General terms and Conditions
General Terms and Conditions of Delivery and Business (ALB/AGB) of WiMedical GmbH
1. Our deliveries and services are exclusively subject to the individually negotiated contractual agreements and our ALB. We do not recognise other general terms and conditions – even if the delivery is carried out without reservation.
2. In the case of permanent business relations or framework agreements, these ALB shall also apply to all future supply relations until our new terms of delivery are valid. The customer expresses his agreement with our terms and conditions at the latest by accepting our goods.
3. All agreements must be made in writing.
4. If, after conclusion of the contract or after delivery of the goods, it is established that the customer is not or is no longer creditworthy, we are entitled to withdraw from the contract or to demand immediate payment for delivered goods.
5. The assignment of claims requires our consent.
6. Within the scope of our continuous development we reserve the right to change our products and packaging at any time.
7. Our deliveries and services are directed to Our deliveries and services are directed to entrepreneurs in the sense of § 14 BGB, not to end consumers in the sense of § 13 BGB.
We provide every form of advice in word and writing to the best of our knowledge and experience. Details and information about the suitability and application of our goods are non-binding and do not release the customer from the need to carry out his own checks and tests. The customer is responsible for observing statutory and official regulations when using our goods. This also refers to the obligation to label the goods.
Offer, call-off, offer documents:
1. Our offers are subject to change without notice, unless otherwise stated in the order confirmation. The prices offered are valid for 4 weeks. Offers for sheet metal cuttings / pipe cuttings or other parts as stated in the offer. Subject to prior sale of the goods offered.
2. Call-off orders are concluded for a maximum period of 12 months, whereby call-off dates and quantities must be stated when the order is placed.
3. We reserve the right of ownership and copyright of all documents provided by us. Disclosure or transfer to third parties requires our written consent. If the order is not placed, the entire documents must be returned immediately on request. Documents of the customer may be made accessible to third parties to whom we intend to transfer deliveries or services.
4. Orders should always be placed in writing; orders placed by telephone will be executed at the risk of the customer.
Technical Documentation and its Documents
1. All technical documentation and files are exclusively intended for our products and may only be used for these products. Unauthorized copying, duplication or rewriting of these is strictly prohibited.
Price, price changes:
1. In principle, our prices are “ex works” plus the value added tax, customs, freight, packaging and insurance costs applicable on the day of delivery. Value added tax is shown separately on the invoice. The prices apply to the individual order, not retroactively or for future orders. Repeat orders are new orders.
2. We reserve the right to increase our prices appropriately if, after conclusion of the contract, cost increases occur, in particular due to collective agreements, market cost prices or increases in the price of materials.
Scope of delivery, measuring methods, industrial property rights, data protection:
1. our order confirmation is decisive for the content and scope of the contract. Partial deliveries are permissible, as far as no disadvantages for use result from this. They are considered as fulfilment of independent contracts and must be paid separately. In case of delay in payment of a partial delivery, we are entitled to refuse further execution of the order. For production-related reasons, we reserve the right to make excess or short deliveries to the extent customary in the industry, up to a maximum of 10% of the agreed order quantity. Technical changes which prove necessary for production reasons, for reasons of product care, for legal requirements or for other reasons are permissible. If the purchaser becomes aware of changes, he must inform us immediately if he considers them to be inadmissible.
2. For tests where certain temperatures, times and other measurement or control values are to apply, the corresponding measurement methods must be determined before the start of delivery and recognised by both parties. If no specification is made, our measuring methods shall apply.
3. Orders based on drawings, sketches or other information provided to us shall be executed at the risk of the customer. If, as a result of the execution of such orders, we encroach on third party industrial property rights, the customer shall indemnify us against claims by third party holders of rights. Any further damages shall be borne by the customer.
4. We are entitled to process data within the meaning of the Federal Data Protection Act.
1. The delivery period begins at the earliest with the dispatch of the order confirmation. The start of the delivery period stated by us presupposes the complete clarification of all technical questions. Compliance with the deadline requires the timely receipt of all documents to be provided by the customer, necessary permits, releases, the timely clarification and approval of plans, compliance with the agreed terms of payment and other obligations, and the timely delivery of the items provided by the customer. Otherwise, the deadline shall be extended appropriately. The delivery periods stated by us are approximate periods. Applying due diligence in concluding congruent hedging transactions, the delivery period shall be determined subject to correct and timely delivery to us. Compliance with our delivery obligations requires the timely and proper fulfilment of the cooperation obligations by the purchaser.
2. The delivery period shall be deemed to have been met if the consignment has been dispatched within the delivery period or notification has been given that the consignment is ready for dispatch. If the delivery is delayed for reasons for which the customer is responsible, the deadline is deemed to have been met upon notification of readiness for dispatch within the agreed period. In the case of call-off orders, the order must always be called off in such a way that the last delivery is made at the latest one year after receipt of the order by us.
3. War, civil war, export restrictions or trade restrictions due to a change in political conditions as well as strikes, lockouts, operational disruptions, operational restrictions, delivery restrictions by authorities or organisations similar to authorities, such as FDA, and similar events which make it impossible or unreasonable for us to fulfil the contract shall be considered force majeure and release us from the obligation to deliver on time. In such cases we are entitled to choose to extend the delivery period by the duration of the force majeure or to withdraw from the contract in whole or in part. The customer shall not be entitled to claim compensation for the damage caused by such force majeure.
Deliveries to USA/Canada:
If our deliveries are made to customers outside the USA/Canada, the customer is obliged to take out and maintain a product liability insurance with a minimum coverage of 5 million Euro for his own exports of the delivery products to the USA/Canada.
If the customer withdraws from a placed order, we can demand 15% of the sales price but min. EUR 100.00 for the costs incurred by the processing of the order and for lost profit, notwithstanding the possibility of claiming higher actual damages. The purchaser reserves the right to prove that the damage was lower.
2. The withdrawal of the purchaser from the contract is excluded in the case of custom-made products, parts not in stock and processing cuts in sheet metal or pipe parts.
Unless otherwise agreed, we shall determine the type and scope of packaging. The choice of packaging shall be made with the necessary care and to the best of our knowledge. Disposable packaging shall become the property of the customer.
Transfer of risk and transport:
1. Delivery “ex works” is generally agreed. The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch. Even if carriage paid delivery has been agreed, delivery shall be at the risk of the customer. If dispatch is delayed at the request of the purchaser, the risk shall pass to the purchaser upon notification of readiness for dispatch. Unless otherwise agreed in writing, we shall determine the means and route of transport. If the goods are damaged or lost during transport, an inventory should be taken immediately and we should be notified of this.
2. If dispatch or delivery is delayed at the instigation of the customer, we shall claim, subject to proof of higher damages, storage charges of 1.5% of the invoice amount for each month or part thereof, but not exceeding 5% of the net amount. The purchaser reserves the right to provide evidence of lower damages.
Breach of duty:
In the event of damages due to breach of duty, our liability for simple negligence is limited to the damages caused by us, which are foreseeable and are typically associated with the specific transaction at hand. Otherwise, we are only liable for intent and gross negligence. This does not affect our liability under the German Product Liability Act (Produkthaftungsgesetz) or on account of WiMedical ALB/AGB, ALB_AGB_GmbH_March 2018, page 2 of 3 culpable injury to a person, health or body, including death.
Terms of payment and default of payment:
1. invoices for deliveries of goods shall be payable 14 days after the date of invoice net (without deduction), unless otherwise agreed. All payments shall be made free of charges. In the case of cheques and bills of exchange, the customer shall bear the discount, collection and other bank charges, even without express agreement. Payments shall first be set off against costs, then against interest and then against the respective older main claim.
2. In the event of default of payment, we can demand interest on arrears at a rate of 10% p.a. above the respective base interest rate in accordance with § 247 BGB. A higher damage caused by default can be proven. The customer shall only be entitled to set-off and retention rights against our claims if the counterclaim is undisputed or has been legally established.
3. If it becomes known to us that the customer’s bill of exchange is protested, compulsory enforcement measures are initiated against him or any other deterioration in his financial situation occurs, we may also immediately assert claims not yet due and such claims for which a bill of exchange or cheque has been given. In these cases and if due invoices are not paid despite reminders, we can demand advance payment or security for future deliveries.
4. Der Besteller hat uns bei Beanstandungen unverzüglich Gelegenheit zu einer Überprüfung des beanstandeten Vertragsgegenstandes zu geben. Bei unberechtigten Beanstandungen behalten wir uns die Belastung des Bestellers mit dem Überprüfungsaufwand vor.
Duty of inspection and notification of defects, acceptance:
1. The customer’s rights for defects as well as all contractual claims for damages due to our deliveries, services and work presuppose that the customer has properly fulfilled his obligations to examine and give notice of defects in accordance with § 377 HGB (German Commercial Code). Otherwise, the defect shall be deemed to have been approved. In particular, the customer must inspect the goods with reasonable thoroughness immediately after delivery or collection. Any defects that can be detected during this inspection must be notified in writing without delay. A notice of defect according to § 377 HGB is only in time if it is received by us immediately, at the latest within a period of 5 working days, calculated from receipt of delivery. In the case of hidden defects, these must be reported immediately upon discovery.
2. The provision of § 377 HGB shall apply accordingly to services and work performance. The notification of defects does not release the customer from the obligation to pay.
3. If acceptance has been agreed, this must take place within one week of the date of notification of our readiness for acceptance at our factory or warehouse. The customer shall bear the costs of acceptance. Acceptance shall be deemed to have been effected if the customer does not accept our performance within this period of one week. Insofar as we have not given a guarantee for the quality of the work or have not fraudulently concealed a defect, the rights of the customer in respect of a defect are excluded after the agreed acceptance has been carried out by the customer, insofar as the customer has not notified the defect although he could have detected it during the agreed type of acceptance, i.e. he has not detected the defect due to negligence.
4. in the event of complaints, the customer must immediately give us the opportunity to inspect the object of the contract which is the subject of the complaint. In the event of unjustified complaints, we reserve the right to charge the customer with the inspection costs.
5. within the scope of repairs carried out by us without any legal obligation, e.g. as a gesture of goodwill, the customer shall only be entitled to claims for defects if expressly agreed.
6. the customer’s statutory rights of recourse against us shall only exist to the extent that the customer has not made any agreement with his customer beyond the statutory claims for defects and damages.
Defect rights, rights of recourse:
1. If the item is defective, we shall be entitled to choose whether to remedy the defect or deliver a replacement within a reasonable period of grace to be set by the customer. Without our prior written consent, the customer shall not be entitled, even in urgent cases, to rectify the defect in the delivery item himself. If the supplementary performance fails, i.e. if at least two attempts to remedy the defect have failed or if the supplementary performance is unreasonable for the customer, the customer is entitled – without prejudice to any claims for damages – to withdraw from the contract or to demand a reduction of the remuneration. Claims of the Purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that expenses increase because the subject-matter of the Supplies has subsequently been brought to another location than the Purchaser’s branch office, unless doing so complies with its intended use.
2. Our declarations in connection with this contract, e.g. performance descriptions, reference to DIN standards, etc., do not contain an acceptance of guarantee in case of doubt. Only our express written declarations regarding the assumption of a guarantee are authoritative. Any information in product descriptions and product specifications, subject to their inclusion as quality information within the meaning of § 434 BGB or § 633 BGB, shall in any case not constitute a guarantee for the quality of the item or that the item will retain a certain quality for a certain period of time.
3. Claims for defects shall not exist in the event of natural wear and tear or natural wear and tear of our products as a result of their material quality, in particular in the event of damage arising after the transfer of risk as a result of improper or improper use or negligent treatment of our products, incorrect installation, excessive stress, unsuitable operating materials, replacement materials or as a result of special external influences, e.g. chemical, electrochemical or electrical influences, unless these are provided for in the contract or are attributable to a fault on our part.
4. If our products are not used in accordance with their intended purpose, in particular if legal or official regulations or our instructions are not observed, if changes of an inadmissible nature are made to the products or if our products are not handled properly or are used incorrectly contrary to their contractually agreed purpose, claims for the resulting damages are excluded.
5. In the context of repairs carried out by us without any legal obligation, e.g. as a gesture of goodwill, the customer shall only be entitled to claims for defects if expressly agreed.
6. The customer’s statutory rights of recourse against us shall only exist insofar as the customer has not reached any agreement with his customer beyond the statutory claims for defects and damages.
7. the customer agrees with his insurance company on a waiver of recourse in favour of the supplier in accordance with §§ 67 VVG, 4 I 1 AHB.
Limitation of liability, release, waiver of recourse:
1. In cases of intent or gross negligence, our liability shall be governed by the statutory provisions. Otherwise, we shall only be liable in accordance with the Product Liability Act, for injury to life, body or health of a person or for culpable breach of material contractual obligations, i.e. a breach of those obligations whose fulfilment is essential for proper performance of the contract and on whose compliance the contractual partner may regularly rely. Claims for damages due to a slightly negligent breach of essential contractual obligations are limited to the foreseeable damage typical for the contract. Even in cases of gross negligence, our liability is limited to the foreseeable damage typical for the contract if none of the exceptional cases listed in sentence 2 of this paragraph 1 applies.
2. Unless we are liable for intent, gross negligence, culpable breach of material contractual obligations, for injury to life, body or health of a person or under the Product Liability Act, our liability for damage caused by the delivery item or service to the customer’s legal assets, e.g. to other items, loss of profit or other financial losses, is excluded.
3. The provisions of the above paragraphs 1 and 2 extend to compensation in addition to performance and compensation in lieu of performance, irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the contractual obligation or from tort. They shall also apply to the claim for reimbursement of futile expenses and to liability for impossibility and delay.
4. The obligation to pay compensation is also excluded if the customer has effectively limited the liability towards his customer. In doing so, the customer shall endeavour to agree liability limitations in our favour to the extent legally permissible. As far as our liability for damages is excluded or limited, this shall also apply to all claims of the customer due to culpa in contrahendo, breach of secondary obligations, claims according to § 823 BGB as well as claims due to impossibility and delay. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives, vicarious agents and assistants.
Statute of limitations, suspension of the statute of limitations:
1. The period of limitation for claims and rights due to defects in our products, services and work and the resulting damages is 1 year. The above limitation period shall not apply insofar as the law prescribes longer periods in the cases of §§ 438 para. 1 no. 2, 479 and 634 a para. 1 no. 2 BGB. The limitation period pursuant to sentence 1 shall also apply to all claims for damages against us, irrespective of whether they are connected with a defect and irrespective of the legal basis of the claim.
2. The period of limitation according to paragraph 1 sentence 1 does not apply in the case of intent, if we have fraudulently concealed the defect, if we have assumed a guarantee for the quality of the item, in the case of claims for damages due to injury to life, body or health or freedom of a person, in the case of claims from the Product Liability Act, in the case of a grossly negligent breach of duty or in the case of a culpable breach of essential contractual obligations as well as in the case of the relevance of the statutory provisions on the sale of consumer goods.
3. subsequent performance measures, i.e. the delivery of a defect-free item or the removal of defects, do not cause the limitation period to start anew, but only suspend the limitation period applicable to the original delivery item for the duration of the subsequent performance measure carried out. In case of doubt, the performance of the supplementary performance by us does not constitute an acknowledgement in the sense of § 212 No. 1 BGB.
4. The above provisions do not imply a change in the burden of proof to the detriment of the customer. 5. unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, suspension of expiration, suspension and recommencement of time limits shall remain unaffected.
5. return shipments and complaints can only be accepted by us for reasons of occupational health and safety if the decontamination of the products was carried out by the customer and is clearly visible on receipt of the goods in our company.
Repair and other services:
the purchaser shall be responsible for checking and guaranteeing the quality (e.g. material, dimensional accuracy, etc.) of material provided by the purchaser for processing. The customer delivers the material to be processed free of charge. We only carry out an incoming goods inspection of the material provided to us with regard to quantity, identity and a visual inspection for obvious transport damage. We shall only be obliged to check the conformity of the material with the specification provided by the customer if there are obvious indications of this. We are not obliged to carry out any further tests. An inspection can be expressly agreed upon, whereby the costs of the inspection shall be borne by the customer.
2. In the event of damage, destruction or loss of the items handed over to us, our obligation to pay compensation shall only apply if we are responsible for the damage. If parts are no longer usable due to processing errors, we will carry out the same work on a new piece to be sent to us at our expense without charge. We reserve the right to supply the goods ourselves. In all other respects, our obligation to pay compensation is limited to the procurement of a similar and equivalent item, whereby a deduction in value will be made new for old if the legal requirements are met.
3. Normal wear and tear is excluded from liability. The customer has to insure the items handed over to us within the scope of an “external insurance”.
4. Unless other provisions are expressly provided for in the above paragraphs 1 to 3 of this Section XVII, the provisions of Sections I to XVI and XVIII to XX of these ALB shall apply in all other respects. This shall apply in particular to our liability for defects and consequential damage as well as for liens on the items handed over to us.
5. Return shipments and complaints can only be accepted by us for reasons of occupational health and safety if the decontamination of the products was carried out by the customer and is clearly visible on receipt of the goods in our company.
Place of jurisdiction, place of performance, miscellaneous:
1. place of jurisdiction is our registered office in Singen Hohentwiel. We can also sue the customer at the court responsible for his registered office.
2. Unless otherwise stated in the contract or order confirmation, our place of business is also the place of performance.
3. The law of the Federal Republic of Germany shall apply exclusively to all legal issues between the customer, even if the customer’s registered office is abroad, and us, excluding the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
4. Should individual provisions of these GTC/ALB be invalid, this shall not affect the remaining terms and conditions.