55129 Mainz, Germany
(hereinafter referred to as “Medovent”)
General Terms and Conditions of Sale
(Revised: 13 June 2014)
§ 1 Scope of Application, Deviating Purchasing Terms and Conditions, Future Business
The legal relationships between Medovent and the buyer shall exclusively be governed by the present General Sales Terms and Conditions (hereinafter referred to as General Terms and Conditions). These General Terms and Conditions shall only apply vis-à-vis companies and legal public-law entities. The buyer’s deviating general terms and conditions shall not be deemed to have been accepted unless Medovent, in the specific case, has explicitly agreed in writing to accept these deviating general terms and conditions. In case of business relationships on a continuous basis, the present General Terms and Conditions shall also apply to future transactions between the buyer and Medovent.
§ 2 Written/Text Form, Offer, Conclusion of Contract, Prices, Price Estimates
1. Purchase orders and declarations of acceptance, changes and other incidental agreements, if any, as well as agreements made prior to or upon conclusion of contract shall only have legal effect if made in writing or in text format, i.e. pursuant to section 126b German Civil Code (BGB) including e-mail and telefax etc. (hereinafter collectively referred to as “written form” or “in writing”). This rule shall also apply with respect to the grant of guaranteed properties, if any.
2. Medovent offers shall be subject to change without notice unless explicitly referred to as or agreed to be binding. The buyer shall be bound by the offer submitted for a period of three weeks, with respect to goods held on stock, for a period of one week. A legally effective contract shall only come into effect upon written confirmation of the purchase order received by Medovent; however, – to this extent in derogation of section 2 (1) – at the latest upon acceptance of delivery by the buyer. Medovent’s written acknowledgement of order is decisive for the scope of both parties’ rights and obligations, particularly for the scope of delivery. Medovent employees do not have the right to make verbal promises or assume verbal undertakings beyond the scope of the written agreement.
3. Unless otherwise agreed, Medovent prices shall be stated ex works plus value-added tax, as applicable, and plus incidental costs such as postage, freight, packaging and insurance in particular. Buyers domiciled inside the European Union must provide Medovent with their VAT number on or before contract closure.
4. Unless otherwise agreed upon, cost estimates shall be considered to be of a non-binding nature and Medovent shall not assume any warranty as to their accuracy.
§ 3 Passing of Risks, Packaging, Delay in Accepting Performance, Right of Retention, Return of Goods
1. Unless agreed otherwise, delivery shall be made for the buyer’s account and at the buyer’s risk; risks shall pass to the buyer as soon as Medovent has handed over the goods to the carrier, forwarding agent or any other individual commissioned with dispatch.
2. Should there be a delay in delivery for reasons which are not attributable to Medovent or should the buyer fail to accept delivery of the goods in due time although readiness to accept delivery was declared to the buyer in due time, the associated risks shall pass to the buyer upon receipt of the notice of readiness to accept delivery. In case of shipment, Medovent shall at the buyer’s request take out transport insurance at the buyer’s expense. Medovent as well as the forwarding agent who carries out delivery must be notified in writing of any occurrence of loss or damage caused in transit without undue delay, however, within five (5) days of delivery at the latest. The buyer must physically inspect the goods and check whether they are complete and in conformity with the delivery documents without undue delay after receipt and, if applicable, give notice without undue delay, otherwise the shipment shall be deemed to have been accepted by the buyer as is.
3. Goods shall be packed by Medovent with due diligence; goods shall be shipped by Medovent using its best judgement. Packaging, means of protection and handling equipment shall not be taken back by Medovent unless otherwise agreed in writing or unless such refusal to take them back would conflict with statutory provisions. Unless agreed otherwise Medovent shall invoice packaging at the net cost price.
4. Should the buyer be in delay in accepting performance, Medovent may on top of any legal claims it may have to claim additional expenses incurred in the context of the buyer’s delay in accepting performance, charge the buyer a storage fee totalling 0.25% of the selling price per complete week of delay in accepting performance, up to a maximum of 5% of the selling price. Medovent has the right – after setting a reasonable grace period and after the fruitless expiration of such reasonable grace period – to rescind the purchasing agreement and otherwise dispose of the delivery item. Medovent and the buyer respectively reserve the right to furnish proof of having sustained higher or lower costs, as applicable.
5. Medovent has the right to hold back shipments should the buyer be in delay in payment of a previous performance.
6. Although Medovent is under no obligation to do so – Medovent may agree to take back shipments delivered on condition that such goods are in an impeccable condition. Unless otherwise agreed Medovent reserves the right to charge the buyer 10% of the invoice total for processing such return delivery. The risks of loss of and/or damage to the goods until receipt of the goods by Medovent shall be assumed by the buyer. Freight costs shall be at the buyer’s expense.
§ 4 Dates/Terms of Delivery, Force Majeure, Partial Delivery, Delivery by Suppliers, Delay in Delivery
Unless otherwise agreed or specified, dates and terms of delivery shall not be considered to be binding. Terms of delivery shall start with conclusion of contract unless the buyer has the duty of advance performance. In this case, the term of delivery shall start upon receipt of the advance performance from the buyer by Medovent.
1. In case of force majeure or any other unforeseeable events such as business interruptions, lawful strikes or lock-outs, war, embargoes on exports or imports, scarcity of energy/raw materials which temporarily prevent Medovent – without this being Medovent’s fault and without it being possible to attribute the associated fault to Medovent – from delivering the goods by the binding or non-binding delivery date or within the agreed period of delivery, these dates/terms shall be extended – also when in delay – by the persistence of the impairment of the performance induced by these circumstances. Should such an impairment result in a delay in performance by more than four (4) months, either party has the right to rescind the contract. Should prevalence of the aforementioned circumstances result in impossibility or unreasonable onerousness of the shipment in part or as a whole, Medovent shall be released from its obligation to make delivery and/or entitled to rescind the contract in this respect. This shall not affect any rescission rights that may be operative by virtue of the law, if applicable.
2. Medovent has the right to conduct partial deliveries/performances unless acceptance of such partial deliveries/performances would be considered to be unreasonably onerous for the buyer.
3. If Medovent itself fails to receive the respective goods from its suppliers or fails to receive such goods in time from its suppliers, Medovent shall not be in delay in delivery/performance vis-à-vis the buyer unless the failure of the supplier to deliver or to deliver in time is attributable to Medovent. Medovent has the right to rescind the contract should it have been determined that delivery of goods to Medovent by its suppliers will not be made for reasons which are not attributable to Medovent.
4. In case of delay in delivery, Medovent shall be liable without limitations for wilful intent or gross negligence. In case of slight negligence, liability shall be limited to loss or damage that is typical of such contracts and foreseeable up to a maximum of 5% of the agreed purchase price of the portion of the goods with respect to which Medovent is in delay in delivery.
§ 5 Payment, Set-off/Right of Retention, Delay in Payment, Deterioration of Assets
1. Unless otherwise agreed, Medovent invoices shall be payable within fourteen (14) days of receipt without deductions. This rule shall also apply with respect to partial invoices issued by Medovent, if any.
2. Medovent reserves the right to refuse to accept bills of exchange. Bills of exchange shall only be accepted on account of payment. Discount charges and fees incurred for bills of exchange shall be at the expense of the buyer and shall be due immediately.
3. In case of a delay in payment, the outstanding receivables shall incur 8% interest above the base rate. Medovent reserves the right to claim higher losses as a result of the delay.
4. The buyer may only offset Medovent’s claims against counter-claims that are undisputed, ready for judgment or have been established by virtue of a final and absolute judgment. The buyer may only assert a right of retention if and to the extent such right of retention is based on counter-claims that are undisputed, ready for judgment or have been established by virtue of a final and absolute judgment and based on the same contractual relationship.
5. Should it become apparent after conclusion of contract that Medovent’s claim to consideration is at risk because of buyer’s lack of solvency, Medovent may refuse to perform until the buyer has paid the consideration or provided collateral for it. Medovent may set a reasonable deadline by which the buyer at its discretion shall either provide the consideration or collateral, in return for the performance. After the deadline has expired, Medovent has the right to rescind the contract and/or claim damages or reimbursement of expenses to the extent the legal requirements for it are satisfied.
6. Should duly offered delivery not be accepted, Medovent is entitled to claim damages for non-performance totalling 20% of the invoice total without having to set a deadline. Medovent reserves the right to furnish proof of having sustained higher loss or damage, the buyer reserves the right to furnish proof of lower loss or damage.
§ 6 Notice of Defects, Claims Based on Defects
Should the cause of the defect already have existed at the time of passing of risks according to section 3 (1) and (2), Medovent shall only be liable for defects subject to the following provisions:
1. The buyer has the duty to comply with its duty to physically inspect the goods in line with section 377 German Commercial Code (HGB). Medovent must be notified of patent defects in writing without undue delay, however, within seven (7) days of delivery of the goods at the latest. Medovent must also be notified of hidden defects in writing without undue delay, however, within seven (7) days of detection of the defect at the latest. Should the buyer fail to give such notice of defects, the shipment shall be deemed to have been accepted and approved by the buyer as impeccable.
2. Should the buyer give notice of defects in due time in line with section 6 (1), the buyer is entitled to demand, at Medovent ‘s discretion, either that the defect be remedied by Medovent free of charge or that Medovent supply an item free of defects (subsequent specific performance).
3. Should subsequent specific performance in accordance with section 6 (2) be unsuccessful, the buyer has the right to rescind the contract or reduce the purchasing price. No such rescission right shall exist if the defects are immaterial. Should the buyer opt for rescission of contract due to existence of a defect, the buyer shall not additionally be entitled to claims for damages for having sustained such defect. Subsequent specific performance shall be deemed to have been unsuccessful only after three attempts have failed to be successful.
4. No claims for defects shall arise if an insignificant deviation exists between the quality of the goods delivered and the agreed quality or if fitness of the goods for use is only insignificantly impaired.
5. Claims for defects shall become statute-barred twelve (12) months after delivery of goods unless the defect was fraudulently concealed or relates to a guarantee as to the quality of the goods.
6. The buyer shall return the goods delivered to Medovent for the purpose of subsequent specific performance. Should the goods delivered be defective, Medovent shall bear the costs incurred for subsequent specific performance such as costs of carriage, handling, processing and material in particular. Should expenses be increased as a result of goods subsequently having been forwarded to a place other than the registered office or branch office of the buyer, the buyer’s claims to request reimbursement of associated expenses shall be excluded unless it was in line with the intended use of the goods to forward the goods to another place.
7. No claims for damages exist for natural wear and tear or deterioration as well as with respect to defects that were created after passing of risks as a result of inappropriate or negligent treatment or use (inappropriate or improper storage and use, faulty assembly and/or commissioning by buyer or third party, excessive use as well as special external impact that was not foreseen in the contract, for instance). The same applies should defects be created as a result of the buyer failing to comply with operating or maintenance instructions or modifying the goods inappropriately.
8. The buyer shall only have claims for damages for defects if and to the extent Medovent’s liability has not been limited or excluded in line with section 7 of these General Terms and Conditions. Claims in addition to or other than those governed by the present section 6 on the grounds of a defect shall be excluded.
§ 7 Total Liability
1. Medovent shall be liable without limitations for wilful intent and gross negligence. In case of slightly negligent breach of a primary performance obligation or a secondary obligation breach of which would jeopardise achievement of the purpose of the contract or performance of which constitutes a condition for due performance of the contract and observance of which the buyer could be expected to rely on (hereinafter referred to as “secondary obligation of the essence”), Medovent’s liability shall be limited to loss or damage typical for the contract that was foreseeable upon execution of contract.
2. Medovent shall not be liable for slightly negligent breach of secondary obligations that are not considered to be secondary obligations that are of the essence according to section 7 (1).
3. The aforementioned exclusion of liability shall not apply to fraudulent concealment of defects or in case of assumption of guaranteed properties, with respect to liability claims based on the product liability act as well as loss or damage in terms of loss of life, physical harm and health impairment. This rule is not associated with a change in the burden of proof to the buyer’s detriment.
4. To the extent Medovent’s liability is excluded or limited, this shall also apply to personal liability to be assumed by its salaried employees, workers, other staff and vicarious agents.
5. With the exception of claims in tort, the buyer’s claims for damages liability for which is limited under this clause shall become statute-barred one year after commencement of the statutory limitation period.
§ 8 Reservation of Title
1. The goods delivered shall remain Medovent’s property until any amounts receivable under the contract as well as any other claims that Medovent may have against the buyer directly within the framework of the delivered goods, regardless of the legal basis thereof, have been settled in full.
2. The goods shall furthermore remain Medovent’s property as goods subject to retention of title until satisfaction of any other claims that Medovent may have against the buyer – regardless of the legal basis thereof – now or in future (including balances receivable, if any, in current account). In case of current account transactions, the purpose of the goods subject to retention of title is to secure Medovent’s balances receivable.
3. The buyer has the right to resell the goods in the ordinary course of its business. For as long as Medovent is the proprietor of the goods subject to retention of title, Medovent has the right to revoke the right of the buyer to resell the goods if an objectively justified reason exists. The buyer as of today already assigns to Medovent any claims including incidental rights that the buyer may be entitled to as a result of resale of the goods and Medovent herewith accepts such assignment of future rights.
4. Until further notice the buyer shall be authorised to collect the receivables assigned to Medovent. Medovent may revoke the collection authority for an objectively justified reason. The buyer does not have the right to dispose of the receivables in any other way such as by assignment. Medovent has the authority to collect the receivables itself, however, with an obligation to refrain from collecting the receivables for as long as the buyer duly complies with its payment obligations.
5. Should the buyer fail to comply with its payment obligations and should Medovent therefore have the authority to collect receivables by itself, the buyer agrees to hand out to Medovent at request a list of any goods with respect to which Medovent reserved title, the assigned receivables as well as the names and addresses of the debtors including the amount of receivables outstanding. The buyer at request has the duty and Medovent has the right to notify the buyer’s debtors of the assignment of receivables.
6. The buyer has the duty to treat the goods with respect to which title was reserved with due care and to take out insurance for them against fire, material defects and theft totalling the replacement cost of the goods and to maintain such insurance cover. At Medovent’s request the insurance policy must be handed out to Medovent for inspection. The buyer already as of today assigns to Medovent and Medovent as of today already accepts any insurance claims that the buyer may have with respect to Medovent’s property. Medovent shall declare reassignment of property to buyer subject to the proviso that such reassignment shall only take effect if and to the extent that the reservation of title has become forfeited after settlement of all of Medovent’s receivables in full.
7. For as long as the reservation of title applies, pledging of claim, transfer by way of security, letting or any other transferral or change in goods subject to retention of title impairing Medovent’s security right shall only be possible subject to Medovent’s prior written consent. The right of the buyer to continue selling the goods in the ordinary course of its business subject to the conditions mentioned above shall remain unaffected. The buyer shall notify Medovent without undue delay in writing of third-party attachment, e.g. by way of debt enforcement, and point out the existence of Medovent’s reservation of title to the third party.
8. Should the buyer cease payment, not just temporarily, file for bankruptcy regarding its assets or should its assets be subjected to bankruptcy proceedings, the buyer shall at Medovent’s request have the duty to surrender the goods subject to retention of title concerning which Medovent still reserves title. Medovent shall furthermore have the right to claim surrender of the goods subject to retention of title by the buyer in case of breach of contract by the buyer, in case of default in payment in particular.
9. Goods subject to retention of title may only be processed or converted on behalf of Medovent in such a way that Medovent shall be considered to be the manufacturer in terms of section 950 German Civil Code (BGB). Should the goods subject to retention of title be processed, combined or merged by the buyer with other goods that do not belong to Medovent, Medovent shall become co-owner of the new item totalling the invoice value of the goods subject to retention of title in proportion to the invoice value of the other goods at the time of processing, combination or merging. Medovent already as of today offers to grant the buyer an expectant right in the co-ownership share to be created. The buyer herewith accepts this offer. Should the goods subject to retention of title be sold together with other goods after processing, combination or merging, the assignment of receivables from resale shall only apply up to the invoice value of the goods delivered by Medovent.
10. After the buyer has satisfied all the receivables associated with the goods subject to retention of title or if the value that may be realised on the basis of all of the collateral granted to Medovent under the reservation of title, transfer by way of security and assignment of future claims exceeds the aggregate total of receivables from the buyer by more than 10%, Medovent shall at the buyer’s request and at Medovent’s discretion have the duty to either waive its reservation of title and/or to release collateral from transfer by way of security and assignment of future claims.
§ 9 Place of Performance, Place of Jurisdiction, Governing Law
1. Medovent’s registered office is the place of performance.
2. Should any disputes arise from or in connection with this agreement between Medovent and traders under the German commercial code, legal public-law entities or special funds under public law or individuals whose residence or habitual place of abode is relocated to a country outside Germany or whose residence or place of abode is unknown at the time an action is commenced, Medovent’s registered office shall be the place of jurisdiction.
3. This contract shall be governed by the laws of the Federal Republic of Germany; application of the UN Sales Convention (CISG) shall be excluded.