General Terms and Conditions of Sale (GTCS) of MAST Diagnostica GmbH
(last amended: March.2016)
Application of General Terms and Conditions of Sale (GTCS);
(1) These General Terms and Conditions of Sale (GTCS) apply to all business relationships with our customers. They apply in particular to contracts for the sale and/or supply of moveable goods. However, they only apply where the customer is an entrepreneur within the meaning of § 14 German Civil Code (Bürgerliches Gesetzbuch), a legal entity under public law or a special public fund (öffentlich-rechtliches Sondervermögen).
(2) These GTCS shall apply exclusively even if we accept - without any reservations - orders, perform services or directly or indirectly refer to letters, etc., which contain the customer's or third-party terms and conditions in the knowledge of the customer's terms and conditions. We will not accept terms of business of the customer which conflict with or differ from our own unless we have given our express written consent thereto.
(3) The current version of our GTCS serves as a framework agreement (§ 305 (3) German Civil Code (Bürgerliches Gesetzbuch)) and also applies to future offers and contracts for the sale and/or supply of moveable goods with the same customer without our having to refer the customer to them in each individual case. We will inform the customer of any amendments to them without undue delay.
Conclusion and content of contract; Written form; Representation; Reservation of rights; Confidentiality
(1) Our offers are non-binding unless they are expressly marked as binding or they contain a binding deadline by which an offer must be accepted.
(2) The customer's order is a legally binding invitation to enter into a contract. Unless otherwise stated in the order, we may accept the offer within 10 working days (Monday to Friday disregarding any public holidays) of receipt.
(3) We will confirm offers by way of a written statement (e.g. by order confirmation or dispatch advice/advice that goods are ready for collection). The content of the contract is determined by the content of that written statement. Offers can also be confirmed by us sending out the ordered goods.
(4) For the purpose of these GTCS and compliance with written-form requirements it is sufficient for communications to be sent by fax or email.
(5) The written contract including these GTCS, which form a constituent part of the written contract, contains all the agreements in full regarding the subject of the agreement entered into between the customer and ourselves. Any oral agreements entered into before the written contract was concluded are not legally binding and are superseded in full by the written contract unless the contract expressly states that they are to continue to apply and that they are binding.
(6) Other than our directors, Prokurists and any other employees expressly named to the customer as a contact, our employees are not authorised to conclude contracts, or enter into any individual written or oral agreements or other commitments; we will not be bound by any such agreements.
Reservation of rights; Confidentiality
(1) We reserve all title, copyright and property rights in all documents, materials and other items (such as offers, catalogues, price lists, estimates, plans, drawings, illustrations, calculations product descriptions and specifications, samples, models and other physical and/or electronic documents and information) which we provide to the customer.
(2) The customer may not use commercially, reproduce or alter the above mentioned items – either the items themselves or their content – or disclose or make them accessible to third parties. It may use them solely for the purposes defined in the contract and shall return them to us in full at our request and destroy or erase any copies whether physical or electronic in as far as it no longer needs them in the proper course of business or in order to comply with statutory archiving requirements
"EXW Incoterms (2010)" and other modes of delivery; Passage of risk; Default with acceptance, cooperation, etc.; Acceptance
(1) Unless otherwise agreed, all shipments are made "EXW Incoterms (2010)" (based on store from which we ship). However, the parties have agreed that the goods must undergo acceptance (see § 1(1)), risk does not pass to the customer until acceptance.
(2) We will only insure the goods if this is expressly agreed with the customer, and then solely at customer's cost against theft, breakage, transport, fire or water damage or other insurable risks.
(3) Notwithstanding (1) and only if agreed with the customer, we will ship the goods to the place of destination stipulated by the customer, in which case the costs of packaging – shall be borne by the customer. We are entitled to specify the type of shipment (in particular, the transport company and the shipping route) and the packaging as we see fit. In the cases set out in sentence 1 of this paragraph, risk passes to the customer when customer receives our notice that the order is ready for shipment, or – if such notice is not provided for by contract – no later than handover of the goods to the carrier, freighter or other transport person. This shall also apply to part-shipments or where we have agreed to provide other services (such as said shipment or transport). This has no affect on (1) or the provisions on place of performance (§ 12 of these GTCS).
Prices, payment, retention of goods; Set-off and reservation rights; Inability of customer to perform
(1) Unless otherwise agreed, prices are always the net prices which apply at the time the contract is concluded plus value-added tax at the applicable statutory rate. Prices are quoted "EXW Incoterms (2010)" (see § 4(1) of these GTCS). Unless otherwise agreed, any insurance, transport and packaging costs (see § 4(2) and § 4(3) of these GTCS) and any other taxes and levies will be payable in addition.
(2) If the agreed prices are our list prices, if the agreed price is not fixed (i.e. subject to change) and if the good/service is not to be supplied until at least (8) eight Weeksafter the contract has been concluded, the list prices at the time of supply shall apply. Any agreed percentage or fixed discount will be deducted from the price which applies at the time of supply. In all other respects (1)-- shall apply.
(3) Our invoices are payable no more than 30 days after despatch and receipt of invoice (and, if expressly agreed, after acceptance) in euros without any deductions. Despatch shall mean arrival at the customer of our despatch advice/advice that goods are ready for collection or – if shipment of the goods has been agreed – handover of the goods to the transporting entity. The date on which we receive payment shall determine whether payment is timely.
(4) The customer automatically falls into default with payment as soon as the respective deadline for payment pursuant to (3) expires. During default, interest shall accrue at the applicable statutory default interest rate. We are also entitled to the standard default amount pursuant to § 288 (5) sentence 1 German Civil Code.
(5) The customer only has the right to offset and to exercise a right of retention if (a) its counterclaim is either undisputed has been ruled final and absolute by court of law or (b) where such claim has been asserted through a court the claim is ready for a decision or (c) or where such claim is synallagmatic to the principal claim. This has no effect on the § 8(9) of these GTCS.
Delivery dates, Extensions; Force majeure, Default by our suppliers, etc.; Part performance; Inspection at our company
(1) Any delivery times or dates which we have indicated for supplies and services are only approximate unless a fixed delivery time/date is expressly stated or agreed.
(2) A delivery date for the supply of goods is deemed to have been met if the customer has received our dispatch advice/advice that goods are ready for collection by that date or – if so agreed – if we have handed over the goods to the transporting entity.
(3) If we can see that a delivery date cannot be met we will inform the customer accordingly without undue delay, providing indication of the probable new delivery time.
(4) Where it is impossible for us to meet our obligations under the contract or only to do so with delay we are not liable to the extent that this is attributable to force majeure or other occurrences which were unforeseeable when the contract was concluded and for which we are not responsible (including without limitation any disruption to operations, fire, natural disasters, weather, flooding, war, insurgency, terrorism, transport delays, strikes, lawful lockouts, shortage of energy, raw or human resources, delays in the issue of necessary official permits, official/sovereign measures).
Failure of our suppliers to supply us correctly or in time does not constitute an occurrence of this type unless responsibility for it lies with us and if, at the time the contract with the customer was concluded, we had concluded congruent contracts with our respective supplier. This also applies if we entered into such congruent contracts without undue delay after concluding the contract with the customer.
In the event of such occurrences, the delivery dates shall be extended automatically by the duration of the occurrence.
(5) Delivery dates/times will be extended automatically by an appropriate period if the customer does not fulfil its contractual obligations or other duties to cooperate or other obligations. In particular, the customer is responsible for providing us promptly and in the correct format with all documents, information, samples, specimens and other information and items which it is required to provide.
(6) We are entitled to render part performance, if (a) part performance is suitable for the contractually intended use, (b) rendering of the remaining performance is secured and (c) the customer does not face significant additional costs.
(7) This shall not affect our statutory rights, particularly rights concerning exclusion of our duty to perform (e.g. because performance is impossible or because we cannot reasonably be expected to perform and/or subsequent fulfilment) and rights regarding default on the part of the customer in respect of acceptance or performance.
(8) If we fall into default with a supply or service or if it becomes, for whatever reason, impossible for us to perform such supply/service, any liability for compensation is limited as stated in § 10 of these GTCS.
Reservation of title
(1) The reservation of title agreed upon herein only serves as security for our claims against the customer under the respective contractual relationship or from any outstanding balance receivables from current account which we may have (referred to collectively as "secured receivables").
(2) Any goods which we have supplied to the customer remain our property until all secured receivables have been paid in full. These goods and the items by which they will be replaced subject to the provisions set out below, which are also covered by reservation of title are referred to hereinafter as "reserved goods".
(3) The customer shall keep the reserved goods on our behalf free of charge. It shall treat them carefully and insure them sufficiently at its own cost against fire, water damage and theft at reinstatement value. If servicing, maintenance or inspection work become necessary (this does not include any work to be performed by us as fulfilment or subsequent fulfilment), the customer must perform such work at its own cost in good time.
(4) The customer may not pledge the reserved goods or to transfer title in them as security. If the reserved goods are attached or otherwise seized by third parties the customer must make our position as owners clear and notify us in writing without undue delay so that we can assert our title rights. If the third party refuses to refund any court or out-of-court costs which we incur in this connection, the customer will be liable to us for such costs.
(5) The customer has the right to use, process/alter, combine, mix and/or sell the reserved goods in the proper course of business until the realisation (see (9)).
(6) If the reserved goods are processed or altered (§ 950 German Civil Code) such processing will always be carried out for us as manufacturers in our name and for our account and we will acquire directly title or – if processing or altering makes use of materials belonging to two or more owners or if the value of the newly created item is higher than the value of the reserved goods – pro rata co-title in the newly created item commensurate with the ratio of the value of the reserved goods (gross invoice value) to the value of the newly created item. The customer herewith transfers its future ownership or co-ownership (in the ratio set out above) in the newly created item as security to cover the eventuality that we do not for some reason acquire ownership or co-ownership; we hereby accept such transfer.
If the reserved goods are combined (§ 947 German Civil Code) or mixed (§ 948 German Civil Code) with items which do not belong to us we will acquire pro rata co-title in the newly created item commensurate with the ratio of the value of the reserved goods (gross invoice value) to the value of the other combined, mixed items at the time of such combining/mixing; if the reserved goods constitute the principal item, then we acquire sole title (§ 947 (2) German Civil Code). If one of the other items must be regarded as the principal item, to the extent that the principal item belongs to the customer, the customer herewith transfers to us pro rata co-ownership in the complete item in the above-stated ratio. We herewith accept this assignment.
The customer shall keep our sole title or co-ownership in an item which has been created as described in the previous provisions for us free of charge.
(7) The customer assigns its claims against its customers from remuneration from resale of the reserved goods and those claims of the customer in respect of the reserved goods arising for any other reason against its customer or third parties (in particular claims from tortious acts and claims from insurance payments) including any outstanding balance receivable from current account to us here and now as security; in the event that we have co-title in the reserved goods assignment shall refer to our pro rata co-ownership share. We herewith accept these assignments.
We hereby irrevocably authorise the customer to collect the claims assigned to us in its own name on our behalf. This has no effect on our right to collect such claims ourselves. However, we will not collect such claims ourselves and will not revoke the customer's authorisation to collect as long as the customer duly meets its payment obligations to us (and in particular does not fall into default with payment), as long an application has not been filed for insolvency proceedings in respect of the customer's assets and as long as the customer is not unable to perform (§ 321 (1) sentence 1 German Civil Code). If any of the sce-narios described above occurs, we may demand that the customer inform us of the claims assigned and the respective debtor, that it informs the respective debtors of the assignment (which we may also do at our discretion) and release to us whatever documents and provide us with whatever information/data we need to assert the claims. (4) applies accordingly to the assigned claims.
(8) If the customer so requests, we must release the reserved goods and any items and claims by which they have been replaced to the extent that their estimated value exceeds the value of the secured claims by more than 50%. The choice of the items to be released lies with us.
(9) If we withdraw from the contract because the customer has acted contrary to the contract – in particular if the customer is in default with payment –under statutory requirements (realisation) we have the right to demand that the customer release the reserved goods. Such request for release of reserved goods shall constitute declaration of withdrawal from the contract, if this has not been declared already. All transport costs which arise in connection with our taking back the reserved goods shall be borne by the customer. If we attach the reserved goods this shall also constitute declaration of withdrawal from the contract.
Warranty for defects
(1) The customer's rights in respect of defects of quality and title (including incorrect delivery and insufficient quantities, faulty assembly or instructions) are subject to statutory requirements unless otherwise stated or qualified in these GTCS (see also § 9).
(2) Other than in the cases provided for in § 10 (2), (3) a and b and (4) of these GTCS we have no duty to provide warranty for quality defects where we have agreed to supply used products. Nor are we liable under the warranty if the customer modifies the goods or has them modified by third parties without our consent and if such modification makes it impossible or unreasonably difficult to remedy the defect. In any event the customer shall bear any additional costs in remedying the defect caused by such modification.
(3) Unless otherwise expressly stated (a) our products and services are only required to comply with statutory requirements which apply in Germany and (b) responsibility for integrating the products in technical building and organisational circumstances which prevail at its premises lies solely with the customer.
(4) Unless the parties have expressly agreed that acceptance must take place, the customer shall inspect the goods delivered without undue delay after delivery to customer or a third-party recipient named by customer and report any defects without undue delay. This shall be subject to § 377, § 381 German Commercial Code (Handelsgesetzbuch) and the provisions in this paragraph. The notice of defects shall be deemed to have been made without undue delay if it is sent within five (5) working days after delivery or – if the defect was not apparent during the inspection (§ 377 (2) and (3) German Commercial Code) – no later than within three (3) working days after the defect has been detected.
(5) The customer must return any goods reported as defective to us at our request at the customer's cost without undue delay. If the complaint is justified we will refund the customer the costs based on the most favourable means of despatch; this shall not apply if the goods are at a location other than that of their designated use. This has no effect on (6) (granting the time and opportunity needed to examine defects and other complaints).
(6) In any event, the customer must allow us the time and the opportunity needed to examine warranty and other complaints and to remedy the defects; in particular it must make the goods concerned available for such purposes or – where the goods are assembled or installed in a fixed manner – grant us access to the site.
(7) If there is in fact a defect, we shall bear the necessary costs of examination and subsequent performance, in particular the costs of transport, travel expenses, work and materials..
(8) If we have supplied defective goods, we have the right and the obligation to either render subsequent fulfilment by remedying the defect or supply a replacement and shall notify our customer within a reasonable period which course of action we have chosen.
(9) We have the right to make subsequent fulfilment dependent on the customer paying the due purchase price or, if applicable, the current instalment, whereby the customer has the right to withhold a proportion of the payment commensurate with the defect.
(10) If subsequent fulfilment is impossible or has failed or if the customer has set a reasonable deadline for subsequent fulfilment and such deadline has expired without success or if there is no statutory obligation to set a subsequent deadline, the customer may decide either to withdraw from the contract or to reduce the purchase price. However, the customer may not withdraw from the contract if the defect is immaterial.
(11) The customer can only withdraw from or terminate the contract owing to a breach of duty on our part which is not attributable to a defect in the goods if responsibility for the breach of duty lies with us; in all other respects statutory provisions apply. The customer does not have the right to terminate the contract, particularly not pursuant to §§ 651, 649 German Civil Code.
(12) Claims for compensation are only possible subject to § 10 of these GTCS.
Third-party property rights
(1) We warrant subject to this § 9 that the goods are free of property rights and copyright of third parties in countries of the European Union or other countries in which we manufacture the goods or in which the goods are manufactured by third parties. Each party shall inform the other without undue delay in writing if claims are asserted against it owing to the infringement of such rights.
(2) Claims arising from infringement of third-party property rights or copyright are excluded if the infringement is attributable to a directive issued by the customer, a modification initiated by the customer or use of the goods by the customer in a manner which is inconsistent with the contract.
(3) If the goods infringe an industrial property right or copyright of a third party we will modify or replace the goods as we see fit and at our own cost such that the third-party rights are no longer infringed, the goods continue to satisfy the contractually agreed functions or such that the customer is granted the right to use the goods by concluding a licence agreement. If we do not manage to do this within a reasonable period, the customer may withdraw from the contract or make a reasonable reduction to the purchase price.
(4) If products supplied by us which we have sourced from other manufacturers or suppliers should infringe third-party rights we will either assert our warranty claims against such manufacturers and suppliers for the customer's account or assign them to the customer, as we see fit;.
(5) Claims for compensation are only possible subject to § 10 of these GTCS.
Liability for compensation
(1) Unless otherwise set out in these GTCS, we shall be liable for a breach of contractual and non-contractual duties as provided for by statute.
(2) We have unlimited liability – for whatever reason – for compensation for losses based on wilful (vorsätzlichen) or grossly negligent (grob fahrlässigen) breach of duty on our part or by any of our legal representatives or vicarious agents.
(3) In the event of a negligent (einfach fahrlässigen) breach of duty on our part or by one of our legal representatives or vicarious agents we shall be liable only
a) – but without limit – for resultant losses arising from injury to life, limb or health;
b) for losses arising from a breach of material contractual duties. Material contractual duties are those duties that are material to proper performance of the contract and on whose fulfilment the customer generally relies or is entitled to rely. In this case, however, the amount of our liability is limited to losses which are typical of this type of contract and which were foreseeable at the time the contract was concluded.
(4) The liability limitations arising from (3) do not apply where we have maliciously failed to disclose a defect or where we have assumed a warranty – which may carry liability for compensation – in respect of the attributes of the goods or a procurement risk. This shall have no effect on mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
(5) Where our liability is excluded or limited under the above provisions, this also applies to the personal liability of our directors and officers, legal representatives, employees, staff and other vicarious agents.
(1) Notwithstanding § 438 (1) no. 3 German Civil Code, the limitation period for claims – including non-contractual claims – for quality defects and defects in title shall be one (1) year from delivery; this does not apply to the scenarios set out in § 10 (2), (3) a and b and (4) of these GTCS. Such scenarios shall be subject to the applicable statutory limitation periods
(2) Delivery within the meaning of (1) sentence 1 shall mean arrival at the customer of our despatch advice/advice that goods are ready for collection or – if so agreed – handover of the goods to the transporting entity. If the parties have agreed that the goods have to undergo acceptance, the limitation period begins on acceptance.
(3) If the goods consist of a building or of an object which, in being used for its usual purpose, has been incorporated in a building and has caused the building to be defective, the limitation period will be five (5) years from delivery as provided for by statute (§ 438 (1) no. 2 a or b German Civil Code). This does not affect the statutory provisions regarding third-party claims for release of goods (§ 438 (1) no. 1 German Civil Code), malicious failure to disclose a defect on our part (§ 438 (3) German Civil Code) or for recourse claims against the supplier where goods have been supplied to a consumer (§ 479 German Civil Code).
Place of performance
The place of performance for our supplies is the store from which we supply. If the contract requires us to carry out assembly or render similar services (such as installation, commissioning, set up/adjustment) the place of performance shall be the place stipulated herefore in the contract.
Choice of law and Place of jurisdiction
(1) The business relationships between us and the customer shall be subject solely to the law of the Federal Republic of Germany. The UN Convention on the International Sale of Goods (CISG) shall not apply.
(2) The place of jurisdiction for all disputes arising from and in connection with the business relationship between us and the customer shall be Reinfeld; Germany. This provision has no affect on mandatory statutory provisions on the sole places of jurisdiction.
If any provisions of these GTCS are or become void or invalid in whole or in part this shall not affect the validity of the other provisions. If any provisions are invalid or have not become an integral part of the agreement, the content of the contract shall be based primarily on statutory provisions (§ 306 (2) German Civil Code). In all remaining cases the parties shall enter into a valid provision in lieu of the void or invalid provision reflecting as closely as possible the intended economic purpose of the original provision.