General terms and conditions of sale
nal von minden GmbH
Carl-Zeiss-Straße 12
47445 Moers
§ 1 Applicability, Form
(1) These terms and conditions of sale (GCS) apply to all our business relationships with our customers (“Buyer”). The terms apply only when the Buyer is a contractor (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GCS apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GCS in the current version which are valid at the time of the Buyer's order or in the version last provided to them in text form shall also apply as a framework agreement for similar future contracts - without the need to refer to them again in each individual case.
(3) Our GCS apply exclusively. Deviations, conflicting or supplementary general terms and conditions of the Buyer shall only become an integral part of the contract if - and to the extent that - we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's GCS.
(4) Individual agreements made with the Buyer in individual cases (including subsidiary agreements, extensions to contract and contract amendments) shall take precedence over these GCS. Subject to proof to the contrary, a written contract or our written confirmation shall be binding for the content of such agreements.
(5) Legally relevant declarations and notifications from the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of those making the declaration, remain unaffected.
(6) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GCS.
§ 2 Conclusion of contract
(1) Our offers are subject to change and are non-binding. This shall also apply if we have provided the Buyer with catalogues, documentation (e.g. drawings, plans, calculations, references to regulations for medical products, etc.), or other product descriptions or documents - also in electronic form - to which we reserve ownership rights and copyrights.
(2) The ordering of goods by the Buyer shall be classed as a binding offer of contract. Unless otherwise stated in the order, we will be entitled to accept this offer of contract within 2 weeks of its receipt.
(3) Acceptance of the order can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
§ 3 Delivery times and delays
(1) The delivery period will be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is approx. 6 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of performance), we shall inform the Buyer of this without delay and simultaneously notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any payments already made by the Buyer. A case of non-availability of the service in this sense shall be deemed to be, in particular, the non-timely delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault and we are not obliged to procure for individual cases.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Buyer is required. If we are experiencing a delay in delivery, the Buyer may request a lump-sum compensation for the damage caused by the delay. This lump-sum compensation amounts to 0.5% of the net price (delivery value) for each full calendar week of the delay. We reserve the right to prove that the Buyer has not suffered any damage or that the damage is significantly less than the aforementioned lump sum.
(4) The rights of the Buyer in accordance with § 8 of these GCS and our statutory rights - in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) - shall remain unaffected.
§ 4 Delivery, transfer of risk, approval, default of acceptance
(1) Delivery takes place ex warehouse (EXW Incoterms 2020), which is also the place of fulfillment and the place of any supplementary performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch to a location other than the place of delivery, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. The risk of accidental loss and/or deterioration of the goods shall pass to the buyer at the latest upon handover. However, in the event of sale by dispatch, the risk of accidental loss and/or deterioration of the goods, as well as the risk of delay shall pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. Insofar as an acceptance of performance has been agreed upon, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we will charge a fixed rate compensation cost in the amount of 0.5% of the net price per calendar week, up to a maximum total of 5% or 10% in the event of a final non-acceptance. This starts with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch.
(4) The proof of substantial damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the fixed fee shall be offset against further monetary claims. The Buyer is be entitled to prove that we have not suffered any damage or that the damage is significantly less than the aforementioned fee.
§ 5 Prices and payment conditions
(1) Unless otherwise agreed in individual cases, our current prices at the time of the conclusion of the contract apply, namely ex warehouse, plus statutory VAT.
(2) In the event of sale by dispatch (§ 4 Abs. 1), the Buyer shall bear the transport costs from the warehouse as well as the costs of any transport insurance requested by the Buyer. Unless transport costs are specified by us in the invoice in individual cases, a fixed transport cost (not including transport insurance) in the amount of 9,90 EUR per delivery is valid. Any customs duties, fees, taxes and other public charges shall be paid by the Buyer.
(3) The purchase price is due and payable within 30 days from the date of invoice and delivery or acceptance of the goods, unless otherwise agreed. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding provision at the latest with the order confirmation.
(4) Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) remains unaffected.
(5) The Buyer shall only be entitled to rights of set-off or retention insofar as their claim has been legally established or is undisputed. In the event of delivery defects, the Buyer's counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GCS.
(6) If it becomes apparent following the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is threatened by the Buyer's inability to pay, we are entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of untenable items (custom-made products), we may declare rescission immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 6 Reservation of ownership
(1) We retain ownership of the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must inform us immediately in writing if an application is made to start insolvency proceedings or if third parties (e.g. seizures) have access to the goods that belong to us.
(3) In the event of breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand the return of the goods on the basis of the reservation of ownership. The demand for return does not automatically include the declaration of withdrawal; we are entitled to demand only the return of the goods and to reserve the right of withdrawal. Should the Buyer not pay the purchase price due, we may only assert these rights if we have first unsuccessfully set the Buyer a reasonable deadline for payment or if setting such a deadline is superfluous according to statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer is authorised to resell and/or process the goods subject to retention of title in the usual course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the full value of the products resulting from the processing, mixing or combining of our goods of which we are deemed to be the manufacturer. If in the case of processing, mixing or combining with goods from third parties, the right of ownership remains, we will acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product and to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total, or in the amount of our possible co-ownership share in accordance with the paragraph above. We accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply in respect to the assigned claims.
(c) The Buyer remains authorised, in addition to us, to collect the claim. We undertake not to collect the claim as long as the Buyer meets their payment obligations towards us, there is no issue in their ability to pay and we do not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, we may demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the Buyer's authority to further sell and process the goods subject to retention of title.
(d) If the feasible value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.
§ 7 Claims of defects from the Buyer
(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including wrong delivery and undersupplying), unless otherwise stipulated below. In all cases, the special statutory provisions remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further. (supplier recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the Buyer or another contractor.
(2) All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were made public by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods. We guarantee the specifications of the products provided in LOT certificates, operating instructions and technical documentation as long as they are transported, stored and used in accordance with the manufacturer's specifications.
(3) Where the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect is present or not (§ 434 para. 1 p. 2 and 3 BGB). However, we do not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the purchaser has not drawn our attention as being decisive for their purchase.
(4) The Buyer's claims for defects presuppose that they have fulfilled their statutory obligations to inspect and give notice of defects (§§ 377, 381 II HGB). In the case of goods intended for further processing, an inspection must in any case take place immediately before processing. If a defect is noted upon delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, we must be notified of obvious defects in writing within 5 working days of delivery. We must be notified of defects that are not apparent during the inspection within the same period of time following discovery.
If the Buyer fails to carry out proper inspections and/or give notice of defects, our liability for the unreported defect or defect not reported in time or not reported properly shall be excluded in accordance with statutory provisions.
(5) If the delivered item is defective, we may choose whether to remedy the defect (rectification) or by deliver a defect-free item (replacement). Our right to refuse supplementary performance under the statutory conditions remains unaffected.
(6) We are entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due. However, the Buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The Buyer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods in question for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective items to us in accordance with statutory provisions.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, specifically transport, travel, labour and material costs and, if applicable, removal and assembling costs, in accordance with statutory provisions if a defect is actually present. On the other hand, we may demand reimbursement of the costs from the Buyer for an unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Buyer.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer has the right to remedy the defect themselves and to demand reimbursement from us of the expenses necessary for this purpose. We must be notified of this without delay, and if possible in advance. The right of the Buyer to remedy the defect does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with statutory provisions.
(10) If the supplementary performance has failed or a reasonable deadline for the Buyer to set for the supplementary performance has expired unsuccessfully, or is unnecessary according to statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the event of an insignificant defect, however, there is no right of withdrawal.
(11) Claims from the Buyer for damages or reimbursement of wasted expenses shall also exist in the case of defects only in accordance with § 8, and are otherwise excluded.
§ 8 Other liabilities
(1) So long as nothing to the contrary arises from these GCS, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with statutory provisions.
(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the case of malice and gross negligence. In the event of simple negligence, we shall only be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. due diligence in own affairs)
(a) liability for damage resulting from injury to life, limb or health shall be limited to the following,
(b) for damages arising from a not inconsiderable breach of a material contractual obligation (obligation whose fulfilment is essential to the proper performance of the contract and on whose observance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or to the benefit of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply where we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the Buyer under the product liability act.
(4) In the event of a breach of duty which does not consist of a defect, the Buyer may only withdraw or terminate if we are responsible for the breach of duty. The Buyer’s free right of termination (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitations
(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) Special statutory provisions on the limitation period (in particular § 438 para. 1 numbers. 1, 2, para. 3, §§ 444, 445b of the German civil code (BGB9) shall remain unaffected.
(3) The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages by the Buyer according to § 8 para. 2 sentence 1 and sentence 2(a) as well as according to the Product Liability Act shall become time-constrained exclusively according to the statutory limitation periods.
§ 10 Force majeure
(1) We shall not be liable for the non-performance of our contractual obligations if this is due to a hindrance beyond our control or, in particular, due to one of the following reasons: Fire, natural disasters, war, confiscation, export ban, embargo or other official measures, epidemics of infectious diseases and other unforeseeable, unavoidable and serious events, a general shortage of raw materials, restrictions on energy consumption, labour disputes or if breaches of contract by suppliers are based on one of these reasons. Such events release us from our contractual obligations for the duration of the disruption and to the extent of their effect. The parties are obliged to exchange the necessary information without delay and within the bounds of what is reasonable, and to adjust their obligations to the changed circumstances in good faith.
(2) We shall notify the Buyer immediately of the reason for the impediment, its expected duration and its cessation.
(3) Either party may terminate the contract by written notice if its performance is prevented for more than six months in accordance with No. 10 paragraph 1.
(4) Notwithstanding any kind of force majeure, the Buyer shall not be entitled to suspend the payment of any sums of money and/or invoices.
§ 11 Choice of law and jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GCS and the contractual relationship between us and the Buyer to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German commercial code, a legal entity under public law or a special fund under public law, the exclusive - including international - place of jurisdiction for all disputes arising directly - or indirectly - from the contractual relationship shall be Regensburg. However, we are entitled in all cases to bring forth an action at the place of performance of the delivery obligation in accordance with these GCS or a prior individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
(update 02/2021)
