1. General Conditions
Stradis-Med GmbH Egelsbach, provides all goods and services solely in accordance with the following General Terms and Conditions. Any deviating terms and conditions shall apply only if Stradis-Med GmbH consents to them expressly and in writing.
Offers are subject to change and are non-binding if no other conditions have been made expressly and in writing.
Improvements and modifications to the performance made by the user shall be admissible if they are reasonable for the customer. Such modifications do not authorize the customer to delay or to refuse his/her return quid-pro-quo. The customer is obliged to accept the deliveries as contracted; this obligation being the customer’s principal obligation.
In case the dispatcher in entitled to claims for damages due to the non-performance of the contract, especially if it comes to a non-acceptance of the contracted goods, an overall compensation amounting to 25% of the contracted purchase price can be surcharged subject provided that still a higher claim can be proven.
2. Pricing and terms of payment
All prices stated by the dispatcher and quoted to consumers are subject to applicable VAT and packaging, shipping and freight insurance costs calculated from the business location of the dispatcher.
Unforeseeable modifications concerning customs duties, import and export duties, currency control etc entitle the dispatcher to adapt the prices accordingly. Provided that the customer does not disagree, payments made by the customer shall always be credited against the oldest debt first. In case that costs and interests have already accrued, payments shall be credited against the costs first, then against the interests and finally against the principal claim. The customer is only entitled to accumulate, retain and/or reduce the costs, if his/her counterclaim is undisputed or has been established as final and absolute or has been accepted by the dispatcher expressly and in writing.
The dispatcher is entitled to bill partial deliveries or partial services separately.
3. Retention of Title
a) The dispatcher shall retain title to all goods until such time as payment has been made in full including incidental claims, claims for damages and cashing of checks and bills of exchange. In the event of default of payment by the customer, the dispatcher is entitled to rescind the contractual agreements or to refuse delivery.
b) This retention of title will persist even if individual claims are integrated by the dispatcher into a current account and the account balance is affiliated and disallowed.
c) In case the customer converts the good subject to retention into another good, the converting takes place with the dispatcher not committing himself/herself. The new good then gets property of the dispatcher. Joint-ownership of a new good is based on the relation between the value of the good subject to retention in comparison to the total value.
d) The permission of the customer to dispose of goods subject to retention in orderly business connections ends with the countermand of the dispatcher.
e) Pledging or chattel mortgage of the goods subject to retention or of assigned book accounts are illegitimate. The dispatcher has to be informed immediately about pledges stating the name of the pledgee.
f) In case that the dispatcher takes back the goods due to the retention of title this only constitutes a withdrawal from the contract if stated expressly and in writing by the dispatcher.
Upon request the customer is obliged to tolerate the collection or the removal of the good(s) or send the good(s) back to the dispatcher at his/her own costs and risk. The dispatcher is then entitled to meet his/her needs by selling the good(s) by direct sales.
g) The storage of goods subject to retention by the customer is made gratuitously.
The customer has to insure the loss of the goods to a reasonable extent.
h) The dispatcher is entitled to sell special orders sent back by the customer by direct sales without advance notice. In this case, the customer has no right whatsoever to ask for compensation because of non-delivery.
4. Delivery Time and Time of Performance
Binding delivery agreements shall be made in writing. Delivery periods, if agreed upon distinctively, begin with the date of confirmation of the order. All terms of delivery are liable to the reserve that the dispatcher in person has been provided in time and as agreed upon by his/her distributors. Partial deliveries and partial services provided by the dispatcher are admissible. Partial deliveries shall be regarded as individual performances as far as the contract of delivery is concerned. Default in delivery does not occur before 8 weeks (period of grace provided in the contract) after the date of delivery agreed upon in writing and focused on and shall not be caused by force majeure or any other event which is not subject to the reach of the dispatcher (e.g. supply difficulties with the manufacturer).
5. Delivery, Acceptance and Transfer of Perils
The risk of damaging or destroying the goods lies with the buyer as soon as the dispatcher has given the goods to the person dealing with the transport or has left the storeroom of the dispatcher in order to be shipped. The dispatcher has the possibility to insure the goods if desired by the customer and at his/her expense. This has to be agreed upon in writing. In case the customer sends goods to the dispatcher, the customer has to assume the risk of damage or destruction as well as to take over the necessary costs. The client or addressee is obliged to check if the merchandise is complete and intact. Complaints which have not been uttered immediately after having seen the damage do not have to be accepted by the dispatcher and the goods have then officially been delivered.
The risk of damage and destruction shall be transferred to the customer even if he/she has received and accepted the established work or individual parts of the work or the parts included.
6. Warranty of Title, Liability
a) The implied warranty shall apply if no other regulation has been decided upon in the following. The dispatcher provides a 12 months maximum warranty for brand-new goods, but no warranty exceeding the one provided by the supplier or the manufacturer of these goods. Any guarantees or warranties being more extensive shall be transferred to their full extent to the customer by the dispatcher without the latter being liable.
No warranty period for the delivery of used articles and equipment.
In case that service and maintenance recommendations expressed by the dispatcher or the manufacturer are not being followed by the customer or if, before all, changes to the goods are being made, parts being replaced or consumables being used which do not correspond with the original specifications, the warranty expires. The same shall apply for damages caused by incorrect storage, unauthorised interference or excessive abrasion.
In case of a complaint the customer is obliged to send defect parts or appliances back to the dispatcher at his/her own expense and risk under reference to a detailed error description. This shall be done using the original packing material. During the warranty period the dispatcher decides upon amendments or replacements. The dispatcher shall retain title to all goods of delivery until such time as payment has been made in full.
The customer has to indicate defects before the end of a 2-weeks-period after their first appearance. If the defect is not indicated in due time the dispatcher is not bound to any warranty deed.
b) The dispatcher shall not be responsible according to § 5 MPG (German Act on Medical Devices).
c) The dispatcher shall not be responsible for the licensure, the designation or in any other way for the implementing of products according to the regulations of the MPG (German Act on Medical Devices).
d) The dispatcher shall not be liable for the customer’s default to use a product being subject to the MPG (German Act on Medical Devices) without having been appropriately instructed according to § 5 MPBetriebVerfahren.
e) The dispatcher shall not be liable for construction plans or deficiencies. In the case that the dispatcher has to make claims against the manufacturer due to these deficiencies, the dispatcher will assign these claims to the customer.
f) Claims for damages expressed by the customer against the dispatcher are limited to a maximum of 25% of the contract volume and have to be proven by the customer concretely and in detail.
The customer is aware of the fact that the export of delivered goods may only take place regularly and not without prior official compliance. It lies in the customer’s responsibility to obtain that compliance. He/She has to obtain the declarations of consent prior to the shipment abroad of the goods.
8. Legal Venue
If admissible the place of jurisdiction dealing with all litigations made by and against the dispatcher shall be the dispatcher’s business location.
9. Final Clause
The business conditions as well as the privity of contract between the dispatcher and the customer shall be governed by the laws of the Federal Republic of Germany. Other national laws – including the Einheitliche Kaufgesetz (EKG) (Uniform Purchase Act) and the Einheitliche Vertragsabschlussgesetzt (EAG) (Uniform Conclusion of Contract Act) – shall be excluded.
In the case that one or more terms of the preceding business conditions are or become void, the legal force of the remaining conditions shall not be affected thereby.
Any additional agreement has to be made in writing. This is also applicable for the abrogation of this clause about the written form.
10. Severability Clause
If a provision of these terms is or becomes invalid that shall not effect the validity of any other provision. The invalid provision shall be replaced by another which comes as close as possible to the aspired legal or economic intent.
Egelsbach, August 1st, 2007