Terms and Conditions of Sales, Delivery, and Payment of Duesberg medical GmbH
II. Offers, Orders, Samples, and Quality Specifications
Offers are non-binding and subject to change. Unless otherwise stated, they are ex-works. Orders are only binding for us if we confirm them or comply with them by delivering the goods; oral side agreements only if we confirm them in writing. Analysis data and other quality specifications correspond to the best of our knowledge to the current state of knowledge and our development but do not constitute an agreement on the condition of the goods. Dimensions, weights, samples, or other performance data are only binding if they are explicitly agreed upon in writing.
III. Prices
If no price is agreed upon for the goods, the calculation is based on our prices valid on the shipping date. The value-added tax and any other taxes or legal charges are calculated separately at the rate valid on the shipping date. We are entitled to demand reimbursement of the necessary expenses for the delivery in addition to the agreed or valid price on the shipping date if these arise after the conclusion of the contract, regardless of whether they are based on legal or other regulations or actual circumstances. This includes, in particular, export and import duties (e.g., customs, levies, and taxes), loading and unloading costs, freight costs, and shipping expenses. In this case, the buyer is entitled to withdraw from the contract within 14 days after notification of the price increase - at the latest, however, 2 days before the agreed delivery date. If the delivery of duty unpaid or untaxed goods is agreed upon, all public charges are borne by the buyer. The recipient must present us with a valid permit at the latest at the time of delivery. The buyer is liable regardless of fault for all public charges that we must pay due to improper use of the goods.
IV. Delivery, Delay in Delivery, Force Majeure
Delivery dates are only binding with explicit written confirmation and are always subject to the correct, timely, and complete self-delivery with the raw and auxiliary materials required for the production of the goods. We are entitled to make partial deliveries to a reasonable extent. We assume no liability for delivery delays due to force majeure or any other unavoidable event that makes delivery impossible or significantly more difficult for us without our fault. This includes, in particular, labour disputes, operational disruptions, official measures, lack of transport means, traffic difficulties, war, riots, etc., even if they occur at one of our suppliers. In such cases, we are entitled to restrict, suspend, or withdraw from the contract for the duration of the impact. The buyer can withdraw from the contract if he proves that the delivery is no longer of interest to him after the removal of the impediment. We will inform the buyer immediately of delivery obstacles of the aforementioned kind. If we exercise our right to withdraw, we will immediately refund any payments already made by the buyer.
V. Containers, Filling
Loan containers must be returned to our warehouse emptied and freight-free immediately after the agreed rental period. They must not be used otherwise or contaminated. The buyer is liable for the loss or damage of loan containers in his possession, even if he is not at fault. Containers not returned on time or properly will be charged to the customer at replacement value. When delivering by road tanker, the buyer must ensure immediate readiness for acceptance on the agreed delivery date. He is liable for all costs and damages arising from a delayed emptying. Loan tank wagons are available to the customer rent-free for the outward and return journey and for max. 48 hours for unloading. For delayed return, the buyer must pay the usual market rental charges for the duration of the delay. The return freight for empty tank wagons is at the buyer's expense. Containers provided by the buyer (including tank wagons and road tankers) must be delivered ready for filling to our filling facility. We are not obliged to check these containers for suitability or cleanliness. Their use is at the buyer's risk. We are not responsible for contamination of the goods due to unclean containers provided by the buyer.
VI. Delivery, Acceptance
After the unconditional acceptance of the goods by the carrier or other agents of the buyer, any complaint regarding the external condition (packaging, weight, etc.) is excluded. The weight determined and billed by us is decisive unless the buyer requests a weight check at his expense. A weight discrepancy can only be claimed immediately upon receipt of the goods and only if it is immediately and clearly determined - preferably by an official recording.
VII. Acceptance Period, Default of Acceptance
The buyer must accept the ordered goods within 14 days after the delivery date specified in the order confirmation, unless explicitly agreed otherwise at the time of order. If the buyer does not accept the ordered goods on time or for other reasons defaults on acceptance, we are entitled to deliver the goods to the buyer at his expense and risk or to store them at his expense and charge them as delivered or to refuse delivery. Notwithstanding this, we are entitled to claim compensation from the buyer for the damage caused to us by the default. Upon the occurrence of the default of acceptance, the risk of accidental deterioration or accidental loss passes to the buyer.
VIII. Transfer of Risk
The risk of accidental deterioration or accidental loss passes to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch. Even with freight-free delivery, the dispatch is at the buyer's risk. If dispatch becomes impossible for reasons of which we are not responsible, the risk of accidental deterioration or accidental loss passes to the buyer with the notification of readiness for dispatch. If we follow a shipping instruction given by the customer, we act without our own liability on account and at the risk of the buyer.
IX. Warranty and Liability
The buyer is obliged to examine the goods immediately upon receipt. Obvious defects must be reported immediately, hidden defects immediately upon their discovery. For goods that have been processed or sold without our consent after the discovery of an obvious defect or a hidden defect, any liability is excluded. In the case of justified complaints, the buyer is entitled to a replacement delivery or, at our discretion, to a reduction in the purchase price demanded by him. If the replacement delivery fails, the buyer can demand an appropriate reduction in the purchase price or withdraw from the contract at his discretion. The buyer is not entitled to further claims. To the extent that we have not excluded the buyer's claim for reimbursement of expenses according to § 478 Para. 2 BGB by granting equivalent compensation, the buyer is obliged to refuse supplementary performance according to § 439 Para. 3 BGB when reselling the goods to a consumer if the conditions there are met. When reselling to an entrepreneur, the buyer must also obligate him in the above sense. In case of violation of the above obligations, we are not obliged to compensate such expenses that would not have arisen with a justified refusal of supplementary performance according to § 439 Para. 3 BGB. To the extent that we are obliged to pay damages, our liability is limited to the compensation of the typically foreseeable damage, excluding indirect and consequential damages, including lost profits. The above exclusions and limitations of liability do not apply to claims for damages due to gross negligence (intent or gross negligence), in the event of breach of essential contractual obligations, and in the absence of an expressly guaranteed property. Notwithstanding the immediate examination and notification obligation as per the above Clause 1, the buyer's claims expire no later than 1 year after delivery of the goods unless longer limitation periods are legally mandatory. If the buyer is not an entrepreneur or a legal entity under public law or a special fund under public law, the above buyer's obligations, exclusions, and limitations of liability apply only to the extent that they do not conflict with mandatory statutory regulations. In particular, the buyer, who is not an entrepreneur or a legal entity under public law or a special fund under public law, retains the statutory warranty period contrary to the above Clause 1 and 6.
X. Payment
Payments are due within 14 days from the invoice date without deduction unless explicitly agreed otherwise in writing. In case of exceeding the payment period, we will charge interest at the usual bank debit interest rates, but at least at the statutory rate (§ 288 BGB), subject to higher damage. In case of default of payment and justified doubts about the buyer's solvency or creditworthiness, we are entitled to demand securities or advance payments for outstanding deliveries and to make all claims from the business relationship due immediately. The buyer is only entitled to set off - entrepreneurs and legal entities under public law or special funds under public law are additionally entitled to assert a right of retention - if the counterclaim is undisputed or legally established.
XI. Retention of Title
We retain ownership of the delivered goods (reserved goods) until all claims we have currently or in the future against the buyer, regardless of the legal basis, have been satisfied. The buyer is entitled to resell the reserved goods in the ordinary course of business until revocation is possible due to an important reason. An important reason for revocation is, in particular, the buyer's default in payment. A resale in the ordinary course of business is not present if the buyer's customer demands a prohibition on assignment regarding the buyer's purchase price claim. In the event of permissible resale, the buyer hereby assigns to us his claims arising from the resale to secure our claims. We accept these assignments. The buyer is authorized to collect the assigned claims as long as he meets his payment obligations to us according to the contract. Otherwise, the collected amounts belong to us and must be kept separately from the buyer's other assets and promptly paid to us. The buyer is not authorized to assign these claims for the purpose of debt collection by way of factoring unless the obligation of the factor is simultaneously established to pay us the consideration in the amount of our share of the claim directly as long as claims from us against the buyer exist. In case of mixing or processing the reserved goods with other items, we acquire co-ownership of the resulting item in proportion to the value of the reserved goods. The above paragraphs 2 and 3 apply accordingly in this case. Exercising the retention of title does not constitute withdrawal from the contract. The buyer must immediately notify us in writing of any third-party access to the goods and claims belonging to us, providing all information necessary for an objection lawsuit under § 771 ZPO. If the value of the securities exceeds our claims by more than 20%, we will release securities at the buyer's request to that extent, at our discretion.
XII. Place of Performance and Jurisdiction
The place of performance for all mutual obligations is Dorsten. The place of jurisdiction for all disputes arising from the business relationship is Duisburg, if the buyer is a merchant, a legal entity under public law, or a special fund under public law, the buyer has no general place of jurisdiction within the country, or the buyer moves his residence or habitual abode abroad after concluding the contract, or the buyer's residence or habitual abode is unknown at the time the action is brought.
XIII. Applicable Law, Partial Invalidity
The entire legal relationship between us and the buyer is exclusively governed by the law of the Federal Republic of Germany. Should any provision of these terms and conditions or the contract with the buyer be or become invalid or unenforceable, the validity of the remaining provisions of these terms and conditions or the contract will not be affected. Instead of the invalid or unenforceable provision, the provision that the parties would have agreed upon in knowledge of the invalidity or unenforceability to achieve the economic purpose of the invalid or unenforceable provision as closely as possible shall apply.