Terms and Conditions of Sale, Delivery and Payment of MELAG Medizintechnik GmbH & Co. KG
Revised March 2020
1. General
1.1. All deliveries and services of MELAG shall be performed exclusively in accordance with these Terms and Conditions of Sale, Delivery and Payment of MELAG. Deviating or supplementary terms and conditions shall only apply if MELAG expressly consents.
1.2. The customer hereby agrees to accept delivery with exclusive application of these Terms and Conditions of Sale, Delivery and Payment. Silence on deviating terms and conditions of the customer for orders shall not be considered approval by MELAG.
1.3. INCOTERMS in the current version of the ICC (International Chamber of Commerce) (currently: INCOTERMS 2020) shall only be considered agreed on the basis of express, written confirmation on the part of MELAG and to the extent expressly stipulated therein.
1.4. The language for agreements, orders and complaints shall be German, unless otherwise agreed.
2. Offer, conclusion of agreement and contents of agreement
2.1. If they are not expressly identified as a binding offer, all offers and cost estimates shall be considered non-binding and subject to alteration.
2.2. The written order confirmation or the offer from MELAG is authoritative for the contents of an agreement. Written and verbal orders shall be considered accepted upon preparation of a written order confirmation or delivery of the ordered goods. If a written order confirmation is not issued, the invoice shall fulfil this function. The agreement shall enter into force in accordance with the order confirmation or the offer if the customer has no objections to the contents of the order confirmation or the offer and does not object to it immediately in writing.
2.3. All supplementary agreements, amendments and additions to the General Terms and Conditions are required to be in writing to be effective. This also applies to waiver of this written form requirement.
2.4. We shall retain the ownership rights and copyrights to illustrations, drawings, calculations, files and other documents or tools. They are to be treated confidentially and may not be made accessible to third parties. Their disclosure to third parties in whatever form shall always require the express written consent of MELAG.
2.5. The customer shall acquire no rights whatsoever to the intellectual property or to industrial property rights of MELAG through conclusion of the agreement. The customer undertakes to preserve any intellectual property and industrial property rights of MELAG or its sub-suppliers and is liable for all damages resulting from violation of this obligation.
2.6. The place of performance and jurisdiction is Germany. The legal relations between MELAG and the contractor are governed by the law of the Federal Republic of Germany to the exclusion of international uniform law. In particular, the application of the UN Sales Convention is excluded.
3. Delivery
3.1. The confirmed delivery times shall begin with the date of the order confirmation. On no account shall they begin before the customer has produced the documents, payments, advice notes, licences or approvals required.
3.2. Construction, form and colour changes that lead to improvement of the quality or service or are necessary due to requirements of the legislator or standardisation remain reserved insofar as the changes are not significant or are not unreasonable for the customer. Amendments to the technical design are permitted even of already ordered goods provided that a significant change to the function does not occur through this or the customer proves that the change is unreasonable for it. The same applies for the dimensions and weights of the item supplied.
3.3. MELAG is entitled to carry out partial deliveries that can be invoiced separately provided that this is reasonable for the customer in its interest. A partial delivery is reasonable particularly if it does not concern individual parts that were sold as belonging together.
3.4. The delivery dates indicated by MELAG are non-binding. Naturally, compliance with the delivery dates indicated is of the highest priority for MELAG.
3.5. Unless otherwise agreed, delivery shall invariably take place at the cost and risk of the customer. Risk shall transfer to the customer upon handover to the forwarder or transport person. Delivered items are to be accepted by the customer even if they exhibit minor defects. If goods are delivered with obvious transport damages, the customer must complain about these immediately to the deliverer and inform MELAG.
3.6. The installation of gas, water and electrical connections is not part of the delivery programme. Necessary connections (including any security measures, such as residual current devices or aquastop etc.) must be made by the buyer itself taking into consideration the applicable norms and provisions.
3.7. The export of certain goods, e.g. due to their type, purpose or final destination, may result in licensing requirements. In the case of exports, the customer is hereby referred to the relevant national and international export regulations, such as the export control provisions of the European Union.
3.8. Deliveries to customers are subject to the national or international regulations of foreign trade legislation, embargoes or other statutory prohibitions.
4. Delay in delivery, force majeure
4.1. In the event of non-compliance by MELAG with a delivery date, the customer must explicitly set an appropriate extension depending on the current order situation of MELAG (but at least 15 working days). In the event that this extension passes unused or MELAG declares that it is not able to deliver, the customer is entitled to withdraw from the agreement. The withdrawal must be made in writing within a week after expiry of the extension or declaration by MELAG. If there are framework agreements or successive delivery agreements, the right of withdrawal is restricted to the specific delivery or partial delivery.
4.2. The delivery period can be extended appropriately in the event of subsequent amendments desired by the customer.
4.3. If the agreed delivery period is not fulfilled as a result of force majeure, the delivery period shall be extended appropriately, but in any case by the period until discontinuation of the obstacle. MELAG shall inform the customer immediately about such a case. All claims (particularly claims for damages) of the customer due to a delay in delivery or withdrawal from the agreement because of force majeure are excluded.
4.4. Events of force majeure include all incidents, the causes of which lie outside the sphere of influence of MELAG, including, but not limited to:
4.4.1. industrial disputes of any kind, difficulties in the procurement of materials or transport opportunities, closed borders, official orders, export embargoes or other circumstances that impair operations at MELAG; or
4.4.2. pandemics, acts of wars, uprisings/revolution, terrorism, sabotage, arson, fire, natural disasters, failure to obtain the necessary official permits; or
4.4.3. delays or failures in delivery of a sub-supplier of MELAG in consequence of energy crises or raw materials supply crises, or if the procurement of raw materials cannot at economically acceptable conditions regarding price and/or quantity and this was not foreseeable for MELAG on conclusion of the agreement, as well as from all other causes for which MELAG is not responsible.
4.5. Liability for claims for damages of the customer in the case of slightly negligent behaviour in connection with a delivery delay or resulting withdrawal from the agreement is excluded. In any case, MELAG shall not be liable for lost profit or indirect damages due to non-compliance with a delivery date.
5. Prices
5.1. Unless otherwise agreed, the price list valid at the time shall apply where the price calculation shall be done at the conditions stated on the date of dispatch in each case.
5.2. All prices are in euros excluding any taxes due unless another currency has been agreed with the customer. Payments may only be made in the agreed currency. Additional costs arising are also to be borne by the customer.
5.3. The transport costs indicated shall apply for deliveries to the distributor and their shipping warehouses unless otherwise agreed.
5.4. In the event of deviating delivery addresses, drop shipments, and unless otherwise agreed with the customer, a calculation of additional costs incurred (packaging, transport) shall be made to the customer.
5.5. In the event of reduced quantities, the conditions of which are to be communicated to the customers, MELAG reserves the right to invoice a minimum quantity surcharge or a processing fee.
5.6. Returns of goods, to which MELAG is not generally obliged, is only permitted if the goods are in a resellable condition and in the original packaging, and the customer accepts a processing fee to be separately agreed..
5.7. The prices mentioned in the order confirmation are authoritative for orders and deliveries. Unless otherwise agreed, the prices shall apply ex works Berlin and do not include packaging, freight, insurance, customs and VAT. Packaging is calculated at cost.
6. Payment terms
6.1. Subject to an agreement or order confirmation to the contrary, invoices are to be paid strictly net within 30 days after the invoice date. Repairs and other services are to be paid strictly net within 8 days.
6.2. If there are outstanding claims from deliveries for which there is no retention of title or should this have already lapsed, incoming payments are to be credited first to these debts, and only after these have been fully covered to debts for which there is still retention of title. Partial payments of the customer are to be credited first to accrued costs and other additional fees (e.g. default interest, reminder fees), and only then to outstanding claims from deliveries. Contrary payment commitments of the customer are invalid.
6.3. If the payment of the customer is at risk because a significant deterioration in the financial circumstances of the customer occurs or threatens to occur after conclusion of the agreement, MELAG is entitled to make all debts due for payment immediately.
6.4. MELAG reserves the right to invoice the agreed service via post or electronically via email. All communications to the email indicated by the customer or other electronic addresses shall be considered received by the customer upon sending.
7. Retention of title
7.1. The item supplied shall remain the property of MELAG until complete payment of all claims from the business relationship with the customer (reserved goods). The customer is required to handle the reserved goods with care and ensure they have sufficient insurance cover.
7.2. The purchase price claim of the goods delivered under retention of title shall be considered assigned to MELAG as security upon resale by the customer (extended retention of title). On request, the customer must disclose to MELAG the debts assigned and its debitors as well as give all information necessary for the collection and hand over the related documents.
7.3. As long as the retention of title is in force, the customer may not pledge the goods delivered to it by MELAG as security. The conclusion of finance agreements (e.g. leasing agreements), which include the transfer of retention rights require prior written agreement from MELAG, unless the agreement obliges the financing institution to pay the proportion of the purchase price owed to MELAG directly to MELAG. The customer is prohibited from entering into agreements with its purchasers that have the potential to infringe the property rights of MELAG.
7.4. MELAG is entitled to withdraw from the agreement and to require return of the delivered goods in the event of any infringement of the agreement on the part of the customer, in particular late payment. Any transport costs arising in this context shall be borne by the customer. The customer shall also bear the responsibility and remain liable for the goods until MELAG has regained them. The customer hereby expressly and irrevocably allows MELAG to enter its business and storage premises unhindered and take the goods.
7.5. The customer undertakes to compensate MELAG for all damages and costs that arise through infringement of these obligations and through necessary intervention measures against access by third parties to the goods.
8 Warranty
8.1. MELAG shall undertake a warranty only for properties of the contractual goods expressly pledged in writing and legally required on the date of the transfer of risk to the extent of the following provisions. MELAG undertakes no warranty for defects that occur through normal wear and tear, through improper handling or use, through improper storage or other actions and omissions of the customer and third parties. Likewise, MELAG makes no guarantee for particular suitability or use or usability of the contractual goods unless these have been expressly agreed in writing.
8.2. The customer is explicitly obliged to inspect the goods for defects immediately after the delivery. If the customer wants to use or resell the defective goods that have been the subject of a complaint, this requires the prior written consent of MELAG. The following provisions shall also apply for the assertion of defects:
8.2.1. in the case of quantity defects (excess deliveries and shortfalls of delivery quantities according to the agreement), notice of defects must occur immediately, but in any case within seven days after receipt of documents that disclose the weight or quantity of items supplied, or after delivery;
8.2.2. if a quality defect is noticeable on inspection of the goods or their packaging or through sampling, notice of defects must take place immediately, but in any case within seven days after delivery;
8.2.3 if quality defects are not immediately noticeable through inspection or sampling, notice of defects must take place immediately after discovery of the defect. Defects/complaints brought later cannot be taken into consideration.
8.3. For notices of defects, the customer must describe the goods precisely, cite the defects claimed individually and in detail and, at the same time, make supporting documents available to MELAG. The notification must be made in writing to MELAG and, in the event that transport damages are suspected, also directly to the forwarder. If the notice of defect does not occur in accordance with the aforementioned provisions, all warranty claims, claims for damages and other claims of the customer shall be excluded.
8.4. The customer shall store the goods properly until clarification of the situation and insure the goods according to the purchase price in the interests of both contracting parties.
8.5. The warranty is excluded with respect to such defects that do not affect or only slightly affect the value and suitability of the goods for normal use recognisable for MELAG.
8.6. A defect of the delivery can be remedied through free repair of the goods delivered or an exchange at MELAG’s discretion. In the case of an exchange of goods, the customer isobliged to transfer back to MELAG the replaced or exchanged goods or parts.
8.7. If the improvement or exchange is impossible or associated with a disproportionately high cost for MELAG, the customer shall have the right to a reduction in price. Additional claims, particularly the right to conversion, compensation, lost profit or substitute performance, are excluded if statutorily permitted. The statutory assumption that the goods were defective on handover, if a defect occurs within the first six months after handover, is excluded.
8.8. The limitation period for claims for warranty regarding new goods amounts to 12 (twelve) months from transfer of risk, and 6 (six) months for used goods.
8.9. The removal of defects can be refused by MELAG if the customer is in default with its obligations.
8.10. In the case of natural wear and tear or if goods delivered are unauthorised and/or were altered through the installation of foreign parts and accessories and it cannot be excluded that the defect is due to this, claims for damages and warranty claims shall be eliminated.
9. Liability
9.1. Liability of MELAG for slight negligence is completely excluded with the exception of mandatory statutory provisions.
9.2. Existing claims for damages are limited on their merits to the amount of the purchase price of the delivery in question. Liability for lost profit, indirect damages and consequential damages is excluded.
9.3. Insofar as liability by MELAG for compensation is excluded or limited, this shall also apply to the personal liability of the employees, workersstaff, representatives and vicarious agents.
9.4. Claims for damages of the customer from defectiveness of the delivered goods themselves that are not raised within 6 (six) months from knowledge of the damage, but at the most within 12 (twelve) months from delivery, shall be considered expired. Other claims for damages must be raised within 12 (twelve) months from knowledge of damages and the liable party, otherwise they shall in turn be considered expired. If such limitation periods for the assertion of claims for damages cannot be legally agreed, these limitation periods shall be considered extended for the least possible minimum duration permitted.
9.5. The applicability of the reversal of the burden of proof pursuant to Article 1298 ABGB (General Civil Code) is excluded.
10. Product liability
10.1. The customer may only use the goods manufactured or marketed by MELAG for their intended purpose and must ensure that they are only surrendered for their intended use to persons familiar with the product risks and proper use or only marketed by such persons.
10.2. When using the goods delivered by MELAG, the customer is obliged to comply with its obligation under product liability law to provide a warning with regard to the goods delivered by MELAG.
10.3. The customer is obliged to observe the products marketed by it, including after they have been placed on the market, for harmful properties or dangerous consequences of use and to monitor the development of science and technology with regard to such products and to inform MELAG immediately of errors in the goods delivered by MELAG established due to these observations.
11. Returns policy
11.1. Unless otherwise regulated in these General Terms and Conditions, cancellation of a contract, an exchange of goods or return of goods is not possible for the customer for any another reason.
11.2. Orders for custom-made products cannot be cancelled. Nevertheless, if this happens MELAG shall calculate the total work performed up until that point or parts processed up to a maximum amount that corresponds to the value of the overall delivery.
12. Place of performance, place of jurisdiction, choice of law clause
12.1. The place of performance for deliveries of MELAG is Berlin.
12.2. In business dealings with business persons and legal persons under public law, the place of jurisdiction for all legal disputes from the contractual relationship shall be the registered office of MELAG Medizintechnik GmbH & Co.KG. MELAG is also entitled to assert claims at any other legal place of jurisdiction.
12.3. The legal relationships between the customer and MELAG are subject exclusively to the law of the Federal Republic of Germany.
13. Final provisions
13.1. Statements in the name of MELAG are only legally binding if they are made by the required number of persons authorised to represent MELAG (i.e. managing directors, authorised representatives, authorised officers).
13.2. All agreements between MELAG and the customer are required to be in writing. Verbal side agreements shall not be valid. Amendments and supplements to these General Terms and Conditions shall accordingly only be effective if they are agreed in writing. The requirement for the written form shall also be satisfied by email.
13.3. Should individual provisions of an individual agreement or of these General Terms and Conditions becompletely or partially ineffective, the rest of the provisions shall remain effective. In the event of partial ineffectiveness, the contracting parties undertake to replace the ineffective provisions with provisions that correspond as closely as possible to the purpose of the ineffective provisions.
13.4. The legal successors of the customer shall also be bound to the obligations from agreements that are concluded on the basis of these Terms and Conditions.
13.5. During the valid business relationship, the customer undertakes to disclose to MELAG immediately any change to the status of the person or the company of the customer as well as any change to the business address.
13.6. MELAG is entitled at any time to change or supplement these Terms and Conditions. The change shall enter into force with the agreement of the customer and shall apply for all business concluded after this point in time.
