Scope The general terms and conditions (hereinafter referred to as terms and conditions) apply to all current and future business relationships between the customer (hereinafter referred to as the purchaser or buyer) and TNI® medical AG (hereinafter referred to as the seller). The terms and conditions apply to both consumers and businesses as well as to legal entities under public law and special funds under public law. We do not recognize any conflicting or deviating terms and conditions of the purchaser unless we have expressly agreed to their validity in writing. If the terms and conditions only apply to consumers or businesses, this will be expressly stated and the relevant specific designation will be used.
Customers, consumers, entrepreneurs Consumers within the meaning of these terms and conditions are natural persons with whom a business relationship is entered into without this being attributable to a commercial or independent professional activity. Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into who act in the exercise of a commercial or independent professional activity.
Conclusion of contract Our offers in brochures, catalogues, advertisements, on the Internet, etc. – including with regard to prices – are subject to change and non-binding. A contract is only concluded upon our written (also electronically transmitted) order confirmation or upon delivery.
Prices and payment terms
4.1 Unless expressly stated otherwise, the prices quoted are “ex works” (in accordance with INCOTERMS 2010). Packaging is charged separately. If the customer is an entrepreneur, the prices quoted are exclusive of VAT, unless otherwise agreed.
4.2 Unless otherwise agreed, the invoice amount is due 14 days after the invoice date without deduction. The customer automatically defaults on payment upon expiry of the payment deadline, even if no reminder is sent. If the payment deadline is exceeded, 5% for consumers above the respective base interest rate per annum, will be charged on the invoice amount.
4.3 Our prices are based on our purchase prices and our material and personnel costs at the time of the offer or order confirmation. If the customer is an entrepreneur and we are not required to provide our services according to the contractual agreements until later than four months after the conclusion of the contract and a fixed price has not been expressly agreed, we can increase the agreed prices for our deliveries and services to the extent that our purchase prices and our order-related personnel and material costs have increased since the conclusion of the contract.
4.4 You may only offset our claims with counterclaims that have been legally established or are undisputed. You are not entitled to a right of retention from previous or other transactions in the current business relationship. The right of retention due to undisputed or legally established claims is excluded from this.
4.5 We charge a minimum order surcharge of €15.00 (net) for orders under €50.00 (net).
Delivery and transfer of risk
5.1 All deliveries are made “ex works” (in accordance with INCOTERMS 2010). The risk is transferred to the customer/buyer at the latest when the goods are dispatched from the seller’s warehouse. If dispatch is impossible or delayed due to circumstances for which the seller is not responsible, the risk is transferred to the customer/buyer from the day the goods are ready for dispatch.
5.2 The Seller is entitled to make partial deliveries and partial services at any time, unless otherwise agreed in writing.
5.3 The seller is not responsible for delays in delivery and performance due to force majeure and events that make delivery significantly more difficult or impossible for the seller, e.g. disruptions in the suppliers’ factories, even if binding deadlines and dates have been agreed. The seller is entitled to postpone delivery for the duration of the disruption.
5.4 If the purchaser/buyer defaults on acceptance, the seller is entitled to demand compensation for the damage incurred.
Claims for defects
6.1 If the customer is a consumer, we are liable for defects in accordance with the statutory provisions. Any claim for damages due to a defect, however, only exists within the limits of Section 7.
6.2 If the buyer is an entrepreneur, we are liable as follows:
6.2.1 If a delivery made by us proves to be defective, we are obliged to remedy the defect or deliver a replacement at our discretion. We will not bear the costs required for the purpose of subsequent performance, in particular transport, labour and material costs, to the extent that these are increased by the fact that the goods were brought to a location other than the place of performance. In the case of returns due to justified complaints, we will only reimburse the cheapest freight rate.
6.2.2 If the subsequent performance fails, the customer is entitled, at his discretion, to withdraw from the contract or to reduce the remuneration appropriately. In addition, the customer can demand compensation in accordance with clause 7. Further claims for defects are excluded.
Liability
7.1 We are liable for any breach of essential contractual obligations for which we are responsible in accordance with the statutory provisions. If the customer is not a consumer, however, we are only liable for the typically foreseeable damage, provided that we are not guilty of gross negligence or intentional conduct.
7.2 We are only liable for all other breaches of duty if damage was caused intentionally or through gross negligence by one of our legal representatives or by a vicarious agent. If the buyer is an entrepreneur, we are only liable if the damage was caused intentionally or through gross negligence by one of our legal representatives or by a senior vicarious agent. Liability under the Product Liability Act remains unaffected; this also applies to liability for culpable injury to life, body or health. If we provide a guarantee, we are liable in accordance with the statutory provisions. Unless otherwise provided above, claims for damages against us for breaches of duty are excluded.
7.3 If the customer is an entrepreneur and damage is caused by errors by a third party, we are entitled to assign our own claims for damages against the third party to the customer. In this case, we can only be held liable if the customer has unsuccessfully asserted claims against the third party in court. The customer is obliged to inform us immediately of the legal assertion of the assigned claims and to obtain our consent for all agreements relating to the assigned claims.
Retention of title
8.1 The goods remain our property until full payment has been made. Before ownership is transferred, pledging, transfer of ownership as security, processing or modification is not permitted without our consent. If the customer is an entrepreneur, the delivered goods remain our property until he has fulfilled all payment obligations arising from the entire business relationship with us.
8.2 The customer is obliged to treat the goods subject to retention of title with care, to store them separately from his other goods and to insure them adequately against fire, water damage, burglary and theft at his own expense. The insurance policy must be sent to us for inspection upon request. The customer assigns the claims against the insurance company to us. We declare the reassignment to the customer with the proviso that this reassignment becomes effective if and as soon as the retention of title has expired due to full payment of all claims against us. We are entitled to take back the purchased item if the customer acts in breach of contract.
8.3 In the event of third parties accessing the reserved property, in particular in the event of seizure, the customer will point out our ownership and notify us immediately so that we can enforce our ownership rights. If the third party is unable to reimburse us for the legal and extrajudicial costs incurred in this connection, the customer will be liable for this.
8.4 If the retention of title or the assignment is not effective under the law in which the goods are located, the security corresponding to the retention of title or the assignment of the goods in this area is deemed to have been agreed. If the cooperation of the customer is required for the creation of the rights, he is obliged, at our request, to take all measures at his own expense that are necessary to establish and maintain such rights.
8.5 If the goods are delivered to a reseller, the latter is entitled to resell the goods in the ordinary course of business. As a precaution, the reseller assigns to us all claims against its customers in the amount of the invoice value of the goods (extended retention of title). We grant the purchaser revocable authority to collect the claims assigned to us for our account in his own name. If the direct debit authorization is revoked, the purchaser is obliged to provide us with all information required to collect the claim on request and to hand over the documents required for this, including a list of all goods subject to retention of title and assigned claims. The purchaser is obliged to do so on request and we are entitled to notify the debtors of the assignment of the claim.
Final provisions
9.1 This contract and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
9.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance for all obligations of both contracting parties and the place of jurisdiction for all disputes in connection with this contract is our place of business. The same applies if a customer does not have a general place of jurisdiction in Germany or if his or her place of residence or habitual abode is not known at the time the action is brought. We are also entitled to sue at the place of business of the customer.
9.3 Should individual provisions of this contract be or become invalid in whole or in part or contain a gap, the remaining provisions shall remain unaffected. The provision that is invalid in whole or in part shall then be replaced by a provision that comes closest to the economic interests of the parties by mutual agreement.
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