§ 1 General
Our sales and delivery conditions apply exclusively. We do not recognize any conditions of the customer that conflict with or deviate from our sales and delivery conditions unless we have expressly agreed to their validity in writing. Our sales and delivery conditions also apply if we carry out the delivery to the customer without reservation despite knowledge of conflicting or deviating conditions of the customer. All sales and delivery conditions that are agreed between us and the customer for the purpose of executing this contract are set out in writing in this contract. Our sales and delivery conditions also apply to all future transactions with the customer. Our sales and delivery conditions apply only to entrepreneurs, private individuals and legal persons under public law within the meaning of § 310 para. 1 BGB.
§ 2 Offers and Contracts
Our offer is subject to change unless otherwise stated in the order confirmation. If the order is to be qualified as an offer according to § 145 BGB, we can accept it within 2 weeks. A contract is concluded only by our written order confirmation or by execution of the order.
§ 3 Prices and Payment Conditions
Unless otherwise stated in the order confirmation, all prices are in EUR, including packaging costs, but excluding statutory value-added tax. This will be shown separately on the invoice at the statutory rate on the day of invoicing. Unless otherwise stated in the order confirmation, the customer shall bear the shipping costs. Changes to information in our catalogs, websites, brochures and price lists regarding price, quantity, quality and delivery including any discounts or other conditions are reserved. We reserve the right to change our prices appropriately if cost reductions or cost increases, changes in wage and material costs occur after the conclusion of the contract. We will provide evidence of this upon request by the customer. Unless otherwise stated in the order confirmation, orders with a net order value exceeding EUR 5,000.00 will only be executed after receipt of payment. Unless otherwise stated in the order confirmation, the purchase price is net (without deduction) and due for payment within 14 days from the invoice date. The statutory provisions regarding the consequences of default in payment apply. This applies both to main invoices and to partial and subsequent invoices. If a significant deterioration in the customer’s financial circumstances becomes known or if he is in default of payment, we are entitled to demand immediate payment of all open invoices, including those not yet due. In addition, we are entitled not to execute current orders from the customer. The deduction of cash discount requires special written agreement. The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Delivery
The start of our specified delivery time presupposes clarification of all technical issues. Compliance with our delivery obligation further requires timely and proper fulfillment of the customer’s obligation, in particular correct information regarding delivery address, acceptance times and contact persons. The plea of unfulfilled contract remains reserved. We choose shipping method including associated shipping costs. We reserve the right to consider the customer’s wishes regarding shipping route and shipping method. The customer bears any additional costs incurred. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved. If the conditions of § 4 No. 4 are met, the risk of accidental loss or deterioration of the purchased item shall pass to the customer at the time when he is in default of acceptance or debtor’s delay. We are also liable according to legal regulations if the delivery delay is based on an intentional or grossly negligent breach of contract for which we are responsible. Our representatives and vicarious agents are also responsible for any fault. If the delivery delay is not based on an intentional breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damage. We are also liable according to legal regulations if the delivery delay is based on a culpable breach of a material contractual obligation for which we are responsible. In this case, however, liability for damages is limited to the foreseeable, typically occurring damage. In all other respects, our liability for delivery delays is limited to a maximum of 5% of the delivery value. Further statutory claims and rights of the customer remain reserved.
§ 5 Transfer of Risk
Unless otherwise stated in the order confirmation, delivery is agreed “ex works”. At the request of the customer, delivery can be covered by transport insurance. The costs incurred thereby shall be borne by the customer.
§ 6 Complaints, Warranty and Liability
Commercially customary and reasonable deviations in quantity, measurements, weight and quality remain reserved for the customer. The customer’s rights in case of defects require that he has properly fulfilled his obligations to inspect and give notice of defects pursuant to § 377 HGB. The customer’s rights in case of defects shall expire after twelve months from the transfer of risk. The limitation period in the event of recourse under §§ 478, 479 BGB remains unaffected. It is five years from delivery of the defective item. If there is a defect in the purchased item, we are entitled to remedy the defect by means of rectification or delivery of a new item free of defects at our discretion. In the case of rectification of defects, we shall bear all expenses necessary for the purpose of rectifying the defects, in particular transport, travel, labour and material costs, unless these are increased by the fact that the purchased item has been taken to a place other than the place of performance, and only up to the amount of the purchase price. If subsequent performance fails, the customer is entitled to demand rescission or reduction at his option. We are liable according to legal regulations if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we cannot be accused of intentional breach of contract, liability for damages is limited to foreseeable damage typically occurring. We are also liable according to legal regulations if we culpably violate a material contractual obligation. In this case, however, liability for damages is limited to foreseeable damage typically occurring. Liability for culpable injury to life, body or health remains unaffected. We are liable according to the legal provisions if we culpably violate an essential contractual obligation. In this case, however, liability for damages is limited to the foreseeable, typically occurring damage.
Liability for culpable injury to life, body or health remains unaffected. This also applies to mandatory liability under the Product Liability Act. Unless otherwise provided above, liability is excluded.
§ 7 Total liability
Further liability for damages than provided for in § 6 is excluded – regardless of the legal nature of the claim asserted. The limitation under § 7 No. 1 also applies if the customer demands compensation for useless expenses instead of compensation for damages instead of performance. Insofar as our liability for damages is excluded or limited vis-à-vis us, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 8 Retention of title
“The delivered purchased item remains our property until payment has been received for all existing and all future claims arising from the business relationship with the customer. In the event of a breach of contract by the customer, in particular in the event of default in payment, we are entitled to take back the purchased item. In taking back the purchased item from us, there is a withdrawal from the contract. We are entitled to dispose of the purchased item after taking it back. The proceeds of disposal are to be credited against the customer’s obligation – less reasonable disposal costs. If the purchased item is delivered to a location outside the Federal Republic of Germany or if it is taken by the customer to such a location, the customer shall take all necessary measures to protect and preserve our reservation of title in accordance with § 8 No. 1 or – if under the legal system in which the purchased item is located, a reservation of title cannot be effectively agreed – provide us with a legal position on the purchased item that effectively protects our interests in an equally effective or otherwise appropriate manner.
The customer is obliged to treat the purchased item with care and to insure it at his own expense against fire, water and theft damage up to its new value, and already assigns his claims for compensation from these insurance contracts to DMB-Diagnostics. In the event of seizures or other third-party interventions, the customer must inform us immediately in writing so that we can file suit in accordance with § 771 ZPO. Insofar as the third party is not able to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
The customer is entitled to resell the purchased item in the ordinary course of business. However, the customer already assigns all claims arising from the resale against his customers or third parties, regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect this claim even after assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and in particular no application for opening insolvency or settlement proceedings has been filed or payment has been suspended. If this is the case, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the third party of the assignment. The customer is not entitled to pledge, assign or transfer ownership of the purchased item to third parties. The customer may only resell the purchased item in its original configuration. The processing or transformation of the purchased item by the customer is always carried out for us. If the purchased item is processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the purchased item (invoice final amount including VAT) compared to the other processed items at the time of processing. The same applies to the item created by processing as to the item delivered under reservation.
If the purchased item is inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the purchased item (invoice final amount including VAT) compared to the other mixed items at the time of mixing. If mixing is done in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer proportional co-ownership to us. The customer shall store the sole ownership or co-ownership thus created for us. We undertake to release the securities due to us at the request of the customer insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%. The selection of securities to be released is at our discretion.
§ 9 Drawings and other documents
We reserve ownership and copyright in illustrations, drawings, calculations, designs and other documents provided or made available to the customer in connection with contract negotiations or performance. These documents may not be made accessible to third parties without our express written consent, nor may they be reproduced or used for any purpose other than that agreed upon without our express written consent. We are entitled to demand free delivery of these documents, including any reproductions, if the buyer no longer needs them or if we become aware of any abusive use of these documents. The right of retention is excluded. This applies in particular to documents marked as “confidential”.
§ 10 Use of purchased item
The purchased item is intended exclusively for use by appropriately qualified personnel for the purpose specified by us. The customer is responsible for compliance with legal regulations, in particular safety regulations, for handling the purchased item. Unless otherwise stated in the order confirmation, we assume no liability for any infringement of third-party rights, in particular patents and trademarks, resulting from the delivery and use of the purchased item.
§ 11 Data protection
§ 12 Place of performance, jurisdiction and applicable law
Unless otherwise stated in the order confirmation, our place of business is the place of performance. If the customer is a merchant, our place of business is the place of jurisdiction. However, we are entitled to sue the customer at his place of business. The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. The parties undertake to replace ineffective clauses with effective clauses that come closest to the sense and purpose of the ineffective clause. This also applies in case of a regulatory gap in these sales and delivery conditions.