General Terms and Conditions of Sale of Resuscitec GmbH
1. Scope of application
- The General Terms and Conditions of Sale (“GTCS”) of Resuscitec GmbH (“Contractor”) shall apply to all business relations of the Contractor with its customers (“Customer”). The GTCS shall only apply if the Customer is an entrepreneur (§ 14 of the German Civil Code (BGB)), a legal entity under public law, or a special fund under public law.
- The GTCS shall apply exclusively and, unless otherwise agreed, in the version valid at the time of the Customer’s order. The Contractor shall not accept any conflicting or deviating conditions unless the Contractor has expressly agreed to them.
- The GTCS shall also apply if the Contractor, being aware of conflicting or deviating conditions of the Customer, processes the delivery to the Customer without reservation. They shall be valid for future business relations, even if these are not expressly agreed upon again.
2. Offer and Acceptance
- Offers of the Contractor are always subject to change and non-binding, in particular with regard to quantity, price and delivery time.
- Orders and all legally relevant declarations of the Customer in connection therewith shall only be binding in writing (text form in accordance with § 126b BGB (German Civil Code) shall suffice, e. g. letter, e-mail, fax).
- An order by the Customer shall be deemed a binding offer within the meaning of §§ 145 et seq. BGB (German Civil Code), which the Contractor can accept within two (2) weeks after sending the order. The acceptance can either be effected in writing (text form in accordance with § 126b BGB shall suffice) or by delivery of the ordered goods.
- If, after the conclusion of the contract, there is a significant deterioration in the financial and/or liquidity situation of the Customer or if such circumstances already existing at the time of the conclusion of the contract become known only subsequently, the Contractor may withdraw from the contract if the Customer is not prepared to provide security or make an advance payment despite being requested to do so.
- The Customer undertakes to maintain secrecy with regard to all information that has become known or will become known in connection with purchase and delivery, e. g. on business, operational and technical matters, business or trade secrets as well as the contents of all information and documents of the Contractor made available to him for this purpose, irrespective of whether they are marked as confidential or not (with the exception of information which is publicly accessible without a breach of the confidentiality obligation; (“Confidential Information”) and to also maintain confidentiality beyond the end of the contractual relationship, as long as and to the extent that this information has not become generally known in any other way or the Contractor has waived confidentiality in writing (text form in accordance with § 126b of the German Civil Code (BGB) is sufficient).
- The Customer shall store and secure the confidential information in such a way that access by unauthorized third parties is excluded. The confidential information may only be made accessible to employees and third parties who reasonably require access for the execution of orders or the performance of their official duties and shall instruct these persons about the confidentiality of this information.
- Following the end of the business relationship, or at the Contractor’s request after the selection of the Customer, the Customer shall either return the confidential information to the Contractor or destroy it.
- The prices in the Contractor’s latest price list are subject to change and apply net ex works (EXW Contractor). The Contractor’s prices are exclusive of the value added tax applicable at the time of delivery.
- The Contractor’s prices shall be understood to include a processing surcharge of EUR 15.00 in case of a net order value of less than EUR 250.00.
5. Delivery and transfer of risk
- The Contractor’s information on deadlines and dates shall not be binding, unless a fixed date transaction or other special delivery and service dates for delivery and performance have been agreed (text form in accordance with § 126b of the German Civil Code (BGB) shall suffice). They shall be deemed to have been fulfilled if the goods have been reported as ready for dispatch on the agreed date.
- Delivery shall be ex works (EXW Contractor), which is also the place of performance.
- Any shipment of the goods and any transport insurance requested by the Customer shall be at the expense of the Customer. Unless otherwise agreed, the Contractor shall be entitled to choose the type of shipment (in particular, transport company, shipping route, packaging). If the Contractor does not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) of EUR 5.3 250.00 shall apply. Any customs duties, fees, taxes, and other public charges shall be borne by the Customer.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon transfer to the Customer. In the case of dispatching sale, pursuant to section 5.3, to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay automatically passes to the Customer upon delivery of the goods to the forwarding agent, the carrier or any other person designated to carry out the shipment, even if the Contractor, in exceptional cases, bears the shipping costs.
- If the Customer is in default of acceptance, fails to cooperate, or if the delivery is delayed for other reasons, for which the Customer is responsible, the Contractor shall be entitled to demand compensation for the damage incurred and any additional expenses. For this, the Contractor shall charge a lump-sum compensation in the amount of 0.5 % of the gross order value in EUR per calendar day, beginning with the delivery deadline or with the notification of the readiness for dispatch of the goods. The proof of a higher damage and our legal claims shall remain, however, the lump sum shall be set off against any further monetary claims. The Customer is still authorized to prove that the Contractor has not suffered any damage or that the damage is significantly less than the aforementioned lump sum.
- If the goods cannot be dispatched for reasons for which the Customer is responsible, the Contractor shall be entitled to store the goods at the risk and expense of the Customer. The date of storage shall, in such cases, be deemed to be the date of delivery; the storage receipt shall replace the shipping documents.
6. Terms of payment
- The purchase price is due for payment in EUR (net) within 30 days from the date of invoice. With the expiry of the above payment deadline, the Customer is in default. During the period of default, the purchase price shall bear the statutory default interest rate applicable at the time. The Contractor reserves the right to claim further damage caused by default. With respect to merchants, our commercial due date interest rate (§ 353 of the German Commercial Code (HGB)) shall remain unaffected.
- An early payment discount may only be deducted in accordance with the relevant information on the invoice. The date of receipt of the money by the Contractor or the date of the credit entry on one of his bank accounts shall be considered for the provision of early payment discounts.
- The Contractor shall be entitled at any time, even within the scope of an ongoing business relationship, to effect a delivery in whole or in part only against advance payment. The Contractor shall declare a corresponding reservation on receipt of the order confirmation at the latest.
- The retention of payments or the set-off of counterclaims by the Customer shall only be permissible if these counterclaims are undisputed or have been legally established.
7. Retention of title
- The goods shall remain the property of the Contractor until all present and future claims to which he is entitled against the Customer have been fulfilled.
- The Customer shall take all measures to register the retention of title, insofar as this is necessary in accordance with the provisions of foreign legal systems.
- As long as the title has not yet passed to the Customer, the Customer shall be obliged to treat the object of sale with care and to insure it at their own expense against loss, damage, and destruction at its replacement value. The costs of any investments which may become necessary, for example, due to maintenance and inspection work, shall be borne by the Customer.
- If the goods delivered by the Contractor are resold for their intended purpose prior to full payment of the purchase price, or if they are delivered to third parties for any other legal reason prior to full payment of the purchase price, the Customer hereby already assigns to the Contractor all claims with all ancillary rights against its customers arising from the resale of the goods. In the case of processing, connecting, or mixing, in accordance with the regulations, the assignment shall be made in the amount of the invoice value of the goods of the Contractor used in the process.
- If the value of the securities existing for the Contractor exceeds the secured claim by more than ten (10) percent in total, the Contractor undertakes to release securities of its choice upon the Customer’s request.
- At the request of the Contractor, the Customer shall, as soon as it is in default, disclose the assignment to its debtor and to provide the Contractor with the information required for the collection of the claim and to hand over the necessary documents. The Customer shall be entitled and obliged, unless otherwise stipulated by the Contractor, to collect the countervalue for the resold goods which become the property of the Contractor without further notice and to keep them separate from the other means of payment on behalf of the Contractor.
- In case of doubt, the retention of title shall continue to exist until the Customer proves in each individual case that the goods have been paid for in full. In the event that the goods subject to the Contractor’s reservation of title are claimed by third parties, e. g. by way of seizure, or if third parties assert claims to the claim assigned to the Contractor, the Customer shall be obliged to notify the Contractor thereof without undue delay and to inform the third party of the retention of title or the assignment.
8. Return conditions (outside the warranty)
- The return of the goods requires the express written (text form according to § 126b BGB suffices) consent of the Contractor. The value to be paid for the return of goods shall depend on the age, condition, and resaleability of the goods.
- Products which are expressly ordered in special packaging, or which do not fall within the standard delivery program of the Contractor, shall be excluded from return.
- Risks and costs for the transport of returned goods shall be borne by the Customer.
- Further regulations on returns can be found in the Contractor’s respective valid returns policy.
9. Obligation to inspect and reprimand
- The customer shall be obliged to inspect the goods immediately after delivery at the place of destination (§ 377 para. 1 HGB).
- Obvious defects in the purchased goods shall be reported in writing (text form pursuant to § 126 of the German Commercial Code (HGB)) within seven (7) days after receipt of the goods. Obvious damage to the goods, which is already apparent upon receipt, must be reported immediately to the forwarding agent or to the carrier. Hidden defects must be claimed seven (7) days after their discovery.
- The date of receipt by the Contractor shall be decisive for compliance with the deadlines. The notice of defect must state the type and extent of the alleged defect.
- The Customer shall be obliged to present the goods complained about at the place of inspection for examination by the Contractor or a person commissioned by the Contractor to inspect the goods.
- Goods which are not complained about in due form and time shall be deemed approved and accepted.
10. Warranty and other liability
- In the event of a defect in the purchased goods, the Contractor may, at its discretion, either repair or replace the goods or make a subsequent delivery. The Contractor may make the subsequent performance owed, dependent on the fact that the Customer pays the purchase price due. The customer shall, however, be entitled to demand a reasonable part of the purchase price in relation to the defect.
- The Customer shall give the Contractor the time and opportunity required for subsequent performance. The supplementary performance shall neither include the removal of the defective item nor the renewed installation if the Contractor was not originally obliged to install it.
- The expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs as well as, if applicable, removal and installation costs, shall be borne or reimbursed by the Contractor in accordance with the statutory provisions if there is actually a defect. Otherwise, the Contractor may demand reimbursement of the costs incurred as a result of an unjustified request for rectification of the defect, unless the lack of defectiveness was not recognizable for the Customer.
- If the supplementary performance fails, the Customer shall be entitled, at their discretion, to declare rescission or to demand a price reduction, but this remains subject to the Contractor’s right to take back the defective goods.
- Unless otherwise stipulated in these GTCS including the following provisions, the Contractor shall be liable in the event of a breach of contractual and non-contractual obligations according to the statutory provisions.
- The Contractor shall be liable for damages – irrespective of the legal grounds – within the scope of fault- based liability in case of intent and gross negligence. In the case of simple negligence, the Contractor shall be liable subject to statutory limitations of liability (e. g. diligence in own affairs, negligible breach of duty) only for damages arising from injury to life, body, or health and for damages arising from the breach of an essential contractual obligation (the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case the liability of the Contractor shall be limited to the compensation of the foreseeable, typically occurring damage.
- The limitations of liability resulting from clause 10.6 shall also apply to third parties as well as in the case of breaches of duty by persons (also in their favor) for whom the Contractor is responsible for, according to statutory provisions. They shall not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the Customer under the Product Liability Act or the German Medicines Act.
- The Customer may only rescind or terminate the contract due to a breach of duty that does not consist of a defect if the Contractor is responsible for the breach of duty. A free right of termination of the Customer is excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.
11. Statute of limitations
- In deviation from § 438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence with the acceptance.
- If the goods are a building or an object which has been used for a building in accordance with its customary use and have caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Further special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
- The above limitation periods under the law on the purchase of goods shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period. Claims for damages of the Customer pursuant to § 8 para. 2 sentence 1 and 2(a) as well as under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
12. Final provisions
- The performance of the contract shall be subject to the provision that there are no impediments to performance due to national or international regulations, in particular export control regulations as well as embargoes or other sanctions. The contractual partner undertakes to provide all information and documents required for the export/transfer/import. Delays due to export inspections or licensing procedures shall suspend deadlines and delivery times in this respect. If required approvals are not granted, the contract shall be deemed invalid with respect to the affected parts concerned.
- These GTCS and the contractual relationship shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
- Customary clauses shall be interpreted in accordance with the Incoterms® as valid at the time of conclusion of the contract.
- For all disputes arising out of or in connection with this contract, the contracting parties agree that the exclusive place of the local or regional court having jurisdiction at the Contractor’s place of business as the exclusive place of jurisdiction. The Contractor shall, however, also be entitled to sue the Customer at the place of jurisdiction of its registered office in accordance with the law applicable there.
Status: July 2021