Acti-Med AG - Freiensteinau

Unternehmen 

General Terms and Conditions

Art. 1 Application

(1) Unless agreed otherwise in framework or individual contracts, which always take precedence, our General Terms and Conditions (T&Cs), once notified to the Business Partner (Partner), shall apply to the entire business relationship, including all current and future offers and deliveries. Our T&Cs form the basis of contractual relationships with the partner and become an integral part of all oral and written orders or order confirmations.

(2) Terms and conditions of the Partner are only binding if they have been expressly agreed and confirmed by us in writing.

(3) We will inform the partner of our General Terms and Conditions in the valid version upon first contact, when we make an offer or place an order. They are acknowledged by the customer with the placing of order, order confirmation, delivery or acceptance of the goods.

(4) We will immediately inform our Partners about the new, now valid General Terms and Conditions. These will replace the previous terms and conditions with each additional order and become the basis of the business relationship with the Partner. The Partner may object to the implementation of the new or amended T&Cs in writing within 14 days after reception in writing. In this case, we are entitled to retreat from the contract in accordance with Art. 13 (d).

 

Art. 2 Order and order confirmation

(1) Orders or offers from partners can be made verbally or in writing (see section 3 below). The Partner is legally bound by its order / offer for seven working days.

(2) An order or an offer leading to an order (to a sales contract), if they are accepted by us in writing. The complete or partial delivery of the ordered goods is deemed to be an order acceptance.

(3) Orders, offers or confirmations via email need not to be signed.

(4) If an order from us is not accepted within 3 days of receipt by the partner, we are entitled to revoke it. Blanket orders shall become binding at the latest if the partner does not object within a week of receipt. We are entitled to demand, within the scope of reasonableness for the Partner, changes in the delivery item in design and execution. The effects, in particular with regard to the additional costs, minimum costs and delivery dates, must be adequately regulated.

(5) In the case of call-off orders, we reserve the right to procure the required material immediately and to manufacture the expected sales quantity immediately. Any changes requested by the Partner can therefore no longer be taken into account. After acceptance of the first partial delivery, the Partner must bear all additional costs arising as a result of a change or adaptation of the product. We reserve the right to comply with requests for changes in accordance with this condition or to refuse further delivery.

(6) Our agents, assistants and representatives are generally not entitled/authorized to generate legally binding obligations to our company. However, they are authorized in individual cases to accept orders from customers by handing over a written order confirmation.

 

Art. 3 Delivery and delivery reservation

(1) Deliveries to us are made DAP (delivery at place). Deliveries to our customers are made “ex works”.

(2) Unless agreed otherwise, transport shall be from the point of delivery at the expense and risk of the respective customer. The risk shall then transfer to the customer upon dispatch from the delivery point, if carriage paid delivery is agreed.

During delivery, the goods are insured unless agreed otherwise.

(3) Unless agreed otherwise or regulated in these General Terms and Conditions, partial deliveries as well as over- or under-deliveries are permitted.

(4) Delivery by us is subject to the timely and complete delivery of the goods to us by our suppliers. We will inform the Partner immediately if a complete or timely self-supply does not take place. If we are not supplied for reasons for which we are not responsible, the order shall be deemed not to have been concluded. There is no procurement risk assumed by us.

(5) We reserve the right to deliver only against cash on delivery (C.O.D), in advance or upon receipt of a bank-approved check, especially if

(a) we are unable, without being at fault, to cover all or part of the insurance risk resulting from this order(s) with an insurer of our choice or

(b) the financial situation of the Partner deteriorates before the order(s) has been executed.

Pre-payment invoices must be paid no later than 14 days after the invoice date. The delivery of the goods takes place only after the entire invoice amount has been received in our account. After expiry of the 14-day payment period, we reserve the right to charge a cancellation fee of 15% of the order value in case of cancellation.

(6) If the shipment is delayed due to circumstances for which the Partner is responsible, the risk is already transferred to the Partner at the time of readiness for delivery. The costs incurred by the delay (in particular storage expenses) must be borne by the Partner.

(7) The assumption of any guarantees is excluded, unless an express written agreement has been concluded with the Partner.

(8) If the partner refuses to accept the goods without a justified reason or if it cancels the order without being entitled to do so, we can insist on the payment of the full purchase price before delivery of the ordered goods.

 

Art. 4 Delivery terms

(1) As far as delivery dates are stated by us, these are non-binding unless they have been confirmed by us in writing, for example in the order confirmation.

(2) Fixed-date transactions are not accepted by us. Deliveries before expiry of the delivery period do not entitle the partner to refuse acceptance.

(3) If the delivery time is exceeded, a grace period of three weeks automatically starts. In the event of a delay for which we are responsible, the Partner is only entitled to assert further rights if the grace period has expired without success. A claim for damages is limited to any additional costs for the ordered product (cover purchase). In doing so, the Partner is obliged to obtain at least two comparative offers and to give us the opportunity to undertake a cover purchase while maintaining a reasonable deadline. Any further claims for damages, in particular the compensation of pecuniary loss and any third party damage are excluded, unless we are able to prove intentional or grossly negligent actions.

(4) If the Partner exceeds its term of payment, no delivery times will expire. We can either demand for cash payment or refuse delivery.

(5) In case of force majeure - any circumstance beyond our control such as, but not limited to, war, insurrection, strike, government action, events of any kind interrupting the delivery process, interruptions in our normal delivery and the like - that last longer than or are likely to last longer than one week, the agreed delivery time is automatically extended by the time of the incident plus a grace period if the Partner is immediately informed of the reason for and the expected duration of the failure and it is certain that the agreed delivery time cannot be met.

 

Art. 5 Liability for defects

(1) The Partner shall inspect the delivered goods immediately after delivery and shall notify us in writing of any existing defects without delay, at the latest by the fifth working day following delivery. Defects which are reported late, i.e. contrary to the above obligation, will not be considered and are excluded from the warranty.

Complaints will only be accepted as such by us if they have been made in writing. Complaints which are asserted against field staff or transport agents or other third parties do not constitute complaints in due form and time.

(2) The return of the goods to us in the case of a defect notified in due time can only be made after prior written notice. Returns that are made without prior written notice need not be accepted by us. In this case the Partner bears the costs of the return. Replacement deliveries or credits for reasons of goodwill require a special agreement.

(3) In the event that a rectification of defects or replacement takes place on the basis of a justified complaint due to defect, the provisions regarding the delivery time apply accordingly.

(4) The existence of a defect which has been established as such and notified by an effective notice of defect shall give rise to the following rights:

(a) In the event of a defect, the party making the complaint shall initially have the right to demand subsequent performance from the other party. The right to choose whether a new delivery of the item or a remedy of the defect takes place shall be at our discretion.

(b) In addition, we have the right, in the event of failure of an attempt at subsequent performance, to carry out a new subsequent performance, again at our discretion.

(c) The Partner shall only be entitled to withdraw from the contract or reduce the purchase price if the repeated supplementary performance also fails.

(d) The complaining party may only claim damages or compensation for futile expenses in cases of grossly negligent or intentional violation of the obligation to deliver defect-free goods. He must prove the reason for and amount of the damage incurred. The same applies to the futile expenses.

(5) If raw materials/products or semi-finished parts are provided for us for working or processing and if a fault of the product manufactured by us or for this purpose is wholly or partly based on the quality of the product provided by the purchaser, a warranty is excluded.

(6) The purchaser shall check the suitability of the goods for a specific purpose itself, as we may not be aware of possible uses due to the large number of products sold by us, but in any case are not in a position to check the suitability for use in individual cases.

(7) The warranty period for new goods is one year from delivery. In any case, the Partner has to prove that the defect already existed on delivery. For used goods, a warranty is excluded.

 

Art. 6 Liability for other breaches of duty

(1) The Partner shall grant us a reasonable period of supplementary performance to correct the breach of duty, which may not be less than three weeks. Only after unsuccessful expiration of the supplementary performance period can the Partner withdraw from the contract and / or demand compensation.

(2) The Partner can assert damages only in cases of grossly negligent or intentional breach of duty by us. The damages instead of the performance as well as the damage caused by the delay are limited to the negative interest, damages due to non-performance or to performance not as owed is limited to the amount of the purchase price. Compensation instead of performance in case of exclusion of the obligation to pay (impossible) is excluded.

(3) If the Partner is solely or predominantly responsible for circumstances which would entitle it to withdraw, or if the circumstance entitling it to withdraw occurred during the delay in acceptance by the Partner, withdrawal is excluded.

 

Art. 7 Terms of payment

(1) Our invoices are due net cash 14 days after date of invoice, unless agreed otherwise.

In the case of bank transfers, the day of receipt of the funds is the day on which the amount due is credited to our account. For payments by check, the day of receipt of payment is the day on which the check is credited to us.

(2) Cheques are only accepted for payment if they bear a bank confirmation. Bills of exchange will only be accepted if this has been previously agreed in writing. Costs for the submission or crediting of bills of exchange shall be borne exclusively by the Partner.

Cheques are only accepted for payment if they bear a bank confirmation. Bills of exchange will only be accepted if this has been previously agreed in writing. Costs for the submission or crediting of bills of exchange shall be borne exclusively by the Partner.

Discount deduction, if agreed, is not permitted if the customer is in default with an older claim from another delivery of goods.

(3) Price reductions and discounts are granted to the Partner only with prior written confirmation on our part and are subject to the condition that the Partner in the period prior to their granting of our General Terms and Conditions.

(4) In the event that an invoice to the Partner becomes overdue, all other claims against this partner shall also automatically become due immediately.

In the event of default, we shall be entitled to charge default interest at a rate of 9% above the base rate in accordance with s. 288 (2) BGB (German Civil Code).

(5) Offsetting by the Partner is only permitted if his claim has been legally established or has been acknowledged by us in writing.

(6) Payments are to be made by bank transfer to the account stated in the invoice or by sending a cheque to our address. Payments are always considered as compensation for the oldest outstanding claim.

(7) Payments are always considered as compensation for the oldest outstanding claim.

(8) If we agree to payment by installments, in the case of non-payment or non-timely payment of a single installment, the entire outstanding balance will become due immediately.

 

Art.8 Retention of property

(1) All delivered goods remain our property until all invoices for deliveries and services, including those not yet due or resulting from simultaneous or subsequently concluded contracts, have been paid in full. This also applies if some of our entire claims are placed in an account and this has been confirmed.

We are entitled to recover the delivered goods if the Partner is in breach of contract, in particular if it is in default. A recovery of the goods is not to be regarded as a withdrawal from the contract if we have not expressly stated this in writing. The recall of delivered goods by us is always regarded as a withdrawal from the contract. We may immediately resell recovered goods immediately. The sales proceeds are offset against the liabilities of the Partner, less reasonable costs for the action.

(2) If third parties wish to gain access to delivered goods, the Partner is obliged to point out our retention of title and to inform us immediately. Disposal of the goods subject to retention of title, e.g. by pledging, transfer by way of security, donation, transfer for use, by the Partner is not permitted under any circumstances.

The Partner may resell the goods subject to retention of title in the ordinary course of business. However, by accepting our General Terms and Conditions, the Partner assigns all claims arising from the sale of the reserved goods including other claims relating to these goods (e.g. claims against insurance companies and credit card institutions) to us in full by way of security. We hereby revocably authorize the partner to collect the claims in his own name for our invoice. This authorization can be revoked if the Partner does not properly fulfil his payment obligations. In this case, we can demand that the Partner provides information about all assigned claims and their debtors, including all information and documents necessary for the realization of the claims, and that the Partner informs the debtors about the assignment.

(3) If the Partner's claim from the resale has been included in a current account, the Partner hereby assigns its claim from the account to its customer. The assignment is made in the amount that we had charged the Partner for the resold reserved goods.

(4) In the event of seizure the goods from the Partner, we are to be informed immediately by sending a copy of the enforcement protocol and an affidavit from the Partner that the seized goods are the goods delivered by us and subject to our retention of title.

(5) We shall release securities as well as the retention of title to the Partner upon its request insofar as the value of the securities including the retention of title exceeds the value of the outstanding claims by more than 20%. The choice of the securities to be released remains with us.

(6) The assertion of our rights from the retention of title does not release the Partner from its contractual obligations. The value of the goods at the time of the return will be credited only to the existing claim we have against the Partner.

 

Art.9 Protection and Property Rights

(1) Unless agreed otherwise, we are the sole owner or copyright owner of our tools, molds, equipment, plans, drawings, samples and other documents.

(2) Insofar as molds, tools, samples, equipment or test parts for a specific product are procured or manufactured by us, we shall also retain sole ownership thereof. Costs invoiced for this regularly represent pro rata costs of production or design, whereby no further rights of the Partner are established.

(3) If samples, components, semi-finished goods or finished products we have the right to design are eligible for protection, we shall be entitled to the right to register and maintain such property rights. It remains our decision whether, where and to what extent industrial property rights are registered and maintained.

(4) If our products, which are the subject of industrial property rights, are the subject of contracts with partners, the partner shall acquire a manufacturing, distribution and use license if he is entitled to manufacture and sell them. If the subject matter of the contract is solely the right of use and distribution, the license shall behave accordingly. Unless agreed otherwise, license fees shall be settled at the contractually agreed product prices. Unless agreed otherwise, the licenses are not exclusive and, in the case of manufacturing licenses, are limited to the term of the contract.

(5) If third parties violate one or more of our property rights, we alone are entitled to act against such infringements. Claims for damages due to property rights infringement are our sole responsibility.

(6) If we supply products according to plans, drawings, samples, etc. provided by the Partner, the latter shall guarantee that the industrial property rights of third parties are not infringed. If third parties prohibit us from manufacturing or supplying such products, we shall be entitled to withdraw from the contract and to claim damages and reimbursement of costs without being obliged ourselves to examine the legal situation or to conduct a legal dispute. The Partner shall indemnify us from all claims of third parties resulting from this.

(7) If the Partner is prevented from using the product supplied by us by industrial property rights of third parties and if we are responsible for this, we shall procure the right of use for the Partner or supply a similar and usable product, the use of which is not prevented. The Partner or we can also withdraw from the contract instead. Further claims of the Partner, in particular claims for damages, are excluded, unless the infringement of property rights is based on intent or gross negligence.

(8) If the Partner provides us with molds, samples, equipment or parts for the manufacture of products which are the subject of the Partner's industrial property rights or which may be used legitimately by the Partner, this provision shall at the same time be associated with a non-exclusive free manufacturing and distribution license for us for the duration of the contract.

 

Art.10 Extent of liability

(1) We are liable for damages of our Partner only insofar as intent or gross negligence by us or our vicarious agents is demonstrated. Any damage caused by gross negligence shall be reimbursed up to the amount foreseeable at the time of the conclusion of the contract according to the circumstances of the case.

(2) The limitation of liability in accordance with paragraph (1) above shall also and in particular apply to damage to tools, molds, equipment and samples provided to us by the partner for processing or treatment. In the event of repossession, the partner shall be obliged to inspect and give notice of defects in accordance with s. 377 HGB (German Commercial Code). A claim is excluded if an alleged damage is not asserted in writing within five working days.

(3) The Partner undertakes not to assert any claims against us arising from assigned rights, in particular from tortious liability or product liability, or to sue us for compensation within the framework of joint and several liability.

(4) Liability for material and pecuniary losses incurred by the partner is generally limited to cases of slight negligence. If liability is given hereafter, the liability amount is limited to the amount of the delivery value. We are not liable for any risks beyond this.

 

Art. 11 Flat-rate compensation

If we can demand compensation from the Partner on the basis of contractual or statutory provisions, in particular due to non-performance, 40% of the order value plus any expenses and costs shall be reimbursed in principle and subject to further claims, unless the Partner proves that our actual loss is lower.

 

Art. 12 Confidentiality

(1) The Partners undertake to treat the information, documents, samples and other objects communicated to each other confidentially and to take all necessary measures to prevent them from becoming accessible to third parties. The contracting parties shall ensure that the confidential information, documents, samples, and other objects to be treated are only made accessible to a limited number of employees for the purpose of the contract. These employees are also obliged to secrecy beyond their exits from the respective organization of the contractual Partners.

(2) Subject to other regulations, the contracting parties undertake by separate contract not to use the information provided by the other Partner in any way other than for the purpose of examination without express written consent, in particular not to use it commercially and not to apply for industrial property rights on it.

Industrial rights of use to the property right registrations/protection rights and/or know-how of the Partners are not granted on the basis of this agreement.

(3) The obligation to maintain secrecy and non-use of the information communicated to each other is waived insofar as it was

a) demonstrably known to the informed contractor before the communication, or

b) known to or was generally accessible to the public before the communication, or

c) became known or generally accessible to the public after the communication without participation or fault of the informed contractor

d) essentially corresponds to information submitted to the informed contractor by an authorized third party at any time disclosed

  

Art. 13 Right of withdrawal

We reserve the right to withdraw from the contract for the following reasons:

(a) If contrary to the conclusion of the contract, it is assumed that the partner is not creditworthy. Credit unworthiness can be readily accepted in the event of bills of exchange or check protest, suspension of payments by the Partner or an unsuccessful attempted execution by the Partner. It is not necessary that these are relationships between us and the Partner.

(b) If it is found that the Partner has provided inaccurate information regarding his creditworthiness and this information is of material importance.

(c) If the goods subject to our retention of title are sold differently than in the regular course of business of the Partner, in particular by transfer of ownership by way of security or pledging. Exceptions to this only exist if we have declared our consent to the sale in writing.

(d) If the Partner objects to the inclusion of new or amended T&Cs in accordance with Art. 1 (4).

 

Art. 14 Force majeure and unforeseeable events

(1) In the event of force majeure - any circumstance beyond our control such as, but not limited to, war, insurrection, strike and natural catastrophes - which are not only short-term (see Art. 4, para. 5), the contract is automatically terminated. An exchange of services rendered or to be rendered does not take place unless the Partners agree on another.

(2) In the event of unforeseeable events - such as changes in legislation, government measures, customs duties and charges, events of all kinds which interrupt the delivery process, interruptions in our normal supply and the like which are not only short-term - the parties shall negotiate with the intention of preventing termination of the contract with the aim of finding contractual arrangements which take account of the new situation and which correspond as closely as possible to the economic intention of the Parties.

 

Art.15 Miscellaneous

(1) Place of performance and fulfillment for all contractual obligations of the parties is Freiensteinau, Germany.

(2) German law also applies to cross-border deliveries, unless the application of the UN Uniform Law on the International Sale of Goods is mandatory.

(3) Place of jurisdiction for all disputes between the parties out of or arising from or in connection with any contract, securities, retained property, assignments or tort are the Amtsgericht (Local Court) in Alsfeld and the Landgericht (District Court) Giessen, respectively.

With regard to purchase contracts with foreign Partners we reserve the right at our discretion to approach the competent court at the Partner’s place of business and to base our claims on the law applicable there.

(4) All types of inclusions, addenda or amendments to any contract between the parties, including these General Terms and Conditions, must be in writing to be effective. This applies equally to the provision of Art. 15 (4).

(5) Should any provision of these T&Cs be or become invalid, the remaining provisions shall not be affected thereby. In this case, the parties shall be obliged to find a provision in place of the invalid provision that comes closest to the invalid provision in a legally permissible manner.

 

Valid from November 2018