General Terms and Conditions of Business and Sale of DK medical GmbH

§ 1 General

(1) The following terms and conditions of sale and delivery shall apply exclusively to all deliveries and other services; they shall only apply if the purchaser is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that the Seller has expressly agreed to their validity. This requirement of consent applies in any case, for example even if the seller makes the delivery to the buyer without reservation in the knowledge of the buyer’s GTC.
(3) Individual agreements made with the Buyer in individual cases (including ancillary agreements, supplements, and amendments) shall in any case take precedence over these GTC.
(4) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, they shall apply insofar as they are not amended or expressly excluded in these GTC.

§ 2 Conclusion of contract

(1) Contractual offers of the seller are subject to change and non-binding. This also applies if catalogues, technical documentation or other product descriptions or documents – also in electronic form – have been handed over to the buyer. The Seller reserves the property rights and copyrights to such documents.
(2) The order of the goods by the Buyer shall be deemed to be a binding contractual offer which may be accepted by the Seller by way of order confirmation or by delivery of the goods to the Buyer.
(3) The documents on which the offer or the order confirmation is based, such as illustrations, drawings, dimensions, and weights, are generally only to be understood as approximate values, unless they are expressly designated as binding.

§ 3 Prices, terms of payment, invoice dispatch, default of payment

(1) Unless otherwise agreed in individual cases, the prices shall apply ex warehouse plus statutory VAT and excluding packaging and other shipping and transport costs. The packaging will be charged at cost price and will only be taken back if the Seller is obliged to do so by virtue of mandatory statutory regulations. Invoices may be sent by post or e-mail at the Seller’s discretion. The Buyer agrees to receive invoices electronically. Electronic invoices shall be sent to the Buyer by e-mail in PDF format to the e-mail address provided. At the express request of the buyer, the invoice dispatch can also be changed to delivery by post at any time. Any customs duties, fees, taxes, and other public charges shall be borne by the buyer.
(2) If more than 4 months elapse between the conclusion of the contract and delivery, without the Seller being responsible for a delay in delivery, the Seller may increase the price appropriately, taking into account any increases in material, labour and other ancillary costs which have occurred and which are to be borne by the Seller. If the purchase price increases by more than 40%, the buyer is entitled to withdraw from the contract.
(3) If the seller takes into account the buyer’s requests for changes, the buyer shall bear the additional costs incurred as a result.
(4) The purchase price is due and payable from receipt of the consideration and receipt of the invoice. The place of performance for the payment of the purchase price is the registered office of the seller.
(5) Upon expiry of the aforementioned payment deadline, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable default interest rate; this is currently 9 percentage points above the respective base interest rate. In addition, the lump sum for damages caused by delay in the amount of 40 euros shall apply. The Seller reserves the right to assert further damages caused by default, taking into account the lump sum for damages caused by default.

§ 4 Offsetting, right of retention

Offsetting and the assertion of a right of retention on the part of the buyer are excluded unless the counterclaim on which the offsetting or the right of retention is based is undisputed or legally established. In the event of defects in the delivery, the counter rights of the buyer remain unaffected, in particular in accordance with § 8 of these GTC.

§ 5 Delivery period, delay in delivery

(1) The specification of a delivery date shall be made at our best discretion upon acceptance of the order. The delivery date is only binding if it is expressly designated as binding. The delivery date is only binding if it is expressly designated as binding.
(2) The delivery period shall be extended appropriately if the purchaser delays or omits any necessary or agreed cooperation on his part. Changes to the delivered goods initiated by the buyer shall also lead to a reasonable extension of the delivery period.
(3) If the Seller fails to meet binding delivery deadlines for reasons for which the Seller is not responsible, the Seller shall inform the Buyer thereof without undue delay and at the same time notify the Buyer of the expected new delivery deadline. . If the service is also not available within the new delivery period, the seller is entitled to withdraw from the contract in whole or in part; any consideration already paid by the buyer must be refunded immediately. A case of non-availability of the service shall be deemed to be in particular the failure of suppliers to supply themselves in time if neither the seller nor the supplier is at fault or the seller is not obliged to procure in the individual case.
(4) The occurrence of the delay in delivery shall be determined in accordance with the statutory provisions In any case, a reminder from the buyer is required.
(5) The rights of the buyer according to § 9 of these GTC and the legal rights of the seller, in particular in the event of an exclusion of the obligation to perform, especially in the event of impossibility or unreasonableness of performance, shall remain unaffected.

§ 6 Delivery, Transfer of Risk, Acceptance, Default in Acceptance

(1) Delivery is made from the seller’s warehouse, which is also the place of performance. At the request and expense of the buyer, the goods will be shipped to another destination. Unless otherwise agreed, the seller is entitled to determine the type of shipment, in particular the transport company, shipping route and packaging.
(2) The Seller shall be entitled to make partial deliveries to a reasonable extent.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the forwarding agent, the carrier or other shipper upon delivery of the goods. . If acceptance has been agreed, this shall be the decisive point in time for the transfer of risk. In all other respects, the statutory provisions for the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance is the same if the buyer is in default of acceptance.
(4) If the buyer is in default of acceptance, fails to cooperate or if delivery is delayed for other reasons for which the buyer is responsible, the seller is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In addition, the Seller shall be entitled to the further statutory claims.

§ 7 Retention of title

(1) The seller retains ownership of the purchased and delivered goods until full payment of all current and future claims arising from the purchase contract and an ongoing business relationship.
(2) The buyer is not authorised to pledge the goods subject to retention of title to third parties or to assign them as security, but is entitled to further sell the goods subject to retention of title in the orderly course of business. The Buyer hereby assigns to the Seller by way of security the claims arising therefrom vis-à-vis its business partners. The seller accepts the assignment. The buyer is revocably authorised to collect the claims assigned to the seller for the seller’s account in his own name.
(3) In the event of conduct by the buyer in breach of contract, in particular in the event of non-payment of the purchase price due, the seller shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and withdrawal. If the buyer does not pay the purchase price, the seller may only assert these rights if he has previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) The retention of title extends to the full value of the products resulting from the processing, mixing or combining of the goods. If, in the event of processing, mixing or combining with goods of third parties, their ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title. If, in the event of processing, mixing or combining with goods of third parties, their ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(5) If the value of all securities existing for the Seller exceeds the existing claims by more than 10%, the Seller shall release securities at the Seller’s discretion at the Buyer’s request.

§ 8 Claims for Defects

(1) The buyer’s claims for defects presuppose that the buyer has fulfilled its statutory obligations to inspect and give notice of defects (§ 377 HGB). If a defect becomes apparent during the inspection or at a later date, the seller shall notify the buyer thereof in writing without delay. A notification shall be deemed to be immediate if it is made within two weeks, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the purchaser must give written notice of obvious defects within two weeks of delivery; here too, timely dispatch of the notice is sufficient to meet the deadline. If the buyer fails to properly inspect the goods and/or notify the seller of a defect, the seller shall not be liable for the defect not notified.
(2) Claims for defects do not exist in the case of only insignificant deviation from the agreed quality or only insignificant impairment of usability.
(3) If the delivered item is defective, the buyer may demand subsequent performance in the form of rectification or replacement delivery. The seller may refuse the type of supplementary performance chosen by the buyer in accordance with § 439 para. BGB. if the buyer fails to decide on the form of subsequent performance, the right of choice shall pass to the seller upon expiry of a 14-day period. The seller may make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a proportionally reasonable part of the purchase price.
(4) The buyer shall give the seller the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to the Seller in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or the re-installation if the seller was not originally obliged to install it.
(5) The Seller shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, unless the request to remedy the defect turns out to be unjustified. In this case, the costs are to be reimbursed by the buyer.
(6) Only in urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damage, shall the Buyer have the right to remedy the defect itself and to demand reimbursement from the Seller of the expenses objectively necessary for this purpose. The Buyer shall inform the Seller of any such self-execution without delay, if possible in advance. A right to self-performance does not exist if the Seller would be entitled under the statutory provisions to refuse a corresponding subsequent performance.
(7) In the event of failure of the supplementary performance or the unsuccessful expiry of a reasonable deadline to be set by the purchaser for the supplementary performance or if the setting of a deadline is dispensable according to the statutory provisions, the purchaser may, at his discretion, reduce the purchase price or withdraw from the contract. The right of withdrawal is excluded in the case of an insignificant defect.
(8) Further claims of the buyer, insofar as these do not result from an assumption of guarantee, only exist if they result from these GTC and are otherwise excluded.
(9) The claims for defects shall become statute-barred, insofar as permissible, one year after delivery of the purchased item, otherwise within the statutory limitation period. If an acceptance has been agreed, the limitation period begins with the acceptance.

§ 9 Other liability, limitations of liability

(1) The Seller’s liability for damages shall be limited to intent and gross negligence. In the event of simple negligence, the Seller shall only be liable for damages arising from injury to life, limb or health and for damages arising from the breach of a significant contractual obligation. An obligation is essential if its fulfilment makes the performance of the contract possible in the first place and if the contractual partner regularly relies and may rely on its fulfilment. In this case, liability shall be limited to compensation for the foreseeable, typically occurring damage.
(2) The limitations of liability resulting from paragraph 1 shall not apply if the Seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. This also applies to the buyer’s claims under the Product Liability Act.
(3) The buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if the seller is responsible for this.

§ 10 Choice of law, place of jurisdiction, severability clause

(1) The inclusion and interpretation of these Terms and Conditions of Sale and Delivery, as well as the conclusion and interpretation of legal transactions with the Buyer itself, shall be governed exclusively by the laws of the Federal Republic of Germany. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, is excluded.
(2) The place of jurisdiction is Essen, insofar as the buyer is a merchant. The seller is also entitled to take legal action before a court which is competent for the registered office or a branch of the buyer.
(3) The invalidity of individual provisions of this contract or its components shall not affect the validity of the remaining provisions. The contracting parties are obliged, within the framework of what is reasonable and in good faith, to replace an invalid provision with a valid provision that is equivalent to its economic success, provided that this does not result in a significant change to the content of the contract; the same applies if a matter requiring regulation is not expressly regulated.

Status: 16.06.2021