General Terms and Conditions of Business and Delivery
Status: November 2016
I. General points and scope of application
(1) The following business and delivery terms of ENDOSMART® Gesellschaft für Medizintechnik mbH apply to all purchase contracts and to contracts on the delivery of movable objects to be produced or manufactured.
(2) Hereinafter, ENDOSMART® Gesellschaft für Medizintechnik mbH is referred to as ENDOSMART®.
(3) ENDOSMART®‘s General Terms and Conditions of Business and Delivery apply exclusively. ENDOSMART® does not accept any terms of the contract partner which are contrary or deviating from and not contained in ENDOSMART®‘s General Terms and Conditions of Business and Delivery, unless ENDOSMART® has explicitly consented to their validity in writing. The General Terms and Conditions of Business and Delivery also apply if ENDOSMART® provides its services without reserve being aware of any terms of the contract partner which are contrary or deviating from and not contained in its General Terms and Conditions of Business and Delivery.
(4) All agreements concluded between ENDOSMART® and the contract partner for the purpose of executing this contract must be fixed in writing in this contract. This also applies to the cancellation or change of this clause. This particularly applies to orders that are only binding if they have been placed or confirmed by ENDOSMART® in writing (e.g. per email).
(5) ENDOSMART®‘s General Terms and Conditions of Business and Delivery are only valid vis-à-vis entrepreneurs (§ 14 BGB (Civil Law)), legal entities under public law or special funds under public law according to §310 sec. 1 BGB.
(6) ENDOSMART®‘s present business and delivery terms also apply to all future business transactions with the contract partners, even if they are not explicitly agreed once again.
(7) ENDOSMART®‘s present business and delivery terms also apply to business transactions between ENDOSMART® and contract partners with head-offices outside the Federal Rupublic of Germany.
II. Offer, offer documents, contract conclusion and specifications
(1) If the contract partner’s order is to be qualified as an offer acording to §145 BGB, ENDOSMART® is entitled to accept it in writing within a delay of two weeks. If nothing else is provided for in the offer, ENDOSMART® are not bound by its offers.
(2) The order confirmation includes the content and scope of the contractual obligations and exclusively determines the quality of the contract products to be delivered. Any side agreements and subsequent changes require the written or text form.
(3) ENDOSMART® reserves all property rights and copyrights to pictures, drawings, calculations and other documents. This also applies to such written documents that are designated as “confidential”. Before forwarding to third parties, the contract partner needs the express written permission of ENDOSMART®.
(4) As for products that ENDOSMART® produces on behalf of the contract partner based on sketches, plans or models of the contract partner, ENDOSMART® has no obligation to check sketches, plans or models for their fitness and use. The quality specification for the products is determined by the stipulations of the contract partners. The examination of the fitness for use and safety for the purposes of the contract partners lies within his responsibility. As far as required, the contract partner will ensure the provision of sufficient operating instructions.
III. Prices, payment terms and security deposits
(1) The remuneration to be paid by the contract partner for the services provided by ES can be inferred from the written invoice and must be settled in Euro unless a different currency is explicitly fixed in the order confirmation.
(2) As far as nothing else is mentioned in the order confirmation, ENDOSMART®’s indicated prices are stated “ex works” without packaging. The latter will be separately invoiced.
(3) All prices indicated by ENDOSMART® are to be understood plus legal value added tax. For German contract partners, it will be, in general, mentioned in the offer and ENDOSMART®’s order confirmation and separately shown in the invoice at the legal amount on the day of invoicing. The indication of the legal value added tax is omitted for international contract partners.
(4) As far as nothing else is mentioned in the order confirmation, the invoice amount is due net (without deductions) within 21 days from invoicing. In case of payment default, the legal payment default regulations apply.
(5) The deduction of a cash discount requires a special written agreement.
(6) ENDOSMART® is entitled to charge payments, in spite of any contrary conditions of the contract partner, against his older debts first and will inform the contract partner about the operated mode of setoff. If any cost and interest has already been incurred, ENDOSMART® is entitled to offset the payment first against the cost, then against the interest and finally against the principal account. A payment is deemed made only when ENDOSMART® can dispose of the amount. In case of checks, the payment is deemed made only when the check is redeemed.
(7) Counterclaims of the contract partner do not entitle him to any setoff unless they are legally confirmed, undisputed or accepted by ENDOSMART®. Commercial clients do not have any retention right.
(8) If no deviating payment term is included in the order confirmations, default starts upon the reminder, at the latest, however, according to § 286 sec. 3 BGB. The default interest will be calculated by ENDOSMART® at the legal rate according to § 288 BGB.
(9) If the contract partner is in default of payment or if insolvency proceedings or comparable legal proceedings have been applied for or opened over his assets or if their opening has been dismissed for insufficient assets, then ENDOSMART® is entitled to stop the work on commenced orders by means of the retention right and to withhold partial deliveries not yet made until the contract partner fulfils the open claims or a corresponding security has been deposited, including by an irrevocable bank guarantee of a credit institution from within the Euro zone admitted as domestic customs and tax guarantor. If no payment arrives and the security is not deposited within a reasonable delay, but after 14 days at the latest, ENDOSMART® is entitled to withdraw from all existing contracts – or, in case of continuing obligations, to exercise an extraordinary termination – and to charge all costs incurred until that date to the contract partner, including lost profits. It is refutably presumed that the lost profits amount to at least the agreed price less saved charges.
(10) The minimum order value amounts to 350.00 euros net. If the order value is lower, ENDOSMART® will charge the difference from 350.00 euros net as small quantity surcharge.
IV. Delivery times and deadlines
(1) If a delivery time is agreed or provided by ENDOSMART®, this is only approximate, unless the delivery time has been designated as “fixed”, “fix”, “mandatory” or synonymously in text form.
(2) If a delivery delay is agreed, it starts on the day of sending the written order confirmation by ENDOSMART® and is deemed kept if the merchandise has been sent off or readiness for shipment has been signalled until the day of expiry of the delay. In case of an early delivery, its exact moment is of the essence.
(3) If ENDOSMART®, without its own fault, is incapable of delivering the ordered merchandise or providing the service because a cover transaction was entered into with a supplier to perform the delivery to the contract partner and the supplier does not fulfil his contractual obligations, ENDOSMART® is entitled to withdraw from the contract vis-à-vis the contract partner. In such case, ENDOSMART® will inform the contract partner immediately about the impossibility to deliver. If the purchase price has already been paid, it will be reimbursed.
(4) The beginning of the delivery delay indicated by ENDOSMART® is subject to the clarification of all technical questions.
(5) The fulfilment of the delivery obligation by ENDOSMART® is further subject to the timely and due fulfilment of the obligations of the contract partner. The objection of a non-fulfilled contract remains reserved.
(6) The delivery delay is extended – even within a potential delay in delivery – by a reasonable period if any unforeseen obstacles occur which were not caused by ENDOSMART® and cannot be avoided by ENDOSMART® despite due diligence according to the circumstances (“force majeure”), in particular in case of an unexpected failure of the supplier or a subcontractor of ENDOSMART®, disruptions of operation, interventions by authorities, strike, lockout (only in case of legality of the labour dispute) or disturbances of energy supply. ENDOSMART® shall immediately inform the contract partner about such obstacles and their expected duration.
(7) Delays do not entitle the contract partner to withdraw from the contract or to return the merchandise, unless admitted by compulsory legal provisions. If the force majeure lasts for more than three months without interruption, both parties are released from their performance obligations.
(8) If the contract partner enters into default of acceptance or culpably breaches any other cooperation duties, then ENDOSMART® is entitled to claim compensation for the damages insofar caused to ENDOSMART®, including any additional expenses. Additional claims remain reserved.
(9) As far as the conditions of section 8 are fulfilled, the risk of an accidental loss or degradation of the delivery item is transferred to the contract partner at the moment in which he has entered into default of acceptance or debtor’s default.
(10) Specially manufactured articles cannot be taken back, and a withdrawal of an order for specially manufactured articles is equally excluded.
(11) In case of defective delivery, the regulations under VI. Warranty, liability of these Terms exclusive apply.
V. Risk transfer and risk assumption
(1) In all cases with dispatch of the merchandise / handing over to the delivery person, respectively, the risk of loss and degradation during deliveries is transferred to the contract partner. If the dispatch is delayed upon request of the contract partner, the risk is transferred to him upon the signalling of the readiness for shipment.
(2) As far as requested by the contract partner, ENDOSMART® will cover the delivery by transport insurance. The costs thus incurred will be borne by the contract partner.
VI. Warranty, liability
(1) Any claims for defects by the contract partner are only possible if he has duly fulfilled his obligations to examination and notification of defects according to § 377 HGB (commercial law).
(2) As far as the delivery item is defective, ENDOSMART® has the right, at its discretion, to supplementary performance in the form of remedial action or delivery of a new item free from defects. In case of remedial action, ENDOSMART® bears all expenses required for the remedial action, in particular transport, road, labour and material costs, as far as they are not increased by the delivery item being brought to another place different from the place of performance.
(3) If the subsequent delivery fails, the contract partner is entitled, at his discretion, to claim withdrawal or price reduction.
(4) ENDOSMART® is liable according to the legal provisions, as far as the contract partner claims any damages based on intent or gross negligence, including intent or gross negligence of the representatives or aids of ENDOSMART®. As far as ENDOSMART® is not convicted of an intentional breach of contract, the liability for claims for damages is limited to the typical damage foreseeable at the moment of contract conclusion.
(5) ENDOSMART® is liable according to the legal provisions, as far as ENDOSMART® culpably breaches an essential contractual obligation. In such case, however, the liability for damage claims is limited to the typical damage foreseeable at the moment of contract conclusion.
(6) The limitation period for claims for defects is 12 months, counted from the moment of risk transfer. The limitation period in case of a delivery recourse according to the §§478, 479 BGB remains unaffected.
(7) The liability for injury to life, body or health remains unaffected; this also applies to mandatory liability according to the Product Liability Act (ProdHaftG).
(8) Unless something else is provided above, any liability is excluded.
VII. Total liability
(1) Any further liability for damages beyond the scope defined in VI. Warranty, liability – irrespective of the legal nature of the asserted claim – is excluded. This applies, in particular, to claims for damages for negligence in contracting, for other breaches of duty or for tortuous claims for compensation of property damages according to §823 BGB.
(2) As far as liability for compensation is excluded or limited vis-à-vis ENDOSMART®, this also applies with respect to the personal liability for damages of ENDOSMART®’s employees, workers, personnel, representatives and aids.
VIII. Guarantee of reservation of title
(1) Until the satisfaction of all claims (including all current account balances) owed to ENDOSMART® on any legal grounds by the contract partner now or in the future, the following securities are granted to ENDOSMART®, which ENDOSMART® will release at its discretion, as far as their value sustainably exceeds the claims by more than 20%.
(2) ENDOSMART® reserves the title to the delivery item until the reception of all payments from the delivery contract. In case of breach of contract by the contract partner, in particular in case of payment default, ENDOSMART® is entitled to take the delivery item back. If the return has been caused by the contract partner, he must also bear the return shipping cost. If ENDOSMART® takes back the delivery item, this does not imply a withdrawal from the contract, unless ENDOSMART® has explicitly declared that in writing. An attachment of the delivery item by ENDOSMART® always implies a withdrawal from the contract. After taking back the delivery item, ENDOSMART® is entitled to its exploitation. The proceeds from the disposal must be charged against the liabilities of the contract partner – less reasonable disposal costs.
(3) The merchandise remains the property of ENDOSMART®. Its processing or transformation always occurs for ENDOSMART® as manufacturer, but without any obligation for it. If the (co-)ownership of ENDOSMART® is dissolved by combination, it is agreed already now that the contract partner’s (co-)ownership of the uniform item is transferred to ENDOSMART® proportionally to its value (invoice value). The contract partner keeps the (co-)owned item of ENDOSMART® free of charge. Merchandise in which ENDOSMART® is entitled to (co-)ownership is hereinafter referred to as reserved goods.
(4) The contract partner is obliged to handle the delivery item with due care; in particular, he is obliged to sufficiently insure it at his own expense against fire, water and theft damage at its reinstatement value. As far as maintenance and inspection works are required, the contract partner must execute them in time at his own expense.
(5) In case of attachments or other interventions by third parties, the contract partner must immediately notify ENDOSMART® in writing, so that ENDOSMART® can file a suit according to §771 ZPO (civil procedure). As far as the third party is incapable of reimbursing the judicial and extrajudicial costs of an action according to §771 ZPO to ENDOSMART®, the contract partner is liable for the loss incurred by ENDOSMART®.
(6) The contract partner is entitled to resell the delivery item within his ordinary course of business; however, he already assigns all claims at the amount of the final invoice value (including VAT) of ENDOSMART®’s claim to ENDOSMART® which he obtains from the resale against his clients or third parties, no matter if the delivery item has been resold without or after further processing. The contract partner remains entitled to collect this receivable even after the assignment. ENDOSMART®’s right to collect the receivable itself remains unaffected thereby. However, ENDOSMART® undertakes not to collect the receivable as long as the contract partner fulfils his payment obligations from the received proceeds, does not enter into payment default and as, in particular, no application for the opening of bankruptcy, composition or insolvency proceedings has been filed and there is no cessation of payments. If this is the case, however, ENDOSMART® can require the contract partner to notify the assigned receivables and their debtors to ENDOSMART®, provide all information required for their collection and the associated documents and inform the debtors (third parties) of the assignment.
(7) If in case of cross-border delivery abroad the regulation of the reservation of title above is not valid according to the laws of the export country of destination of the delivery or must be amended and/or registered with the government authorities to be valid, then the contract partner is obliged and ENDOSMART® entitled to conclude a collateral arrangement according to the laws of the export country and to effectuate the required registration. The contract partner is obliged vis-à-vis ENDOSMART® to cooperate in the submission of the declarations and acts to effectuate a valid collateral arrangement for the products delivered to ENDOSMART®. If the contract partner is in arrears with payments to ENDOSMART®, ENDOSMART® is entitled to take possession of the delivered products itself and store them separately or outside the business premises of the contract partner without this implying a withdrawal from the contract.
IX. Defect of titke, liability
(1) ENDOSMART® is liable according to the abovementioned provisions for defects of title for the products delivered by it to the contract partner. The contract partner is obliged to immediately inform ENDOSMART® in case of appearing defects of title, e.g. breaches of trademark or patent rights or copyrights, and to cooperate, upon request from and at the expense of ENDOSMART®, in the legal defence chosen by ENDOSMART®.
(2) If ENDOSMART® produces the respective product according to the specifications, sketches, plans, drawings or models of the contract partner, the contract partner is liable, in case of defects of title, vis-à-vis ENDOSMART®. In such case, the contract partner is obliged to release ENDOSMART®, if it is held liable by third parties, from any liability, compensation and costs. In this case, the contract partner is obliged to assume the legal defence.
X. Data protection
(1) ENDOSMART® is entitled to save and to process data of the contract partner that ENDOSMART® receives from the business relationship with the contract partner, according to the contract, as far as the contract partner himself is entitled to dispose of them.
XI. Guarantee statements
(1) The issue of a guarantee statement by ENDOSMART® requires the separate written form and must be made outside the order confirmation.
(2) A guarantee statement is only issued in a valid manner if it is signed by a managing director with sole power of representation or by a managing director with joint power of representation with another managing director or authorized signatory of ENDOSMART® by his own hand.
(3) All documents mentioned in ENDOSMART®’s present General Terms and Conditions of Business and Delivery contain no guarantee statement. The acceptance of tacit guarantees and guarantee statements is excluded between ENDOSMART® and the contract partner.
XII. Place of jurisdiction, place of performance and severability clause
(1) The local competence of the court in charge of ENDOSMART®’s head-office is agreed for all rights from or in relation to this contract. However, ENDOSMART® is also entitled to sue the contract partner at his general place of jurisdiction.
(2) The application of the laws of the Federal Republic of Germany is agreed. The validity of the UN Sales Law is excluded.
(3) As far as nothing else is mentioned in the order confirmation, the place of performance is ENDOSMART®’s place of business.
(4) If one or several clauses of ENDOSMART®‘s General Terms and Conditions of Business and Delivery are invalid, the remaining clauses remain valid. The invalidity of one or several clauses of ENDOSMART®‘s General Terms and Conditions of Business and Delivery do not entail the total nullity or the invalidity of the General Terms and Conditions of Business and Delivery. In such case, the contracting parties will make efforts to agree an effective clause which comes as close as possible to the invalid clause.