International Terms of Business of medentex GmbH
1. Scope of Application
1.1 The following International Terms of Business shall apply exclusively to Customers whose relevant subsidiary is not in Germany. The “General Terms and Conditions of Business” of medentex GmbH shall be binding for Customers domiciled in Germany. These Terms shall apply to contracts which have as their predominant object the supply of goods to the Customer. Any additional obligations assumed or services rendered by us shall not affect the validity of these International Terms of Business.
1.2 Any conflicting or deviating terms and conditions of business of the Customer shall not obligate us in any way, even if we do not expressly contradict them or render services or deliveries without reservation. Likewise, we shall not be obligated insofar as any terms and conditions of business of the customer deviate from statutory provisions, regardless of the content of these International Terms of Business
2. Conclusion of Contract
2.1 Orders have to be placed in writing by the Customer. Should the order of the Customer deviate from our offer, the Customer shall make clear reference to any such discrepancy.
2.2 All orders shall require our written confirmation in order to become valid. The actual delivery of the ordered goods, any behaviour on our part or our silence shall not entitle the Customer to assume the conclusion of a purchase contract. We may confirm the Customer’s order in writing within 14 days on receipt thereof. Up to this point the Customer shall be bound to the order and shall not be entitled to revoke the order.
2.3 Our written order confirmation shall be decisive for the entire contents of the contract and shall result in the conclusion of a contract even if it deviates from the statements of the Customer with the exception of the purchase price and delivery quantity. This shall also apply to the inclusion of these International Terms of Business. Therefore, any special demands of the Customer, in particular assurances or guarantees with regard to the nature of the goods or the execution of the contract shall require express confirmation in writing.
2.4 The contract shall only fail to come into effect regardless of the extent of the discrepancies if the Customer objects to such discrepancies in writing within 7 days on receipt of the order confirmation.
3. Quality of the Goods
3.1 We shall be obligated to deliver the items stated in detail in the order confirmation. We shall assume no liability whatsoever as to whether the delivered goods comply with the legal requirements, in particular any safety regulations under public law at the domicile of the Customer or the place of operation. The Customer’s attention shall be drawn to his obligation to examine and ensure the usability of the delivered goods in accordance with applicable local law.
3.2 In particular, the Customer shall be obligated to ensure that hazardous goods regulations, waste legislation, rules and regulations applicable at the place of operation as well as identification regulations at the place of destination are duly observed. We shall under no circumstances accept any liability in this respect.
3.3 We shall not be obligated to carry out deliveries or render services not stated in the written order confirmation or in these International Terms of Business. We are, in particular, not obligated to supply any accessories.
3.4 Third parties not involved in the conclusion of this contract – in particular any customers of the Customer – shall not be entitled to demand delivery or to assert any other contractual claims against us. The Customer shall retain the sole right of receipt and responsibility even if he assigns any claims to third parties.
3.5 We shall be entitled to effect delivery in accordance with standard commercial practice taking into consideration customary tolerances with regard to the nature, quantity, quality and packaging. Insignificant changes of measurements, structure and colour are reserved as far as this is reasonable for the Costumer. Partial deliveries can be effected and accounted for separately insofar as this is acceptable to the Customer.
3.6 Delivery shall be effected ex works Bielefeld (Incoterms 2000).
4. Time Limits
4.1 Agreed delivery terms can only be adhered to if the Customer provides the required documents, approvals, permits etc. on time, effects payment by the agreed date and fulfils any other obligations in due time. In all other cases, delivery periods shall begin on the date of our written order confirmation. We shall be entitled to deliver prior to the agreed date.
4.2 Deliveries after the intended date shall be permitted if we inform the Customer of any such delay in delivery and state the period during we will perform our contractual duties. The Customer shall be entitled to object to the subsequent performance within a reasonable period should he consider this subsequent performance unacceptable. The objection shall only be valid if we receive any such objection prior to commencing the subsequent performance. Insofar as we are responsible for the delay in delivery we shall reimburse necessary and attested additional expenses incurred by the customer as a result of delay.
4.3 Without waiving further statutory rights, we shall be entitled to suspend the obligation to provide services as long as from our point of view there is reason for concern that the Customer might not meet his obligations under the contract either in full or in part. The right of suspension shall particularly prevail if the Customer only inadequately fulfils existing payment obligations to us or third parties or if he delays payment or exceeds the limit set by credit insurers or if this is exceeded by the pending delivery. Instead of suspending the delivery we shall be entitled to demand security by means of a bank guarantee by a major German bank or letter of credit.
5. Prices and Payment
5.1 The price set out in our written order confirmation shall apply. The same shall apply to the due date for payment. Payment shall become due without any further condition and irrespective of receipt and examination of goods by the Customer. Payments shall be due immediately and periods for payment shall lapse if the Customer does not meet essential obligations without a justifiable reason or if he made incorrect statements regarding his credit standing.
5.2 We shall be entitled to offset payments against outstanding claims at the time of the payment at our discretion.
5.3 The right of the Customer claim a set-off against our claims shall be excluded unless the counter claim has been established as reasonable in its own right and valid or if it is due and undisputed or has been confirmed by us in writing.
5.4 The right of the Customer to retain payment shall be excluded unless we significantly breach obligations resulting from the same contractual relationship despite a written reminder and do not offer adequate security.
6. Non-Conforming Goods
6.1 The goods shall be deemed to be non-conforming if the Customer can prove, taking into consideration the agreed quality of the goods (cf. our written order confirmation) at the point of passing of risk, that they differ considerably with regard to packaging, quantity, quality or type from the requirements stated in the written order confirmation or if they are not suitable for the generally intended use in Germany due to the lack of agreements. Any legal exclusions or restrictions of our responsibility shall remain unaffected.
6.2 We shall not be liable for any non-conformity occurring after the passing of risk. Should the Customer attempt to remedy any non-conformity himself or by a third party without our consent, we shall be released from the obligation to provide warranty.
6.3 The Customer shall be obligated to examine the goods in accordance with legal provisions and check each consignment with regard to identifiable or typical lack of conformity of goods. The goods shall be considered defective of title if the Customer proves that at the point of passing of risk they are not devoid of enforceable rights or claims of third parties. Any rights or claims of third parties based on industrial or intellectual property shall only constitute a defect of title if these rights are registered and published in Germany. Regardless of the legal requirements applicable in Germany the goods shall not be considered defective of title if the legal provisions at the domicile of the Customer do not impair the general use of the goods. Any legal exclusions or restrictions of our responsibility shall remain unaffected.
6.4 The Customer shall be obligated in accordance with legal provisions to inform us in writing or immediately about any lack of conformity or defect of title. On duly notifying us the Customer shall be entitled to assert the claims as intended in these International Terms of Business. He shall not be entitled to any further rights. The claims of the Customer due to defects of title shall fall under the statute of limitations according to the same provisions as the legal remedies concerning defects as to quality. In case of improper notification the Customer shall only be entitled to assert claims if we have fraudulently concealed a defect. Statements as to facts may not be considered a waiver to the requirement of proper notification.
6.5 The Customer shall be entitled to demand from us a replacement delivery or rectification of defects or a reduction of the purchase price in accordance with the provisions of the CISG. The Customer shall not be entitled to any further claims for performance. Irrespective of the legal remedy we shall at all times be entitled to provide rectification of defects of the non-conforming goods or provide a replacement.
6.6 Should we provide warranty to end consumers, any warranty claims on the part of the Customer shall be excluded.
7. Avoidance of Contract
7.1 Should the Customer claim delivery of substitute goods, repair or other performance, he shall be bound to this legal remedy for a reasonable period. Avoidance of the contract shall in this case be excluded. Moreover, the contract can only be cancelled if the Customer has threatened to cancel the contract in writing and if a reasonable period of grace set by the Customer has expired unsuccessfully. Any further legal requirements pertaining to the cancellation of contract shall remain unaffected.
7.2 We shall be entitled to avoid the contract if the Customer objects to the validity of these International Terms of Business,if the written order confirmation is received by the Customer later than 14 calendar days from issuance, if an insolvency application has been filed against the Customer, if the Customer fails to fulfil essential obligations owed to us or any third party without a justifiable reason, if the Customer has given incorrect particulars regarding his credit standing,if we do not receive proper deliveries ourselves or if there they are delayed without it being our fault or if for other reasons we cannot ensure performance of our obligations under reasonable conditions and the non-fulfilment, in particular with regard to the agreed consideration, is not unreasonable for the Customer.
8.1 Our contractual und extra-contractual liability for damages shall be subject to the subsequent provisions.
8.2 The Customer shall be obligated to assert other legal remedies first. He shall only be able to claim compensation for remaining disadvantages, however, not instead of other legal remedies. We shall not be liable for the performance of suppliers or subcontractors or for damage caused by the Customer. Furthermore, we shall not be liable for disturbances caused by force majeure or other circumstances which we cannot reasonably control. Moreover, we shall only be liable insofar as our executive bodies or our members of staff intentionally or gross negligently breach a contractual obligation owed to the Customer.
8.3 If we are liable for damages we will indemnify the Customer subject to the limits stated below. We will only compensate for damages which have been proven by the Customer, which could not be prevented by the Costumer and which had been foreseeable as a consequence of the infringement of the contract as regards the occurrence of the damage and its extent. Prior to the conclusion of the contract the Customer shall be obligated to inform us in writing of any particular risks, atypical contingencies and any excessive damage. The Customer shall also be obligated to minimize damages in the event of a recognizable infringement of a contractual obligation.
8.4 We shall not be liable for loss of profit or non-pecuniary damage. Claims for compensation shall be limited to 200 % of the respective delivery value. The limitation of liability shall not apply if the damage has been caused by intentional or gross negligent conduct of our executive bodies or directors. Irrespective of the applicable law as agreed upon below, the aforementioned provisions shall not apply if we are under a statutory liability.
8.5 We shall accept liability for loss caused by delay to the amount of 0.5 % per full week, at most 5 % of the delivery value.
8.6 The aforementioned limitations of liability shall also apply to the personal liability of our members of staff, employees, workers, agents or vicarious agents.
8.7 Irrespective of further legal or contractual claims the Customer shall be obligated to pay the following compensation for damages to us:
8.8 In case of delayed payment he shall reimburse the standard costs of legal proceedings in and out of court incurred nationally and abroad as well as interest to the amount of 8 % above the base interest rate of the ECB.
8.9 In case of a considerable delay in or in case of lack of acceptance of the delivery we shall be entitled to demand damages of 15 % of the sales price on a flat rate basis without proof. Any further claims for damages shall remain unaffected.
9. Retention of Title
9.1 Irrespective of the delivery and the passing of risk or other provisions of these International Terms of Business the title to the goods shall not pass to the Customer as long as the purchase price has not been paid in full.
9.2 Upon any rescission of the contract we shall have the right to reclaim the goods, sell them elsewhere or dispose of them at our discretion.
10. Release from Liability, Industrial Property Rights, Form
10.1 Without waiving further claims the Customer shall grant us unconditional release from liability in respect of all claims of third parties raised against us due to product liability, other liability or similar provisions, if the liability is based on circumstances – such as the presentation of a product – created by the Customer or any other third party without our express written approval. In particular this release shall also include compensation for expenditure incurred by us. The Customer may not invoke further requirements or raise objections, in particular he may not refer to any non-observance of monitoring and recall obligations or plead the statute of limitations.
10.2 We shall reserve all property rights, copyrights and other industrial property rights as well as intellectual property rights relating to any illustrations, drawings or other documents made available to the Customer as hardcopy or in electronic form.
10.3 All messages, explanations, statements etc. are to be written exclusively in either the German or English language. Messages sent by facsimile or e-mail shall fulfil the written form requirement.
11. General Provisions
11.1 The place of performance, payment and fulfilment shall be Bielefeld/Germany. This shall also apply if we assume the costs for payment transactions, render services for the Customer at a different place or if rendered services are to be rescinded. Should Incoterms of group F or C or the responsibility for costs have been agreed upon in individual cases, this shall not lead to an amendment of this contract.
11.2 The English version of the CISG (United Nations Convention on Contracts for the International Sale of Goods of 11th April 1980) as well as the standard customs in Bielefeld/Germany shall apply to the legal relationship with the Customer. The CISG shall apply beyond the scope of its application and regardless of any reservations of the contracting state for all contracts which are governed by these International Terms of Business pursuant to para.11.1 above.
11.3 The CISG in connection with these International Terms of Business shall exclusively govern the conclusion of contracts including agreements on the place of jurisdiction and the validity of these International Terms of Business as well as for contractual rights and obligations of the contracting parties, pre-contractual and other secondary obligations and for interpretation purposes. Beyond the scope of the CISG the legal relationship of the parties shall be determined according to non-unified German law.
11.4 The competent courts at our domicile shall have jurisdiction for any contractual and non-contractual disputes resulting from and in connection with contracts for which the application of these International Terms of Business is intended. We shall be entitled to sue the Customer at his domicile.
11.5 Should any of the provisions of these International Terms of Business be or become invalid in full or in part, the remaining provisions shall continue to be valid. Both parties shall be obligated to replace the invalid provision with a stipulation which comes closest to the economic meaning and purpose of the invalid provision.