General Terms and Conditions of Sale and Delivery for Products and Services of Geratherm Respiratory GmbH (“Supplier”)
1.1 Any delivery of goods and services by the Supplier to the Customer shall be subject to the Terms and Conditions of Sale and Delivery set forth herein (“GTC”) to the extent no other agreements have been explicitly made. As far as the Customer’s general terms and conditions are inconsistent with these GTC, their application shall be subject to the explicit written approval of the Supplier.
1.2 These GTC shall (i) also govern all future contracts on deliveries, services between the parties and (ii) shall also apply if the Supplier performs delivery or services despite the Suppliers knowledge of differing or contrary terms of the Customer.
1.3 Any receivables and claims held against the Supplier may not be assigned to third parties.
1.4 The sale, resale and the disposal of goods and services including any associated technology or documentation may be governed by German-, EU-, US-export control regulations as well as by the export control regulations of further countries. Any resale of goods to (i) embargoed countries, (ii) to denied persons and (iii) to persons that use or may use the goods for military purposes, ABC weapons or nuclear technology is subject to an official license. The Customer declares with his order the conformity with such statutes and regulations and that the goods will not directly or indirectly delivered into countries that prohibit or restrict the import of such goods and services. The Customer declares to have obtained all licenses required for export and import.
2. Offer and Acceptance, Information and Consultancy, Export and Import Permit, Order of the contractual Basis
2.1 Insofar as the order of the Customer constitutes an offer, the Supplier is entitled to accept the offer within two (2) weeks. The revocation or withdrawal of the offer by the Customer in accordance with Art. 15 para. 2 and Art. 16 para. 1 CISG is excluded.
2.2 A contract shall not be deemed to come into being until confirmed by way of an order confirmation in writing of the Supplier. The requirement of the written form is satisfied by a transmission by fax or e-mail. If there is no such confirmation in an individual case or if a contract comes into being without it, the offer of the Supplier shall be authoritative in determining the substance of such contract. Where the Customer and the Supplier have jointly signed a written document on a delivery and if such document contains all terms of contract, such document shall be equivalent to a written order confirmation.
2.3 Information and consultancy in relation to our goods and services given by the Supplier prior to the conclusion of the contract are subject to confirmation and non-binding unless expressly marked as being binding. They are provided as deemed appropriate from existing experience of the Supplier. Any values quoted as part thereof, especially performance data, represent average values which have been determined through experiments under standard laboratory conditions. The Supplier can`t assume any commitment for the products to precisely meet the quoted values and areas of application. Section 9 of these GTC governs any issues of liability of the Supplier.
2.4 If and to the extent deliveries and/or services of the Supplier are subject to the approval of an governmental authority, particularly subject to an approval according to the German Foreign Trade Ordinance (AWV), respective contracts with the Customer are entered into subject to the condition precedent that approval has been granted. The Supplier agrees to use its best efforts to obtain an export permit if required. But the Supplier does not guarantee that an export permit will be granted. The Customer shall be responsible for obtaining an import permit if so required.
2.5 Unless expressly stated otherwise, the order of priority of the terms and conditions that apply to the deliveries and services is as follows:
- the order confirmation of the Supplier, including product or service specifications resp. requirement documents;
- the offer;
- these GTC;
3.1 The prices quoted in the order confirmation of the Supplier shall solely apply. Additional services will be invoiced separately.
3.2 All prices are quoted as net prices and do not include value added tax, which is to be paid additionally by the Customer in the amount specified by applicable law.
3.3 For orders with a net goods value of less than 200.00 €, the Supplier is entitled to charge a small-order surcharge of 20,00 € net.
3.4 In Case of deliveries to and/or services in other countries, the customer has to consider and pay all costs for the contingent customs duties, taxes and public fees (in particular import sales tax and withholding taxes).
3.5 Unless otherwise expressly agreed, the prices of the Supplier are quoted ex works of the Supplier. The Customer shall bear all additional freight costs, insurance costs and packing costs in excess of standard packing.
4.1 Unless otherwise expressly agreed, the Supplier shall deliver ex works (FCA Incoterms® 2020) of the Supplier.
4.2 Delivery periods shall only be binding if expressly agreed in writing. The requirement of the written form is satisfied by a transmission by fax or e-mail. Delivery periods shall begin on the date of the order confirmation of the Supplier, however, in no case prior to settlement of all details relating to an order including the furnishing of any required official certificates. Delivery periods shall be deemed to be met on timely notification of readiness to ship if the goods cannot be dispatched in time through no fault of the Supplier.
4.3 With respect to delivery periods and dates, which are not expressly defined as fixed in the order confirmation, the Customer may -two (2) weeks after expiry of such a delivery period or date - set the Supplier an adequate grace period of at least four (4) weeks for delivery/service. The Supplier may only be deemed to be in default after expiry of such a grace period.
4.4 Without prejudicing our rights from Customer’s default, delivery periods and dates shall be deemed to be extended by the period of time during which the Customer fails to comply with his obligations to the Supplier. In case the Supplier don`t comply with his obligations, the Supplier shall only be liable for all types of damages in accordance with section 9 of these GTC.
4.5 The Supplier may perform partial deliveries and render partial services if such action would not unreasonably affect the Customer; this shall be deemed as partial fulfillment.
4.6 The Customer may declare the contract avoided after two unsuccessful grace periods unless the hindrance is merely temporary in nature and a delay would not unreasonably affect the Customer.
4.7 Any contractual or statutory right of a Customer to avoid the contract, which the Customer fails to exercise within a reasonable period of time of four (4) weeks at the longest set by the Supplier, shall be forfeited.
4.8 Force majeure and other events which make it very difficult or impossible for the Supplier to carry out the delivery, such as:
- disruption of operations,
- breakdown of machinery or equipment,
- energy supply difficulties,
- shortage of raw substantial materials,
- delay in the delivery of essential raw materials,
- transport delays,
- lawful lock-outs,
- actions by authorities (in particular government or supranational export control provisions, delivery embargoes or other sanctions; insofar as this does not fall within the scope of section 2.4 of these GTC),
- failure to deliver or late or incorrect delivery by the Supplier’s subcontractors
for which the Supplier is not responsible, shall release the Supplier from its obligations under the respective agreement, to the extent such events make it impossible or very difficult for the Supplier to meet its contractual obligations. The above shall also apply if force majeure or other aforementioned events occur for Subcontractors of the Supplier or their sub suppliers. Temporary hindrances shall only release the Supplier for the duration of such hindrance plus a reasonable period for restarting production. Where the Customer cannot be reasonably expected to accept such delay, it shall have a right to avoid the contract that it must exercise without undue delay as soon as it becomes aware of such events.
5. Shipment, Passing of Risk, Transfer of Documents
5.1 Unless otherwise expressly agreed, shipment shall always be carried out at the Customer's risk. The risk shall pass to the Customer as soon as the goods have been handed over to the person executing the shipment.
5.2 If a shipment is delayed for reasons to be attributed to the Customer, the risk of accidental deterioration, loss and destruction shall pass to the Customer on notification of Supplier’ readiness to ship of readiness to ship. Required storage costs after passing of risk shall be borne by the Customer. This shall not affect any other claims of the Supplier.
5.3If the Customer defaults in accepting, the Supplier shall be entitled to claim refund of any expenditure associated therewith and the risk of accidental deterioration, loss and destruction shall pass to the Customer.
5.4 The Customer shall provide reasonable assistance to the Supplier in obtaining preferential tariffs and other governmental benefits and submit to the Supplier all supporting records and documents, especially entry certificates, export certificates (consignment letters, loading lists etc.), which are requested by the Supplier for this purpose.
6.1 Unless otherwise agreed, the price agreed shall be due and payable within thirty (30) days from the date of the invoice without deduction.
6.2 If payment is fully made within ten (10) days, the Customer is entitled to a 2 % discount of the net price, in so far as the Customer is not in default with the payment of other claims of the Supplier.
6.3 If circumstances become recognizable for the Supplier that are apt to substantially diminish the Customer’s creditworthiness and to jeopardise settlement of our accounts receivable, the Supplier is permitted to render outstanding deliveries or services only against payment in advance or to require the provision of collateral security.
6.4 Payment shall be considered to have been made on the day the payable sum is received by the Supplier.
6.5 Immediately upon the due date of payment the Supplier shall be entitled to demand interest of nine (9) percentage points above the base lending rate p.a. The Supplier reserves the right to claim a higher actual damage.
6.6 Customers may only withhold or offset due payments against their own counter-claims if these are uncontested or have been found to be legally binding.
7. Retention of Title
7.1 Delivered goods shall fully remain property of the Supplier (“goods sold subject to retention of title”) until all receivables of the Supplier against the Customer, on whatever legal grounds, have been fully paid up.
7.2 The Customer shall handle the goods with due care, maintain suitable insurance for the goods and - to the extent necessary - service and maintain the goods.
7.3 In case of processing, combining or mixing of goods subject to retention of title with goods of the Customer, the Supplier shall be entitled to co-ownership of the new property inasmuch as the invoiced value of goods sold with retention of title relates to the value of the other involved goods. Where the Supplier co-ownership becomes null and void due to processing, combining or mixing with other goods, the Customer immediately assigns to the Supplier those of his rights of ownership in the new property or compound matter which correspond to the amount of the value of goods subject to retention of title by the Supplier. The Customer shall also be responsible for holding such rights in safe custody on the behalf of the Supplier and at Customer’s own expense. Any rights to co-ownership created as a result of such processing, combining or mixing shall be subject to section 7.1 of these GTC.
7.4 The Customer may resell, process, combine or mix with other property, or otherwise integrate goods under retention of title in normal business operations, as long as the Customer is not defaulting. The Customer shall be prohibited from taking any other disposition regarding goods for which the Supplier retains title. The Supplier shall be promptly notified about any hypothecation or other seizure of goods under retention of title through a third party. All intervention costs will be charged to the Customer if and to the extent that they cannot be collected from such third party. If the Customer grants his buyer additional time for payment of the sales price, Customer shall reserve title in goods resold with retention of Supplier’ title under the same terms which the Supplier has applied when delivering such goods with retention of title. The Customer shall be prohibited from any other kind of resale.
7.5 The Customer shall immediately assign to the accepting Supplier any receivables resulting from a resale of goods initially sold with retention of Supplier’ title. These will be used to substitute the goods under retention of title as collateral of the equivalent amount. The Customer shall only be entitled and authorized to resell such goods if his receivables therefrom accrue to the Supplier.
7.6 If the Customer resells goods under retention of our title together with goods from other suppliers at a certain total price, Customer shall assign to the Supplier his receivables from such resale in the same amount as stated in the invoice for goods initially sold with retention of title by the Supplier.
7.7 If an assigned receivable is included into a current account, the Customer immediately assigns to the Supplier that part of the balance which is equivalent to the amount of such receivable, including the final balance from current account operations.
7.8 Until the Supplier gives notice of revocation, the Customer shall be authorized to collect receivables assigned to the Supplier. The Supplier shall be entitled to such revocation if the Customer fails to meet his payment obligations under the business relationship with the Supplier in due course. If the preconditions for exercising a revocation right are fulfilled, the Customer shall promptly notify the Supplier of any assigned receivables with respective debtors, furnish all data required for collection of such receivables, hand over all related documentation and advise the debtors of such assignment. The Supplier reserves the right to personally advise the debtors of such assignment.
7.9 If the value of the collateral deposited for the benefit of the Supplier exceeds the amount of secured claims by a total of more than fifty (50) per cent, the Customer shall be entitled to demand that the Supplier insofar release securities of the choice of the Supplier.
7.10 If the Supplier claims retention of title, this shall only be understood as avoidance the contract rescind of the contract if expressly stated so by the Supplier in writing. The Customer's right to possess goods under retention of title shall be null and void if he fails to meet his contractual obligations.
8. Software rights
8.1 If the subject matter of contract includes or is exclusively confined to the delivery or permanent transfer for use of software, the Customer shall receive a non-exclusive right unlimited in terms of time and place to the use of the software, unless a separate licensing agreement has been concluded.
8.2 If the Customer does not use the deliveries or services by itself, but is rather passed on by it to a third party (“final customer”) in its entirety or as part of another delivery or service, the rights specified in section 8 of these GTC are only owed to such final customer. The Customer is obliged to procure that the final customer gives an undertaking to this effect.
8.3 The use of the given software must be confined to the scope defined in the pertinent contract. In case of a license confined to a specific device, the software may be installed and used only on a single device. In case of a server license, the software may be installed and used only on a single server. Use shall be limited to the number of natural persons that corresponds to the number of licenses acquired. Any use beyond the contractually agreed measure is not in conformity with the contract.
8.4 Permissible use comprises the installation of the software on a device or server, loading thereof onto a working memory, in each case to the extent required and feasible, and use thereof by the Customer for the intended purpose. In no event the Customer is entitled to let or otherwise sub-license the acquired software, to publicly communicate it or make it accessible wireless or wire-bound or to make it available to third parties against payment or free of charge. Section 8.6 of these GTC shall remain unaffected
8.5 No software, documentation or subsequent upgrade thereof may be disclosed to any third party, without the prior written consent by the Supplier, nor may they be altered, copied or otherwise duplicated, even for the Customer's internal needs – apart from a single backup copy for safety purposes. On a copy produced the purchaser will clearly display the words “backup copy” along with the Supplier’s copyright notice.
8.6 The Customer is entitled to transfer the acquired software to a third party for permanent - not for temporary - use. In that case, the Customer shall
- completely cease using the software,
- remove and erase all copies installed with the Customer and
- erase all copies installed on other data carriers with the Customer (complete with backup copies) unless it is obliged by law to preserve them for a longer period.
8.7 The Customer is required to confirm to the Supplier in writing at his request that it has carried out the measures listed in section 8.6 of these GTC or to state the reasons for preserving the software for a longer period. Where software is transferred to a final customer for its permanent use, the Customer is obliged to communicate to the Supplier the name and the full address of the final customer. The customer shall ensure that the final customer confirms to the Supplier in writing that it has received the software from the Customer.
8.8 Where software supplied by the Supplier is installed on hardware and expressly labelled as OEM software, the software may be transferred for use to a third party only jointly with such hardware. Data carriers supplied by the Supplier complete with OEM software copies are merely backup or recovery data carriers, which are not independently transferable. In all other respects, section 9.6 of these GTC shall apply.
8.9 The Customer undertakes to prevent its staff members and other third parties by taking suitable precautions from having unauthorized access to the software supplied and to the pertinent documentation, doing so in particular by storing the original data carriers and the backup copies in a secure place. Copyright notices, serial numbers and other program identifying marks must not be removed from the data carrier or from the documentation and must not be modified.
8.10 The deliveries may include third-party software which the Supplier undertakes to identify as such. The scope of rights of use to such software is primarily defined in the pertinent licensing conditions provided by the third-party producer. The above terms shall apply by way of supplement. The Customer is required to accept the licensing conditions of the third-party producer, failing which the Supplier is entitled to declare the contract avoided.
8.11 Typically, no source codes are provided. This shall require a special written agreement in each particular case.
9.1 Precondition for any warranty claim of the Customer is the Customer’s full compliance with all requirements regarding inspection and objection established by Article 38 and Article 39 CISG.
9.2 The goods claimed to be defective shall be returned to the Supplier for examination in their original or equivalent packaging. The Supplier shall remedy defects if the warranty claim is valid and within the warranty period. It is at the Supplier’ discretion whether the Supplier remedies the defect by repair or replacement. The Supplier shall only bear the costs necessary to remedy the defect.
9.3 The Supplier may refuse to remedy defects if the Customer has not complied with Supplier’ request to return the goods claimed to be defective.
9.4 The Customer shall be entitled to avoid the contract or reduce the contract price in accordance with his statutory rights, however, the Customer shall not be entitled to rescind the contract or to reduce the contract price, unless the Customer has previously given the Supplier twice a reasonable period to remedy the defect which the Supplier has failed to observe, unless setting of such a period to remedy defects is dispensable. In the event of the avoidance of the contract, Customer shall be liable for any intentional or negligent actions that cause destruction or loss of the deliveries and services already provided by the Supplier as well as for failure to derive benefits from the goods.
9.5 If the Supplier maliciously withholds disclosure of a defect or gives a quality warranty (a representation by the seller that the goods will have certain qualities at the time the risk passes and acceptance by seller of strict liability in the event that they do not), the Customer’s rights shall be governed exclusively by the statutory provisions.
9.6 Any rights of the Customer to receive damages or compensation shall be governed by section 9 of these GTC.
9.7 Specifications of the Supplier’ goods, especially pictures, drawings, data about weight, measure and capacity contained in offers and brochures are to be considered as average data. Such specifications and data shall in no way constitute a quality warranty but merely a description or labelling of the goods. Unless limits for variations have expressly been agreed in the order confirmation, such variations shall be admissible that are customary within the trade.
9.8 In regard to all deliveries or services, the Supplier warrants the compliance with the agreed and stated specifications provided that the use of the deliveries or services is confined in accordance with contract to the hardware and software environments (including the specified development level of the hardware and software environments) specified by the Supplier.
9.9 The Supplier shall not accept any liability for defects in the goods supplied if they are caused by normal wear and tear. The Customer shall have no rights against the Supplier in respect of defects in goods sold as lower-class or used goods.
9.10 Any warranty shall be void if operating or maintenance instructions are not observed, if changes are made to deliveries or services, if parts are replaced or materials used that are not in accordance with the original product specifications by the Supplier, unless the Customer can show that the defect in question resulted from another cause. This shall also apply where the deliveries or services of the Supplier are used in combination with third-party deliveries or services in a way that is incompatible with the product specifications or operating instructions of the Supplier or where the defect of the deliveries or services is based on design records or other standards provided by the Customer.
9.11 The Customer shall be obliged to notify defects to the Supplier in writing or via fax.
9.12 The limitation period for claims for defects shall be twelve (12) months. This shall not apply to Customer’s claims for damages based on damages of body or health caused by a defect for which the Supplier is responsible or claims for damages based on intentional or grossly negligent conduct by the Supplier.
10. Limited Liability
10.1 In case of a breach of contractual obligations, defective deliveries or tortuous acts, the Supplier shall only be obliged to compensate damages or expenses - subject to any other contractual or statutory conditions for liability - if the Supplier has acted intentionally or with gross negligence or in cases of minor negligence, if such negligence results in the breach of an essential contractual duty (a duty the breach of which puts the fulfilment of the purpose of the contract at risk). However, in case of minor negligence, the Supplier’ liability shall be limited to typical damages which are foreseeable at the time of the conclusion of the contract.
10.2 The liability of the Supplier for losses caused by late delivery due to minor negligence shall be limited to five (5) per cent of the agreed purchase price.
10.3 The exclusions and limitations of liability in sections 10.1 – 10.2 of these GTC shall not apply in cases of a quality warranty (see section 9.5 of these GTC), in cases where the Supplier has maliciously failed to disclose a defect, in case of damages resulting from death, injury to health or physical injury or where the laws on product liability impose overriding liabilities which cannot be excluded.
10.4 The limitation period for claims against the Supplier, based on whatever legal ground, shall be twelve (12) months from the date of delivery to the Customer and in case of tortious claims, twelve (12) months from the date the Customer becomes aware or could have become aware of the grounds giving rise to a claim and the liable person, had the Customer not been grossly negligent. The provisions in this clause shall neither apply in cases of intentional or gross negligent breaches of duty nor shall they apply in cases referred to in section 10.3 of these GTC.
10.5 The liability of the Supplier for software supplied by the Supplier shall be limited to liability for losses or alteration of data caused by the software; however, the Supplier shall not be liable for any losses or alteration of data which could have been avoided by the Customer’s compliance with its duty to secure such data at appropriate intervals and at least once per day.
11. Intellectual Property Rights, Copyrights
11.1 In the event of claims against the Customer because of breach of an industrial property right or a copyright in using deliveries or services supplied by the Supplier in accordance with the contractually defined manner, the Supplier shall be responsible to obtain the right for the Customer to continue using such deliveries or services, provided that the Customer gives immediate written notice of such third-party claims and the Supplier’ rights to take all appropriate defensive and out-of-court actions are reserved. If, despite such actions, it proves impossible to continue using the deliveries or services supplied by the Supplier under reasonable economic conditions, it shall be understood as agreed that the Supplier may, at the discretion of the Supplier, modify or replace the particular delivery or service for removal of a legal deficiency, or take back such delivery or service with refunding of the sales price previously paid to the Supplier less a certain deduction to account for the age of the delivery or service in question.
11.2 The Customer shall have no further claims alleging infringement of industrial property or copyrights provided the Supplier has neither violated essential contractual duties nor intentionally or grossly negligently breached contractual duties. The Supplier shall have no obligations in accordance with section 11.1 of these GTC in case breaches of rights are caused by exploiting the deliveries or services supplied by the Supplier in any other manner than contractually defined or by operating these together with any other than the Supplier deliveries or services.
12.1 Customer is obliged to closely observe the documents accompanying the goods and to ensure the correct disposal of the goods in accordance with the applicable law.
12.2 The Customer shall be obliged to dispose the goods at its own costs. The Customer shall be obliged to transfer this obligation on the purchaser of the goods or parts thereof in case of a resale of the goods.
The Supplier shall be entitled at any time, to assign individual rights and obligations under this contract to third parties, to retain sub-contractors to execute the order (in full or in part) as well as to assign the complete contract as such to another company affiliated to the Supplier without the Customer's previous consent.
14. Confidentiality, Data protection
14.1 The Supplier has the sole ownership and copyrights to its written offers, images, drawings, calculations and other records (including in electronic form). Without explicit approval of the Supplier in writing, such items must not be made accessible or known to third parties nor reproduced by the Customer itself or by third parties.
14.2 Unless otherwise expressly stipulated in writing, no information provided to the Supplier in connection with orders shall be regarded as confidential, unless their confidential nature is obvious.
14.3 The Supplier is entitled to store personal data in relation to the contractual relationship and to transfer such data to companies affiliated to the Supplier and subcontractors, except to the extent that this is incompatible with data protection regulations.
14.4 The Customer declares its consent to the storage of its data specified under section 14.2 of these GTC by making an inquiry to the Supplier, but no later than when a contract is established. Furthermore, the Customer declares its agreement that, if it violates the contract, the Supplier is allowed to forward this data to companies and persons whom the Supplier entrust with enforcing its own claims and rights.
14.5 The Customer has the option of revoking its consent to the aforementioned storage, use and processing of its data at any time. It can demand in writing at any time that its data be deleted. The Customer has the right to demand information at any time about stored data concerning it, the origin and recipient of the data, the use of the data and the purpose in this regard.
The Customer undertakes to comply with all statutory provisions, in particular in the areas of anti-corruption, competition and restrictive practices law. In particular, the Customer represents that it will refrain from offering, promising or granting staff members of the Supplier and persons close to them any unlawful benefits. The same obligations apply to those staff members of the Customer, its vicarious agents and other third parties who are acting on the Customer’s instructions and whom the Customer is required to commit accordingly.
16.1 Place of performance shall be the place of business of the Supplier.
16.2 The place of jurisdiction shall be the place of business of the Supplier. However, the Supplier may also take legal action against Customer at Customer’s place of business.
16.3 The United Nations Convention of 11. April 1980 on Contracts for the International Sale of Goods (CISG) in the english version governs the legal relationship between the Supplier and the Customer. The CISG applies, above and beyond its own area of application, and regardless of reservations adopted by other states, to all contracts to which these GTC are to be applied according to the provisions of section 1 of these GTC. Where standard terms of business are used, in case of doubt the Incoterms® 2020 of the International Chamber of Commerce apply taking into account the provisions stipulated in these GTC.
16.4 Should any of the clauses of these GTC be wholly or partially invalid or void, the validity of the remaining clauses or parts thereof shall not be affected.
17.5 This GTC shall be executed in German and English language. In the event of any inconsistency between the German and the English version the German version shall prevail.