Delivery and Payment Terms and Conditions
a. Unless otherwise expressly agreed, we charge the prices that are applicable on the date of dispatch.
b. Our prices do not include any turnover tax (Umsatzsteuer). The turnover tax (Umsatzsteuer) that accrues shall be added to the value of the goods as value added tax (Mehrwertsteuer).
2. Minimum Order Value and Freight Charges
a. We only accept orders with a minimum order value of EUR 150.00. Orders below this minimum threshold require a separate agreement.
b. Delivery of an order volume of 12 dispatch units or more shall, as a general rule, be free of freight charges. In the case of express and fast goods consignments the Customer shall be charged the difference between the price thereof and the price of a normal freight consignment.
3. Delivery Period
a. Unless otherwise agreed in writing, the delivery periods stated by us do not constitute fixed dates. In the event that the delivery period is exceeded the Customer shall have a right of rescission within the parameters of the statutory provisions. The Customer shall have no further rights, in particular no right to damages, in the event that the delivery period is exceeded.
b. Non-merchants can in addition demand damages in accordance with the statutory provisions. However, in said cases the right to damages shall be limited to the direct damage and, in terms of quantum, to the order value unless there has been wilful or grossly negligent conduct on our part.
c. With larger contracts we shall be entitled to make part deliveries. Every part delivery shall be considered to be fulfilment of a separate contract for the purposes of these Delivery and Payment Terms and Conditions.
4. The Passing of Risk
Dispatch shall in all cases be at the Customer's risk. This also applies when goods are transported by our own delivery service.
a. Payment within 30 days as of receipt of the invoice without any deductions whatsoever, unless otherwise agreed.
b. The deadlines shall be met only if the money has been received by us within the stipulated deadline or in the case of payment by bill of exchange, cheque or by direct debit has been credited to us unconditionally.
c. If the goods have not been paid 30 days after the due date and receipt of the invoice the Customer shall be in default ("in Verzug") without any need for a warning notice. In said case the Customer must pay default interest in the amount of 5% above the current interest rate applicable from time to time for long-term refinancing transactions of the European Central Bank. Any dunning costs shall be charged to the Customer. If it can be demonstrated that
greater damages caused by default are incurred then said damages can also be claimed.
d. If invoicing is to be effected via a central purchasing department, a clearinghouse or a similar institution our express prior written consent shall be required. The same shall also apply in the event that there is an intention to change the institution.
6. Reservation of Title
a. The goods delivered shall remain our property until all of the claims arising out of the business dealings with the Customer and outstanding at the time the contract was concluded have been paid in full (cf. 5.a).
b. The Customer shall be entitled to dispose of the goods delivered by us in the ordinary course of business. The Customer shall not be entitled to pledge said goods or make any transfer by way of security. The Customer must without undue delay notify us of any seizure by third parties of the goods delivered by us and send us the bailiff's record of the levying of execution.
c. The Customer is obliged to secure our rights when selling on reserved goods on credit. In the event of any non-cash sale the Customer hereby already assigns the rights against his customer to us in advance.
If more than 120% of our total claim is unequivocally secured by such assignments, the surplus of the accounts receivable shall, upon request by the Customer, be released at our option.
7. Claims for Defects
a. We shall be obliged to rectify defects in accordance with the following provisions only if we receive a notice of defect within eight days of deliver in the case of defects which are oticeable if the goods are carefully inspected without undue delay after discovery in the case of defects which are not obvious within two years of delivery in the case of a sale of consumer goods. In all other cases the limitation period for claims for defects shall be one year as of the passing of risk.
b. In the event of justified notices of defects we shall only be obliged to effect subsequent specific performance. If subsequent specific performance is not possible or fails the Customer can - having regard for the principle of economic efficiency - either demand a price reduction or rescind the agreement.
8. Interference with the Performance of an Obligation
a. Unforeseen events such as force majeure, war, riot, industrial disputes, governmental measures, a shortage of energy or raw materials, stoppages etc. release us from any delivery obligation for the period for which said event lasts. If said events last longer than one month as of the agreed delivery date both the Customer and we shall have the right to insofar rescind the contract. In any such case the Customer shall not have any right to claim damages.
b. If after concluding a contract we become aware of payment difficulties on the part of the Customer or we receive unsatisfactory information we can demand that appropriate security be furnished and - if this is not granted - we can rescind the contract.
c. If the Customer does not accept all of the goods by the agreed date or if the Customer does not fulfil his payment obligations the Customer's right to further delivery shall lapse if our
demand for subsequent specific performance has been to no avail by the time the deadline set by us expires (Paragraph 281 German Civil Code (BGB)). In all cases of malperformance we shall have the right to demand damages as well as the right to rescind the contract.
d. If we make use of the above-mentioned right of rescission in accordance with b. and c. any claims to damages by the Customer are expressly excluded unless there has been grossly negligent or wilful conduct on our part.
e. The Customer can only claim a right of set-off against us or can only claim a right of retention if we have acknowledged the counterclaims. Non-merchants can claim a right of retention even without our acknowledgement provided that the claims are claims which ensue from the same contract from which our claim arises.
Returns shall not be accepted without our prior consent. Custom-made products, packets that have been opened and goods which can no longer be sold may not be returned.
a. The place of performance for all obligations arising out of the contractual relationship shall be Sontheim, Germany.
b. The contractual relationship shall be governed by the law of the Federal Republic of Germany even insofar as deliveries abroad are concerned.
c. If the Customer is a compulsory merchant ("Vollkaufmann") the place of jurisdiction for all disputes arising out of the contractual relationship with the Customer, whether directly or
indirectly, shall, at our option, be Munich or a statutory place of jurisdiction. This also applies to claims arising out of cheques, bills of exchange and direct debits.
d. Any conflicting terms and conditions of purchase are hereby expressly opposed. They shall only apply if and to the extent that we have declared our agreement to them in writing.
e. In the event that a provision of these Delivery and Payment Terms and Conditions is or becomes void the validity of the remaining provisions shall not thereby be affected. In that case a provision shall apply which comes as close as possible to the objective intended
by the void provision.
CMC Consumer Medical Care GmbH
D-89567 Sontheim, Germany
Applicable with effect from: 1st July 2005