SonoMedical GmbH
Hindenburgstr. 56
41542 Dormagen
Phone: +49 2133 273791
E-mail: webmaster@Sono-Medical.de
Registered office of the company: Dormagen
Local court Neuss: HRB 21281
VAT. ID No.: DE338056399
(hereinafter also referred to as “Seller”)
§ 1 Scope of Application
1. All deliveries, services and offers of the Seller shall be made exclusively on the basis of the present General Delivery Terms. They are part of all contracts which the Seller concludes with his contractual partners (hereinafter also referred to as “Client”) on the deliveries or services offered by him. They also apply to all future deliveries, services or offers to the Client, even if they are not agreed on again separately.
2. Business terms by the Client or third parties will not apply even if the Seller does not object to their validity in the individual case. Even if the Seller refers to a letter containing the Client’s or a third party’s business terms or appeals to such this is not tantamount to consent to the validity of those business terms.
§ 2 Offer and Conclusion of the Contract
1. All offers by the Seller are subject to change and are non-binding unless expressly designated as binding or they contain a specific deadline for acceptance. The Seller may accept orders or assignments within fourteen days after receipt.
2. The purchase contract concluded in writing, including the present General Business Terms will be authoritative for all legal relationships between Seller and Client. Addenda to and amendments of the respective agreements including of the present General Business Terms must be in textual form. The textual form requirement will have been met already through transmission of a written message via means of telecommunications, specifically per fax or e-mail.
§ 3 Prices and payment
1. The prices will apply to the scope of goods and services specified in the order confirmations. Extra or special services will be charged separately. All prices are in EURO.
2. The Seller will only deliver his goods or render his services on the basis of advance payment. Failing this, invoice totals will be due within eight days to the full amount unless otherwise agreed in writing. The date of receipt by the Seller will be authoritative for the date of payment. Where the Client fails to pay when the sum is due, interest of 8% p.a. will be due on the outstanding amounts as from the payment deadline; claims of higher interest and further damage in the case of delay will remain unaffected.
3. Set-off with counterclaims by the Client or the retention of payments on the basis of such claims is only permitted where the counterclaims are uncontested or res judicata.
§ 4 Delivery and Delivery Period
1. Deadlines and dates stipulated by the Seller for deliveries and services are only approximate unless a fixed deadline or date has been explicitly promised or agreed on.
2. The Seller will not be liable for the infeasibility of the delivery or delivery delays to the extent that they were caused by force majeure or other unforeseeable events at the time of the conclusion of the contract (e.g. transport delays, strikes, legal lockouts, labor shortage, energy or raw materials, difficulties in obtaining official permits, official measures) for which the Seller is not responsible. To the extent that such events severely hinder the delivery or service or render it infeasible and the obstruction is not just temporary the Seller will be entitled to rescind the contract. In the case of temporary obstructions the delivery and service deadlines will be extended or postponed for the obstruction period plus an adequate restart period.
3. Where the Seller is in arrears with a delivery or service or where a delivery or service is infeasible for the Seller due to any reason the Seller’s liability will be limited to damage compensation as set out in § 7 of these General Delivery Terms.
§ 5 Place of Performance, Passing of Risk
1. The place of performance for all obligations arising from the present contract is Dormagen, Germany, unless stipulated otherwise.
2. The risk will pass to the Client by the latest upon handover of the delivery item (the start of the loading procedure is authoritative in this context) to the shipping agent or carrier or other third party assigned with the shipment. This will also apply where partial deliveries are made or the Seller has assumed other services as well (e.g. shipping or installation). Where the shipping or handover is delayed due to a circumstance attributable to the Client the risk will pass to the Client as from the date on which the delivery item is ready for shipping and the Seller has notified the Client of this.
3. The shipment will be insured by the Seller at his own expense after prior agreement with the Client.
§ 6 Warranty and material defects
1. The warranty period for new goods is one year as from shipment, unless agreed upon otherwise in a written form. This deadline will not apply to damage compensation claims by the Client from injury to life, limb or health or from willful or gross negligent breaches of duty by the Seller or his vicarious agents which will expire according to the statutory limitation periods.
2. The delivered items are to be inspected thoroughly immediately after delivery to the Client or to the third party designated by him. With regard to visible defects or other defects which would have been detectible upon an immediate, thorough inspection they will be regarded as approved by the Purchaser where the Seller does not receive a written report of defects within seven workdays after delivery. With regard to other defects the delivery items will be regarded as approved by the Purchaser where the report of defects is not received by the Seller within seven workdays after the date on which the defect was detected; where the defect was already detectible by the Client in the course of normal use at an earlier date this earlier date will be authoritative for the start of the deadline to lodge a complaint. Upon request by the Seller, a delivery item for which a complaint has been lodged is to be returned to the Seller carriage paid.
3. In the case of material defects of the delivered items the Seller will be obligated to first opt within an adequate period for either rectification or replacement. In the case of failure of or an inappropriate delay in rectification or replacement the Client may rescind the contract or adequately reduce the purchase price.
4. Where a defect is due to the Seller’s fault the Client may demand damage compensation under the conditions set out under §7.
5. The warranty will not apply where the Client makes changes to the delivery item or has changes made to it by third parties without the consent of the Seller and this makes removal of the defect impossible or unreasonably difficult. In every case the Client must bear the additional costs to remove the defect incurred by the alteration.
6. A delivery of used or refurbished items agreed on with the Client in the individual case will be made excluding any warranty for material defects if not explicitly stipulated otherwise.
§ 7 Liability of the seller for damages due to fault
1. The Seller’s liability for damage compensation on any legal ground, in particular on the ground of infeasibility, delay, defective or wrong delivery, breach of contract, breach of duties in the case of contractual negotiations and illegal acts to the extent that it is based on fault is limited according to §7.
2. The Seller will not be liable for simple negligence of his executive bodies, legal representatives, employees or other vicarious agents unless it concerns a breach of cardinal contractual duties. The duty of timely delivery and installation of the delivery item, the latter’s condition free from legal defects or material defects significantly impairing its functioning or suitability for use as well as advisory, protection and the duty to exercise proper care which are to facilitate the Client the contractual use of the delivery item or the protection of life and limb of the Client’s personnel or are intended for the protection of his property against significant damage are cardinal contractual duties.
3. Where the Seller is liable pursuant to § 7 (2) for damage compensation on merits of the case this liability will be limited to damage which was foreseen by the Seller upon conclusion of the contract as the possible consequence of a breach of contract or which he should have foreseen exercising reasonable care. Indirect damage and consequential damage, which are the consequences of damage to the delivery item may moreover only be compensated if such damage is to be typically expected from the designated use of the delivery item.
4. In the case of liability for simple negligence the Seller’s compensation duty for material damage and ensuing additional financial loss will be limited to the value of the good or service, even where it concerns the breach of cardinal contractual duties.
5. The above exclusions and restrictions of liability will apply to the same extent to executive bodies, employees or other vicarious agents of the Seller.
§ 8 Retention of Title
1. The goods delivered by the Seller to the Client will remain the property of the Seller until full payment of the claims from the business relationship with the Seller. The goods as well as the goods subject to retention of title in their stead pursuant to the present clause are hereinafter referred to as Reserved Goods.
2. The Client has the right to sell the reserved goods in regular business transactions up until the enforcement event (paragraph 5). Pledging or assignment of the reserved goods as collateral is not permitted.
3. In the case of resale of the reserved goods the Client is already prudently assigning any claims against the purchaser arising from this- in the case of co-ownership of the Seller in the reserved goods proportionally on the basis of the share of ownership- to the Seller. The same will apply to other claims in lieu of the reserved goods or otherwise arising with regard to the reserved goods such as insurance claims or claims from an illegal act or destruction. The Seller irrevocably authorizes the Client to collect the claims assigned to the Seller in his own name for the account of the Seller. The Seller may only revoke this collection authorization in the case of an enforcement event.
4. Where third parties encroach on the reserved goods, in particular through seizure, the Client will immediately inform them of the Seller’s ownership of the goods and inform the Seller of this, allowing him to assert his rights of ownership. Where the third party is not capable of reimbursing legal or out-of-court fees incurred in this context the Client will be liable vis à vis the Seller for this.
5. Where the Seller rescinds the contract in the case of breach of contract by the Client-in particular in the case of delayed payment (enforcement case) he will be entitled to demand release of the reserved goods.
§ 9 Final Provisions
1. The place of jurisdiction for any disputes between the Seller and the Client is Neuss, Germany, to the extent permitted by law.
2. The relations between the Seller and the Client are subject exclusively to the laws of the Federal Republic of Germany. The UN Sales Convention of April 11, 1980 (CISG) will not apply.
3. Where the present contract or these General Business terms contain legal gaps, the gap is to be filled by legally valid terms which the contractual partners would have agreed on in accordance with the economic purposes of the contract and purpose of the General Delivery Terms if they had been aware of the legal gap.
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