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General Terms and Conditions of Sale

General Terms and Conditions of Sale (“GTCS”) for

commercial transactions

(Seller and purchaser are companies)

 

§ 1       Area of validity

 

(1) These terms and conditions of sale shall only be valid for companies, legal entities under public law or federal special funds under public law in the sense of § 310 Para. 1 BGB (German Code of Law). Contrary conditions of sale or purchaser’s conditions deviating from our conditions of sale shall only be recognised by us if their validity is expressly agreed to by us in writing. Our offers are aimed at the specialist medical public (in particular doctors and hospitals) and not at private individuals.

 

(2) These terms and conditions of sale shall also be valid for all future transactions with the purchaser, to the extent that transactions of a related nature are involved.

 

§ 2       Offer and conclusion of contract

 

To the extent that an order is regarded as an offer pursuant to § 145 BGB, we may accept same within two weeks. The depiction of products in our online shop www.augeninstrumente24.de shall not constitute a legally binding offer but rather an invitation to order. Errors excepted. By clicking on the button [Order], you are sending a binding order for the goods listed on the order page. The contract of sale comes into existence when we confirm your order by means of a confirmation of order after receipt of your order.

 

§ 3       Provided documentation

 

We shall retain ownership and copyright in documentation provided to the purchaser in connection with placing of the order, such as calculations, drawings etc. This documentation may not be made available to third parties unless we grant explicit written permission to the purchaser in this regard. To the extent that we do not accept the purchaser’s offer within the period in § 2, this documentation must be returned to us immediately.

 

§ 4       Prices and payment

 

(1) Our prices are quoted in EURO. Where invoices are provided in foreign currencies, the calculated prices shall be subject to our final approval. The exchange rate valid at the time of calculation shall be decisive. In the absence of any other written provisions to the contrary, our prices shall be valid ex plant, excluding packaging and, in the case of domestic deliveries, excluding VAT to the applicable extent. Packaging costs shall be invoiced separately. Deviating conditions (in particular discounts) for online orders via our web shops www.augeninstrumente24.de are stored under Customer information.

 

(2) Payment of the purchase price shall be made exclusively to the account named on the reverse page. Deduction of a discount shall only be permissible where agreed to in writing. Deviating conditions of payment or payment processing for online orders via our web shops www.augeninstrumente24.de are stored under Customer information.

 

(3) To the extent that no agreement to the contrary exists, the purchase price shall be paid within 30 days of date of invoice, net and without deductions. Interest on arrears in the amount of 8% above the current base rate shall be calculated. The right of assertion of higher damages for arrears shall remain reserved. Deviating conditions of payment for online orders via our web shops www.augeninstrumente24.de are stored under Customer information.

 

(4) To the extent that no fixed price agreement has been reached, the right of appropriate price changes due to changes in wage, material and distribution costs for deliveries that occur 3 months or more after conclusion of the contract is reserved. We retain the right to increase prices without prior notice.

 

 

 

§ 5       One-off production

 

Items that are not listed in our catalogue shall under no circumstances be accepted for return.

 

§ 6       Returns

 

Instruments that are not the subject of objections, are new and in their original packaging may be returned to us within a period of 14 days from receipt.

 

§ 7       Set-off and rights of retention

 

The purchaser shall have the right of set-off only where his counterclaims have been judicially determined or are undisputed. The purchaser shall only be entitled to exercise a right of retention where his counterclaim is based on the same contractual relationship.

 

§ 8       Delivery time

 

(1) The start of the delivery time indicated by us presupposes the timely and orderly fulfilment of the purchaser’s obligations. The defence of non-fulfilment of contract shall be reserved.

 

(2) Where the purchaser is in arrears with payment or is guilty of any other breach of cooperation duties, we shall have the right to demand compensation for the damages incurred including any additional expenditure. We reserve the right to additional claims. In the event of the existence of aforesaid conditions, the risk of incidental degradation or loss of the merchandise shall pass to the purchaser with commencement of default.

 

(3) Force majeure, a shortage of raw materials etc. shall release us from compliance with the agreed delivery dates. Delays in delivery shall not entitle the purchaser to claim damages.  

 

(4) Further statutory claims and rights on the part of the purchaser due to a delay in delivery shall remain unaffected.

 

§ 9       Transfer of risk on dispatch

 

Where the goods are dispatched to the purchaser at his request, the risk of incidental degradation or loss of the goods shall transfer to the purchaser as soon as same are dispatched, however at the latest at the time of leaving the plant/warehouse. This shall apply independent of whether the goods are dispatched from the place of fulfilment or who is responsible for the shipping costs.

 

§ 10     Reservation of ownership

 

(1) We shall reserve ownership to the supplied object until payment of all claims pertaining to the supply agreement has been received in full. This shall also apply to all future deliveries, even where this is not expressly referred to. We shall be entitled to reclaim the merchandise should the purchaser act contrary to agreement.

 

(2) The purchaser shall be obliged to handle the merchandise with care to the extent that ownership has not yet been transferred to him. Where maintenance and inspection activities are required to be performed, the purchaser shall perform these at his own expense in a timely manner. To the extent that ownership has not yet been transferred, the purchaser shall inform us immediately should the supplied object be impounded or be subject to other interference by third parties. Should said third party not be able to reimburse us for judicial and extra-judicial costs of proceedings pursuant to § 771 ZPO (Court Procedures for Civil Law suits), the purchaser shall be liable for the loss incurred.

 

(3) The purchaser shall be entitled to re-sell the reserved goods in normal business transactions. The buyer’s claims from re-selling the reserved goods are hereby ceded to us by the purchaser in the amount of the agreed final invoiced amount (including VAT). Said cession shall be valid independent of whether the merchandise has been re-sold without or after processing. The purchaser shall be entitled to collect the claim even after the cession. Our right to collect the claim ourselves shall remain unaffected by this. We shall however not collect the claim ourselves to the extent that the purchaser fulfils his payment obligations from the received proceeds of sale, is not in arrears with payment and in particular no insolvency proceedings have been initiated or suspension of payment exists.

 

§ 11        Warranty, notice of defects and recourse/manufacturer recourse

 

(1) Warranty rights on the part of the purchaser shall presuppose that same has fulfilled his examination and reproval obligations pursuant to § 377 HGB (German Commercial Code) in an orderly manner.

 

(2) Claims for defects shall lapse 12 months after delivery of the goods by us to the purchaser. Any goods to be returned shall require our prior approval.

 

(3) Should the goods supplied contain a defect that already existed at the time of transfer of risk, despite utmost care taken, we shall, at our discretion, repair or replace the goods, subject to receiving notification of the defect within the required time period. We shall at all times be granted opportunity for subsequent performance within a reasonable period of time. Recourse claims shall remain unaffected without restriction of the aforesaid terms.

 

(4) Where subsequent performance is unsuccessful, the purchaser may – without prejudice to any claims for damages –withdraw from the contract or reduce compensation in terms of the contract.

 

(5) Claims for damages shall not exist in case of insignificant deviation from the agreed properties, insignificant reduction of usability, normal wear and tear as well in case of damages caused by faulty or negligent handling after transfer of risk, excessive use, unsuitable operating media or that are due to particular external influences that are not stipulated according to the contract. To the extent that the purchaser or third parties perform inappropriate maintenance activities or modifications, no claims of material defects may be asserted for these or any resulting consequences.

 

(6) Claims by the purchaser on the basis of expenditure incurred for subsequent performance, especially transport, route, work and material costs shall be excluded to the extent that said expenditure is increased because the goods supplied by us were subsequently transferred to a site other than the purchaser’s branch office, unless said transfer complies with the intended use of the goods.

 

(7) Claims to recourse against us by the purchaser shall only exist insofar as the purchaser has not reached any agreements with its customer that are more far-reaching than statutory claims on account of defects. Furthermore, Para. 6 shall apply in terms of the scope of claims to recourse against the supplier by the purchaser.

 

§ 12     Other

 

(1) This contract and all legal relationships between the parties shall be subject to the laws of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

 

(2) Place of fulfilment and exclusive place of jurisdiction for all disputes arising from this contract shall be Tuttlingen, unless otherwise stated in the confirmation of order.

 

(3) All agreements made between the parties regarding execution of this contract have been recorded in writing in this contract.

 

(4) Should individual provisions of this contract be or become ineffective or contain a loophole, the remaining provisions shall remain unaffected. The parties shall be obliged to replace the ineffective provision by a provision that is admissible by law and that most closely approximates the commercial intent of the ineffective provision or closes the loophole.

 

 

 

PRECISEMED GMBH, TUTTLINGEN

 

VERSION 01/10/2010