General Terms and Conditions of Business
of the Fermamed GmbH
1 Scope of application
(1) These Terms and Conditions of Sale shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognize terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.
(2) These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser, insofar as legal transactions of a related nature are concerned (as a precaution, the Terms and Conditions of Sale should in any case be attached to the order confirmation).
2 Offer and conclusion of contract
If an order is to be regarded as an offer in accordance with § 145 of the German Civil Code (BGB), we may accept it within two weeks.
3 Documents provided
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, e.g. calculations, drawings, etc. These documents may not be made accessible to third parties. These documents may not be made accessible to third parties unless we give our express written consent to do so. If we do not accept the orderer’s offer within the period of § 2, these documents shall be returned to us without delay.
4 Prices and Payment
(1) Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value added tax at the applicable rate. Costs of packaging shall be invoiced separately.
(2) Payment of the purchase price shall be made exclusively to the account specified overleaf. The deduction of a cash discount is only permissible with a special written agreement.
(3) Unless otherwise agreed, the purchase price shall be payable within 10 days after invoicing. Interest on arrears shall be charged at a rate of 8 %.
We reserve the right to claim higher damages for default.
(4) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
5 Offsetting and rights of retention
The Purchaser shall only be entitled to set-off if his counterclaims have been legally established or are undisputed. The customer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
6 Delivery period
(1) The commencement of the delivery period specified by us shall be subject to the timely and proper fulfillment of the Purchaser’s obligations. We reserve the right to plead non-performance of the contract.
(2) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
(3) In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 3% of the delivery value, but not more than 15% of the delivery value.
(4) Further statutory claims and rights of the Purchaser due to a delay in delivery shall remain unaffected.
7 Transfer of risk in case of shipment
If the goods are shipped to the Purchaser at the Purchaser’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
8 Retention of title
(1) We reserve title to the delivered goods until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract.
(2) As long as ownership has not yet been transferred to the Purchaser, the Purchaser shall be obliged to treat the object of sale with care. In particular, he shall be obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value (note: only permissible in the case of sale of high-value goods). If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense. As long as ownership has not yet been transferred, the purchaser must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the purchaser shall be liable for the loss incurred by us.
(3) The purchaser shall be entitled to resell the reserved goods in the normal course of business. The Purchaser hereby assigns to us the claims of the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The
customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. [Note: This clause shall not apply if no extended retention of title is intended].
(4) The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the customer’s expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created for us. In order to secure our claims against the purchaser, the purchaser shall also assign to us such claims as accrue to him against a third party as a result of the combination of the goods subject to retention of title with real property; we hereby accept this assignment.
(5) We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
9 Warranty and notice of defects as well as recourse/manufacturer recourse
(1) Warranty rights of the purchaser presuppose that the purchaser has duly complied with its obligations to inspect the goods and to give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our customer (note: in the case of the sale of used goods, the warranty period may be excluded altogether). The above provisions shall not apply insofar as longer periods are prescribed by law in accordance with Section 438 (1) No. 2 of the German Civil Code (buildings and items for buildings), Section 479 (1) of the German Civil Code (right of recourse) and Section 634a (1) of the German Civil Code (construction defects). Our consent must be obtained prior to any return of the goods.
(3) If, despite all due care and attention, the delivered goods show a defect which was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Recourse claims shall remain unaffected by the above provision without restriction.
(4) If the subsequent performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
(5) There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear and of damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate foundation soil or from particular external influences not assumed under the contract. If improper repair work or modifications are carried out by the Purchaser or third parties, no claims for defects shall exist for these and the resulting consequences either.
(6) Claims of the Purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that expenses are increased because the goods delivered by us have subsequently been transported to a location other than the Purchaser’s branch office, unless such transport is in accordance with their intended use.
(7) The Purchaser’s right of recourse against us shall exist only to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply mutatis mutandis to the scope of the Purchaser’s right of recourse against the Supplier.
10 Mediation clause
In the event of a dispute arising from this contract, the parties undertake to conduct mediation at the Munich Mediation Center for Business Conflicts of the Munich Chamber of Industry and Commerce prior to filing a lawsuit.
(1) This Agreement and the entire legal relationship between the Parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract shall be our registered office, unless otherwise stated in the order confirmation.
(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
(4) Should individual provisions of this contract be or become invalid or contain a loophole, this shall not affect the remaining provisions. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or fills this gap.