General Terms and Conditions of Business of GDF Gesellschaft für dentale Forschung und Innovationen GmbH
Paragraph 1: General – Scope of Conditions
(1) The goods and services and the offers of GDF Gesellschaft für dentale For-schung und Innovationen GmbH (referred to hereinafter as “the vendor”) are sup-plied exclusively on the basis of these Conditions of Business. These will also apply to all future business relationships, whether or not they are explicitly agreed sepa-rately. These Conditions will be deemed to have been accepted at the latest on tak-ing delivery of the goods or services. Confirmations to the contrary by the purchaser with reference to its own Conditions of Business or Purchase are hereby repudiat-ed.
(2) The vendor carries out business exclusively with customers (referred to herein-after as “purchasers”) within the meaning of Section 14 of the German Civil Code [BGB]. A prospective purchaser that is not a merchant within the meaning of Section 14 of the German Civil Code but which is a consumer within the meaning of Section 13 of the German Civil Code, is required to notify the vendor of this immediately.
(3) All agreements reached between the vendor and the purchaser for the purpose of performing this contract shall be recorded in writing.
Paragraph 2: Offer and Conclusion of Contracts
(1) The offers made by the vendor are non-binding and subject to alteration. Decla-rations of acceptance and all orders must be confirmed by the vendor in writing or by telefax to be legally valid.
(2) The vendor reserves the right to carry out a creditworthiness check on the pur-chaser. Depending on the result of the check, the vendor will be entitled to alter its Conditions of Delivery, the payment period or the method of payment. In the event of a negative credit check, the vendor will also be entitled to withdraw from a contract which has already been concluded without incurring liability for damages.
(3) Drawings/plans, illustrations, weights, measures and other performance data are only binding if this is explicitly agreed in writing.
(4) Information from prospectuses, price-lists or the offer is not legally binding unless they have become an explicitly integral part of the contract.
(5) The vendor’s sales employees are not authorised to issue oral agreements or assurances that exceed the contents of the written contract.
(6) The purchaser is bound to its order (the purchaser’s contractual offer) for 14 working days. The vendor may accept the order either by written confirmation or by delivering the goods.
(7) Conclusion of the contract is subject to timely and proper self-delivery by the vendor. Defects in performance shall be notified to the purchaser within an appro-priate period.
Paragraph 3: Prices
(1) Unless otherwise stipulated, the vendor will be bound by the prices in its offer for 30 days from the date of the offer. Thereafter, the prices in force at the time the goods are delivered will apply. Otherwise, the prices referred to in the confirmation of the offer plus the applicable statutory value added tax – if this is incurred – will be authoritative. The supply of additional goods and services will be invoiced separate-ly.
(2) Unless otherwise agreed, the prices will be ex-works plus the cost of packaging and transport. Deliveries will only be insured at the customer’s request and expense. Orthodontic bands, attachments and latches, gold and leads will be routinely shipped via registered mail or registered package at the wish and expense of the purchaser.
(3) Maintenance, repair work, dismantling and installation work will be invoiced sep-arately according to the time taken plus the cost of materials. The vendor’s effective hourly rates will apply plus the applicable value added tax – if this is incurred, as will any travel time to and from the worksite.
(4) In the event of any significant change in the order-related personnel or material costs after the contract has been concluded, the vendor will be entitled to adjust the prices accordingly. If requested by the purchaser, the vendor will be required to jus-tify the price-increase. In the event of a price-increase in excess of 10% of the net price, the purchaser will be entitled to withdraw from the contract within ten days af-ter the price-increase has been announced.
(5) Any discounts granted by the vendor are to be passed on to the patient by the purchaser/dentist resp. dental technician as provided by law.
Paragraph 4: Delivery and Performance Periods
(1) Delivery dates or periods which can be agreed bindingly or non-bindingly must be in writing.
(2) The vendor is not responsible for delivery or performance delays due to reasona-bly unforeseeable events (so-called “Acts of God”) – including in the case of bind-ingly agreed periods or dates – or for events which make delivery – not only tempo-rarily – considerably difficult or impossible for the vendor – as well as strikes, lock-outs, official instructions etc. in particular, including if these occur with suppli-ers of the vendor or its subcontractors/sub-suppliers. They entitle the vendor to postpone the delivery, service or performance for the duration of the delay plus an appropriate lead period or to wholly or partially withdraw from the contract due to the still-unfulfilled part.
(3) If the delay lasts more than three months, the purchaser will, after setting an ap-propriate grace period, be entitled to withdraw from the contract on the basis of the still-unfulfilled part. If the delivery period is extended or if the vendor is released from its obligation, the purchaser may not derive any compensation claims from this. The vendor may only invoke the circumstances referred to if it informs the purchaser within an appropriate period.
(4) If the vendor is responsible for failing to comply with binding deadline periods and dates or is in arrears, the purchaser will be entitled to compensation for the de-lay to the value of half of one percent (0.05%) for every full week of the delay. How-ever, such claims may not exceed five percent (5%) of the invoice amount of the goods and services affected by the delivery delay. Claims exceeding this amount will not be recognised unless the delay is due at least to gross negligence on the part of the vendor.
(5) The vendor is entitled to make partial deliveries and to provide partial perfor-mance at any time unless partial delivery or partial performance is unreasonable for the purchaser.
(6) Compliance with the vendor’s delivery and performance obligations presupposes the timely and proper fulfilment of obligations by the purchaser.
(7) If the purchaser is in arrears of acceptance, the vendor will be entitled to request compensation for any damage it incurs. With the onset of arrears of acceptance, the risk of accidental deterioration and accidental loss transfers to the purchaser.
(8) Deliveries are made at the risk of the purchaser, including in the case of free de-livery.
Paragraph 5: Transfer of Risk
Risk transfers to the purchaser as soon as the shipment has been given to the per-son carrying out the transport or has left the vendor’s warehouse for the purpose of shipment. If shipment is delayed at the request of the purchaser, risk transfers to the purchaser when the latter is notified that the goods are ready for shipment.
Paragraph 6: Guarantees
(1) The vendor guarantees that the products are free of manufacturing and material defects; the guarantee-deadline for mechanical parts of the products expires after one year and after six months for electronic parts. The guarantee period begins on the delivery date.
(2) If the vendor’s operating or maintenance instructions are not followed, if altera-tions are made to the products, if parts are exchanged or if consumable materials that do not correspond to the original specifications are used, all guarantees will lapse if the purchaser fails to refute a corresponding substantiated statement that one of these circumstances caused the defect. The guarantee will also be invalid if damage is due to the fact that the goods have been worked on or repaired by third parties, if the goods are used for another purpose than that intended, if the instruc-tions for use are not complied with or if the generally accepted rules of technology are ignored.
(3) Following receipt of the goods, the purchaser must inform the vendor’s customer service management of defects in writing immediately but no later than within one week after delivery. Defects than cannot be detected within this period, including in a careful examination, are to be notified to the vendor in writing immediately follow-ing discovery.
(4) If the purchaser informs the vendor that the products do not correspond to the guarantee, the vendor will, at its option and expense, decide whether the damaged part or machine will be sent to be repaired and then returned to the vendor or whether it (the vendor) will collect the damaged part or device.
(5) If the repair fails after an appropriate deadline period, the purchaser may, at its option, request a reduction in the purchase price or, in the case of major defect, re-quest that the contract be cancelled.
(6) Liability for normal wear and tear will not be accepted.
(7) Only the direct purchaser is entitled to assert warranty claims against the vendor; these claims are not assignable.
(8) The purchaser will bear the risk that the goods it has ordered are suitable and have been approved for the purpose it intends. Recommendations on this by the vendor are non-binding.
(9) A defect to a part of the goods will not lead to or mean a defect to all the goods and will not entitle the purchaser to cancel the contract.
(10) The vendor gives no guarantee for used parts, equipment or parts that are sub-ject to wear and tear.
(11) The vendor hereby assigns to the purchaser its existing guarantee claims against the external manufacturer for third-party products that it (the vendor) has procured on behalf of and supplied to the purchaser. The purchaser hereby de-clares that it accepts this assignment.
(12) The aforementioned paragraphs contain the full, complete and exhaustive guarantee for the products and exclude all other guarantee claims of any kind. This does not apply to damages claims arising from assurances on inherent characteris-tics.
Paragraph 7: Spare Parts
The vendor will supply the relevant spare parts at the applicable spare part prices for a period of five years following delivery of a machine.
Paragraph 8: Retention of Title
(1) Until all claims (including any balance claims from current account) to which the vendor is entitled for any reason in law whatsoever against the purchaser, either now or in the future, have been fulfilled, the vendor is granted the following securi-ties which it will, at its option, release on request if their value permanently exceeds the value of the claims by over 20%.
(2) The goods remain the property of the vendor. Processing or remodelling will be carried out at all times for the vendor as a manufacturer; however, this will not entail any obligation for the vendor. If the vendor’s co-ownership expires due to merging or connection, it is agreed here and now that the purchaser’s co-ownership as per-centage value of the unified item (book value) will transfer to the vendor. The pur-chaser will store the vendor’s (co-owned) product free of charge. Goods to which the vendor is entitled to any (co-)ownership will be referred to below as reserved goods.
(3) The purchaser is entitled to process and sell the reserved goods in the course of normal business provided it is not in arrears. Pledging or assignment as security is not permitted. The purchaser assigns here and now all claims by way of security (in-cluding any balance claims from current account) arising from the resale or any oth-er reason in law (insurance, prohibited actions) in respect of the reserved goods to the vendor in their entirety. The vendor authorises the purchaser revocably to collect claims assigned to the vendor on its own account and on its own behalf. This collec-tion authority may be revoked only if the purchaser fails to duly fulfil its payment ob-ligations.
(4) In the event of access to the reserved goods by third parties, in particular in the form of seizure, the purchaser will inform the third parties of ownership by the ven-dor and inform the vendor immediately so that it (the vendor) may enforce its own-ership rights. If the third party is not able to reimburse the vendor for the resulting court or out-of-court costs in this connection, the purchaser will be liable for these.
(5) In the event of non-contractual conduct on the part of the purchaser – in particu-lar arrears of payment – the vendor will be entitled to take back the reserved goods or, if necessary, demand assignment of the purchaser’s surrender claims against third parties. Taking back or pledging the reserved goods by the vendor will not con-stitute withdrawal from the contract.
Paragraph 9: Payment
(1) Unless otherwise agreed, the vendor’s invoices are payable without deduction within 30 days after issue. If the purchaser pays within 10 days after the invoice has been issued, it will be entitled to deduct 2% discount from the invoice amount. Any retrospective deduction of discount is not permitted.
Payment for repair and service work is due immediately and without deduction after the invoice has been issued.
Contrary to any deviating provisions of the purchaser, the vendor is entitled to ini-tially offset payment against older debts and will inform the purchaser of the nature of the offsetting. If costs or interest have been incurred, the vendor will be entitled to initially offset the costs, then the interest and finally the principal claim from the payment.
(2) A payment will not be deemed to have been made until the vendor can access the amount. In the case of cheques or bills of exchange, payment will not be deemed to have been made until the cheque or bill of exchange has been credited irrevocably.
(3) Payment by bill of exchange requires explicit prior approval by the vendor. Costs and expenses are at the expense of the purchaser. The purchaser also bears the risk of timely presentation and protest.
(4) If the purchaser falls into arrears, the vendor will be entitled to charge interest at the statutory rate – currently nine percent (9%) over the applicable base lending rate of the Deutsche Bundesbank – as lump-sum compensation from the applicable date. The vendor may produce evidence of any higher damage.
(5) If the vendor becomes aware of circumstances that cast doubt on the purchaser’s creditworthiness, if the purchaser stops its payments or if the vendor becomes aware of other circumstances that cast doubt on the purchaser’s creditworthiness, the vendor will be entitled to declare all the remaining debt immediately payable, in-cluding if it has accepted cheques or bills of exchange. In this case, the vendor will also be entitled to request advance payments or sureties.
(6) The purchaser is entitled to offset claims, retain title and reduce the purchase price of goods, including if notices of defects or counter-claims are asserted, provid-ing the counter-claims can be established in law or are undisputed.
Paragraph 10: Design Modifications
The vendor reserves the right at any time to make changes to design and products or to change the shape, colour or weight of products; however, it is not obliged to make these alterations to products which have already been delivered.
Paragraph 11: Patents and Copyright
(1) The vendor will release the purchaser and its customers from claims arising from breaches of copyright, trademarks and patents unless the design of a product as de-livered originates from the purchaser. The vendor’s indemnity obligation is limited to foreseeable damage in respect of the amount.
An additional condition for indemnity is that conducting legal disputes will be left to the vendor and that the alleged breach of rights is attributable exclusively to the method of construction of the vendor’s products as delivered without being con-nected to or used with other products.
(2) The vendor is, at its option, entitled to be released from the obligations assumed in Subparagraph 1 by either
a) obtaining the necessary licences in respect of the allegedly breached patents
b) making an altered product or parts thereof available to the purchaser which, in the event of any exchange for the infringing product or its part, eliminates the al-legation of breach of patent concerning the product.
(3) The vendor reserves its rights of ownership and copyright to drawings, sketches, catalogues, plans and other documentation. These may not be made accessible to third parties without the written permission of the vendor and are to be immediately returned on request.
Paragraph 12: Confidentiality
Unless otherwise explicitly agreed in writing, the information distributed to the ven-dor in connection with orders is not deemed to be confidential.
Paragraph 13: Limitation of Liability
Damages claims arising from defective performance or from unauthorised actions against both the vendor and its employees will not be recognised except in cases of wilful intent or gross negligence. This will also apply to damages claims for non-performance but only to the extent that the replacement of indirect or conse-quential damage is requested unless liability is based on an assurance intended to protect the purchaser against the risk of such damage. All liability is limited to fore-seeable damage at the time the contract is signed. In all cases, liability on the part of the vendor in accordance with the German Product Liability Act and other claims based on product liability will remain unaffected.
Paragraph 14: Applicable Law; Place of Jurisdiction; Partial Nullity, Ancillary Agreements
(1) The law of the Federal Republic of Germany applies to these Conditions of Business and all legal relationships between the vendor and the purchaser, includ-ing the provisions of the UN Convention on the International Sale of Goods (CISG).
(2) If the purchaser is a merchant within the meaning of the German Commercial Code, is a legal entity in German public law or is a special public fund in German law, the registered offices of the vendor will be the exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship. The ven-dor is at liberty to bring legal action against the purchaser at the place of latter’s reg-istered offices.
(3) Should a provision in these Conditions of Business or a provision in any other agreements be or become invalid, the validity of all other provisions or agreements will not be affected.
The invalid provision will be replaced by a provision which comes as close as possi-ble in its commercial content to the invalid provision. The same will apply in the event of omissions.
(4) Ancillary agreements or amendments to these General Terms and Conditions of Business must be in writing.