General Terms and Conditions of Delivery and Payment
evonos GmbH & Co. KG
1. General, scope of validity
1.1 Our offers, deliveries and other services - also in the future - are made solely on the basis of these General Terms and Conditions of Delivery and Payment. We do not recognize any contrary conditions of the customer or any deviating conditions that are not included in our General Terms and Conditions of Delivery and Payment.
1.2 Our General Terms and Conditions of Delivery and Payment apply only to persons who, on the conclusion of the contract, carry out their commercial or independent professional activities ("entrepreneurs") and to legal entities under public law or special assets under public law. They do not apply to private individuals who conclude the contract for a purpose that cannot be attributed to either their commercial or their self-employed professional activity ("consumers").
1.3 Excepting proof of the contrary, our written confirmation is decisive for the content of the contract.
1.4 The written contract contains the complete details agreed upon by both parts. Excepting proof of the contrary, our written confirmation is necessary for the content of oral side agreements and/or amendments to the contract.
1.5 References to the validity of statutory regulations shall only have clarifying significance.
2. Place of fulfillment, Delivery, Transfer of risk
2.1 Unless otherwise agreed, the place of fulfillment is Stockacher Straße 134, 78532 Tuttlingen.
2.2 Unless otherwise indicated in our order confirmation, "ex works" (EXW Incoterms 2000) is agreed with regard to the transfer of risk with accidental deterioration or destruction of the good (risk of performance).
2.3 Partial deliveries are permissible in an acceptable scope. Number 2.2 also applies if partial deliveries are made.
2.4 The in number 2.2 mentioned risk is transferred to the customer with the notification of the readiness for shipment, if the shipment is delayed due to circumstances that the customer is responsible for.
3. Delivery time
3.1 Delivery times are only binding when they are confirmed by us in writing. Agreed delivery times start with the conclusion of the contract, but not before receipt of the documents, permits, approvals to be obtained by the customer and the complete clarification of the technical questions to be answered by the customer.
3.2 The delivery time is complied with if the circumstances causing the transfer of risk pursuant to number 2.2, 2.3 and 2.4 have occurred within the deadline.
3.3 The delivery period is extended - also within a delay - appropriately in the event of force majeure and with all unforeseeable obstacles that occur after conclusion of the contract that we are not responsible for to the extent that such obstacles have a demonstrable impact on the provision of the performance owed. This also applies when these circumstances occur at our pre-suppliers. We will notify the customer of the start and end of such obstacles as early as possible. If the obstacle lasts longer than three months or it is clear that it will last longer than three months, both we and the customer may withdraw from the contract.
3.4 If it becomes clear after the conclusion of the contract that our claim to payment is jeopardized by a lack of ability to perform on the part of the customer, we are entitled to refuse our performance and to carry out activities in preparation of that performance. The right to refuse performance no longer applies if the payment has been made or security has been provided for it. We can set the customer an appropriate deadline for payment/the provision of a security. After a deadline has expired to no avail, we are entitled to withdraw from the contract.
3.5 If we fall into arrears with the delivery or performance as the result of simple negligence, our liability for compensation due to the delay in delivery or performance, which can be demanded alongside the delivery/performance, is restricted to 0.5% of the delivery/performance value for each completed week of delay, but up to a maximum of 5% of the delivery/performance value. If the customer files for
compensation in the aforementioned cases instead of delivery or performance, this claim to compensation is limited to 15% of the delivery/performance value. Proof remains reserved to us, that no damage or considerably less damage has been caused. The restrictions on liability pursuant to the aforementioned sentences 1 and 2 do not apply in the event of delay as a result of gross culpability, nor with an injury to life, body and health, nor with business which must be settled on a fixed date.
3.6 If the customer is in arrears with the acceptance of the items to be delivered or the payment of the purchase price, we can withdraw from the contract after the expiry to no avail of an appropriate subsequent period set by us and required by law and/or demand compensation instead of performance. When claiming compensation, we may demand compensation, without evidence,
- amounting to 20% of the purchase price to settle the lost earnings if the item to be delivered is a serial or a standard product, or
- amounting to 100% of the purchase price if the item to be delivered is a customized product made according to the specific requirements of the customer and the expenses necessary to create the readiness for delivery have been incurred on our part.
The contracting parties are at liberty to provide evidence that the actual damage is higher or substantially lower. The rules under the law for the determination of the compensation are unaffected by this if the contract has already been fulfilled entirely on our part. We are also entitled to charge the additional expenses, in particular storage costs, incurred if the customer refuses acceptance. In the event of storage at our own premises, the usual local storage costs will be charged.
4. Prices, price adjustment
4.1 Unless otherwise indicated in our order confirmation, our prices are "ex works" (EXW Incoterms 2000). Packaging, carriage, installation and insurance are charged separately. Packaging is charged at cost price.
4.2 Our prices do not include the statutory VAT if applicable. The VAT applicable at the date of the invoice will be charged separately for deliveries within Germany.
4.3 Unless otherwise indicated in our order confirmation, invoices are due and payable within 30 days from the date of the invoice. When the date of due payment has been exceeded, we charge – without further overdue notice – default interest in the amount of 9 percentage points above base interest rate per year. Our claim for commercial maturity interest (after sec. 353 German Commercial Code) against merchants remains unaffected.
4.4 We reserve all rights to claim further damages. The right of the customer to remains unaffected to prove that no damage or considerably less damage has been caused due to the delay of payment.
4.5 An offsetting, or a retention with the effect of an offsetting, of payments is only permitted as a result of legal claims by the customer which have been recognized by us, are not disputed and are ready for decision or are final and conclusive.
5. Retention of title
5.1 Until the complete fulfillment of all - including future
- claims including all ancillary claims, we reserve ownership of the goods delivered (extended retention of title). The customer is obligated to handle the retained goods with care and to notify us immediately in writing of any pledging, confiscation, damage and loss. A breach of this obligation gives us the right to withdraw from the contract. The customer bears all (out-of-court and/or judicial) costs that arise in particular within the framework of third party proceedings to rescind a pledging and if applicable to re-procure the items delivered if they cannot be collected from third parties. The customer is obligated to insure the retained goods against loss and damage for the time in which the retention of title exists and to notify us of this in writing.
5.2 The customer may not pledge or use the retained goods as security.
5.3 In the event of arrears in payment, or if the customer breaches other fundamental contractual
obligations, we are entitled to provisionally take back the retained goods. The exercising of the right to take goods back does not represent a withdrawal from the contract unless we have explicitly declared the withdrawal. The costs arising from exercising the right to take back (in particular for transport and storage) shall be borne by the customer if we have not threatened to take the goods back with a suitable period of notice. We are entitled to utilize the retained goods that have been taken back and to satisfy our claims from the proceeds thereof if we have previously threatened utilization. When issuing the threat, we must set the customer a suitable deadline for fulfilling its obligations.
5.4 The customer already now assigns to us the purchase price, wage or other receivables arising from the re-sale or further processing or other legal grounds (e.g. in an insurance claim or with unlawful action) with regard to the retained goods (including the recognized balance of a current account agreement and/or, in the event of an insolvency of the business partner of the customer, the "causal balance" that then exists) amounting to the invoice value of the retained goods; we accept the assignment. We hereby give the customer the revocable authorization to collect the receivables assigned to us on our behalf in its own name. This authorization to collect can only be revoked if the customer does not meet its payment obligations in an orderly manner. At our request, the customer must provide the information necessary for the collection regarding the claims assigned, make the corresponding documents available and notify the debtor of the assignment.
5.5 If the realizable value of the securities granted to us pursuant to the aforementioned provisions exceeds our claims towards the customer by more than 10%, and not only temporarily, we will release securities in this respect at our own discretion and at the customer's request. The aforementioned coverage limit of 110% is increased by the amount of VAT that we are charged in utilizing the security collateral and that arises from the delivery by the customer to us being subject to VAT.
6. Rights with material defects, damages
6.1 If the purchase is a commercial transaction for both parties, the customer must give written notice of any kind of defects within ten working days (Saturday is not classed as a working day) from delivery - hidden defects, however, within ten working days of their discovery; otherwise, the goods are deemed to have been approved.
6.2 Insofar as any defect of the purchased good is present with passage of the risk we are entitled to subsequent fulfillment at our discretion in the form of either correction of the defect (subsequent improvement) or the delivery of a defect-free item (replacement delivery). The subsequent fulfillment does not include the costs of installing and removing the defect good, independently of an original possible obligation. In the case of subsequent fulfillment we are obliged to bear all necessary costs of the subsequent fulfillment, especially the costs for routing, shipping, material and labour (but not for installing and removing of the good), insofar as these costs are not increased by a relocation of the purchased good to a place other than the place of fulfillment.
6.3 If we are unwilling or unable to provide subsequent improvement/replacement delivery, in particular if this is delayed beyond appropriate lengths of time for reasons for which we are not responsible, or if the subsequent improvement/replacement delivery fails, the customer is entitled, if further attempts at subsequent fulfillment cannot be deemed acceptable for it, at its discretion, to withdraw from the contract or reduce the purchase price.
6.4 There are no claims as the result of material defects from unsuitable or improper use or handling of the item delivered, natural wear and tear (in particular of wear parts) and excessive use (especially because of the non-observance of the instructions enclosed or affixed on the good).
6.5 If the purchased good is delivered to and installed by a specialist dealer, the specialist dealer is responsible for the appropriate installation and maintenance. The specialist dealer must also point out to the customer, that the purchased good/device may only be used properly and in accordance with the instructions.
6.6 The limitation period for claims arising from material defects is one year. In the event of injury to life, body or health caused by us or in cases of willful intent and gross negligence, the limitation period for material defect claims – by way of derogation of sentence 1 – is two years.
6.7 Claims of the customer in regard to damages or compensation for futile expenses due to a defect of the good only exist under the further requirements of number 7. The in number 6.6 mentioned limitation periods also apply for any claims for damages or compensation of expenses of the customer, unless applicable regular limitation periods after sec. 195, 199 German Civil Code would result in a shorter limitation period.
6.8 The customer may only withdraw from or terminate the contract due to an infringement of an obligation not constituted by a defect if we are responsible for the breach of duty.
7. Liability, Vigilance
7.1 Insofar as not otherwise derived in these General Terms and Conditions we are liable in accordance with the provisions of the Product Liability Act as well as a violation of contractual or non-contractual obligations under the legal regulations.
7.2 We are liable for damage for whatever legal reason concerning fault based liability in cases of willful intent and gross negligence. Provided there was no intentional breach of contract, our liability is limited to the foreseeable, typically occurring damage. Subject to a milder liability criteria (for example the diligence we exercise in our own matters), in cases of simple negligence we are only liable
a) for damages resulting from the injury to life, body or health,
b) for damages resulting from the breach of non- insignificant contractual duties (so called major obligations), that is a duty whose fulfillment makes the due performance of the contract possible in the first place and where the customer regularly relies on, as well as a duty whose breach jeopardizes the achievement of the purpose of the contract. In this case our liability is limited to the foreseeable, typically occurring damage.
7.3 If our liability is restricted according to the aforementioned provisions in number 7.2, this also applies to the personal liability of our staff, employees, workers, representatives and vicarious agents.
7.4 The aforementioned restrictions of liability under number 7.2 and 7.3 do not apply insofar as we have maliciously failed to disclose a defect, have assumed a guarantee for the conditions of the good or for claims of the customer relating to the Product Liability Act.
7.5 Claims for damages of the customer under the provisions of number 7 are subject to limitation according to the legal regulations.
7.6 If the intellectual property rights of third parties are breached by an object to be delivered that has been created based on deliveries, samples or other specifications of the customer, the customer shall indemnify us from all claims that are filed in this respect.
7.7 The customer is obligated to sustain a product documentation of medical devices bought from us, to notify us in case of vigilance cases and to support us with informing the end customer of the goods delivered to the customer.
8. Place of jurisdiction and applicable law
8.1 For these General Terms and Conditions of Delivery and Payment and the entire legal relationships between us and the customer, the law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
8.2 a) If the customer is a merchant pursuant to the German Commercial Code (HGB), a legal entity under public law or a special asset under public law, the place of jurisdiction for all rights and obligations of the participants to the contract arising from any form of transaction - including disputes relating to bills of exchange and checks - is 78532 Tuttlingen (Federal Republic of Germany). This applies accordingly if the customer does not have a general place of jurisdiction in Germany, moves its place of residence or normal domicile away from Germany,
or its place of residence or usual domicile is not known at the time the action is filed.
b) However, we are also entitled to file legal action against the customer at the latter's general place of jurisdiction.
8.3 Should the contract or these General Terms and Conditions contain any legal loopholes, such a gap is filled with a valid condition that both parts would have agreed upon according to the commercial aims of the contract and the purpose of these General Terms and Conditions, if they had known the legal loophole.