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Terms of sale for the company Bimed
hereafter referred to as “Bimed Teknik”
I. General provisions
1. The written representations agreed between the contracting parties shall govern the extent of deliveries and services (hereafter referred to as the "deliveries”).
2. These terms of sale supplement all terms of delivery and shall be incorporated at the latest at the time of acceptance of the goods. This shall apply even where the ordering party has expressly rejected the validity of the terms. In case of permanent business relations, the terms of Bimed Teknik shall also apply to all future business with the same ordering party. The incorporation of the ordering party’s general terms and conditions is expressly excluded.
3. These terms may not be amended after conclusion of the contract; the only exception to this shall be the agreement of a simple retention of title.
4. Offers (e.g. quantity, delivery time, price) are without obligation and non-binding. Concrete delivery obligations shall come into being only upon order confirmation. Cost estimates, drawings, drafts and other documents (hereafter referred to as the “documents”) can be adjusted. These shall only be binding where Bimed Teknik expressly designates them as such.
5. Bimed Teknik shall reserve unlimited proprietary rights and copyright (rights of utilization) to all documents. Documents shall be made available to third parties only where Bimed Teknik has indicated prior consent or this is necessary owing to legal provisions. Documents shall not be exploited in any other way without the consent of Bimed Teknik. In the event that the order is not awarded, they must be returned immediately upon request.
6. Partial deliveries shall be permitted where deemed reasonable by the ordering party.
II. Delivery deadlines, delay
1. Delivery periods and deadlines specified by Bimed Teknik shall refer to the forwarding date of the goods. They shall only be mandatory upon express confirmation in writing. The meeting of deadlines for supplies shall require that all Documents, necessary permits and approvals, especially of plans, to be furnished by the Purchaser are received in time; further, the meeting of the terms of payment stipulated and all others of the Purchaser’s obligations shall be a precondition for the Supplies. If such requirements are not met in time, those deadlines shall be extended accordingly. However, this clause shall not apply on condition that the delay is Bimed Teknik’s responsibility.
2. Force majeure or events which prevent Bimed Teknik from supplying at all or considerably impair such supplies without Bimed Teknik’s fault, shall entitle Bimed Teknik to postpone the date of delivery or withdraw from the contract.
3. In the event that Bimed Teknik is unable to meet an agreed deadline on account of reasons for which it is responsible, or if the company defaults for any other reason, the ordering party shall be obliged to grant a reasonable period of grace. If the agreed performance has not been rendered before this period expires, the ordering party shall be entitled to withdraw from the contract.
4. Subject to the limitations described below, Bimed Teknik shall be liable in accordance with the legal provisions where a transaction for delivery by a fixed date applies or where the ordering party is entitled to relinquish its interest in contract fulfilment owing to a default of delivery for which Bimed Teknik is responsible.
5. Where Bimed Teknik defaults, the ordering party shall be entitled, for each full week of delay, to claim compensation amounting to 0.5% (and up to a maximum of 5%) of the price of that part of the delivery that could not be utilised as intended due to the delay. Where in specific cases this regulation gives rise to a limitation on liability, it shall not apply if and insofar as the preconditions under article VI point 2 apply.
6. Compensation claims by the ordering party based on the delay of deliveries in addition to or instead of the deliveries themselves which exceed the limitations stated in point 3 shall be excluded in all cases of delayed delivery, even after the expiry of a delivery deadline imposed on Bimed Teknik (unless and insofar as a limitation on liability in accordance with article VI point 2 does not apply).
7. These regulations do not provide for an amendment to the burden of proof to the disadvantage of the ordering party.
8. The ordering party may only withdraw from the contract in accordance with the legal provisions where Bimed Teknik is responsible for the delay to delivery.
9. In the case of recall orders without agreement on specific delivery deadlines, Bimed Teknik shall be entitled to demand a mandatory definition of such dates up to three months after the confirmation of order. If the ordering party fails to comply with this demand within three weeks, Bimed Teknik shall be entitled to impose a second deadline of two weeks and withdraw from the contract after this period has expired or reject any delivery and claim compensation.
10. If dispatch or delivery is delayed at the request of the ordering party for more than one month after readiness for shipping has been indicated, storage charges amounting to 0.5% of the price of the objects of delivery may be imposed on the ordering party for every month commencing (up to a maximum of 5%). The contracting parties are at liberty to furnish evidence of higher or lower storage charges.
III. Dispatch, transfer of risk, return of packing material
1. Risk shall be transferred to the Purchaser as soon as supplies have left Bimed Teknik’s location. Bimed Teknik shall choose the kind of transport at its discretion unless a specific kind of transport has been agreed upon with the Purchaser. A transport insurance shall only be executed upon separate agreement with the Purchaser. If the dispatch is delayed for reasons beyond Bimed Teknik’s responsibility, any risk shall be transferred to the Purchaser at the time readiness for shipping is communicated; then Bimed Teknik shall have the right to store the goods at the Purchaser’s expense (art. II no. 7).
2. Bimed Teknik shall only accept the return of used transport packing (within the meaning of the “Packing Regulations”) if the latter is returned – with carriage prepaid – to Bimed Teknik’s plant address.
IV. Pricing, terms of payment, delay
1. Unless otherwise agreed, prices shall apply ex works, excluding packing and legal v.a.t. Prices agreed upon shall be binding to Bimed Teknik for four (4) months. If the delivery period exceeds four (4) months – at the expiry of that time – Bimed Teknik shall have the right to consider alterations of cost factors having occurred in the meantime within an adaptation to prices or a recalculation.
2. Invoices must be settled within 30 days of goods dispatch. No cash discount deduction may be applied unless expressly agreed. The ordering party shall only be entitled to offset with counter-demands where the opposing rights of that party are acknowledged by Bimed Teknik, unappealable and incontestable or where Bimed Teknik is responsible for a gross breach of contract. Right of retention in case of defects requires that the counterclaim of the purchaser is based on the same contract.
3. If the Purchaser does not meet his payment obligations towards Bimed Teknik in time, Bimed Teknik shall be entitled to make all claims (including those based on a draft) due immediately without consideration of any deferment of payment, life of a bill or expiry of the deadline for payment and demand payment on delivery. This shall also apply if circumstances become known which may cause doubts as to the Purchaser’s credit-worthiness.
4. In case of late payment the Purchaser shall come in default
a) at the end of the day on which payments are due with the day being based on definition by calendar and stipulation;
b) on the day he receives our reminder or our claim is taken to court to initiate legal steps after payment has become due;
c) thirty days (30) after the invoice has become due and received at the latest, but in default of any other provision acc. to § 286 German Civil Code (BGB).
V. Liability for material defects
Bimed Teknik shall be liable for material defects as follows:
1. All parts or services found to be defective within the period of limitation – irrespective of the time of operation – must be, at the discretion of the ordering party, reworked free of charge, supplied anew or rendered anew, provided that the cause of the material defect already existed at the time risk was transferred. Notice must be given in writing of material defects, incorrect deliveries and short deliveries without delay, and at the latest within 10 days of receipt of goods at the point of destination. Where concealed defects are ascertained, these must be notified in writing within 5 working days of discovery.
2. Delivery quality and/or quality agreements that differ from those defined by Bimed Teknik must be agreed in writing upon award of contract at the latest. A guarantee as to attributes or durability that results in strict liability shall only apply where Bimed Teknik has expressly guaranteed details of attributes or durability in writing.
3. Goods which were claimed to be defective shall not be subjected to further treatment. If claims for defects are justified, Bimed Teknik be liable for the expenses for dispatch and packing of the goods returned and the new delivery. Rework without authorization by Bimed Teknik and incompetent treatment shall result in the loss of justified claims for warranty.
4. In all cases, Bimed Teknik shall be granted the opportunity for subsequent compliance within a reasonable period. Compensation claims under the terms of article VI may only be asserted by the ordering party where subsequent compliance is not rendered.
5. If improvement fails, the Purchaser may – irrespective of potential claims for warranty as specified in art. VI – withdraw from the contract or reduce payment.
6. Claims for material defects shall become inapplicable after twenty-four (24) months, unless law demands longer periods.
7. Claims for defects shall not be deemed justified in case of inconsiderable deviations from the properties stipulated, inconsiderable impairment of usability. In addition claims for defects shall not apply in case of natural wear or damage which – after the transfer of risk – may arise from faulty or negligent handling, excessive demand, inappropriate working material or special external influences not provided according to the contract. If the Purchaser or Third Parties acting on his behalf perform modifications or repair works, no claim for compensation can be lodged for those or consequences resulting from them.
8. In the case of notifications of material defects, payments by the ordering party may be withheld to an extent commensurate with the material defects established. However, the ordering party may only withhold payments where there is clear justification for a material defect being asserted. Where the notification of defect is unjustified, Bimed Teknik shall be entitled to demand compensation for expenses incurred from the ordering party.
9. Purchaser’s claims for expenditure required to effect post-delivery fulfilment, e.g. cost of transport, road, work and material, shall be excluded if expenses are increased because the object of delivery has been taken to a location different from the Purchaser’s affiliate; this shall not apply if such a transport is in compliance with the intended use.
10. Demands based on the legal right of recourse by the Purchaser shall only exist to the extent that the Purchaser had not come to an agreement with his final Purchaser in excess of the legal claims for defects. In addition, no. 9 shall also apply to the extent of the Purchaser’s right of recourse against Bimed Teknik.
11. Further, art. VI (Further claims for defects) shall be applicable to claims for defects. Further claims by the Purchaser or others different to those governed by these art. V and VI and lodged by the Purchaser against Bimed Teknik and its debtor’s agent and based on a material defect shall be excluded.
VI. Claims for compensation
1. Claims for compensation and expenses by the ordering party – irrespective of the legal basis – particularly on account of breaches of duty in connection with the obligation or tortious act, shall be excluded unless otherwise specified in these terms, irrespective of the provisions of article II nos. 5 and 6 as regards default of delivery.
2. Bimed Teknik shall be unlimitedly liable under the legal provisions for injury to life, limb and health resulting from an intentional or negligent breach of duty on the part of Bimed Teknik, its legal representatives or vicarious agents, and for damage covered by liability under the Product Liability Act. Bimed Teknik shall also be liable for all damage in connection with intentional or grossly negligent contractual violations, including fraudulent intent on the part of its legal representatives and vicarious agents.
3. Where Bimed Teknik has provided a guarantee as to the quality or durability of the goods or parts thereof, Bimed Teknik shall also be liable in respect of this guarantee. However, Bimed Teknik shall only be liable for damage which is based on the absence of the guaranteed attributes or durability but which is not directly connected with the goods in question where the risk of such damage is clearly understood from the guarantee as to attributes or durability.
4. Bimed Teknik shall also be liable for damage caused by slight negligence where this negligence concerns the violation of central contractual obligations. The same shall apply where the purchaser is entitled to claims for compensation in place of performance. However, Bimed Teknik shall only be liable where the damage is typically linked to the contract and foreseeable. The regulations above do not provide for an amendment to the burden of proof to the disadvantage of the ordering party.
5. Further liability on the part of Bimed Teknik shall be excluded without consideration of the legal nature of the asserted claim. This shall apply in particular to tortious claims or claims for compensation of ineffective expenses in place of performance. This does not affect the liability of Bimed Teknik under article II point 5. Where the liability of Bimed Teknik is excluded or limited, this shall also apply to the personal liability of its salaried employees, wage-earning employees, co-workers, representatives and vicarious agents.
6. Claims for reimbursement of expenses shall not be excluded in cases of non-fulfillment, but shall be limited as described in article V point 9.
7. Claims for reimbursement of expenses and compensation claims expire at the end of the limitation period concerning material defects claims as described in article V point 6. This shall not apply to the extension of the limitation period concerning material defects claims for non-excluded recourse claims as per the BGB (German Civil Code) section 479 paragraph 2.
VII. Impossibility; adaptation of contract
1. Where a delivery proves impossible, the ordering party shall be entitled to claim compensation unless Bimed Teknik is not responsible for such impossibility. However, such a claim for compensation by the ordering party shall be limited to 10% of the value of that part of the delivery which cannot be put in operation as intended for reasons of impossibility. This limitation shall not apply where Bimed Teknik is subject to unlimited liability in accordance with article VI point 2. This does not provide for an amendment to the burden of proof to the disadvantage of the ordering party. The right of the ordering party to withdraw from the contract is unaffected.
2. Should unpredictable events within the meaning of art. II no. 1 considerably modify the economic significance or the contents of the delivery or have a considerable effect on Bimed Teknik’s business, the contract shall be adapted accordingly with the principle of bona fide being observed. Should this be economically inappropriate, Bimed Teknik shall be entitled to withdraw from the contract. If Bimed Teknik wants to exercise its right to withdraw, Bimed Teknik shall immediately advise the Purchaser accordingly after having recognized the extent of the event, this shall also apply, if earlier agreements with the Purchaser included an extension of the delivery period.
VIII. Reservation of ownership
1. The objects of the delivery (conditional goods) shall remain Bimed Teknik’s property until all claims Bimed Teknik is entitled to against the Purchaser resulting from the business relationship are met. As soon as the value of all hedging rights Bimed Teknik is entitled to exceeds the amount of all claims secured by more than ten percent (10 %), Bimed Teknik shall release the relevant part of the hedging rights upon the Purchaser’s request.
2. The processing of conditional goods is performed by Bimed Teknik acting as the manufacturer within the meaning of § 950 German Civil Code (BGB); this shall not mean that Bimed Teknik has to meet an obligation. Should Bimed Teknik not become a co-owner by the processing of the conditional goods, Bimed Teknik shall transfer in advance the co-ownership of the product to the purchaser with the proportion of the material values being observed and the relationship of holding the goods in safe custody free of charge being agreed upon. If Bimed Teknik thus acquires a (co-)ownership of goods processed, Bimed Teknik shall already now transfer them to the Purchaser upon the suspensive condition of payment of its invoices, which means that the Purchaser shall acquire a right of expectancy as it is the case with conditional goods.
3. In case of seizure of reserved goods on the part of Bimed Teknik, withdrawal from the contract shall only apply where this is expressly indicated by Bimed Teknik. The ordering party shall be obliged to notify Bimed Teknik immediately in writing in cases of seizure or other intervention by third parties.
4. As long as the Purchaser is not in default against Bimed Teknik and Bimed Teknik has not forbidden any further selling acc. to no. 6 of this section, he shall have the right to sell the conditional goods within the scope of standard business on condition that he also agrees with his Purchasers upon the right of reservation in compliance with the above provisions. He shall, however, not be entitled to exercise other dispositions of the conditional goods; this shall especially include pawnage and assignment by way of security.
5. Claims resulting from sales against his final Purchaser shall thus already now be assigned to Bimed Teknik as a form of security. The Purchaser’s right of sale shall depend on the effectiveness of the transfer of claims to Bimed Teknik. If the goods were processed first or combined with other objects, the transfer of claim shall become effective to the amount of the sales price for the items integrated into the goods. The Purchaser shall only be entitled to collection as long as he is not in default to Bimed Teknik.
6. If the Purchaser delays in performance, Bimed Teknik may prohibit any further sale and combination and collect the debit covered by the assignment. The Purchaser shall provide information as required and hand all documents. After a withdrawal from the contract Bimed Teknik can demand the return of conditional goods, which shall also include a partial withdrawal as to the goods still available.
IX. Industrial protective rights and copyrights; defects in title
1. Unless otherwise agreed, Bimed Teknik shall be obliged to supply goods free of industrial protective rights and copyrights held by Third Parties (hereinafter referred to as “Protective rights”) in the country of the place of delivery only. Should a Third Party provide justified claims against the Purchaser which are based on the violation of Protective rights by Bimed Teknik in the course of deliveries used as stipulated, Bimed Teknik shall be liable to the Purchaser within the period defined in art. V, no. 6 as follows:
a) At its own discretion and own expense, Bimed Teknik shall either obtain a right of usage for the deliveries in question, amend the deliveries in such a way that a property right is not infringed or replace them. If this is not possible under reasonable conditions, the legal rights of termination or reduction shall be open to the ordering party. The ordering party cannot claim compensation for ineffective expenses.
b) The obligation of Bimed Teknik to pay compensation shall be regulated by article VI.
c) The above-named obligations of Bimed Teknik shall only be effective where the ordering party notifies Bimed Teknik immediately in writing about claims asserted by third parties, does not admit any infringement and reserves to Bimed Teknik all precautionary measures and settlement negotiations. If the ordering party discontinues usage of the delivery for reasons of damage reduction or other good cause, that party shall be obliged to indicate to the third party that the discontinuation of usage implies no admission of an infringement of property rights.
2. Claims by the Purchaser shall be excluded if any violation of protective rights is his responsibility.
3. Further to that, claims by the Purchaser shall be excluded as far as the violation of the protective rights was caused by the Purchaser’s specification, by an application which could not be foreseen by Bimed Teknik or by the fact that the delivery was modified by the Purchaser or used together with products not supplied by Bimed Teknik.
4. In case of a violation of Protective rights the Purchaser’s claims governed by no. 1 a) and for the rest the provisions of art. V nos. 4, 5 and 9 shall apply accordingly.
5. Should further defects in title occur, the provisions of art. V shall apply accordingly.
6. Further claims by the Purchaser or such being different to those governed by this art. IX against Bimed Teknik and its debtor’s agent based on a defect in title shall be excluded.
X. Intracommunity supplies, sales tax liability
If Bimed Teknik is made liable of sales tax for deliveries to EU member countries just because Purchaser’s data furnished to Bimed Teknik on the requirements of sales tax exemption acc. to § 4 no. 1b, § 6a of the German Sales Tax Act do not apply or the Purchaser or his final Purchaser did not meet an obligation within the scope of acquisition taxation (proper communication to the central tax office, payment of acquisition tax or others), the Purchaser shall be obliged to compensate Bimed Teknik for the amount of value added tax without consideration of any guilt.
XI. Place of jurisdiction and applicable law
1. If the Purchaser is a merchant, the exclusive place of jurisdiction shall be the place of Bimed Teknik’s head office in Schalksmühle (place of jurisdiction Hagen) for all disputes directly or indirectly arising from the contractual relationship. Bimed Teknik, however, shall also have the right to institute legal proceedings at the place of the Purchaser’s head office.
2. As to the contractual relationship German substantive law shall apply with the UN Convention of Contracts for the International Sale of Goods (CISG) being excluded.
XII. Mandatory character of the agreement
Even in case of a potential legal ineffectiveness of some provisions the contract shall remain binding in its remaining parts. That shall not apply if the continuation of the contract would mean an undue hardship to one of the parties.