General Terms and Conditions

General Terms and Conditions MCS medical concept solutions

§ 1 Validity of the terms and conditions

1. Our deliveries, services and offers shall be made exclusively on the basis of these Terms and Conditions of Sale and Delivery; we shall not recognize any terms and conditions of the Purchaser that conflict with or deviate from our Terms and Conditions of Sale and Delivery unless we have expressly agreed to their validity in writing.

2. All agreements made between us and the purchaser for the purpose of executing this contract are set down in writing in this contract.

3. Our Terms and Conditions of Sale and Delivery shall only apply to entrepreneurs within the meaning of § 310 (1) of the German Civil Code (BGB).

4. Our terms and conditions of sale and delivery shall also apply to all future business relationships, even if they are not expressly agreed again.

§ 2 Offer - Offer Documents

1. Our offers are subject to change and non-binding.

2. If the order is to be classified as an offer in accordance with § 145 BGB, we can accept this within 2 weeks.

3. Drawings, illustrations, dimensions, weights and other performance data are only binding if this is expressly agreed in writing. We reserve the property rights and copyrights.

4. Our employees are not authorized to make verbal subsidiary agreements or to give verbal assurances that go beyond the content of the written contract.

§ 3 Prices - Terms of Payment

1. Unless otherwise agreed, we shall be bound by the prices contained in our offers for 30 days from the date of the offers. Otherwise, the prices stated in our order confirmation plus the respective statutory value added tax shall be decisive. However, we reserve the right to change our prices accordingly if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements or changes in material prices. We will provide evidence of these to the purchaser on request.

2. Unless otherwise agreed, prices are ex works including packaging.

3. Unless otherwise agreed, our prices are "ex works" or "net warehouse" and do not include insurance, packaging, freight, delivery to the place of installation, unloading or any reloading and installation

4. The deduction of discounts requires a special written agreement.

5. Payments shall be made in 1/3 each at the time of order, readiness for shipment and after handover. They shall be deemed to have been made from the date on which the amount is freely available to us

6. Unless otherwise agreed, our invoices are payable without deduction 10 days after the date of invoice. We shall be entitled, despite any provisions of the Purchaser to the contrary, to set off payments first against the Purchaser's older debts. We shall then inform the customer of the type of set-off made. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.

7. Payment shall only be deemed to have been made when we can dispose of the amount. In the case of cheques, payment shall only be deemed to have been made when the cheque has been cashed.

8. If the customer is in default of payment, we shall be entitled to demand interest at a rate of 8 percentage points above the base interest rate as flat-rate compensation from the date in question. They shall be set at a lower rate if the customer proves a lower charge; proof of higher damages by us shall be admissible.

9. If we become aware of circumstances that call into question the creditworthiness of the customer, in particular if the customer does not cash a check or stops payments, or if we become aware of other circumstances that call into question the creditworthiness of the customer, we shall be entitled to declare the entire remaining debt due, even if we have accepted checks. In this case, we shall also be entitled to demand advance payments or the provision of security.

10. The customer shall only be entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the customer shall also be entitled to withhold payment on the basis of counterclaims arising from the same contractual relationship.

11. If the purchaser defaults on a payment, all other claims shall become due for payment immediately, without the need for a separate notice of default.

12. For deliveries and services to Purchasers abroad, it is expressly agreed that all costs of legal action by the Supplier in the event of default of payment by the Purchaser, both judicial and extrajudicial, shall be borne by the Purchaser.

§ 4 Time of delivery and performance

1. Delivery dates or periods, which may be agreed upon as binding or non-binding, must be in writing. Binding delivery dates or deadlines require an express written agreement.

2. The start of the stated delivery period is subject to the clarification of all technical questions.

3. Compliance with our delivery obligation further presupposes the timely and proper fulfillment of the purchaser's obligations. We reserve the right to plead non-performance of the contract.

4. We shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery substantially more difficult or impossible for us, not only temporarily - this includes in particular strikes, lockouts, official orders, etc., even if they occur at our suppliers or their sub-suppliers - even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled.

5. If the impediment lasts longer than 3 months, the purchaser shall be entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if we are released from our obligation, the customer cannot derive any claims for damages from this. We may only invoke the aforementioned circumstances if we notify the purchaser without delay.

6. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.

7. If we are responsible for non-compliance with bindingly agreed deadlines and dates, or if we are in default, the customer shall be entitled to compensation for default in the amount of 0.5 % for each full week of default, but in no case more than a total of 5 % of the invoice value of the deliveries and services affected by the default. Any further claims shall be excluded unless the delay is due to at least gross negligence on our part.

8. We shall be entitled to make partial deliveries or render partial services at any time, unless the partial delivery or partial service is of no interest to the customer.

9. If the customer is in default of acceptance, we shall be entitled to demand compensation for the damage incurred by us; the risk of accidental deterioration and accidental loss shall pass to the customer upon occurrence of the default of acceptance.

§ 5 Transfer of risk

1. 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 we have undertaken the delivery.

2. Goods which have been reported as ready for dispatch must be accepted by the customer without delay. Otherwise, we shall be entitled to dispatch them at our discretion or to store them at the expense and risk of the customer.

3. In the absence of a special agreement, we shall choose the means of transport and the transport route.

4. If the Purchaser so desires, we shall cover the delivery by transport insurance; the costs incurred in this respect shall be borne by the Purchaser.

§ 6 Defects

1. With regard to defects, the Purchaser shall initially be subject to the statutory obligation to inspect the goods and give notice of defects pursuant to § 377 of the German Commercial Code (HGB). Noticeable defects shall be notified in writing within 7 days. Otherwise, the entire delivery shall be deemed to have been approved.

2. The customer cannot derive any rights from material defects which do not or only significantly impair the value and suitability of the goods for the use recognizable to us.

3. If the goods show a material defect at the time of transfer of risk, we shall be entitled and obliged to subsequent performance. Subsequent performance shall be effected, at our option, by repair or replacement, provided that this is reasonable for the customer. The costs of subsequent performance, in particular transport, travel, labor and material costs, shall be borne by us. §Section 439 (3) of the German Civil Code (BGB) shall remain applicable.

4. If the subsequent performance fails, is unreasonable for the Purchaser, does not take place within a reasonable period set by the Purchaser or is refused, the Purchaser shall be entitled, at its option, to withdraw from the contract, to demand a reduction in the purchase price corresponding to the value of the defect (reduction) or, within the limits of the following paragraphs, to demand damages instead of performance.

5. If a defect leads to damage, we shall be liable in accordance with the statutory provisions, provided that the damage is personal injury, falls under the ProdHaftG or is due to intent or gross negligence

6. If the damage is based on a culpable breach of a material contractual obligation or a "cardinal obligation", we shall otherwise only be liable for the damage typical for the contract.

7. Further contractual and tortious claims of the customer are excluded. In particular, we shall therefore not be liable for damage not occurring to the delivery item itself: likewise, we shall not be liable for loss of profit or any other financial loss suffered by the customer.

8. The above provisions shall not apply to used goods. In the case of such goods, we shall only be liable for material defects in the event of express acceptance of a guarantee, intent or gross negligence.

9. §Section 478 of the German Civil Code (BGB) shall remain unaffected by paragraphs 2-4.

10. Claims according to the above paragraphs 2-8 shall become statute-barred subject to §§ 438 No. 2, 634a Para. 1 No. 2, 479 BGB in one year from delivery of the goods. Accordingly, the right to withdraw from the contract and to reduce the purchase price shall be excluded in accordance with the statutory provisions.

11. If our operating and maintenance instructions are not followed, if parts are replaced or materials are used that do not comply with the original specifications, or if interventions are carried out by unqualified personnel, our liability for defects shall lapse to the extent that defects have arisen as a result. If a defect exists and if one of the above cases is given, the purchaser must prove that the defect was not caused by one of the above conditions.

§ 7 Retention of title

The ownership of the delivered goods shall remain reserved until all our claims against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if claims have been included in a current account and the balance has been struck and accepted.

1. The customer is entitled to sell or process the goods in the ordinary course of business. He shall be obliged to resell the reserved goods only subject to retention of title if they are not paid for immediately by the third party purchaser. He shall carry out any processing on our behalf without any obligation on our part arising therefrom. In the event of processing, combination or mixing of the reserved goods with other goods, a co-ownership share in the new item shall generally arise for us, namely in the event of processing in the ratio of the value (= gross invoice value including ancillary costs and taxes) of the reserved goods to the value of the new item, in the event of combination or mixing in the ratio of the value of the reserved goods to the value of the other goods.

2. The customer hereby assigns to us all claims accruing to him from the resale against a purchaser or against third parties. We shall remain authorized to collect these claims even after the assignment. Our right to collect the claims ourselves shall remain unaffected, but we shall not make use of this right as long as the customer duly meets his payment and other obligations. Upon request, the customer shall inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors of the assignment.

3. In case of breach of contract by the customer, in particular in case of default of payment, we shall be entitled to withdraw from the contract and to take back the goods. For the purpose of taking back the goods, the customer hereby irrevocably permits us to enter his business and storage premises without hindrance and to take the goods with us.

4. As far as and as long as the reservation of title exists, the customer may neither assign goods nor pledge goods manufactured from them as security without our consent. Conclusions of financing contracts (e.g. leasing), which include the transfer of our reservation of title, require our prior written consent, unless the contract obliges the financing institution to pay the purchase price share due to us directly to us.

5. In the event of seizure or other interventions by third parties, the customer shall notify us immediately in writing. He is prohibited from entering into any agreements with his customers that could impair our rights. He is obliged to insure the reserved goods immediately against theft, machinery, fire and water damage.

6. We undertake to release the securities to which we are entitled at the request of the customer and at our discretion to the extent that the realizable value of the securities exceeds the claims to be secured by more than 20% or their nominal amount by more than 50%.

§ 8 Liability

1. Claims for damages are excluded regardless of the type of breach of duty, including tortious acts, except in cases of intent or gross negligence.

2. In the event of a breach of material contractual obligations, we shall be liable for any negligence, but only up to the amount of the foreseeable damage. Claims for loss of profit, saved expenses, claims for damages by third parties as well as for other indirect and consequential damages cannot be demanded, unless a performance of the processing guaranteed by us has the specific purpose of protecting the customer against such damages

3. The limitations and exclusions of liability in the above paragraphs 1 and 2 shall not apply to claims which have arisen due to fraudulent conduct on our part, or in the case of liability for guaranteed characteristics, for claims under the Product Liability Act or for damages arising from injury to life, limb or health.

4. Insofar as our liability is excluded or limited, this shall also apply to our employees, representatives and vicarious agents.

5. The limitation period for claims for defects is 12 months, calculated from the transfer of risk.

6. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it amounts to 5 years, calculated from the delivery of the defective item

7. Any further liability for damages than provided for in § 8 shall be excluded - irrespective of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB.

8. Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.

§ 9 Applicable law, place of jurisdiction, partial invalidity

1. The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall not apply.

2. If the Purchaser is a merchant, a legal entity under public law or a special fund under public law, Hagen shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

3. Should any provision in these Terms and Conditions of Sale and Delivery be or become invalid, this shall not affect the validity of all other provisions.

§ 10 Severability clause

Should any of the above provisions be legally invalid, this shall not affect the validity of the other provisions and the remainder of the contract. Any ineffective provisions shall be replaced by new provisions which have the same economic success as their objective. Insofar as provisions have not become part of the contract, the content of the contract shall be governed by the statutory provisions.