I. General provisions
1. These Delivery and Payment Conditions apply exclusively for all contracts (including in the future) with companies, legal persons under public law or public law special funds on deliveries or other services, including work contracts, of medianetics GmbH (hereinafter referred to as the Supplier).
2. Terms of purchase of the contract partner (hereinafter referred to as the Customer) shall not be recognised even if we do not explicitly object to them again following receipt by the Supplier.
II. Offer, the conclusion of the contract and the scope of the delivery obligation
1. Offers are subject to confirmation. Oral agreements, promises, warranties or guarantees of employees of the Supplier in connection with the conclusion of the contract and electronic, telephone or oral supplements, arrangements or additional agreements shall only become binding after written confirmation by the Supplier.
2. An order shall only be deemed to be accepted once it has been confirmed by the Supplier in writing. The written order confirmation shall be decisive with regard to the scope and terms and conditions of the delivery. Obvious errors in offers, including calculation and spelling mistakes, shall not be binding.
III. Carrying out the deliveries; delivery periods and deadlines
1. The Supplier’s delivery obligation is subject to correct and timely delivery by our own suppliers, unless the Supplier is responsible for the incorrect or late delivery by its own suppliers.
2. Information on delivery periods is approximate, unless a delivery period is explicitly agreed as binding in writing. Delivery periods shall begin with the date of the order confirmation and are only effective subject to timely clarification of all the details of the order and timely fulfilment by the Customer of all its obligations, such as the provision of letters of credit and guarantees or making advance payments.
3. Delivery periods shall be appropriately extended, including in the event of default, if events of force majeure occur or unforeseen obstacles arise which are beyond the Supplier’s control.
4. The moment when the goods are dispatched from the plant or warehouse shall be decisive with regard to compliance with delivery periods and deadlines. If the goods cannot be dispatched in good time without any fault on the part of the Supplier, they shall be deemed to have been complied with upon notification that the goods are ready to be shipped.
IV. Prices and payment terms
1. Unless otherwise agreed, prices and terms shall apply according to the Supplier’s price-list effective upon the conclusion of the contract plus VAT in the current statutory amount.
2. If charges or other external costs which are included in the agreed price change or newly arise later than four weeks after the conclusion of the contract, the Supplier shall have the right to change its price accordingly.
2.1 Online shop
During the selection of products via the quick order list, prices for those goods will not be displayed either in the product description or in the virtual shopping cart. The effective prices individually negotiated between the Supplier and the Customer upon the conclusion of the contract plus transportation costs and the currently applicable VAT shall apply. In the event of ambiguities with regard to the applicable prices, the Customer can get in touch with its contact person at the Supplier.
3. In the absence of a specific agreement or information in the Supplier’s invoices, the purchase price shall be due immediately after delivery without any discount deduction and payable such that the Supplier can dispose of the funds on the due date. The costs of the payment transaction shall be borne by the Customer. Any right of retention or setting off due to possible counterclaims of the Customer is excluded, unless a counterclaim is undisputed or has been established with legally binding effect.
4. Promissory notes and cheques will only be accepted by way of payment. The costs of discounting and collection shall be borne by the Customer.
5. In the event the payment date is exceeded or the Customer defaults, interest shall be charged in the amount of eight percentage points over the base interest rate, unless higher interest rates have been agreed.
6. The Customer shall be deemed to be in default no later than 10 days after the due date and receipt of the invoice/payment schedule or receipt of the performance.
7. If it becomes clear after the conclusion of the contract that the Supplier’s payment claim is jeopardised due to the Customer’s insufficient financial capacity, the Supplier shall have the rights provided for in § 321 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) (Plea of uncertainty). The Supplier shall then have the right to demand the immediate settlement of all unexpired claims from the current business relationship with the Customer. The plea of uncertainty shall also extend to all other outstanding deliveries and services from the business relationship with the Customer.
V. Shipping, transfer of risk, packaging and partial deliveries
1. The Supplier shall select the shipping route and means of transport, as well as the forwarder and carrier. Shipping will be carried out for the Customer’s account and at its risk. Special shipping instructions shall require an agreement when the order is placed.
2. Packaging will be charged at cost. We shall provide packaging, protection and/or transportation aids based on our experience, at the Customer’s expense. They will be taken back at the Supplier’s warehouse. The Supplier shall not bear the Customer’s costs for the return transport or for its own disposal of the packaging.
3. For all transactions, including in the case of carriage paid and free of charge deliveries, the risk, including the risk of seizure of the goods, shall transfer to the Customer upon the handover of the goods to a forwarder or carrier and no later than the time when the goods leave the warehouse or the Supplier’s plant. The Supplier shall only take out insurance at the instruction and expense of the Customer. The unloading obligation and the related costs shall be borne by the Customer.
4. The Supplier has the right to provide partial deliveries to a reasonable extent. Excess or short deliveries relative to the agreed quantity such as are usual in the industry are permissible.
VI. Liability for material defects
1. Material defects in the goods must be reported in writing without delay and no later than seven days after delivery. Material defects that cannot be identified within that time limit even by way of an examination carried out with the utmost care must be promptly reported in writing after they are discovered and no later than before the end of the agreed or statutory time limitation period, and any processing must be immediately ceased.
2. After the Customer has carried out an agreed acceptance of the goods, any complaints regarding material defects that could be identified in the agreed type of acceptance shall be excluded.
3. In the event of a legitimate, timely complaint, the Supplier will be able to either eliminate the defect or provide a defect-free item, according to its choice (supplementary performance). If the supplementary performance fails or is refused, the Customer will be able to reduce the purchase price or, following the ineffective lapse of reasonable time limit set by it, rescind the contract. If the defect is not substantial, it shall only have the right to a price reduction.
4. If the Customer does not promptly give the Supplier the opportunity to confirm the existence of the material defect, in particular if it fails to promptly make the goods being the subject of the complaint or samples thereof available at its request, its rights in the event of a material defect shall be forfeit.
5. For used and repaired machines, the liability due to material defects is excluded.
6. In the event of material defects, autonomous repairs by the Customer or interventions are impermissible. In the event of inappropriate handling, use of products in premises with a high level of humidity and/or dust formation or with abnormal temperature or electricity fluctuations, any liability due to material defects shall be excluded, unless the Customer proves that such external circumstances were not the cause of the material defect.
7. Expenses related to the supplementary performance shall only be borne by the Supplier insofar as they are reasonable in an individual case, particularly in relation to the purchase price for the goods. Expenses which arise as a result of the sold goods being relocated to a place other than the head office or branch of the Customer shall not be borne by the Supplier unless such relocation is in keeping with their contractually agreed use.
8. Recourse claims of the Customer under § 478 BGB remain unaffected.
VII. General limitation of liability, time limitation
1. The Supplier shall only be liable for breach of contractual or non-contractual obligations, particularly due to impossibility, default, culpability upon the initiation of the contract or impermissible action, including for its managerial employees and other vicarious agents, in cases of wilful misconduct or gross negligence and limited to the losses under a typical contract that were foreseeable upon the conclusion of the contract.
2. These limitations shall not apply in the event of a culpable breach of key contractual obligations, provided that the achievement of the objective of the contract is jeopardised, or in the event of mandatory liability under the German Product Liability Act (Produkthaftungsgesetz) or loss of life or damage to the body or health, or if and insofar as the Supplier fraudulently concealed the defects or guaranteed their absence. The rules on the burden of proof remain unaffected by this.
3. Unless otherwise agreed, any contractual claims that arise for the Customer against the Supplier due to or in connection with the delivery of the goods shall expire by time limitation one year after the delivery of the goods. This time limit also applies for goods which are used for a building structure in accordance with their usual purpose and cause it to be defective. This does not affect the Supplier’s liability for breaches of obligation due to wilful misconduct or gross negligence or the time limitation of statutory recourse claims. In cases of supplementary performance, the time limitation period shall not begin to run anew.
VII. Retention of ownership
1. The Supplier shall retain the ownership title to the goods until all its receivables against the Customer from the business relationship, including receivables arising in the future (also from contracts concluded at the same time or later), have been settled. In this relationship, all deliveries of the Supplier shall be deemed to be a single contract. Pecuniary claims in this sense are the current account balance consisting of receivables of any kind due to the Supplier, including the amount of any current cheques or promissory notes.
2. The Customer shall have the right to resell the goods in the course of its normal business activities, subject to the condition that the receivables from the resale transfer to the Supplier as follows. The Customer assigns to the Supplier already now all receivables along with all ancillary rights that accrue for it from the resale against its Customers or against third parties, irrespective of whether the goods subject to retention of title are resold without or after processing. The Customer shall still have the right to collect those receivables after the assignment. The Supplier’s authorisation to collect the receivables itself is not affected by this. However, the Supplier undertakes not to collect the receivables as long as the Customer properly fulfils its payment obligations. The Supplier shall be able to demand that the Customer inform it of the assigned receivables and the debtors, provide it with all the information necessary to collect them and the relevant documents and notify the debtors of the assignment. If the goods are resold together with other goods that do not belong to the Supplier, the Customer’s claim against its customer shall be deemed to be assigned in the amount of the delivery price agreed between the Supplier and the Customer.
3. Processing of the goods subject to retention of title shall be carried out for the Supplier as the manufacturer in the meaning of § 950 BGB, without giving rise to any obligation on it. The processed goods shall be deemed to be goods subject to retention of title in the meaning of these terms and conditions. If the goods subject to retention of title are processed or inseparably combined with other items that do not belong to the Supplier, the Supplier shall acquire co-ownership in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used at the time of the processing or combining. The co-ownership rights thus arising shall be deemed to be goods subject to retention of title in the meaning of these terms and conditions. If goods of the Supplier are connected to or inseparably combined with other movable items to create a single item and the other item is to be considered the main item, it shall be deemed to be agreed that the Customer transfers pro rata co-ownership to the Supplier, provided that the main item belongs to it. Otherwise, the same conditions shall apply to the item resulting from the processing or connection or combining as to the goods subject to retention of title.
4. The Supplier undertakes to release the security to which it is entitled according to its choice at the Customer’s request to the extent that its value exceeds the claims to be secured, not only temporarily, by more than 20%. The reference value for the calculation of the value is the invoice value of the goods.
5. Pledging or assignment as security or other assignment of receivables from resale are impermissible. The Supplier must be immediately notified in the event of any attachment by third parties.
6. If the Customer is late in fulfilling its payment obligations, the Supplier shall have the right to take back the goods subject to retention of title and if necessary enter the Customer’s premises for that purpose. The same applies if, after the conclusion of the contract, it becomes clear that the Supplier’s claim to payment under this or other contracts with the Customer are jeopardised due to its insufficient financial capacity. Taking back goods does not constitute rescission of the contract. The provisions of the German Insolvency Act (Insolvenzordnung) remain unaffected. In the event the goods are taken back, it will occur at the fair value with the deduction of at least 25% of the purchase price and the costs incurred on transport, installation and dismantling.
7. The Customer shall be obliged to insure goods subject to retention of ownership of the Supplier, particularly machines, in favour of the Supplier against all typical risks and to notify third parties of the Supplier’s ownership rights.
IX. Place of performance, place of jurisdiction and applicable law
1. The place of performance of the Supplier is the respective delivery site. The place of performance for all obligations of the Customer is Frankfurt am Main. The place of jurisdiction is Frankfurt am Main or the Customer’s registered office, according to the Supplier’s choice.
2. German law applies exclusively. The provisions of the Convention of 11 April 1980 on Contracts for the International Sale of Goods do not apply.
X. The effectiveness of the contract
The contract shall continue to be binding even if individual points of its provisions are legally ineffective. Void or ineffective provisions shall be reinterpreted so that their purpose can be effectively achieved.
Heinrich Baumann Grafisches Centrum GmbH & Co.KG
Oberbieler Straße 1-3, D-35606 Solms
Managing Director: Christian Baumann
Commercial register: District Court for Wetzlar, HRA 7683
VAT Identification Number: DE198976522