General Terms and Conditions
Gottinger Handelshaus OHG
(Date: Dec 09, 2008)
1.1 The General Terms and Conditions set out below (hereinafter also referred to as: „AGB“) specify the terms of payment and delivery of Gottinger Handelshaus OHG (hereinafter referred to as the „User“) and shall apply exclusively.
1.2 The General Terms and Conditions shall also apply to future deliveries made by the User, even if such application is not explicitly agreed in each case. The unconditional acceptance of the User‘s acknowledgements of order and the acceptance by the customer of deliveries or deliveries in installments shall be regarded as recognition of these General Terms and Conditions.
1.3 The General Terms and Conditions of the User shall also apply if the customer refers the User to the customer‘s own general terms and conditions or if such general terms and conditions are printed on the customer‘s correspondence, including but not limited to order forms, and if such general terms and conditions differ from the User‘s General Terms and Conditions.
1.4 General terms and conditions of the customer which differ from those of the User shall only be effective if confirmed in writing by the User.
1.5 The User reserves the right to alter its General Terms and Conditions at any time without specifying reasons to the extent that this would not be unreasonable for the customer. The User shall notify the customer in good time about any alterations to its General Terms and Conditions. If the customer does not object to the new General Terms and Conditions within two weeks of receiving such notifi cation, the amended General Terms and Conditions shall be deemed to have been accepted by the customer. The User shall draw the customer‘s attention to the customer‘s right to object to the amended AGB and the significance of the period within which objections may be lodged in the notification of amendment sent to the customer.
1.6 Unless otherwise agreed, the User shall be entitled to send all correspondence to the customer by email or fax. The customer shall be entitled to send correspondence to the User by email, fax or letter.
2. Offer, acceptance of orders and formation of contract
2.1. Unless otherwise agreed in writing, the User‘s offers shall be non-binding and subject to change.
2.2. A purchase order placed by the customer which is deemed an offer to conclude a contract of sale may be accepted by the User within a period of two weeks by sending acknowledgement of order or the purchased goods within the same period of time. Otherwise no contract shall be deemed to have been concluded.
2.3. The manufacturer reserves the right to make changes in the design and form of the goods to be delivered by the User for technical production reasons, modify the color, and change the scope of delivery during the term of the contract provided the object of purchase is not fundamentally altered as a result and provided it would be reasonable to expect the customer to accept such changes.
3.1 The User‘s prices are all stated in the currency of the Federal Republic of Germany (currently the euro) plus statutory sales tax. Unless otherwise agreed, the user reserves the right to charge the prices applicable on the day of delivery.
3.2 The User‘s terms and prices applicable at the time the purchase order is placed shall prevail.
3.3 The User‘s invoices shall be due for settlement within 30 days of the invoice date at the latest. In the event of default in payment by the customer, the User shall charge the statutory rate of default interest, beginning from the time at which the agreed payment target is exceeded (currently: 5% above the base rate, Section 288 (1) sentence 2 of the German Civil Code BGB).
3.4 Incoming payments made by the customer shall in all cases be offset against the oldest outstanding payable. The customer shall not be entitled to exercise rights of retention or to offset payables with the customer‘s own counterclaims. This shall not apply if the User explicitly acknowledges counterclaims in writing or if such claims are res judicata.
3.5 If payment is made by check, bill of exchange etc., settlement shall only be deemed to have been made by the customer when the amount has been irrevocably credited to the User‘s account.
4. Timing of supplies and service
4.1 Delivery dates or periods which are not explicitly agreed as binding shall merely be deemed to provide non-binding information. The delivery period stated by the User shall only begin after all technical issues have been clarifi ed. The customer shall also be required to meet all its obligations in good time and in the proper manner.
4.2 Circumstances which would make it impossible or exceedingly diffi cult to manufacture or deliver the sold goods, including all instances of force majeure, stoppages, strikes, action by offi cial authorities, unforeseen events which aect the supply of raw materials by a supplier company or its own suppliers or similar occurrences shall release the User for the period during which it is prevented from fulfi lling its obligation to deliver. Delivery delays and failures to deliver arising as a result of the reasons referred to above shall not entitle the customer to claim compensation or withdraw from the contract.
4.3 To the extent reasonable for the customer the User shall be entitled to make delivery in installments or provide partial performance at any time. Rights derived from delay or warranty for defects shall be limited to the partial delivery actually made.
4.4 If the customer defaults on acceptance, the User shall be entitled to demand compensation for the damages and any additional costs incurred as a result. The same shall apply if the customer culpably infringes its cooperation obligations. On occurrence of default in acceptance or payment, the risk of accidental deterioration and loss shall pass to the customer.
5. Shipment, shipping costs and passage of risk
5.1. Deliveries by the User shall be made ex works. The goods shall also be shipped at the risk of the customer free of freight and packaging.
5.2. The risk involved in delivery of the goods shall pass to the customer when the consignment is ready for shipment or is collected or if the customer defaults on acceptance.
5.3. The User shall charge at-rate shipping costs of € 9.50 for consignments within Germany of up to 4 kg with a net order value for the entire order of up to € 500.00; consignments with a net order value of € 500.00 or more shall be free of freight. A at rate charge of € 30 is made for consignments of up to 4 kg which require express delivery. Special shipment requirements as well as consignments outside Germany shall be charged on an actual cost basis.
6. Complaints and warranty
6.1 Upon delivery the customer shall always inspect the goods immediately to ensure they comply with the contract.
6.2 Warranty claims asserted by the customer shall only be accepted if the customer has complied with its inspection and notifi cation duties under Section 377 of the German Commercial Code (HGB) immediately after receipt of the goods. Defects shall be notifi ed to the User in writing. The customer shall be responsible for any defi ciencies in the complaint.
6.3 If the goods are aected by defects for which the User is responsible, the User shall initially be required to provide supplementary performance, unless the User is entitled under statutory regulations to refuse supplementary performance. The customer shall grant the User a reasonable period in writing within which such supplementary performance shall be provided. At the discretion of the User supplementary performance may take the form of defect rectifi cation (subsequent improvement) or delivery of new goods. The User shall be liable for the costs of rectifying defects. However, the customer shall be liable for any additional expenses incurred because the object of the agreement is located at a location other then the place of performance.
6.4 If supplementary performance is unsuccessful, the customer shall be entitled, at its discretion, to demand a reduction in the purchase price (Minderung) or rescission of the contract (Rücktritt). Subsequent improvements shall be deemed abortive after a second attempt at improvement has proved futile unless the nature of the object of the agreement is such that a further attempt at subsequent improvement would be appropriate and reasonable for the customer.
6.5 Complaints shall be made in writing. Warranty services shall be provided by the User if the ordered goods are classified by the User stating the weight, size, care and activity level of the patient receiving care. Warranty service for a period of six months shall usually be provided in cases where the index remains unchanged.
7. Retention of title
7.1 The delivered goods (retained goods) shall remain the property of the User pending satisfaction of all claims, including all current account balances, accruing to the User against the customer and pending complete settlement of the outstanding purchase price.
7.2 If the customer commits a breach of contract, e.g. by defaulting on payment, the User shall, after stipulating a reasonable period of grace, be entitled to repossess the retained goods. Repossesion of the retained goods by the User shall constitute withdrawal from the contract. The same shall apply if the retained goods are seized by the User.
7.3 The User shall be entitled to realize the retained goods upon repossession. After deduction of the due costs of realization, the proceeds shall be oset against the amount owed by the customer.
7.4 The customer shall be entitled to sell and/or use the retained goods in the course of ordinary business and/or to use the same provided the customer is not in default with payments. The goods shall not be pledged or ownership to the same be transferred by way of security. Receivables arising from resale or for any other legal reasons (insurance, tortious acts) in relation to the retained goods (including all current account balances) shall be hereby assigned to the User in full by the customer as security; the User hereby accepts such assignment.
7.5 The customer‘s right to process or sell the retained goods in the course of ordinary business activities shall end upon suspension of payment by the same or if insolvency proceedings are instituted against the assets of the customer or composition proceedings are instituted with the aim of avoiding insolvency. In this case the customer shall surrender the unprocessed retained goods immediately at the request of the User.
7.6 Subject to revocation the User shall empower the customer to collect the receivables assigned to the User for the latter‘s account in its own name. This right to collect may be revoked at any time by the User if the customer fails to meet its payment obligations properly, in full and in good time. Neither shall the customer be entitled to sell these receivables to a factor for collection purposes unless an obligation is simultaneously imposed on the factor to effect payment of consideration equal to the amount of the receivables directly to the User pending settlement of all accounts receivable by the User from the customer.
7.7 Processing or transforming of the retained goods by the customer shall be undertaken on behalf of the User. If the retained goods are worked into other objects which are not the property of the User, the User shall acquire proportionate co-title to the new object based on the ratio of the value of the retained goods (invoice amount including sales tax to the other objects so processed at the time such processing takes place. The provisions applying to the retained goods shall likewise apply to the new object resulting from such processing. If the retained goods are inseparably mixed with other objects which are not the property of the User, the User shall acquire proportionate co-title to the new object based on the ratio of the value of the retained goods (invoice amount including sales tax) to the other objects so mixed at the time such mixing takes place. If objects are joined in such a way that the property of the customer is regarded as the principal good, the customer and the User agree that the customer shall transfer proportionate co-title to this object to the User; the User hereby accepts such transfer. The resulting exclusive or jointly held property of the User shall be stored by the customer on behalf of the User.
7.8 If third parties take possession of the retained goods, including but not limited to seizure, the customer shall inform such third parties of the User‘s existing sole or co-title and shall notify the User immediately to enable the User to assert its property rights. If the third party is not in a position to reimburse the judicial or extra-judicial costs incurred in this context by the User, the customer shall be liable for such costs.
7.9 The User shall release collateral security to which it is entitled on written request if the realizable value of such collateral demonstrably exceeds the value of the secured receivables by more than 10%; in this context the User shall select the collateral which is to be released.
8.1 The User shall only be liable in cases of willful intent and gross negligence, with the exception of personal injury. Compensation for consequential damages and purely fi nancial losses is excluded.
8.2 It shall be incumbent on the customer to prove slight or gross negligence.
9. Place of Performance, Place of Jurisdiction, Applicable Law
9.1 The User and the customer agree – to the extent allowed by law – that the head offi ce of the User shall be the place of performance and legal venue for all obligations arising from contractual relationships between the customer and the User. The Local Court in Ebersberg (Amtsgericht Ebersberg) or – in the case of disputes with a disputed value of over € 5,000.00 – the Regional Court II in Munich (Landgericht München II) shall therefore have jurisdiction.
9.2 The relationships between the contracting parties shall be exclusively subject to the law of the Federal Republic of Germany.
9.3 The contractual relationship shall be subject in its entirety to German law. The application of the uniform law on the international purchase of movable goods and the UN Convention on Contracts for the International Sales of Goods of April 11, 1980 (CISG) is excluded.
10. Final provisions
10.1 No verbal subsidiary agreements have been made. Additions or modifi cations to or rescission of these terms and conditions shall only be valid if made in writing. This stipulation requiring written form shall likewise only be changed in writing.
10.2 If, owing to changes in legislation or rulings reached by the highest court, a provision of these General Terms and Conditions is invalid, this shall not affect the validity of the remaining provisions.
10.3 If one or more of the provisions of these General Terms and Conditions are ineffective, this shall not affect the validity of the remaining provisions.
10.4 Errors, inadvertent gaps and contradictions in these provisions shall be interpreted in accordance with the spirit of the remaining provisions on the basis of mutual trust between and in compliance with the intention of the contracting parties.
10.5 If one of the provisions of this contract is or becomes ineffective in whole or part, this shall not affect the validity of the remaining provisions. Ineffective provisions shall be replaced by legally valid provisions which correspond as closely as possible to the original business purpose and intent of the invalid provisions. In the event of a gap in the provisions, the contract shall be interpreted according to the presumed will of the contracting parties.