General Terms of Sale
§ 1 Scope of application
(1) These Terms of Sale apply exclusively for business persons, legal entities under public law or funds under public law in terms of §310 (1) BGB (German Civil Code). Opposing conditions of the Purchaser or those deviating from our Terms of Sale are only recognised by us if we have explicitly agreed to their validity in writing.
(2) These Terms of Sale also apply for all future transactions with the Purchaser if they are legal transaction of a similar type.
§ 2 Offer and conclusion of the contract
If an order is to be considered as an offer according to § 145 BGB (German Civil Code), we may accept it within two weeks.
§ 3 Characteristics and quantities
(1) The quality of the products is principally determined by our technical specifications. If such specifications are not available, the quality shall be assessed in accordance with the DIN and/or EURO standards or custom of the trade applicable at the time of formation of contract.
(2) The weights, quantities and amounts stipulated in our delivery notes are decisive for the settlement of accounts. Complaints against these specifications can only be considered if we received them within one week from delivery.
(3) Production and dispatch-related deviations to weight and quantity of up to 10% are permitted with respect to the entire order amount as well as individual partial deliveries.
(4) We provide dimensions and weights in our offers and order confirmations to the best of our knowledge. Deviations of dimensions, weights and other technical values acceptable in terms of the designated usage do not constitute a reason for complaint.
§ 4 Prices and payment
(1) Subject to a deviating price agreement, the prices are determined according to our price list valid at the time of formation of a contract. Our prices apply plus VAT in the legally prescribed amount at the date of invoicing.
(2) The invoice amount is due and payable without discount within 21 days from the date of invoice. Default interest in the legal amount shall be charged. The assertion of further damage caused by default remains reserved.
(3) Payment of the purchase price has to be made exclusively to the account stipulated on the invoice. Deduction of a discount is only permissible upon special written agreement.
(4) Retention of payments or off-setting is only permitted based on final and absolute determined counterclaims or those uncontested by us.
(5) Unless a fixed-price-agreement was made, we reserve the right to adequate price changes due to changed wage, material and distribution costs for deliveries, which occur 3 months or more after conclusion of the contract.
(6) The Principal is not entitled to assign claims resulting from this agreement to third parties.
§ 5 Off-setting rights and rights of retention
The customer is only entitled to the off-set if his counter claims were legally determined or uncontested. The Purchaser is only entitled to a right of retention in as far as his counter claim is based on the same contractual relationship.
§ 6 Delivery time
(1) The specification of delivery dates is non-binding in the absence of an explicit and written agreement. Agreed delivery times commence earliest at the receipt of the order confirmation, however not prior to the Purchaser's on-time and proper fulfilment of agreed obligations to participate and not prior to the receipt of any agreed payment.
(2) The commencement of the delivery time stipulated by us implies the on-time and proper fulfilment of the Purchaser's obligations. The plea of the unfulfilled contract remains reserved.
(3) If the Purchaser is in default of acceptance or if he culpably violates other obligations to participate, we are entitled to demand compensation for incurred damages including any additional expenses. Further claims remain reserved. If the above conditions exist, the risk of accidental destruction or accidental deterioration of the merchandise is transferred to the Purchaser at the moment he is in default of acceptance or payment.
(4) Further legal claims and rights of the Purchaser due to delay in delivery remain unaffected.
§ 7 Transfer of risk at dispatch
If the merchandise is sent to the Purchaser at his request, the risk of accidental destruction or accidental deterioration of the merchandise is transferred to the Purchaser at the latest upon the merchandise leaving the warehouse. This applies regardless of whether the dispatch of the merchandise occurs from the place of fulfilment or who pays the freight costs.
§ 8 Reservation of title
(1) We retain ownership to the supplied product up to the complete payment of all claims resulting from the contract of delivery. This also applies for all future deliveries, even we do not explicitly refer to this fact. We are entitled to take back the merchandise if the Purchaser acts contrary to the agreement.
(2) The Purchaser is obligated to treat the merchandise with care until the ownership has been transferred to him. He is particularly obligated to take out sufficient as-new insurance against theft, fire and water damages at his expense (Note: only admissible for the purchase of high quality goods). If maintenance and inspection work has to be carried out, the Purchaser has to implement those at his expense in due time. Until ownership has been transferred the Purchaser has to notify us in writing without undue delay if the supplied object is being seized or subjected to other interventions by third parties. If the third party is not able to reimburse us for judicial and extra-judicial costs of a successful complaint according to § 771 ZPO (Code of Civil Procedure), the Purchaser is liable for the damage we incurred.
(3) The Purchaser is entitled to on-sell the reserved goods in the cause of normal commercial transaction. The Purchaser is today assigning to us the claims of the purchaser from the on-selling of the reserved goods to the extent of the agreed final invoice amount (including VAT). This assignation applies regardless of whether the merchandise was on-sold with our without processing. The Customer is entitled to collect the claims also following the assignation. Our authorisation to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the Purchaser complies with his payment obligations from the revenue, is not in default of payment and has particularly not applied for the commencement of insolvency procedures or has suspended payment. [Note: This clause is not applicable if extended reservation of ownership is not intended.]
(4) The treatment and processing or reconstruction of the merchandise by the Purchaser always occurs in our name and on our behalf. In this event the contingent right of the Purchaser to the merchandise is continued in the reconstructed object. If the merchandise is processed with other merchandise not belonging to us, we obtain co-ownership in the new object at the ratio of the objective value of our merchandise to the other processed objects at the time of processing. The same applies in case of intermingling. If the intermingling occurs in the manner that the object of the Purchaser is considered the main object, it is agreed that the Purchaser assigns to us proportional ownership and preserves the thus created sole ownership or co-ownership for us. To secure our claims against the Purchaser, the Purchaser also assigns to us such claims which he accrues based on the intermingling of the reserved goods with a property against a third party; we accept this assignation today.
(5) We are obligated to release the securities owed to us upon the Purchaser's request if their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notice of defect
(1) Warranty rights of the Purchaser imply that he has properly complied with his obligations regarding inspection and requirement to give notice of defects in accordance with § 377 HGB (German Commercial Code).
(2) Warranty claims based on a material defect or defect of title become statute barred after 12 months from the statutory commencement of warranty, unless the Product Liability Act or other acts, particularly § 479 (1) BGB (German Civil Code) (Claims of recourse in the consumable goods purchase-supply chain) prescribe longer periods. The statute of limitation for claims resulting from the liability for damages relating to the violation of life, body or health based on intentional or negligent violation of obligations by us or one of our legal representatives or vicarious agents or other damages based on intentional or gross negligent violation of obligations by us or one of our legal representatives or vicarious agents is based on statutory regulations.
(3) If the supplied product exhibits a defect which already existed at the time of the transfer of risk despite all applied diligence, we shall - at our discretion - repair the merchandise or supply a substitute subject to a notice of defect within the prescribed period. We are to be granted the opportunity of subsequent fulfilment within a reasonable period at any time. Claims of recourse remain unaffected from the above regulation.
(4) If the subsequent fulfilment fails, the Purchaser can withdraw from the agreement or reduce payment regardless of any compensation claims.
(5) Warranty claims do not exist in case of mere insignificant deviations from the agreed quality, immaterial impairment of usefulness, natural wear and tear as well as damages occurred after the transfer of risk due to faulty or negligent treatment, excessive load, unsuitable consumables, inadequate construction work, unsuitable construction surface or special external influences which are not stipulated according to the agreement. If the Purchaser or a third party performs improper repairs or changes, these and any resulting consequences are also excluded from warranty claims.
(6) Claims by the Purchaser due to expenses based on the subsequent fulfilment, particularly transport, shipping, labour and material costs, are excluded if the expenditure increases due to merchandise supplied by us being delivered to a location other than that of the seat of the Purchaser, unless the supply correlates with their intended usage.
(7) Claims of recourse of the Purchaser against us exist to the extent as the Purchaser has not agreed to any stipulations exceeding the statutory mandatory warranty claims with his purchaser. Furthermore, paragraph 6 applies to the extent of the Purchaser's claim of recourse against the supplier.
§ 10 Right of withdrawal
(1) We are entitled to withdraw from the agreement if contract performance has become impossible. Impossibility particularly exists if we were not supplied at no fault of our own despite concluded agreements and other endeavours were not possible or have failed. We shall immediately inform the Principal regarding the existing impossibility and refund his payment without undue delay.
(2) We are entitled to withdraw from the agreement if the Purchaser is in default of payment and omits to pay despite a reminder.
(3) The withdrawal occurs by way of declaration to the Principal.
§ 11 Miscellaneous
(1) This Agreement and the entire legal relationships of the Parties are subject to the laws of the Federal Republic of Germany under exclusion of the UN-Sales Act CISG (Convention on Contracts for the International Sale of Goods).
(2) Place of fulfilment and exclusive place of jurisdiction for all disputes arising from this Agreement is our registered office unless otherwise determined in the order confirmation.
(3) All agreements made between the parties for the purpose of the execution of this Agreement are documented in writing in this Agreement.
(4) If individual conditions of this Agreement are or become ineffective or contain a gap, the remaining conditions remain in force. The Parties are obligated to replace the ineffective condition with a legally permissible condition which is closest to the economic purpose of the ineffective condition and/or fills this gap.
01.01.2012 Cardionovum GmbH, Bonn, Germany