General Terms and Conditions (GTCs) - Merete GmbH
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General Terms and Conditions (GTCs)

I. Scope

1. These General Terms and Conditions are valid only for customers who are an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), as well as for persons under public law or a special fund under public law within the meaning of Section 310 BGB.

2. Our deliveries and services, including information, advice and repairs, shall be subject to the following terms and conditions. We do not recognise any conflicting terms and conditions of the customer, even if we accept or carry out the order while aware of conflicting GTCs, unless we have expressly agreed to their validity in writing. Deviating agreements are valid only for a specific contract and not for subsequent contracts, unless explicitly agreed otherwise.

II. Information and Advice

Information and advice on our products is given based on our previous experience. The values quoted, in particular performance data, are calculated average values. Performance tests on the delivered goods and the observance of usage specifications are still necessary even if you have received information and advice. Oral details are non-binding. For any liability, Section X of these terms and conditions applies.

III. Conclusion of the Contract, Subject of the Contract

1. Our offers and price lists are subject to change without notice. A contract is only concluded when we confirm in writing an order that has been placed in writing or over the telephone by the customer or the goods are delivered.

2. Samples and specimens are non-binding samples for inspection. In the event of a purchase on the basis of samples and/or specimens, industry-standard deviations or deviations under industry-standard manufacturing are reserved. The delivery of samples and specimens does not imply quality and durability guarantees, unless this is expressly stated in the order confirmation. Samples and specimens must be returned to us in perfect condition after no more than four weeks. If they are not returned during this time, we are entitled to invoice for them according to our valid price list.

3. All agreements and ancillary agreements for the implementation of this contract are laid down in writing in this contract. Oral and written promises that differ from our contractual terms and conditions and/or the order confirmation shall, in order to be valid, require the consent of members of our business management or our authorised officers in the quantity needed for representation purposes, if such promises are made by anyone other than the stated persons. Our office employees and field workers have no authority to make differing agreements or grant special conditions.

4. For the content of the supply contract, our written order confirmation and/or our consent to a contract amendment are exclusively decisive.

IV. Delivery

1. Delivery periods begin with the date of our order confirmation, but not before receipt of any agreed advance payments and the explicit clarification of all details of the order and under the provision of the necessary certifications and/or all necessary documents. In the event of customer change requests, the delivery period begins with our written confirmation of the order change. Delivery periods and dates shall, without prejudice to our rights arising from delays in payment, be extended by a period equal to the period in which the customer does not fulfil their obligations towards us. Delivery periods and dates shall be considered to have been met if the object has left our warehouse or factory before the end of the delivery period or date or, if the goods cannot be dispatched on time through no fault of our own, readiness for dispatch has been notified.

2. Correct and punctual delivery remains a requirement.

3. Cases of force majeure and other unforeseeable events which we are not responsible for (e.g. labour disputes, disruptions to operations, measures by the authorities, transport problems) and which make delivery considerably more difficult or impossible for us, release us from the obligations arising from the relevant supply contract. In the event of temporary hindrances, however, we are only released from the obligations of the supply contract for the duration of the hindrance, plus a reasonable start-up period. If the customer cannot be expected to accept the delay, they can withdraw from the contract by written declaration.

4. Our liability for damage caused by delay which is based on a slightly negligent breach of duty shall be excluded, unless this is based on the breach of an essential contractual obligation. In case of violation of an essential contractual obligation, liability is limited to the foreseeable, typically occurring damage. This regulation does not imply a change in the burden of proof to the disadvantage of the customer.

5. We are entitled to make partial deliveries insofar as this is reasonable for the customer. Partial deliveries can be charged for separately.

6. Without prejudice to the provisions relating to the place of fulfilment (cf. Section XI, paragraph 1 of these terms and conditions), delivery will be made free of charge. We shall decide on the type and route of transport at our sole discretion. Our goods are packaged for transport in an industry-standard manner. If the customer makes binding requirements for the type and route of transport, they shall bear the delivery costs. In the case of deliveries with a net order value of no more than €50.00, packaging and delivery costs in the amount of €7.50 will always be charged. In the case of shipments abroad, the delivery terms will be agreed and charged separately.

V. Risk Assumption

1. Material and price risk is transferred to the customer when the goods are handed over to the person transporting them, even if transportation is carried out by our own people and/or with our own means of transport. This also applies to partial deliveries. The fact that we assume the transport costs has no influence on the transfer of risk.

2. If dispatch is delayed for reasons for which the customer is at fault, risk is transferred to the customer when readiness for dispatch is notified. Storage costs after the transfer of risk shall be borne by the customer. In case of storage in our factory or warehouse, monthly storage costs amount to 0.5% of the invoice amount. This is subject to proof of higher storage costs. After fruitless expiry of a reasonable deadline, we are entitled to otherwise dispose of the delivery and to deliver to the customer within a reasonable extended deadline.

3. The goods are only insured against transport damage and other risks at the express request and expense of the customer.

VI. Prices

1. Our prices do not include applicable sales tax. They are valid for the delivery scope stated in the order confirmation. Additional and special services, in particular as a result of customer change requests, will be charged separately.

2. Our prices are based on the price list valid on the day of the order confirmation.

VII. Terms of Payment

1. Unless expressly otherwise agreed, payments must be made free of postage and charges within 30 days after receipt of invoice and without deduction. Repair invoices are generally due immediately after receipt without deduction. Payments shall be made in euros. Bills of exchange and cheques are considered as payment only after they have been cashed and are accepted without obligation of timely presentation and protesting.

2. In the case of exceeding the payment deadlines, we are entitled to charge interest in the amount of 10 percentage points above the base rate per annum (Section 247 BGB). The right to claim further damages caused by delay remains reserved.

3. In the event of default in payment, protest of a bill of exchange and cessation of payment by the customer, we can demand immediate payment of our total receivables, regardless of the agreed maturity. In all these cases we are also entitled to only make still-outstanding deliveries against advance payment or provision of a security and, if the advance payment or security is not provided within two weeks, we are entitled to withdraw from the contract without setting a new deadline. Further claims shall remain unaffected.

4. Customer payments are charged in accordance with the provisions of Sections 366 and 367 BGB. Conflicting instructions from the customer are disregarded.

5. For initial shipment at the beginning of a new business relationship, delivery may be made cash on delivery or with prepayment of the invoice amount.

6. Offsetting with counterclaims of the customer is only permitted if these counterclaims are undisputed, ready for a decision or are established in law. This applies accordingly for the assertion of rights of retention.

VIII. Retention of Title

1. We reserve the right of ownership to all goods supplied by us (hereinafter referred to as “Reserved Goods”) until the customer has paid or settled the delivery price for the Reserved Goods and any otherwise existing or later claims, regardless of their legal basis, arising from the business relationship with us.

2. Only in the ordinary course of business is the customer entitled, until the consent is withdrawn, to resell, process and combine the Reserved Goods with other things (hereinafter referred to collectively as “re-sale”). Any other disposal of the Reserved Goods is not permitted. In particular, the customer is not entitled to pledge the Reserved Goods or to assign them to third parties as security. We must be notified immediately of pledges made by third parties. All intervention costs shall be borne by the customer.

3. The customer hereby assigns to us the claims they are entitled to against their customers which arise due to the resale of the Reserved Goods or any other relevant legal basis affecting the Reserved Goods. The amount of the claim shall be equal to the invoice value of the Reserved Goods sold. To the same extent as the Reserved Goods, such claims serve as security for our receivables. If the customer sells the Reserved Goods with other goods not delivered by us for a total price, the assignment of the receivables from the sale shall be equal to the invoice value of our Reserved Goods sold. If the assigned receivable is included in a current invoice, the customer hereby assigns to us a corresponding part of the balance in the amount of this receivable, including the final balance from the outstanding account.

4. If the realisable value of the security existing for us exceeds the secured receivables by a total of more than 50% or exceeds the nominal value by more than 20%, we shall, at the request of the customer, be obliged to release securities of our choice.

5. Until the consent is withdrawn, the customer is authorised to collect receivables assigned to us. We are entitled to withdraw consent if the customer does not properly meet their payment obligations arising from the business relationship with us, or if circumstances become known to us which could considerably reduce the creditworthiness of the customer. This also applies to the revocation of authorisation to re-sell the Reserved Goods in the ordinary course of business operations, to process them and to combine them with other things. In the event of revocation, the customer must, at our request, immediately give notice of the assigned receivables and their debtors, give us all the information required to collect the receivables, hand over the relevant documentation and inform the debtor of the assignment. We are also entitled to give the debtor notice of assignment. In all other respects, the customer is not entitled to assign the receivables, even by virtue of our collection authorisation.

6. The customer is obliged to treat the Reserved Goods with care and to maintain them. We are authorised to insure the Reserved Goods against theft, breakage, fire, water and other damage, unless the customer has demonstrably taken out such insurance. Our insurance for the Reserved Goods shall be at the customer’s expense.

7. In the event of behaviour by the customer which is in breach of contract, in particular in the case of non-compliance with payment dates, we shall be entitled to withdraw from the contract under Sections 323, 324 BGB. The same shall apply in the case of an application for opening insolvency proceedings on the customer’s assets, setting a deadline in this respect being unnecessary.

IX. Liability for Defects

1. Information in text or image form (e.g. descriptions, pictures or drawings) published
in our catalogues, brochures, presentations and patient information identifies the quality of our products and their uses. It does not constitute any guarantee of quality or durability and corresponds to our current state of knowledge. Other manufacturer’s information is not binding. We are not liable for the success of the treatment options described. We are also not liable for improper and inappropriate use, in particular improper use by the customer or third parties or faulty or negligent treatment and handling, in particular by untrained personnel.

2. Even if samples or specimens have been previously provided, the customer is obliged to examine the delivered goods for completeness or correctness immediately upon receipt. The delivery will be considered as approved if the notification of defects is not received within seven working days after receipt of the goods at the destination or, if the defect was not detectable by a proper inspection, the notification of defects was not received within seven working days after its discovery. In any case, the notification of defects must be in writing, by telex or by fax. If a notification of defects for an additional delivery is not submitted within seven working days from the receipt of the goods at the destination, this is considered as approved. Our field employees are not authorised to accept notifications of defects; this does not apply to the reservation of rights in accordance with Section IX, paragraph 6.

3. The customer is responsible for storing the goods properly for the intended purpose and observing our directions, instructions and warnings. Within their area of responsibility, the customer must ensure that all relevant legal approvals and standards are present for the storage and use of the goods.

4. The customer is obliged to safeguard against any claims against the transport person or the transport insurer that arise due to loss of or damage to the goods during transport. In particular, the customer is obliged to have loss of or damage to the goods confirmed by means of a certificate by the transport person.

5. In the event of a justified notification of defects, the customer initially only has one claim to subsequent performance which we will provide exclusively by delivery of a defect-free item. If the subsequent performance has failed (Section 440 BGB) or is rendered unnecessary because
a) we reject the subsequent performance;
b) we do not carry out the subsequent performance at a contractually defined date or within a specified period of time and the customer has contractually made the continuation of their interest in the performance conditional upon timely performance, or
c) there are special circumstances which, under consideration of the interests of both parties, justify immediate withdrawal from the contract (Section 323(2) BGB), the customer immediately has the right to reduce the purchase price or, at their discretion, withdraw from the contract and claim damages instead of performance or compensation of futile expenses in accordance with Section X.

6. If the customer accepts defective goods even though they are aware of the defect, they are only entitled to the rights and claims for defects if, upon acceptance, they reserve such rights and claims due to the defect.

7. Claims of the customer due to defects in the goods, including consequential damage caused by defects, shall become statute-barred within one year starting from the date of delivery. Liability for defects according to statutory provisions shall remain unaffected. Liability for defect-related claims is found in Section X.

8. The customer’s claims due to defects cannot be assigned to third parties. In the case of notification of a defect, customer payments may only be held back in an amount which is in a reasonable proportion to the asserted defects.

9. Defective goods may only be returned upon prior agreement with us.

X. Liability

1. We are liable according to statutory provisions for damage caused by intentional or grossly negligent breach of duty or action – including intent or gross negligence on the part of our representatives and vicarious agents; we are liable for damage arising from injury to life, body or health and insofar as we have assumed a guarantee for the quality of the goods.

2. Further, we are liable according to statutory provisions for damage arising from the violation of essential contractual obligations; however, liability is limited to contract-typical damage whose occurrence we would have expected due to the circumstances known to us.

3. Compensation claims which are not covered by Section IX.7 become statute-barred, irrespective of their legal basis, within one year from the beginning of the statutory limitation period.

4. The above liability regulations apply accordingly to claims for compensation of futile expenses (Section 284 BGB).

5. The above provisions do not imply a reversal of the burden of proof to the disadvantage of the customer.

6. The mandatory provisions of the German Product Liability Act (Produkthaftungsgesetz) remain unaffected.

7. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, representatives and vicarious agents.

XI. Place of Performance, Place of Jurisdiction, Applicable Law

1. The place of performance and exclusive place of jurisdiction is Berlin. We are, however, entitled to bring action against the customer at their legal place of jurisdiction.

2. The relations between us and the customer are subject to the laws of the Federal Republic of Germany with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the rules of private international law.

3. Should individual provisions be ineffective or lose their effectiveness thanks to subsequent circumstances, the validity of the remaining provisions shall remain unaffected.