, according to measurements or similar.
A non-binding cost estimate will only be provided to you upon request.
(4) Services for extensions subsequently included in the contract will be charged according to the fees valid at the time of inclusion.
Section 2 Right of Lien
We are entitled to a legal lien on the object on which we perform work services with your knowledge and will. The right of lien extends to all claims, including those which consist of earlier work performances or deliveries.
If you are in arrears with the payment of wages for a period of more than two months, we shall be entitled, after prior written notice and after a further waiting period of four weeks, to dispose of the item by private contract in the best possible way. You are entitled to any additional proceeds from the sale. However, in addition to our main claim and the accrued interest, we are also entitled to deduct and charge the costs caused by the realization.
Section 3 Warranty
(1) Should the performance of our contractual obligations be deficient, you shall be entitled, in accordance with the relevant statutory provisions, to demand subsequent performance in the form of the rectification of the deficiency or the provision of non-deficient work. The selection of the means of subsequent performance shall be at our discretion.
Should we fail to effect subsequent performance, you shall be entitled to rectify the deficiency yourself and to demand compensation for your resultant expenses, to demand a price reduction or to withdraw from the contract.
(2) The limitation period for the assertion of any warranty claims with regard to the performance of the work shall – except in the case of claims for damages – be twelve months from the date of the acceptance of the work or, where such acceptance has been precluded or has not occurred, upon the completion of the work.
The foregoing provision shall not apply where a longer limitation period is mandatorily stipulated by statute, for example in the case of construction work.
Section 4 Duty of Cooperation
(1) You shall be obligated to ensure that the operating conditions for the subject matter of the contract for work and services are in place in accordance with our specifications, and to provide the necessary utilities and commodities (e.g. power supply, water supply) in accordance with our specifications.
(2) You shall be obligated to keep any aids, such as plans, manuals, technical equipment, etc. delivered or made available to you on hand for the performance of the work in question. Unless otherwise agreed, such aids shall remain our property, even where they are stored on your premises.
Section 5 Right of Retention
Should we learn after conclusion of the contract that you are in an unfavorable financial situation which endangers our claim for counter-performance, or should you get into such a financial situation after conclusion of the contract, we shall be entitled to refuse performance until you either effect counter-performance or we have provided security for counter-performance. We are also entitled to set you a reasonable deadline for this, after the unsuccessful expiry of which we are entitled to withdraw from the contract and to invoice you for any expenses incurred up to that point.
DANNORITZER Medizintechnik GmbH & Co. KG
Tel.: +49 (0) 74 61 – 96 239-0