General Terms and Conditions of Sale and Supply (GTC)

of DEWIMED Medizintechnik GmbH

§ 1 Scope

All deliveries, services, and offers of the Vendor are based on these General Terms and Conditions of Sale and Supply. They form part of all contracts concluded between the Vendor and its contractual partners (hereinafter referred to as ‘Customers’) governing the goods and services offered by the Vendor. They shall also apply to all future deliveries, services, and offers to the Customer, even if they are not separately agreed upon again.
The General Terms and Conditions of Sale and Supply shall apply exclusively. Deviating or conflicting terms and conditions of the Customer shall only become part of the contract if and to the extent that the seller has expressly agreed to them being made part of the contract in writing. The General Terms and Conditions of Sale and Supply shall also apply in the event that the Vendor carries out deliveries to the Customer without reservation in the knowledge that the Customer’s terms and conditions are in conflict with or deviate from the Vendor’s General Terms and Conditions of Sale and Supply.
The legal relationship between the Vendor and the Customer shall solely be governed by the written purchase agreement referencing these General Terms and Conditions of Sale and Supply. Verbal commitments made by the Vendor prior to the conclusion of the purchase contract as well as subsequent supplements, amendments, and side-agreements shall only become binding upon confirmation in writing by the Vendor.

§ 2 Offer and offer documents

All offers made by the Vendor are subject to change and not binding unless they are expressly marked as binding or contain a specific acceptance period.
The Vendor reserves all property rights and copyrights to illustrations, drawings, and other documents provided to the customer. Such documents shall not be disclosed to third parties without the express written consent of the Vendor and shall immediately be returned to the Vendor upon request.
Unless otherwise agreed, the supply of samples shall be chargeable.
Field representatives of the Vendor are authorized to represent the Vendor only if and to the extent that a power of attorney has been issued in writing.

§ 3 Prices and payment terms

The prices stated in the Vendor’s offer or order confirmation shall apply to all supply contracts. All prices
are quoted in EUROS ex works in Tuttlingen ‘EXW’ (Incoterms ® 2010), excluding shipping, insurance, customs duties, fees and other public levies, and statutory value added tax. In the case of VAT-exempt supply to
foreign businesses, the Customer shall confirm receipt of the goods at the agreed delivery location to the Vendor in writing.
Unless otherwise agreed in writing, all invoices are payable net within 30 days from the date of the invoice date. In the event of payment default, the statutory provisions shall apply.
In the event that a due invoice amount is not paid after two reminders, all outstanding invoiced amounts shall become due immediately.
Bills of exchange shall only be accepted upon agreement and, if an agreement has been made, shall only be accepted on account of performance and subject to discounting. Discounting charges will be charged to the customer from the due date of the invoiced amount.
The Customer shall only be entitled to assert right of set-off if its counter claims have been legally established, are undisputed, or have been recognized by the Vendor.
The Customer shall have a right to withhold payment only insofar as his counterclaim results from the same contractual relationship and, in addition, has been legally established, is undisputed, or recognized by the Vendor.
In the event that, after conclusion of the contract, it becomes apparent that the Vendor’s claim to payment of the purchase price is jeopardized by the Customer’s lack of solvency, the Vendor shall be entitled to refuse performance in accordance with the statutory provisions and – after specifying a period of time, if necessary – to withdraw from the contract (§ 321 of the German Civil Code [BGB]). In the case of contracts concluded for the supply of goods which the Vendor manufactures according to special specifications by the Customer (custom-made products), the Vendor shall have a right to cancel such a contract immediately; the statutory provisions on the dispensability of specifying a period of time shall remain unaffected.

§ 4 Supply, delivery lead time, supply contract

Deliveries are performed ex works in Tuttlingen ‘EXW’ (Incoterms ® 2010).
Time periods and dates for deliveries and services proposed by the Vendor shall be considered approximate unless a fixed time period or date has been expressly committed or agreed upon.
In case of sales ex works, the delivery periods shall be deemed to have been complied with if the goods are provided to the Customer at the Vendor’s premises within the delivery period or on the delivery date. In the event that shipment has been agreed upon, the delivery periods and dates shall refer to the time of handover to the forwarding agent, carrier, or other third party commissioned to transport the goods.
The Vendor shall not be liable for delays in delivery insofar as such delays are caused by force majeure or other events
that had not been foreseeable at the time the contract was concluded (e.g. issues with the procurement of materials and energy, strikes,
lawful lockouts, issues related to obtaining required official permits, official measures, or any failure of sub-suppliers to deliver the correct goods or to deliver on time) and for which the Vendor is not responsible. In the event of impediments existing for a limited duration, the supply and performance schedules shall be extended or postponed by the period of timer for which the impediments exists, plus a reasonable start-up period.
Unless otherwise agreed in writing, the Vendor shall be entitled to make partial deliveries and render partial services at any time.

§ 5 Transport, default of acceptance

The Vendor is entitled, but not obliged, to insure shipments on behalf and for the account of the Customer.
In the event of damage in transit, the Customer shall arrange for a damage report to be prepared by the competent parties
and notify the Vendor immediately.
In the event that the customer is in default of acceptance or culpably violates any other obligations to cooperate, the Vendor shall have the right to claim commensurate damages resulting therefrom including additional expenditures, if applicable. The right to make more extensive claims and to exercise additional rights shall remain unaffected.

§ 6 Liability for defects

The customer having properly fulfilled its obligations to inspect the goods and give notice of any defects pursuant to § 377 of the German Commercial Code (HGB)
is a prerequisite for any claims for defects made by the Customer. Complaints about obvious defects, particularly
incomplete deliveries, can only be considered within three working days after receipt of the goods.
The contractually agreed characteristics shall be the primary factor to be considered in determining whether the supplied goods are free of defects. The Customer shall be liable for the accuracy of any documents provided by him, particularly with regard to drawings and samples.
In the event that the supplied goods are found to be defective, the Vendor shall be entitled, at its discretion, to rectify such defects through remedial action or to replace the defective goods with goods free of defects. In the event of rectification, the Vendor shall bear all expenses associated with such rectification, particularly with regard to transport, travel, labour and material costs insofar as such costs are not increased by the fact that the purchased goods have been taken to a location other than the Customer’s registered place of business.
The Customer shall be entitled to withdraw from the contract or to demand reduction of the purchase price if the statutory requirements are met.
In the event that the Vendor is responsible for a defect, the Customer may claim damages in line with the conditions set forth in § 8.

§ 7 Liability for defects of title

The Vendor shall deliver goods which are not subject to third party rights under German law or under the law of the country where the Customer has its registered place of business and which the Vendor was or must have been aware of at the time when the contract was concluded.
In the event that the Vendor breaches this duty, the Vendor shall, at its discretion and expense, modify or replace the goods delivered in such a way that no third party rights are infringed and the goods delivered continue to have the functionality agreed in the contract. In the event that the Vendor fails to do so within a reasonable period of time set by the Customer, the Customer shall be entitled to withdraw from the contract or to demand a reduction of the purchase price.
Any claims for damages are subject to the limitations set forth in § 8 of these General Terms and Conditions of Sale and Supply.
In the event of infringement of third party rights, the obligations of the Vendor set forth in § 7 shall apply, subject to the provisions set forth in § 8. They shall apply only if
- the Customer informs the Vendor of the rights asserted by third parties immediately,
- the Vendor remains in a position where its right to any defensive measures, including out-of-court settlements, are reserved.
- the defect of title is not due to an instruction given by the Customer, and
- the infringement has not been caused by the Customer through unauthorized modifications of the goods delivered or through using the same in a manner that is not in accordance with the contract.

§ 8 Other liability

The Vendor’s liability for damages, irrespective of their legal grounds, in particular due to impossibility, delay, defective delivery, other breach of contract, and tort, shall be governed by the following provisions.
The Vendor shall be liable as per the statutory provisions
- – in case of intent and gross negligence,
- – in case of loss of life, bodily injuries or damage to health,
- – according to liability legislation, and
- – in case of defects which the Vendor has fraudulently concealed or the absence of which the Vendor has guaranteed.
In the event that an obligation, which is essential for achieving the purpose of the contract, is breached by the Vendor without intent or gross negligence, the Vendor shall be liable to the extent of damage typical for and to be expected from this type of contract.
There shall be no further liability of the Vendor.

§ 9 Statute of limitation

The limitation period for claims arising from material defects and defects of title is one year starting from the transfer of risk. The statutory periods shall apply to claims for damages pursuant to § 8 (2). These shall also apply in the event of supplier recourse pursuant to §§ 478, 479 of the German Civil Code (BGB).

§ 10 Retention of title

The Vendor shall retain ownership of the delivered goods until all payments arising from the business relationship with the Customer have been received. In the event of contractual violations, particularly in the event of payment default, the Vendor shall be entitled to demand surrender of the goods remaining his property. The act of taking back such goods on part of the Vendor shall constitute a withdrawal from the contract.
However, the Customer shall be entitled to sell such goods in the proper course of business as long as the Customer meets his obligations arising from the business relationship with the Vendor in good time; however, the customer shall not pledge or assign such goods as a security. The Customer hereby assigns to the Vendor all claims, against its customers or third parties, arising from the sale. The Vendor hereby accepts this assignment. The Customer shall remain entitled to collect this claim after the assignment. The right of the Vendor to collect these claims shall not be affected by this. However, the Vendor undertakes not to collect the claim as long as the Customer meets its obligation to pay from the received revenues, is not in default, and no application for opening insolvency proceedings has been made or cessation of payment exists. However, if this is the case, the Vendor shall be entitled to demand that the Customer disclose the assigned claims and the associated debtors, provide all necessary information for collection, hand over all corresponding documentation, and inform the debtors about such assignment.
Processing or reconstruction by the Customer of the goods remaining the Vendor’s property shall always be carried out for the Vendor. If such goods are processed together with other objects which the Vendor does not own, the Vendor shall acquire co-ownership of the new object to the ratio of the value of the goods in his possession (final invoice amount incl. VAT) to the other objects processed at the time of processing.
If such goods are inseparably combined or mixed with other objects which the Vendor does not own, the Vendor shall acquire co-ownership of the new object to the ratio of the value of the goods in his possession (final invoice amount incl. VAT) to the other objects combined or mixed at the time of combining or mixing. In the event that combining or mixing takes place in a manner where the item of the Customer is then viewed as the primary object, it shall be deemed agreed that the Customer assign a proportional ownership of those goods to the Vendor. The Customer shall store these goods entirely or partially owned by the Vendor.
As regards the object that is the result of the processing, combining, or mixing, the same provisions shall apply as to the goods delivered under reservation of title.
The Customer shall inform the Vendor immediately of any enforcement measures, executed by third parties, against the goods delivered under reservation of title or against the claims assigned to the Vendor or against other securities, and submit the documents required to intervene. This shall also apply to impairments of other kinds.
The Vendor undertakes to release the securities he is entitled to on request of the Customer insofar as the realisable value of the securities exceeds the claims to be made by more than 20%. The Vendor shall be free to choose the securities to be released.

§ 11 Final provisions

The Customer hereby agrees that the Customer data received in the course of the business relationship may be stored by the Vendor for business purposes and that the data may be transmitted to third parties (e.g. for credit assessment, to insurance companies, for notifications required by the German Act on Medical Devices [MPG]) to the extent necessary for contract fulfilment.
Assignment of customer claims require the consent of the Vendor in writing.
The Vendor hereby declares compliance with the statutory provisions of the German Minimum Wage Act (MiLog).
The Customer is obliged to comply with the laws of the respective applicable legal system(s), particularly with the provisions of the German Minimum Wage Act (MiLog), where applicable. In particular, the Customer shall observe the guidelines and recommendations of the United Nations Global Compact.
The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship – to the extent legally permissible – shall be Tuttlingen.
The laws of the Federal Republic of Germany shall apply to the exclusion of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).
In the event that one or multiple provisions of these GTC ceases to be to be applicable, this shall in no way affect or impair the validity and enforceability of the remaining provisions. In such cases, the parties undertake to replace the invalid provision with a legally effective substitute provision that comes closest to the economic purpose of the terms and conditions. The same shall apply in the event of a gap in the provisions.

The GTC are available for download in PDF format here.