General Terms and Conditions of Berchtold Medical GmbH & Co KG
1. Scope
1.1 Our offers, services, and deliveries are made exclusively based on these terms and conditions. These conditions are deemed accepted at the latest upon receipt of the goods or services. Any confirmations with reference to the customer's own terms and conditions are expressly contradicted.
1.2 Written individual agreements take precedence over these terms and conditions.
2. Offer
2.1 Our offers are always non-binding and without obligation. This does not apply to offers on internet sales platforms.
2.2 Technical and design deviations from descriptions and information in brochures, catalogs, and written documents, as far as they are reasonable for the customer, as well as changes due to technical progress, are reserved without this entitling the customer to assert any claims against us.
3. Prices
3.1 All prices are ex works Esslingen. Price negotiations are only authorized by our legal representatives with special written authorization. Actions based on apparent or implied authority or according to § 50 ff. HGB do not suffice for this purpose. Individual price agreements by persons not authorized or empowered as stated above must be confirmed by a person authorized or empowered as stated above.
3.2 Price information, which is clearly aimed exclusively at commercial customers, is deemed to be plus the applicable statutory value-added tax, in case of doubt.
4. Delivery and Performance Time
4.1 The dates and deadlines mentioned by us are non-binding, unless expressly agreed otherwise.
4.2 All delivery promises and dates are subject to correct and timely self-delivery.
4.3 Delivery and performance delays due to force majeure and/or events that make the performance considerably more difficult or impossible, e.g., operational disruptions, strikes, difficulties in procuring materials, official orders, etc., entitle us to postpone the delivery for the duration of the hindrance, plus a reasonable start-up period, or to withdraw from the contract for the unfulfilled part. We will inform the customer immediately about any disruptions and, in case of withdrawal, promptly reimburse the customer for the corresponding considerations.
4.4 In all other respects, we are only in default if the customer has set a written grace period of at least 1 month. In the event of default, the customer is entitled to compensation for default in the amount of 0.5% for each completed week of default, but in total up to 5% of the invoice value of the deliveries and services affected by the default. Claims, especially claims for damages of any kind, are excluded.
5. Warranty and Liability
5.1 The warranty for new goods is 24 months from the transfer of risk for consumers and 12 months for entrepreneurs. For used goods, the warranty is 12 months for consumers, and it is excluded for entrepreneurs.
5.2 We are only obliged to rectification or replacement if the customer has fully complied with his contractual obligations.
5.3 Agreements on a specific quality may only be made by authorized representatives of the company or by persons authorized in writing by them, apparent or implied authority or actions based on §§ 50 ff. HGB are not sufficient for this.
5.4 We are liable for intent and gross negligence in accordance with statutory provisions. In case of slight negligence, we are only liable if a material contractual obligation (cardinal obligation) is violated or if there is a case of delay or impossibility. In the case of liability for slight negligence, this liability is limited to damages that are foreseeable or typical, but in any case limited to the agreed remuneration. This limitation of liability also applies in the event of liability for slight negligence in the case of initial incapacity on our part. Liability for a specific quality, for fraud, for personal injury, legal defects, under the Product Liability Act, and the Federal Data Protection Act remain unaffected.
5.5 In the event of machine damage, power cuts, strikes, operational and transport disruptions that make performance impossible or hinder, we are not liable for the duration of the disruption, provided that the disruption was significant and unforeseeable.
5.6 All other and further claims by the customer against us - regardless of the legal basis and also non-contractual claims - are excluded. This applies in particular to any consequential damages, including all losses incurred by the client as a result of business interruption or production downtime.
5.7 The statute of limitations for non-material contractual violations is limited to two years.
5.8 All claims against us may not be assigned without written consent and can only be asserted by the customer himself.
6. Retention of Title
6.1 We reserve the right of ownership of the delivered goods until full payment of the goods, to entrepreneurs until payment of all claims due to us and all claims arising in the future, irrespective of their legal basis.
6.2 Processing or transformation is always carried out on our behalf but without obligation for us. If our (co-)ownership expires through connection, it is already agreed that the (co-)ownership of the customer of the uniform item is transferred to us in proportion to the invoice value.
6.3 The customer is entitled to process and resell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers by way of security are not permitted. The customer already assigns to us in full the claims arising from the resale or on any other legal basis with regard to the reserved goods. We authorize the customer to collect the assigned claims in each case revocably. At our request, the customer must disclose the assignment and provide the necessary information and documents.
6.4 In case of third-party access to the reserved goods, especially in case of attachment, the customer is obliged to point out our ownership and notify us immediately. The customer bears the costs incurred. In the event of a breach of contract by the customer, in particular in case of default in payment, we are entitled to take back the reserved goods at the expense of the customer or, if necessary, to demand assignment of the customer's claims against third parties. The withdrawal or attachment of the reserved goods by us is not considered as a withdrawal from the contract, unless the Installment Payment Act applies.
7. Payment
7.1 Unless otherwise agreed, our invoices are due for payment immediately without deduction.
7.2 Despite any different provisions of the customer, we are entitled to credit payments to his older debts, and we will inform the customer about the type of credit.
7.3 If the customer is in default, we are entitled to charge interest from the respective point in time at the usual bank rate, but at least at the statutory rate.
7.4 If the customer does not meet his payment obligations under the contract or suspends his payments or if other circumstances become known that call into question the customer's creditworthiness, we are entitled to make the entire remaining debt due, demand advance payments or security.
7.5 The customer is only entitled to set-off if counterclaims are undisputed, in a legally binding or an already pending court proceeding.
8. Intellectual Property Rights
8.1 The customer is obliged to inform us immediately and in writing if he is made aware of the infringement of industrial property rights and copyrights by a product delivered by us. We are solely entitled and obliged to defend the customer against claims of the owners of such rights and to settle these claims at our own expense, insofar as they are based on the direct infringement by a product delivered by us. In principle, we strive to provide the customer with the right to use the product. If this is not economically reasonable, we will either modify the product so that it no longer infringes the rights or take back the product and refund the purchase price, minus reasonable compensation for the use.
8.2 If the customer has changed the delivered product or incorporated it into a system, or if we have designed the product according to the customer's instructions in such a way that this results in infringements of intellectual property rights, the customer is obliged to defend or indemnify us against claims of the owner of the infringed right.
9. Export
9.1 The export of goods delivered by us to non-EU countries requires our written consent, regardless of the fact that the customer himself is obliged to observe the statutory import and export regulations.
10. Place of Performance, Legal Venue, and Applicable Law
10.1 In business relations with customers who are not consumers according to § 13 BGB, Esslingen is agreed as the place of jurisdiction.
10.2 The law of the Federal Republic of Germany applies exclusively. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded