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of FORESTADENT Bernhard Foerster GmbH, Pforzheim (October 01, 2018)
1.) Scope of application, diverging terms and conditions, future transactions
1.1) These General Terms of Sale, Delivery and Payment (hereinafter “GTC”) shall apply to all our offers and declarations of acceptance, contracts as well as deliveries and services.
1.2) The GTC are valid only for transactions with businesses within the meaning of Sec. 14 BGB. They apply exclusively and exhaustively. Any business terms and conditions of Buyer conflicting with or diverging from these GTC will not be accepted unless expressly approved by us in writing in the particular case.
1.3) In the case of continuous business relations, these GTC shall also apply to all future transactions without any express reference to these GTC being required.
2.) Written/text form, offers, effective contract
2.1) All offers and declarations of acceptance, amendments and other subsidiary arrangements and agreements made prior to or at the time of conclusion of a contract will only be effective if laid down in written form or text form (both jointly “written form” or “in writing” hereinafter).
2.2) Unless expressly specified or agreed as binding, our offers remain subject to change, especially as regards prices, quantities, delivery periods and delivery capacities. Buyer remains bound by his offer for four weeks and for two weeks in the case of goods which are in stock. A contract becomes effective only upon written confirmation of an order received by us but at the latest – sec. 2.1 notwithstanding, upon Buyer’s acceptance of the delivery.
3.) Prices, ancillary costs, price adjustments, currency
3.1) Except where agreed otherwise in writing our prices will be ex works Pforzheim, plus packaging and plus statutory value-added tax.
3.2) If delivery is made more than four weeks after signing of the contract and no fixed price has been agreed, we may, in the event of changes in cost, appropriately adjust the prices in accordance with the change in wages, salaries, taxes, shipping, material and production costs that has occurred in the meantime. The prices may not be increased for purposes of additional profit. If prices are increased by more than 5 % Buyer may withdraw from the contract.
3.3) Prices will be set in Euro currency, unless agreed otherwise. Where payment in a different currency has been agreed and the exchange rate between such currency and the Euro changes subsequently, the payment shall be based on the Euro price calculated in accordance with the exchange rate applicable on the day the goods are dispatched ex works Pforzheim.
4.) Payment terms, payment, default, setoff/right of retention, deterioration of financial situation
4.1) Unless otherwise specified or agreed, payments are due net within 30 days after invoicing; a 2 % cash discount may be applied to payments made within 14 days after invoicing. If payment is not made within 30 days Buyer will be in default.
4.2) In the event of default in payment we may charge interest at a rate of 9 % above the applicable base rate. We reserve the right to claim the statutory default lump-sum as well as to assert a higher damage caused by the default.
4.3) Bills of exchange will be accepted only upon separate agreement and only on account of payment. Credit notes for bills of exchange and cheques are subject to receipt and shall not affect any earlier maturity of the purchase price in the event of Buyer’s default. Their value date is the day on which the equivalent value is available to us. Discount and other charges will be borne by Buyer. In the event of self-discounting we may bill the customary bank discount charges.
4.4) Buyer may assert rights of setoff only on the basis of counterclaims that are established by final enforceable judgment, ready for decision or uncontested. Buyer may assert rights of retention only on the basis of counterclaims from the same contractual relationship that are established by final enforceable judgment, ready for decision or uncontested.
4.5) For international orders we may require payment against irrevocable letter of credit at our bank account or payment “cash against documents”.
4.6) If it becomes foreseeable after signing of a contract that our claim for counter-performance is at risk due to lack in performance capacity on Buyer’s part, we may refuse performance until Buyer has provided counter-performance or a security for it. We may set a reasonable respite within which Buyer, at Buyer’s option, has to counter-perform or provide security concurrently with the performance. Upon expiration of the respite we will have the right to withdraw from the contract and/or claim damages or reimbursement of expenses if the statutory requirements are fulfilled.
5.) Delivery, delivery deadlines/delivery periods, partial delivery, force majeure, delay in delivery, self-supplies
5.1) Unless otherwise indicated by us or agreed in writing, all delivery deadlines and delivery periods are nonbinding. Delivery periods start from the signing of the contract except where Buyer is obliged to make advance payment, in which case the delivery period shall start upon receipt by us of the performance owed by Buyer. Further, delivery periods start only after all preconditions for the fulfilment of the contract are met, especially after all details of the implementation are agreed. Timely delivery is subject to Buyer’s compliance with the agreed payment terms.
5.2) Early delivery and partial deliveries are permitted to an extent reasonably acceptable for Buyer.
5.3) In any event of force majeure or other unforeseeable circumstances, such as operational breakdowns, lawful strikes or lock-outs, import and export bans, government intervention etc., which temporarily hinder us through no fault of our own or imputable to us from delivering the goods by the deadline or within the period agreed upon with or without commitment, these deadlines/periods will be extended, including during the delay, in accordance with the duration of the hindrance caused by these circumstances. If such hindrance prevents performance for more than four months, either party may withdraw from the contract. If delivery becomes wholly or partially impossible or unacceptable as a result of such circumstances, we will to such extent be released from our delivery obligation and/or entitled to withdraw from the contract. Any statutory rights of withdrawal shall remain unaffected.
5.4) In any event of delay in delivery, Buyer may withdraw from the contract only after setting us a respite for delivery of at least four weeks.
5.5) In any event of delay in delivery we accept unlimited liability for cases of intent or gross negligence. In cases of ordinary negligence our liability shall be limited to damage foreseeable and characteristic for the contract but to a maximum of 5 % of the agreed price for the goods we are in default with.
5.6) In the event that we have not received at all or in due time supply of any goods ordered, we shall not be in default with the delivery to Buyer unless we are responsible for having received such supply with delay or not at all. We will be entitled to withdraw from the contract if it is established that we are not responsible for not having received supply of the goods ordered.
6.) Passing of risk
6.1) Unless agreed otherwise the goods will be shipped at Buyer’s expense and risk and the risk shall pass to Buyer upon handover of the consignment to the person in charge of transportation. If dispatch of the goods is delayed for reasons outside our control or if Buyer fails to accept the goods in due time although they were offered to him, the risk shall pass to Buyer upon service of the written notification that the goods are ready for dispatch. Any storage costs incurred after the passing of risk will be borne by Buyer.
7.) Reservation of title
7.1) The delivered goods shall remain our property until all claims under the contract as well as all other claims we may have subsequently acquired against Buyer in direct relation to the delivered goods, on whichever legal grounds, have been fully settled.
7.2) Further, the goods shall remain our property as goods subject to reservation of title until all other claims we may acquire against Buyer now or in future, on whichever legal grounds (including all unsettled balances from current account), have been settled. In the event of a current account the reserved goods serve to secure our unsettled balances.
7.3) Where the validity of this reservation of title is subject to any special conditions or formal requirements in Buyer’s jurisdiction, Buyer shall arrange for their fulfilment at his expense.
7.4) Buyer has the right to process and resell the goods in the ordinary course of business. The right of processing and resale will lapse if Buyer is in default with payment or has suspended payments not only temporarily. As long as we retain title to the reserved goods, we will have the right to revoke Buyer’s authorisation to process or resell the goods for legitimate reasons. Buyer herewith assigns to us any and all claims including ancillary rights he may acquire from the processing and resale of the goods. We do accept the assignation.
7.5) Buyer is authorised to collect the assigned claims until this authorisation is revoked. We may revoke the authorisation to collect the assigned claims for legitimate reasons. We are authorised to ourselves collect the claims but shall not do so as long as Buyer duly meets his payment obligations.
7.6) If Buyer fails to meet his payment obligations and we are therefore authorised to ourselves collect the claims, Buyer shall, on request, provide us with a list of all goods subject to our reservation of title, the assigned claims and the names and addresses of the debtors including the amount of the claims. On request Buyer will be obliged, and we will be entitled, to notify the debtors of the assignment of claims.
7.7) Any processing or alteration of the reserved goods will be carried out on our behalf and such that we are considered the manufacturer in accordance with Sec. 950 BGB. In the event of the reserved goods being processed, joined or combined by Buyer with other goods not owned by us, we will be entitled to co-ownership of the new product in accordance with the invoice value of the reserved goods relative to the invoice value of the other goods at the time of processing, joining or combining. We hereby offer to grant Buyer a contingent right to the joint owner-ship share that is created. Buyer herewith accepts this offer. If the reserved goods are sold together with other goods after processing, joining or combining, the assignment of the claim from the resale shall extend only to the amount of the invoice value of the goods delivered by us.
7.8) Buyer shall notify us in writing without delay of any third party attachments, e.g. execution measures, provide us with all information and documents required to protect our rights and notify such third party of our reservation of title.
7.9) If Buyer has suspended payments not only temporarily, petitions the opening of insolvency proceedings against his assets, or insolvency proceedings are opened against Buyer’s assets, Buyer, on our request, will be obliged to release to us any reserved goods still owned by us. Further, in the event of a breach of contract by Buyer, especially default in payment, we may demand that the reserved goods be released.
7.10) At Buyer’s request we, at our option, shall waive the reservation of title and/or release securities if Buyer has settled all claims relating to the reserved goods or if the realisable value of all securities granted by us by reservation of title, assignment by way of security and assignment of future claims exceeds the total sum of the claims against Buyer by more than 10 %.
8.) Notification of defects, warranty
8.1) If Buyer is a business within the meaning of the German Commercial Code, he shall inspect the goods promptly on delivery. Any obvious defects must be reported to us without delay but at the latest eight days after delivery. Any hidden defects must be reported to us without delay as well but at the latest eight days after their discovery. If no such notification is made the delivery will be deemed free from defects and approved.
8.2) If Buyer is not a business within the meaning of the German Commercial Code, he shall report any obvious defects at the latest two weeks after delivery of the goods; any warranty will be excluded for such defects if they are not reported in due time.
8.3) Any notification of defects shall be made in writing and include a sample showing the reported defects as well as the delivery note and batch numbers.
8.4) Any returns must be insured by Buyer as they are not covered by our insurance; we shall reimburse any such costs incurred as a result of justified complaints. Products subject to complaint shall be returned to us without delay at our request.
8.5) If Buyer reports a defect in due time in accordance with sec. 8.1 and 8.2 above, Buyer will be entitled to, at our option, rectification of the defect or delivery of a defect-free product at no charge.
8.6) Buyer agrees to indemnify us against any claims of third parties which are raised on grounds of improper processing by Buyer of the goods delivered by us.
8.7) The warranty shall be excluded for defects which were caused by normal wear and tear, excessive use or improper handling or which are a result of Buyer’s specifications.
8.8) With exemption of indemnity claims due to defects, all indemnity claims lapse twelve months after delivery of the goods to Buyer.
8.9) Buyer will be entitled to claim damages on the basis of defects only where our liability is not excluded or limited under sec. 9 of these GTC. Any further warranty claims or warranty claims other than those defined in this sec.8 are excluded.
8.10) All claims due to defects which we have fraudulently concealed or which are covered by any statutory guarantees or guarantees of durability remain valid.
9.1) We accept unlimited liability for intent and gross negligence. In the event of a breach by ordinary negligence of a major obligation or an accessory obligation whose breach puts the achievement of the contractual purpose at risk or whose fulfilment is essential to the due and proper implementation of the contract and on whose fulfilment Buyer could reasonably rely on (hereinafter “essential accessory obligation”), our liability shall be limited to damage characteristic for the contract and foreseeable at the time of conclusion of the contract.
9.2) We accept no liability for a breach by ordinary negligence of accessory obligations which are not essential accessory obligations in accordance with sec. 9.1 above.
9.3) The exclusions of liability set out in sec. 9.1 and 9.2 above shall not apply to claims based on injuries to life, limb or health, tortious acts, the liability for claims under the Product Liability Act, in the event of a warranty as to the quality or durability of the goods or fraudulent concealment of defects in the goods.
9.4) Where our liability is excluded or limited, this applies also to the personal liability of our employees, other staff members and vicarious agents.
9.5) To the exception of claims based on tort, Buyer’s claims for damages for which liability is limited under this section shall become time-barred one year after the beginning of the statutory limitation period.
10.) Intellectual property rights, indemnification
10.1) If any third party raises justified claims against Buyer on grounds of infringement of intellectual property rights by the goods delivered by us, sec. 8 will apply by analogy. We shall defend, indemnify and hold harmless Buyer against all justified claims raised by third parties, provided that (i) we are notified thereof by Buyer in writing with-out delay, (ii) we may assume exclusive control of the defence against any such claim and all related settlement negotiations, and (iii) Buyer provides us with the necessary information and authorisations.
11.1) Returns of defect-free goods are accepted on a voluntary basis only and are therefore subject to our prior written consent. Any such returns will be accepted only within one month after the invoice date and are subject to a handling fee of 5 % of the value of the goods.
12.) Plans, technical specifications
12.1) With regard to samples or other pieces manufactured by us on the basis of plans or technical specifications provided to us by Buyer, we accept no liability for defects or faults arising as a result of faults in Buyer’s plans or technical specifications unless we are responsible for the defect or fault. Any changes requested by Buyer by telephone are subject to Buyer’s written confirmation.
12.2) Any samples, drawings etc. which are part of our offer and are produced by us are for manufacturing purposes only. They remain our property and will not be delivered. Unless agreed otherwise in writing all tools for which Buyer pays a share of the tooling cost shall remain our property with no compensation for Buyer.
13.) Data protection
13.1) Buyer agrees to transmission of delivery address, order number, e-mail address and phone number to the respective freight forwarder or its agents or subcontractors for the purpose performing the obligations under the relevant shipping order. The above mentioned data is used for no other purpose.
14.) Place of performance, governing law, place of jurisdiction, arbitration, severability
14.1) The place of performance for deliveries and payments (including claims under bills of exchange and cheques) shall be our business domicile, unless agreed otherwise.
14.2) These GTC and all purchase contracts signed by reference to these GTC shall be governed by German law to the exclusion of the UN Sales Convention.
14.3) Except where we exercise our right to initiate arbitration proceedings according to sec. 13.4 and provided that Buyer is a business, a public law entity or a public law fund or has no general place of jurisdiction in Germany, the court having jurisdiction for our domicile shall be the place of jurisdiction for any and all disputes arising between us and Buyer out of the contractual relationship. However, we may also sue Buyer at any other legal place of jurisdiction.
14.4) Instead of proceedings before an ordinary court of law according to sec. 13.3, we may alternatively initiate arbitration proceedings in accordance with the terms laid down in the following paragraph, recourse to the ordinary courts of law being excluded in this case. If Buyer has asserted claims against us and intends to take legal steps, we may choose between ordinary court proceedings and arbitration within 21 days after receipt of Buyer’s written request. If we do not exercise this option at all or in due time, Buyer may choose between ordinary court proceedings and arbitration. In the event of arbitration all disputes shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V., DIS) without recourse to the ordinary courts of law. The forum of arbitration shall be at our domicile. The arbitral tribunal shall be composed of three arbitrators if the value in dispute exceeds EUR 50,000.00 and of one arbitrator in all other cases. The language of the arbitral proceedings shall be German.
14.5) If any provision of these GTC is or becomes invalid, nothing in this shall prejudice the validity of the re-maining provisions hereof.
Bernhard Foerster GmbH
Westliche Karl-Friedrich-Straße 151 · 75172 Pforzheim · Germany
Tel. + 49 7231 459-0 · Fax + 49 7231 459-102 · firstname.lastname@example.org · www.forestadent.com
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