Terms of business
General terms and conditions of delivery, payment and purchase.
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Section 1 General
1. The General Terms and Conditions of Business indicated below apply to all current and future transactions between BEGO Medical GmbH and our customers (buyers) and suppliers. Conflicting terms of the buyer and supplier or such terms that deviate from our terms and conditions shall not be recognized.
2. The invalidity of any provisions below shall not affect the legal effectiveness of the other provisions.
3. The place of performance and jurisdiction for delivery and payment is Bremen. In every case we have the right to take legal action against the buyer and the supplier also at their place of general jurisdiction.
4. For our legal relations the laws of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
I. Sale
Section 2 Formation of contract
The order is a binding offer. We can accept this offer either by sending an order confirmation within 4 weeks or by sending the buyer the ordered items within this period of time.
Section 3 Prices
Our prices apply ex factory, exclusive of shipping charges and packaging. The value added tax shall be charged separately in accordance with the legal provisions applying on the date of delivery or performance. We reserve the right to make price changes - even without prior notice.
Section 4 Payment
1. Invoices for deliveries of precious metals and precious-metal articles as well as for services shall be payable without any deduction. The agreements made in each particular case apply to payment of all other goods. We reserve the right to collect on delivery. Bills of exchange shall be accepted only on the basis of an express agreement and solely under the condition of their discountability. Discount charges shall be billed from the due date of the invoice amount. Bills of exchange shall be accepted only as conditional payment. The same applies to checks until they have been honoured.
2. In the case of default in payment, we shall charge interest on arrears in accordance with Section 288 of the German Civil Code (BGB).
3. A setoff by the buyer shall be excluded unless with uncontested or legally established claims.
Section 5 Delivery period
1. Delivery periods shall be agreed upon from case to case. They require our written confirmation to become effective. To comply with them, all documents, approvals, releases and information to be provided by the buyer and necessary for execution of the order must be received in due time. The delivery period does not begin until these requirements have been met.
2. If compliance with the agreed delivery period proves to be impossible as a result of circumstances at our plant or at our supplier's plant for which we are not responsible, such as damage due to fire, water and storm, strikes, lockout, other unforeseen absence of labour, energy or production material, traffic disruptions, etc., an appropriate extension of the delivery period shall take effect, but no longer than up to 4 weeks after expiration of the original delivery period. If the impediment then continues, both parties have the right to cancel the contract. In this case neither of the contracting parties shall have any further claim vis-à-vis the other contracting party.
Section 6 Shipment
Unless otherwise agreed upon, shipment shall be carried out in the manner that appears most favourable to us. All shipments are made at the buyer's risk and shall be insured in the buyer's interest unless the latter gives us other instructions in due time.
Section 7 Notices of defects
1. Incomplete or incorrect deliveries as well as notices of identifiable defects must be notified to us in writing within a week after receipt of the goods. In the case of non-identifiable defects, on the other hand, the notice of defects shall be given immediately after the latter have been discovered, but at the latest within a year from receipt.
2. In the event that notice of defects is not made in due time, the delivery shall be regarded as approved.
Section 8 Warranty (defects in object of purchase)
1. In the case of a justified notice of defects, we shall carry out subsequent performance either by means of professional elimination of the defect (reworking) or through the quickest possible replacement delivery. In the case of an insignificant diminution in value or suitability for use no claims shall exist. We also have the right to have subsequent performance carried out by a third party.
If subsequent performance is not successful, the buyer has the right to cancel the contract in accordance with Section 323 of the German Civil Code (BGB) or to reduce the purchase price in accordance with Section 441 of the German Civil Code (BGB). If we decide in favour of elimination of the defect, the reworking shall not be considered as having failed until after the second unsuccessful attempt, unless another relevant circumstance applies based on the matter or defect involved.
The warranty period is one year from delivery of the product. This period does not apply in the case of malicious behaviour or assumption of a guarantee for the condition and quality. If materials supplied by us have an expiration date based on their natural condition that ends in less than a year from delivery, all claims because of defectiveness of these materials shall expire on this expiration date, unless the materials were worked by the expiration date.
We shall be liable for compensation for damages only under the conditions specified in Section 9 and to the extent stipulated there.
2. Defects due to materials and accessory parts supplied incorrectly by the buyer shall not be rectified at our expense. Work documents that have been handed over to us and appear defective can therefore be sent back prior to working after consultation and coordination with the buyer. We shall be responsible for looking after the materials or accessory parts supplied by the buyer with the same care we give to our own matters.
3. Our application-related recommendations, no matter whether given orally, in writing or by way of practical instructions, are based on our own experience and tests and can therefore only be regarded as reference values, but not as guarantees or assurances.
4. Our products are subject to continuous further development. We therefore reserve the right to make changes in design, composition and properties.
Section 9 Limitations of liability
1. The following provisions of this section shall apply - unless otherwise stipulated - to liability for breaches of obligations in the form of defects as well as to liability for other breaches of obligations, liability in tort and liability for other reasons.
2. In the case of negligent breaches of obligations, our liability shall be limited to foreseeable and typical damage in terms of the type of contract and products. This also applies to slightly negligent breaches of obligations on the part of our legal representatives or vicarious agents.
However, we shall not be liable in the case of slightly negligent breaches of insignificant contractual obligations.
3. The above limitations of liability shall not apply to harm to life, body or health attributable to us. By the same token they shall not apply to the extent we are compulsorily liable according to the Product Liability Act or for other reasons.
4. Regardless of the above provisions, the buyer retains the right to cancel the contract in the event of a breach of obligations for which we are responsible and which is not based on a defect in the purchased item.
5. Claims for damages due to a defect in a supplied product shall expire by limitation in one year. This period begins on delivery of the product. The above mentioned period does not apply if we can be accused of gross negligence as well as in the case of harm to life, body or health attributable to us. Furthermore, it shall not apply if we have assumed a guarantee for the condition and quality.
Section 10 Return shipments
Return shipments of flawless goods supplied by us may only be carried out with our prior approval. We reserve the right to reduce the commodity value to be refunded appropriately for the working necessary for this purpose.
Section 11 Packaging
If we are required to return the transport and external packaging according to the packaging law, the buyer shall bear the costs for return transport of the packaging used unless a special agreement has been made with the buyer.
Section 12 Retention of title
1. We reserve the right to retain title to the delivered products until complete payment of the purchase price or until any checks and/or bills of exchange handed over have been honoured as well as until all other accounts payable, which have ensued or will ensue in future from the business relations between us and our affiliated companies and the buyer and his affiliated companies, have been paid, including interest and costs.
2. In the case of running account, the title retained shall be considered to be security for our balance claim.
3. Any working of the goods supplied in accordance with Sections 947 - 950 of the German Civil Code (BGB) shall apply as carried out on our behalf, but without any costs for us with the consequence that we shall be the owners of these semi-finished and finished products made in this way. If a combination or mixing with external goods is effected, we shall become co-owners pro rata based on the proportion of the products supplied by us. The buyer shall keep for us the semi-finished and finished products completely or partially manufactured from the goods supplied by us. The new item resulting from the working shall be regarded as a reserved product to the specified extent according to this provision. The buyer may sell the reserved product only in the ordinary course of business. Consequently the former may not give it in pledge, pledge it as security or dispose of it in any other way. The buyer must notify us immediately of a forthcoming pledge or another impairment of our rights (e.g. as a result of initiation of insolvency proceedings). In the case of default in payment or suspension of payment on the part of the buyer, we have the right to demand return of the reserved goods. Costs that we incur due to interventions against access by third parties shall be assumed by the buyer.
4. In the case of sale of the reserved goods, the proceeds shall take their place. Furthermore, the buyer shall transfer to us the purchase price claim ensuing from sale of the reserved goods, i.e. in the case of a combination or mixing with external goods in the same proportion as the share accounted for by our products contained in the sold goods. At our request the names of the purchase price debtors shall be made known to us and the accounts payable assigned in accordance with this provision shall be designated precisely and the assignments to the debtors involved shall be indicated.
5. The buyer is required to keep the reserved goods insured in full against the usual risks at all times and to verify this to us on request. The buyer hereby cedes any insurance claims against us.
6. If the value of the security given to us exceeds the amount due to us according to the books by more than 20%, we shall be required, at the request of the buyer, to release the security provided to us. We shall select the securities to be released.
7. If, in the case of deliveries to foreign buyers, the effectiveness of the above specified retention of title depends on execution of additional measures (e.g. registration or the like), the buyer has to take these measures at his own expense. If the retention of title is not recognized in any case in the country of the buyer, the buyer shall be required to grant us an appropriate security right to the goods supplied.
Section 13 Export clause
With the exception of trade between the Member States of the European Community export transactions require our prior written consent.
II. Purchase
Section 14 Offer
1. Offers are not binding for us. They shall be submitted free of charge.
2. All our offers are limited to 2 weeks unless other periods are explicitly specified.
Section 15 Prices
The price specified in the order is binding and applies free address of destination. Packaging expenses shall be refunded separately only if this was agreed upon. The statutory value added tax shall be indicated separately.
Section 16 Payment, covenant against assignment
1. Payment shall be made on account as per proper commercial invoice, which must contain our order number and the order date, subject to later auditing
- within 15 days with 3% cash discount
- within 30 days with 2% cash discount
- or within 45 days after receipt of invoice, net
optionally by check or bank transfer.
2. The supplier can assign his claim against us only with our consent.
Section 17 Delivery period, delay in delivery
1. The delivery dates or periods specified in our order are binding and fixed. They apply as delivery to address of destination.
2. In the case of delay in delivery, we have the right to demand lump-sum damages caused by delay of 1% of the value of the delivered goods per complete week, but not more than 10% of the order value. Right to further legal claims shall be reserved. The supplier has to verify to us that no damage or significantly less damage was incurred due to the delay. In this case the lump sum shall be reduced accordingly.
Section 18 Drawings, designs, samples
Drawings, designs, samples, etc. that we have handed over to the supplier for submitting an offer or carrying out an order shall remain our property and may not be used, duplicated or made available to third parties for other purposes.
Section 19 Orders
1. The supplier shall be liable to us for loss and damage to ordered items. The materials ordered by us shall be processed and worked on behalf of BEGO Medical GmbH and remain our property in every processing stage. During processing with other items we shall be co-owner of the newly produced item.
2. Ordered materials, our co-property, goods paid for by us in advance as well as tools that have been paid for by us in full or in part shall be insured by the supplier, kept separately and labelled as BEGO Medical property.
Section 20 Examination of defects
We are exempt from the requirement of immediate notice of defects in accordance with Section 377 of the German Commercial Code (HGB). This does not apply to obvious defects. In this case our notice of defects is in due time if it is given by us within a period of 10 days from our receipt of the goods.
Section 21 Liability
If our buyer lodges a claim against us according to the liability law, which also includes in particular the provisions of the Product Liability Act, we shall have the right to seek recovery from our supplier to the extent that the latter is (co-)responsible for the damage incurred. This damage also encompasses the costs for a precautionary recall campaign. Furthermore, the supplier shall insure himself against all risks arising from product liability, including risk of recall, to a reasonable amount and, on request, shall submit to us the insurance policy for inspection.
Section 22 Defects in object of purchase
1. The deliveries and performance shall meet the safety and accident prevention regulations applying to us in each case as well as the necessary approvals, in particular the provisions of the law concerning technical work, the DIN provisions and the VDE and VDI standards. The supplier shall be liable for any defect. We are entitled to the legal claims based on defectiveness of the object of purchase - also with respect to the period of limitation - in full. Regardless of this, we have the right to demand from the supplier either elimination of the defects or replacement delivery. In this case the supplier has to bear the expenses necessary in connection with elimination of defects or replacement delivery. The right to compensation for damages shall be reserved.
2. Our claims against our suppliers based on defectiveness of the objects supplied shall expire by limitation at the earliest 2 months after the point in time at which we have met the claims of our buyer. This suspension of the running of the period of limitation ends at the latest 5 years after the point in time at which the supplier has delivered the object to us.
Bremen, August 2002