General delivery and payment conditions
Dr. Walser Dental GmbH, Radolfzell
1. General – extent of application
1.1 The following General Terms and Conditions of Supply and Payment extend to the supply of dental instruments to business entities.
1.2. Supplies and services rendered by us shall be subject exclusively to the following terms and conditions. Contrary or deviating terms imposed by the purchaser will not be recognized unless expressly agreed by us in writing. Our General Terms and Conditions shall apply even where goods or services are supplied by us in the knowledge of and without refutation of such contrary or deviating terms.
1.3 Our General Terms and Conditions shall likewise apply to all future transactions with the purchaser.
2. Offers – entry into contract
2.1 We shall remain bound by offers extended by us in writing for 30 calendar days. In other respects our offers are without obligation.
2.2. Orders shall be regarded as accepted only when confirmed by us in writing, by delivery of the goods or by the issue of an invoice.
Unless otherwise specified in the order confirmation, our prices are specified in EURO, ex works, and do not include turnover tax, packing or delivery costs.
4.1 The purchase price shall be due for payment upon receipt of invoice. Discounts may be deducted only by special written agreement.
4.2 In the event that the purchaser delays or defaults on payment, we shall be entitled to demand default interest at a rate of 9 percentage points above base rate. The right is reserved to assert more extensive claims for damages arising from default.
4.3 Until such time as amounts due for payment have been remitted we shall be under no obligation to make further supplies unless appropriate security is provided by the purchaser.
4.4 Bills of exchange and cheques are accepted only by special arrangement and only on account of performance. Discounting and bill charges are to be borne by the purchaser and are payable forthwith. We accept no liability for bills or exchange or cheques being presented on time, nor for any protest being made in due time.
4.5 For purchasers outside of Germany the following terms of payment shall – in the alternative – apply:
4.5.1 You may pay in advance against our proforma invoice. Delivery will then be made following receipt of payment.
4.5.2 You may choose to pay “Cash against Documents” (CAD), that is to say, the goods will be handed over to you by the carrier upon presentation of bank confirmation that the invoice is paid.
4.5.3 You may send us an irrevocable confirmed letter of credit for the invoice amount. The term of the letter of credit must exceed the agreed delivery period by at least three months. All bank charges, commissions and fees are to be borne by the purchaser.
4.6. The purchaser shall be entitled to make offset only if the counterclaim is legally enforceable, undisputed or acknowledged by us.
5. Reservation of ownership
5.1 We reserve ownership of the goods until such time as all accounts payable under the contract of supply have been settled. In the event that the purchaser is in breach of contract, and in particular in default of payment, we shall be entitled to withdraw from the contract and recover and resell the goods and the purchaser shall be obliged to surrender the same. The same shall apply likewise in the event that the purchaser ceases to make payments or makes application for insolvency proceedings to be instituted.
5.2 The purchaser is obliged at the purchaser‘s own expense to adequately insure goods supplied subject to reservation of ownership at their replacement value against loss or damage due to fire, water or theft.
5.3 The purchaser may neither pledge the goods nor assign the same as security. In the event of seizure or other intervention by third parties, the purchaser is required to notify us forthwith in writing in order that we may institute proceedings pursuant to § 771 of the (German) Code of Civil Procedure [ZPO]. Insofar as the third party is not in a position to reimburse our judicial and extra-judicial costs pursuant to § 771 ZPO, the purchaser shall be liable for the loss incurred.
5.4 The purchaser is entitled to sell the goods in the normal course of business; however the purchaser assigns to us here and now all claims accruing from the said resale in the amount of the agreed invoice value (including Value Added Tax). Even after the said assignment, the purchaser remains entitled to collect these receivables. This shall not affect our authority to collect the same ourselves. However, we undertake not to collect these receivables provided that the purchaser’s obligations to make payments are fulfilled. Should this not be the case, we may demand that the purchaser notify us of the assigned receivables and debtor parties and furnish all information required to collect the same.
5.5 Insofar as the law within whose jurisdiction the goods are located following delivery does not permit the retention of ownership but instead allows the seller to reserve other rights to the goods supplied, we may exercise any and all of these rights. The purchaser is obliged to cooperate in such action as we propose to take in respect of the goods supplied in order protect our right of ownership or other right in substitution of the latter.
6. Delivery period
6.1 Any delivery period specified by us shall commence only after all technical matters have been clarified and all obligations on the part of the purchaser duly and properly fulfilled, including in particular the remittance of any advance payment which may have been agreed.
6.2 Incidences of force majeure, and in particular events which are beyond our control, shall release us from our obligation to deliver for as long as they shall endure. We are obliged to inform the purchaser forthwith of the occurrence of such an event and its anticipated duration. Should the event last for longer than 3 months, we are entitled to withdraw from the contract.
6.3 Should we find ourselves in default of delivery, the purchaser shall set a reasonable additional period for delivery to be made. Should this extension expire without result, the purchaser is entitled to withdraw from the contract. The purchaser shall be entitled to claim compensation only if the delay is occasioned by willful or gross negligence.
6.4 Should the purchaser delay in accepting the goods, or should the purchaser be in breach of other duties to cooperate, we are entitled to demand compensation for loss or damage incurred by us including additional expenses. In such case the risk of accidental loss or impairment of the goods will transfer to the purchaser at the point in time at which the latter becomes in default of acceptance.
7. Delivery – transfer of risk
7.1 Unless otherwise specified in the order confirmation, delivery is agreed to be “ex works”.
7.2 Transport insurance will be arranged by us only at the written request of and at the cost of the purchaser.
8. Claims for defects
8.1 The nature of the goods shall be exclusively as per our product description.
8.2 We shall be answerable neither for defects resulting from improper use or handling or excessive use of force or wear and tear, nor for the consequences of any alterations to the goods undertaken without our approval. This shall likewise apply in the case of defects which do not significantly impair the value or fitness of the goods.
8.3 In deviation from § 438 Para. 1, No. 3 of the (German) Civil Code [BGB] (legal limitation period for defect claims), a limitation period of one year shall apply.
8.4 Insofar as the purchaser is a commercial entity, the goods must be inspected by the purchaser in accordance with §§ 377, 378 of the (German) Commercial Code [HGB] and any identifiable defects notified in writing within 6 working days.
8.5 Insofar as the goods exhibit a defect for which we are responsible, we are entitled at our choice either to eliminate the defect or to supply a replacement. Should the elimination of the defect or replacement supply prove unsuccessful, the purchaser shall be entitled to withdraw from the contract or to a reduction in the price payable.
8.6 Unless otherwise specified hereinafter (clauses 8.7 to 8.9), all further-reaching claims on the part of the purchaser – irrespective of on what legal grounds – are excluded. We therefore accept no liability for loss or damage not suffered by the goods supplied; in particular, we are not liable for loss of profits or other pecuniary loss suffered by the purchaser.
8.7 This limitation on liability shall not apply if the cause of the claim is attributable to willful or gross negligence or the absence of an assured characteristic. Neither shall this limitation apply in the event of loss of life, physical injury or impairment of health.
Liability pursuant to the terms of the Product Liability Act [Produkthaftungs-gesetz] remains unaffected.
8.8. Insofar as we may be culpably in breach of an essential contractual duty, liability shall be limited to claims typically associated with contracts of this nature; in other respects liability is excluded.
8.9. Goods dispatched by us on approval in accordance with contract must be returned by the purchaser – unless the purchaser is desirous of retaining them – at the purchaser’s expense prior to the expiry of the agreed period (generally 2 or 4 weeks). Should the goods not be received by us prior to the expiry of this period, the purchaser shall be obliged to pay the purchase price plus turnover tax, packing and delivery costs upon receipt of invoice.
9. Jurisdiction – place of fulfillment
9.1 Insofar as the purchaser is a commercial entity, the place of jurisdiction shall be Radolfzell. We are however additionally entitled to institute proceedings against the purchaser at the latter’s place of general jurisdiction.
9.2 Unless otherwise specified in the order confirmation, the place of fulfillment shall be our place of business in Radolfzell.
10. Applicable law
The legal relations between the parties shall be subject to the law of the Federal Republic of Germany.