General terms & conditions of delivery and payment of ACTIVOMED GmbH (date of issue 01.01.2018)
1. General Validity
1.1 The following General Business Terms and Conditions shall be valid for all deliveries, services and offers.
1.2 Any opposing General Business Terms and Conditions of the Customer shall not be considered to be contractual content. Objection is hereby expressl y made to their validity and inclusion.
1.3 In principle, deviations from the contractual agreements must be in writing. Any oral ancillary agreements shall be considered to be invalid.
1.4 All previous General Business Terms and Conditions shall lose their validity.
2.1 General offers, price lists, circulars, descriptions and technical data shall be considered to be non binding and without obligation until the written order confirmation is issued.
3. Delivery timeframe
3.1 In principle, insofar as no provision to the contrary is expressly included on the order confirmation, delivery timeframes shall be considered to be non binding. However, even if a binding delivery timeframe has been agreed, liability shall lapse in the event that a force majeure event occurs.
3.2 In the event that it becomes more difficult to procure materials, our own suppliers make late delivery to us or if there are transport delays or operational disruptions, the delivery timeframe shall be extended in each case by the duration of the delivery delay.
3.3 Changes to the order shall result in altered delivery timeframes.
4.1 In principle, the prices are understood to be net plus the respectively valid statutory VAT.
4.2 In principle, payment must be made in such a manner that the Supplier incurs no fees.
4.3 In the event of payment default, statutory default interest in the amount of currently 5 % points above the respectively valid base lending rate shall be charged. Insofar as the Supplier can document that damages justifying a higher interest rate were incurred, then default interest in the documented amount shall be owed.
4.4 Checks and bills of exchange shall be accepted only for payment satisfaction purposes. Bills of exchange shall only then be accepted for discounting purposes.
4.5. In principle, it is not permitted to offset with the Customer’s own payment claims.
5. Delivery acceptance
5.1 The Customer shall be obliged to make delivery acceptance of the purchased goods within one week’s time after the receipt of the notification that the purchased goods are ready for pick up. In the event that the Customer enters into delivery acceptance default with regards to the acceptance of the ordered goods, then the Supplier shall be entitled to demand damage compe nsation in lieu of performance (claim for performance). In this case, the damage compensation shall be a lump sum amount of 50 % of the order’s value. The damage compensation amount must be set higher or lower if the Supplier can document that higher damages have been suffered or the Customer can document that lower damages have been suffered.
6. Reservation of Ownership
6.1 The purchased goods shall remain the Supplier’s property until all of the Supplier’s payment claims from this Agreement have been settled.
6.2 If the Customer is a juridical person under public law, a special foundation under public law or an entrepreneur who is exercising his commercial or independent professional duties when concluding the Agreement, then the reservation of ownership shall also continue to be valid for payment claims of the Supplier against the Customer from the ongoing business relationship until all payment claims created from the Agreement have been settled.
6.3 Upon the Customer’s request, the Supplier shall be obliged to waive its reservation of ownership rights if the Customer has unassailably fulfilled all his payment claims that are re lated to the contractual goods and has provided appropriate security for the remaining payment claims from the ongoing business relationships.
6.4 The Customer shall be entitled to resell the supplied goods during his normal business operations. The Customer shall already now assign his claims against the end customer in advance to the Supplier. However, the Supplier shall be obliged to disclose the assignment only as long as the Supplier’s payment claim has not been settled and the Customer enters into pay ment default. In the event that the supplied goods are subjected to additional processing, the reservation of ownership shall continue to be valid at the factory where the goods are subjected to additional processing. These goods may also be resold during normal business dealings whereby the Customer shall also assign his payment claim to the Supplier.
7.1 The Supplier shall provide a warranty of two years for non moving structural parts, such as the conveyor belt table, containers, operator’s platforms, covers, casings, control units, a six month warranty for moving parts such as bearings, motors, deflection rollers, plugs and fastening clips for new systems and a six month warranty for pipework, valves, glueing of water filtration. A system i s defined as a unit consisting of one or more components, e.g. motor, conveyor belt, container, control cabinet, control unit, applicators, elect rical power supply, etc. Repairs and exchangeable parts are excepted from the warranty. The Supplier shall prov ide no warranty for expendable parts and consumable materials like sealings, filtersand, charcoal, filter net, conveyor belt.
7.2. The warranty shall begin to run on the date that delivery is made to the Customer. It shall be forfeited in each case if the device is not repaired within the warranty period by the Supplier, but rather by third parties or the designated maintenance intervals are not met. The same shall be valid if the device is opened by a third party
7.3 All products shall be carefully examined before they are shipped or outgoing delivery is made. In the event that a defect is nonetheless discovered, it must be reported in writing to the Supplier and the defective part must be sent back to the Supplier without any carriage and other costs.
7.4 The Supplier shall assume no costs for the dismantling and mounting of the supplied parts and no costs for any production dis ruptions, decreased sales or financial losses. These costs must be assumed exclusively by the Customer.
7.5 As it so chooses, the Supplier shall have the right to make a rectification or a replacement delivery. Only then in the event that the rectificatio n has definitively failed shall the Customer have the right to demand the rescission of the Purchasing Agreement.
7.5 The attempt to honour the warranty shall be considered to have been definitively unsuccessful if the Supplier refuses to rectify the defec t or declares that no defect exists. It shall likewise be considered to be a definitive unsuccessful attempt to honour the warranty if two attempts to make rectification have not been able to eliminate the defect. In this case, the Customer shall be obliged to assert his claims in court within three months’ time. If the Customer fails to meet this exclusion deadline, any claims shall be forfeited.
7.6 Warranty claims must be asserted in writing within 14 days after receipt of good. They must contain a precise description of the defect which has been reported.
7.7 Defects which are created through natural wear and tear are excluded from the warranty. The operation of the systems supplied by the Supplier shall require normal eight hour work operations and flawless mounting, particularly the adherence to the prescribed circuit, voltage and working environment requirements. As soon as third parties have made modifications or repairs without the Supplier’s approval, then any warranty rights shall be forfeited.
8.1 Based upon the statutory provisions in accordance with these Terms and Conditions, the Supplier shall be liable o nly for damages caused by gross negligence based upon the following requirements.
8.2 Liability shall exist only in the event of the violation of essential contractual obligations and is limited to the typical damages that were foreseeable when the Agreement was concluded. Any damages for financial losses shall be excluded. Liability shall not exist for only minor deviations from the agreed quality features, min or restrictions on usability, natural wear and tear or damages which are created afterthe transfer of risk as the result of flawed or negligent handling, excessive workloads, unsuitable operational resources or owing to s pecial external influences or which are not required in accordance with the Agreement. This restriction shall not be valid in the event of the loss of life, physical injury or damage to health. Insofar as the damages are covered by an insurance policy that has been concluded by the Buyer for the affected damage claim, the Seller shall only then be liable for any related detrimental ef fects suffered by the Buyer, e.g. higher insurance premiums or interest related disadvantages until the claim has been settled by the insurance provider.
8.3 Notwithstanding any fault upon the part of the Seller, any liability upon the part of the Seller shall remain unaffected for the malicious concealment of a defect if a warranty has been provided or procurement risk has been assumed in accordance with the Produkthaftungsgesetz [German Product Liability
8.4 Liability owing to intentional wrong-doing or gross negligence shall likewise not be affected by this.
8.5 For all damages to the system or to the horses which are caused through the improper handling or unsatisfactory training of the personnel with regards to the handling of the horses, no liability shall be assumed or no warranty shall be provided.
8.6 The customer is obliged to take out insurance cover for all damages caused by water leaking from the Aquatrainer or its components. The manufacturer will not accept liability at any time. It is the customers responsibility to ensure adequate cover for any damages is in place. Further, the customer is obliged to fulfil their place of residence’s laws and regulations for water disposal. The manufacturer will not accept liability for any damages caus ed by the customer’s negligence and disregard for such laws.
9. Data Protection
9.1 The Supplier wishes to point out that all data that are related to the implementation of the order shall be processed, saved and evaluated.
10. Severability Clause
In the event that one or more provisions of this Agreement should be invalid, this shall not affect the validity of the remainder of the Agreement. The parties agree that the invalid or ineffective provision shall be replaced by a valid provision which most clos ely corresponds to the commercial sense and purpose of the invalid provision and which can withstand legal scrutiny. This shall also be valid in the event that a gap or an omission is discovered.
11. Place of performance
The place of performance for all deliveries and services shall be 21358 Mechtersen. All deliveries and services shall be governed by and construed in accordance with the german laws regardless of the law that might otherwise apply under applicable principles of conflicts of law.
12. Legal Venue
12.1 Exclusively the legal venue for the Supplier’s commercial residence shall be valid for all present and future claims arising from the business relationship, including payment claims for checks and bills of sing from the business relationship, including payment claims for checks and bills of exchange. This legal venue shall be the exchange. This legal venue shall be the Municipal Court of Lueneburg and/or the Regional Court of Lueneburg.he Municipal Court of Lueneburg and/or the Regional Court of Lueneburg.
12.2 The same legal venue shall be valid if the Customer has no general legal venue domestically, relocates his residence or customary abode after the Agreement is concluded or his rescustomary abode after the Agreement is concluded or his residence and/or his idence and/or his commercial residence is not known at the point in time that the lawsuit was filed.commercial residence is not known at the point in time that the lawsuit was filed.
12.3 All deliveries and services shall be governed by and construed in accordance with the german laws regardless of the law that might otherwise apply unshall be governed by and construed in accordance with the german laws regardless of the law that might otherwise apply under applicable der applicable principles of conflicts of law.principles of conflicts of law.