General Terms and Conditions
1. Applicability of the General Terms and Conditions
(1) The following General Terms and Conditions apply to all orders and deliveries of NIHON KOHDEN EUROPE GmbH, Rosbach v.d.H. (hereinafter “The Seller”). Differing conditions of the Buyer shall not be binding for the Seller. These shall be expressly excluded. Acceptance of a shipment shall be regarded as an acknowledgement of these conditions regardless of any prior objections.
(2) The following conditions shall also apply to future shipments, even if the Seller has not provided the General Terms and Conditions to the Buyer for a second time or made reference to them.
2. Contract Terms, Offers, Contract Completion
(1) Object of the contract is the sale and delivery of new or second-hand medico-technical equipment, accessories and expendables as well as spare parts.
(2) Offer, ordering process, scope of delivery and shipping terms shall only become binding for the Seller with its written confirmation. If no written confirmation is provided, the contract shall become effective upon delivery as delivered.
(3) The featured services are determined by the offer accepted by the Buyer as well as the specifications and procurement details included in the technical documentation of the product. In order for properties and characteristics above and beyond the abovesaid to be deemed legally binding these need to be stated expressly and in writing.
(4) Shipments by NKE do not include any assembly or startup procedures at the buyer’s premises unless included in an agreement saying otherwise.
3. Prices, Terms of Payment
The Seller shall deliver at the list prices valid on the date of contract completion. The value added tax will be quoted separately. Discounts for resale will only be granted to wholesalers.
These discounts will also be granted for the lump sum settlement of the warranty obligations assumed in sec. 8 (14) with regard to entrepreneurial recourse. If the Buyer defaults in payment, the Seller shall be entitled to claim interest of 8% above the applicable base interest rate as per DÜG [Diskontsatzüberleitungsgesetz – German Discount Rate Transition Act], but amounting to not less than 10%. In case of a default in payment, court-ordered collection proceedings or legal proceedings or any kind of insolvency proceedings, resale discounts granted by the Seller above and beyond the list prices applicable at the time as well as other rebates shall cease to exist.
4. Reservation of Title
(1) Goods delivered by the Seller shall remain its property until all claims it is entitled to from the business relations with the Buyer, present or future, have been satisfied.
(2). The repossession of the goods by the Seller shall not constitute a rescission from the contract unless expressly stated in writing by the Seller. The costs arising from the repossession shall be charged to the Buyer. Garnishment of the delivery item shall always constitute a rescission from the contract. In case of garnishment or other third party intervention, the Buyer shall notify the seller in writing without delay so that legal action pursuant to para. 771 ZPO [Zivilprozessordnung – German Code of Civil Procedure] may be initiated. If the third party is unable to reimburse the Seller for the in- and out-of-court costs of such lawsuit pursuant to para. 771 ZPO, the Buyer shall be liable to remedy the Seller’s loss.
(3). The Buyer shall be entitled to resell the retained goods in the regular course of business. It shall assign to the Seller all claims against third parties in the amount of the invoice total (incl. VAT) arising from this resale, resulting for it from the resale against its customers or against third parties, regardless whether the goods were resold without or following further processing. The Buyer shall be authorized to collect this claim even after the assignment. The Seller’s own authorization to collect the claim shall remain unaffected. However, the Seller obliges to refrain from collecting the claim as long as the Buyer duly meets its payment obligation and does not default in payment. In this case, the Seller can demand that the Buyer disclose the claims assigned and their debtors, provide all the details required for collection, hand over the corresponding documentation and notify the debtors (third parties) of the assignment.
(4) The processing or reworking of the goods by the Buyer is always performed for the Seller. If the delivery item is processed along with other items not belonging to the Seller, then the Seller shall acquire joint ownership in the new item based on the value of the delivery item in relation to the other processed items at the time of processing. In addition to the above, the items resulting from processing are subject to the same terms as the retained goods.
(5) If the goods are joined to or blended inseparably with other items not belonging to the Seller, then the Seller shall acquire joint ownership in the new item based on the value of the goods in relation to the other joined or blended items at the time of joining or blending. If the joining or blending has been performed in a manner suggesting that the Buyer’s goods constitute the principal element, then the Buyer shall assign a prorated joint ownership to the Seller. The Buyer shall have custody of the sole or joint ownership for the Seller.
(6) The Seller obliges to release the securities it is entitled to at the Buyer’s request, to the extent that they have not been settled yet, if their value exceeds the claims to be secured by more than 30%.
5. Delivery Periods, Partial Shipments
(1) Delivery periods are binding only if they have been guaranteed in writing by the Seller prior to contract completion. The delivery period shall be regarded as met if the product is shipped within that period of time.
(2). In case of unforeseeable events, such as Acts of God, strikes, lockouts or delays in shipment from suppliers, the delivery periods will be adequately extended.
(3) If the seller does not have to represent a non-compliance with delivery periods or deadlines, then the Seller may rescind the contract as long as the Seller notifies the Buyer of the non-availability of the goods without delay and refunds payments already made.
(4) If the seller has culpably missed the delivery periods or deadlines agreed on, the Buyer is authorized to rescind the contract provided that he has granted an adequate extension which was missed again. If compliance should prove to be impossible, rescission may take place without an extension having been granted.
(5) Damage claims, to include secondary damage, and reimbursement of expenses are expressly excluded.
(6) This shall not apply to damages concerning injury of life, body or health caused by a deliberate or negligent violation of obligations on the part of the Seller, his legal representative or vicarious agent.
(7) The Seller is authorized to provide partial shipments. Partial shipments do not entitle the Buyer to suspend payments for goods already delivered, provided that the Buyer is able to make use of the partial shipments.
The Seller shall organize the shipping of the ordered goods to the best of its judgment. Upon receipt, the Buyer is obliged to examine the packaging as well as the item itself for possible transport damage and to notify the Seller in writing within 5 working days. The buyer obliges to document the damage in a manner enabling the Seller to provide proof thereof to the shipping insurance company. The packaging shall be retained until released by the Seller.
7. Passing of Risk, Computation of Quantities
(1) Upon handover or shipping of the goods the risk shall pass to the Buyer as soon as the goods have been turned over to the third party selected for shipment. If the goods are ready for shipment but shipping is delayed for reasons the Buyer is responsible for, the risk shall pass to the Buyer as soon as the Seller has notified the Buyer verbally or in writing that the goods are ready for shipment ex works.
(2) The computation of quantities will solely be based on the quantities, weights or number of units determined by the Seller.
(1) The Buyer is obligated to provide a written report of obvious defects of the goods without delay, but not later than within 5 working days upon receipt, and to set an adequate deadline for cure.
(2) Should defects occur, the Seller is obligated either to provide remedy or a replacement shipment at its own discretion (cure).
(3) There is a requirement that the defect is not just an insignificant one.
(4) The Seller may refuse the cure if one or both types of cure are impossible or exceed reasonable limits. The same shall apply if the Buyer does not meet the payment obligation arising from the defect-free portion of the shipment.
(5) Two attempts at remedy or replacement shipments are permitted. Replaced parts will become the Seller’s property.
(6) In case of a failed cure, the Buyer may either decrease the purchase price or rescind the contract.
(7) Unless set forth otherwise hereinbelow, further claims of the buyer are expressly excluded, irrespective of the legal basis (in particular, claims from violations of primary and secondary contractual obligations, reimbursement of expenses except as provided in para. 439 II BGB [Bürgerliches Gesetzbuch – German Civil Code], civil offenses as well as other tortious liability). This applies particularly to claims from damage outside the purchased item as well as claims for reimbursement of lost profit. This also includes claims not resulting from the defectiveness of the purchased item.
(8) The above does not apply in respect of damages due to injury of life, body or health resulting from a deliberate or negligent violation of obligations on the part of the seller, his legal representative or vicarious agent.
(9). Furthermore, the exclusion of liability is not valid where liability exists pursuant to the German product liability law in case of defects of the delivery item regarding injury to persons and privately used property.
(10) Furthermore, the exclusion of liability is not applicable in connection with the assumption of a guarantee and the assurance of a particular characteristic, if a defect contained therein should trigger this liability.
(11) The above correspondingly applies in case of a reimbursement of expenses.
(12) The above provisions also apply to the delivery of other goods or a smaller quantity.
(13) No liability is expressly assumed for damage due to the following reasons: Unsuitable or improper usage, faulty assembly by the Buyer or third parties, natural wear and tear, faulty or careless treatment, unsuitable operating supplies, alternative materials, chemical, electrochemical or electrical influences, improper changes or repair work performed on the part of the buyer or third parties without the Seller’s prior consent.
(14) In the context of entrepreneurial recourse, the wholesaler will be provided spare parts and/or replacement shipments to enable it to meet its liability obligations with the end user. Further claims have already been satisfied by the corresponding discounts granted on the selling price.
(15) The warranty period runs for 12 months from the delivery date unless another period is agreed on by separate agreement.
9. Retention, Offset, Assignment
(1) A retention right of the Buyer exists only if the counterclaim is based on the same contractual relationship.
(2) The Buyer may claim offset rights only if they have been determined to be legally binding, undisputed or accepted by the Seller.
(3) The Buyer may assign its contractual rights to third parties only with the consent of the Seller.
10. Other Claims for Damages
(1) Claims for damages and claims for reimbursement of expenses on the part of the Buyer are expressly excluded, irrespective of the legal basis and in particular for breach of duties regarding contractual obligations or tortuous acts.
(2). This does not apply to liability for injury to life, body or health and violation of major contractual duties incurred by a deliberate or negligent violation of duties on the part of the Seller, its legal representative or vicarious agent as well as liability pursuant to the product liability law.
11. Legal Venue and Place of Performance, Applicable Law
Legal venue and place of performance for both parties is the Seller’s domicile. German law shall govern. Applicability of the CISG is expressly excluded.
(1) The above conditions and written agreements additionally made upon completion of the contract are complete and replace all previous verbal or written agreements.
(2) Should a provision of the above Terms and Conditions or of the additional agreements made upon completion of the contract be or become invalid or impracticable, the validity of the remaining contractual agreements shall not thereby be affected. The parties are obligated to replace an invalid or impracticable provision with a valid or practicable provision which comes closest to what the parties intended by the invalid or impracticable provision.
NIHON KOHDEN EUROPE GMBH