I. General These Terms and Conditions of Business, Delivery and Payment (hereinafter the “Terms and Conditions”) shall apply to all current and future business relations between us and our customers provided they are entrepreneurs within the meaning of section 14 German Civil Code (Bürgerliches Gesetzbuch – “BGB”). Any of our customer’s terms and conditions of business that deviate, contradict or supplement these Terms and Conditions shall not become part of the contract, even if known, unless we have expressly consented to their applicability in writing.
II. Offers and prices
All offers shall be non-binding and without obligation. In the event of price and cost increases between conclusion of the contract and agreed delivery date, we are entitled to make a corresponding price adjustment provided there is a period of more than 4 months between the aforementioned dates. If, at the time of delivery, the prices exceed the initially agreed prices by more than 10%, the customer shall be entitled to withdraw from the contract. This provision shall not apply to deliveries made in the context of continuous obligations.
III. Scope of delivery, delivery times
Delivery shall take place at the risk and expense of the customer. If free delivery has been agreed, the risk shall pass to the customer upon delivery of possession of the item to the customer. Partial deliveries are permitted within the limits laid down by statute. Such deliveries are deemed to be independent deliveries. The delivery must be checked by the customer in terms of accuracy, completeness and freedom from defects immediately upon receipt. Delivery dates and deadlines must be agreed in writing. The delivery time is deemed to have been complied with if we have dispatched the goods on the last day of the agreed delivery period. In the case of force majeure we shall be entitled to postpone delivery for the time for which the disruption continues plus a reasonable lead time. Force majeure shall include events that render delivery significantly more difficult or impossible and that we or our supplier are not responsible for. If the aforementioned events render delivery impossible or unreasonable, the contractual party affected by this shall be entitled to withdraw from the contract. In the event of a subsequent change, the buyer shall bear all resulting additional costs. If the purchaser fails to accept delivery of all goods by the agreed date or fails to fulfil its payment obligation, then the purchaser’s right to delivery shall cease; there is no need to set a grace period or make a demand pursuant to section 326 BGB where merchants are concerned. Our claim to delivery of the goods and payment shall remain unaffected. If, after conclusion of the contract, we become aware of circumstances that cast doubts on the purchaser’s creditworthiness, we may make the further processing of the order and the delivery of the goods subject to the provision of security or an advance payment and, in the event that such security is not provided or such advance payment is not made, we may withdraw from the contract.
IV. Default of acceptance
If the purchaser is in default of acceptance, we have the rights set out in section 326 BGB. Alternatively, we may choose to withdraw from part of the contract only and demand compensation with regard to the remainder. If the purchaser does not promptly accept delivery within a reasonable time after having been notified of shipment, with the result that shipment is not possible for a prolonged period due to circumstances for which we are not responsible, then we may either store the delivery items ourselves at the risk and expense of the purchaser or we may place them in storage with a freight forwarder at the expense of the purchaser and charge for the goods.
Unless otherwise agreed, goods shall be shipped ex works at the risk of the purchaser. General shipping terms, in particular the German Freight Forwarders’ Standard Terms and Conditions (Allgemeine Deutsche Spediteurbedingungen) are not accepted. For deliveries below a net goods value of EUR 250, we charge a processing fee of EUR 25. We are entitled to choose transport route and shipping method. In the event that goods are delivered on multi-way pallets, these pallets shall remain our property unless the purchaser arranges for the delivery truck to return an equivalent number of pallets of the same quality to us. In the event that our pallets are not returned to us, carriage paid, within one month from delivery, we may charge for these at replacement value.
The warranty period is one year. Claims for defects on the part of the customer shall require that the customer has duly complied with his duties to inspect and give notice of defects according to section 377 German Commercial Code (Handelsgesetzbuch – “HGB”) within 7 working days. Any transport damage and shortages shall be determined immediately upon receipt of the goods, and confirmation in this regard shall be obtained from the freight forwarder. This check shall be carried out prior to any processing, otherwise any liability on our part shall cease to apply. The statutory warranty periods are excluded. To the extent that a warranty claim is asserted, such claim shall be limited to the claim for delivery of defect-free goods after the goods reported as defective have been returned. The terms and conditions set out in clause III. shall apply in relation to the supplementary delivery. All other warranty claims are excluded. Regardless of their reason, any costs incurred due to the failure to accept delivery shall be borne by the purchaser. Returns of the goods delivered by us will not be accepted without our consent. The transport risk for returns shall be borne by the purchaser. Sterile products, custom-made items, goods that cannot be resold (minimum sell-by date < 6 months, contamination, sticky residues etc.), discontinued items and incomplete shipping units are strictly excluded from being returned.
Returns that are not based on defects will not be accepted by us without our prior consent. Returns will be processed in accordance with our current policies regarding delivery complaints and returns, which shall be coordinated with our complaints department. In the case of standard processes, any returns that have been caused without any fault on our part shall result in a minimum processing fee of EUR 12.50 net plus freight costs incurred. In the case of labour-intensive processes dealt with by our returns department, we reserve the right to charge a processing fee of 10% of the value of the goods.
VIII. Terms of payment
The terms of payment agreed in the individual case shall apply. Unless otherwise agreed, the following shall apply: New customers shall receive the first two orders within one year subject to advance payment. From the third order onwards, payment shall be due immediately net cash following receipt of the goods. If, following conclusion of the contract, it becomes apparent that the purchaser’s circumstances do not warrant being granted credit, we may demand immediate payment or the provision of security. If this is not provided within the prescribed period, we may withdraw from the contract and assert claims for damages. If the deadline for payment is exceeded, interest for late payment will be charged from the date on which payment was due, without the purchaser having to again be formally advised that they are in payment default. Default interest of 9.00% p.a. will be charged. Any reminder fees or collection costs shall be borne by the customer. We reserve the right to claim additional interest for late payment. In the event of a payment default, we reserve the right – immediately and without deduction – to collect any outstanding payments that are not yet due. This right shall not cease to apply even if deferments of payment have been granted in previous cases. The right to offset against any counterclaims or retain our goods shall only be permissible in the case of undisputed claims or claims that have been upheld and declared unappealable by a court of law.
IX. Retention of title
All delivered goods shall remain our property until full payment of our claims and, in the event of payment by cheque or bill of exchange, until they have been cashed. This shall also apply in the event that the goods are stored on third-party land. If the goods are worked on or processed by the purchaser, then such processing is deemed to have been undertaken on our behalf, and our retention of title shall also extend to the new items resulting from such processing. The purchaser shall not acquire any ownership due to processing as per section 950 BGB. As a precaution, the purchaser hereby transfers co-ownership in the new items to us and shall store them on our behalf. The purchaser shall be entitled to resell the goods only in the ordinary course of business, whether or not they have been processed or combined. If we take back delivered goods due to the retention of title, then this repossession shall only count as a withdrawal from the contract if we explicitly notify the purchaser of such withdrawal. As a precaution, the purchaser shall hereby assign any claims arising from the resale to us until all our claims under the goods deliveries have been met, without this requiring a specific agreement in each individual case. Insofar as the assigned claims are included in a running account and the balance has been struck and recognized, the customer hereby assigns the claims under the running account to us. Following a request to this end, the purchaser shall be strictly obliged to notify the third party of the assignment and to provide the information and documents required in order to assert the purchaser’s claims against third parties. The purchaser shall immediately notify us in writing of, and defend against, any third-party access to the goods subject to a retention of title or claims assigned to us. For as long as the goods are subject to a retention of title, the purchaser shall be obliged to insure the goods against fire, water and theft. Evidence of the insurance policy entered into shall be provided to us upon request.
X. Place of performance
Unless otherwise indicated in the order confirmation, our registered office shall be the place of performance.
XI. Data protection
The purchaser agrees to us collecting, storing and processing personal data required in the context of the business relationship. In accordance with common practice or rules and the given space, we reserve the right to attach our company text and/or company logo to deliveries of any kind.
XII. Final provisions
The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention shall not apply. If the customer is a “true merchant” (Vollkaufmann) within the meaning of the German Commercial Code (Handelsgesetzbuch) or a legal person under public law, the legal venue – including for any actions regarding cheques and bills of exchange – shall be our company’s registered office. The same shall apply if the customer does not have any general legal venue in Germany or if the registered office or habitual abode is not known at the time the legal proceedings are brought. If individual provisions in the contract with the customer including these Terms and Conditions be or become invalid, in whole or in part, then this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that most closely reflects the commercial purpose of the invalid provision.
MaiMed GmbH, effective 21 October 2016/Re.00