General Terms and Conditions
I. General, scope of application
The deliveries, services and offers of MEDAN GmbH (hereinafter referred to as ME) shall be made exclusively on the basis of these terms and conditions. These shall apply to all current and future business relations, even if they are not expressly agreed again. By placing an order, the buyer declares that he is aware of the terms and conditions and that he agrees to them. Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract even if ME is aware of them, even if ME does not object to these terms and conditions, unless their validity is expressly agreed in writing.
II. Offer and conclusion of contract
1. Unless expressly stated otherwise, ME's offers are subject to change and non-binding. The documents belonging to the offer such as illustrations, drawings, weights and dimensions are only approximate unless they are expressly designated as binding. ME reserves the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties.
2. With the order, the buyer bindingly declares that he wishes to purchase the ordered goods.
3. ME shall be entitled to accept the contractual offer contained in the order within 2 weeks of receipt. Acceptance may be declared either in writing or by delivery of the goods to the buyer. Information communicated by ME regarding goods and services shall only become part of the contract if they are listed in a binding offer, a written order confirmation or a written contract. Information and offers refer to normal standard quality and execution. General information on quality and execution shall only be regarded as average values, ancillary agreements and changes shall require MEDAN's written confirmation.
4. Any discrepancies between the invoice or delivery note and the goods actually delivered must be notified in writing by the buyer without delay, no later than 3 days after receipt of the goods.
5. The contract shall be concluded subject to correct and timely delivery by ME's suppliers. This shall only apply in the event that ME is not responsible for the non-delivery, in particular if a covering transaction is concluded with ME's supplier. The buyer shall be informed immediately of the non-availability of the service. The consideration shall be refunded immediately.
III. Prices
1. For products distributed by ME, the price list valid on the day of delivery shall apply.
2. Prices are ex warehouse, excluding packaging, transport, insurance and installation. Shipping costs and insurance costs pursuant to clause V of the terms and conditions shall be borne by the client, unless a different arrangement has been expressly agreed, which must be in writing.
3. All prices are subject to the statutory value added tax applicable at the time. ME price lists do not constitute a contractual offer.
IV. Terms of delivery and transfer of risk
1. Delivery dates or deadlines, which are agreed to be binding or non-binding, must be in writing.
2. The delivery period shall commence with the dispatch of the order confirmation, but not before the provision of the documents, approvals, releases to be provided by the Purchaser and before receipt of an agreed down payment.
3. The agreed delivery period shall be deemed to have been met if the consignments have left the warehouse or if they are ready for dispatch within the period and the buyer has been notified thereof.
4. The delivery obligation shall end if the delivery becomes completely or partially impossible due to force majeure or other unforeseeable events. This shall also apply if these circumstances occur at a supplier of ME. In these cases, ME may either withdraw from the contract or postpone delivery for the duration of the impediment plus a reasonable start-up period. In the latter case, the buyer shall not be entitled to withdraw orders, reject partial deliveries or make claims for damages of any kind. ME may only invoke the aforementioned circumstances if it has notified the customer immediately.
5. The risk shall pass to the buyer as soon as the delivery has left ME's warehouse upon collection, otherwise in the case of shipments upon handover to the carrier or forwarding agent. This shall also apply if the shipping costs are borne by ME by special agreement or the shipment is made with ME vehicles.
6. If shipment becomes impossible through no fault of ME, the risk shall pass to the buyer upon notification of readiness for shipment.
V. Insurance
1. ME shall insure all deliveries against loss, theft or other transport damage at the expense of the customer, subject to special specifications by the customer.
2. The customer is obliged to take the necessary measures according to local law in order to be able to settle damage caused by transport.
VI. Payment
1. The terms of payment stated in ME's order confirmation shall apply. A prerequisite for any agreed cash discount is that the buyer is not in arrears with the fulfilment of other claims. A cash discount deduction on offset credit amounts is not permitted.
2. If reminders become necessary after expiry of the payment deadline, the costs incurred as a result will be charged to the customer.
3. From the due date, ME shall be entitled to charge interest on arrears at a rate of 8% above the discount rate of the European Central Bank applicable at the time; vis-à-vis consumers at a rate of 5% above the discount rate of the European Central Bank applicable at the time.
4. In the event of default in payment of an invoice, all other outstanding invoices shall become due for immediate payment regardless of their due date.
5. ME shall be entitled to offset payments against the buyer's older debts first, despite any provisions of the buyer to the contrary. If interest and costs have already been incurred, ME shall be entitled to offset the payment first against the costs, then against the interest and finally against the main performance. ME shall inform the buyer of the type of set-off made.
6. Insofar as the customer does not fulfil his payment obligations, in particular does not honour a cheque and stops his payments or ME subsequently becomes aware of unfavourable circumstances regarding the financial circumstances or creditworthiness of the contractual partner, ME shall be entitled to demand advance payment or securities with regard to all other contracts as well as to withdraw from the contracts after a reasonable period of grace and to demand compensation for damages due to non-fulfilment.
7. The buyer is only entitled to set-off if his claims are undisputed or have been legally established. The buyer may only exercise a right of retention if his counterclaim is based on the same contractual relationship and the counterclaim is undisputed or legally binding.
8. ME may demand advance payment from a buyer if, according to information from a bank, Schufa or similar institutions, punctual payment of the purchase price does not appear to be guaranteed. If in this case the buyer does not pay the purchase price within two weeks of being requested to do so by ME, the latter may withdraw from the contract. ME shall then be entitled to claim damages in the amount of 25% of the agreed net purchase price. The customer shall be entitled to prove a lesser damage.
VII. Retention of title
1. The goods delivered by ME shall remain the property of ME until payment of the entire claim arising from the contractual relationship, in particular until settlement of any current account balance and, in the case of payment by cheque, until it has been successfully cashed.
2. In the event of breach of contract by the buyer, in particular in the event of default of payment, ME shall be entitled to take back the delivery item and the buyer shall be obliged to surrender it. The taking back of the delivery item by ME, unless provisions of the Consumer Credit Act apply, shall not constitute a withdrawal from the contract unless ME has expressly declared this in writing. In the event of processing or treatment of the goods by the buyer as well as combination or mixing with third-party items, ME's retention of title shall also extend to these new items and the claims arising therefrom. ME shall be deemed the manufacturer in this respect and shall acquire ownership thereof in accordance with §§ 947, 948, 950 BGB. If the delivery item is processed with other items not belonging to ME, ME shall acquire co-ownership of the new item in proportion to the other processed items at the time of processing.
3. Until all claims have been paid in full, the goods may not be pledged, transferred by way of security or otherwise encumbered with the rights of third parties. ME shall be notified immediately by registered letter of any such access by third parties. The buyer may only resell the delivered goods - regardless of whether they are unprocessed, processed or combined - in the ordinary course of business, as long as he is not in default The buyer hereby assigns to ME by way of security all claims to which he is entitled from the resale or for any other legal reason in respect of the goods (including all current account balance claims). If the buyer does not fulfil his payment obligation in this case, ME shall be entitled to notify the buyer's customers and demand payment to ME. In this case, the buyer shall be obliged to immediately make available to ME all evidence, documents and information required to assert this claim.
4. ME revocably authorises the Buyer to collect the claims assigned to ME for its account in its own name. This direct debit authorisation can only be revoked if the buyer does not properly fulfil his payment obligations.
5. The consent to resale does not, however, extend to the sale to a third party who makes the assignment of the claims owed by him dependent on his consent.
6. ME undertakes to release the securities to which it is entitled at the buyer's request as soon as they are no longer required to secure the claims not only temporarily, in particular insofar as they sustainably exceed the value of the claim to be secured by more than 20%.
VIII. Warranty
1. ME does not provide any warranty for insignificant deviations due to manufacturing that do not affect the external appearance or the functionality.
2. ME warrants that the delivered goods are free from material manufacturing or material defects.
3. The warranty shall be limited to rectification or replacement at ME's discretion. Should the rectification or replacement delivery fail, the buyer shall be entitled to demand a reduction of the purchase price (abatement) or cancellation of the contract (redhibition). However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the buyer shall not be entitled to the right of rescission. Replaced parts shall be excluded from ownership.
4. The buyer is obliged to notify ME of obvious defects within a period of two weeks from receipt of the goods; otherwise the assertion of the warranty claim is excluded. Timely dispatch shall be sufficient to meet the deadline. The buyer shall bear the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
5. If the buyer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect. If the buyer chooses compensation for damages after a failed supplementary performance, the goods remain with the buyer if this is reasonable for him. The compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if ME has fraudulently caused the breach of contract.
6. The warranty period is 6 months from the transfer of risk of the goods. The warranty is excluded for used products.
7. As a matter of principle, only the manufacturer's product description shall be deemed agreed as the quality of the goods. Public statements, recommendations or advertising by the manufacturer do not constitute a contractual quality of the goods. If the buyer receives defective assembly instructions, ME shall only be obliged to supply proper assembly instructions and only if the defect in the assembly instructions prevents proper assembly.
8. No warranty is assumed for damage caused by the following reasons: Unsuitable or improper use, faulty assembly or commissioning by the buyer or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, replacement materials, faulty machining, unsuitable building ground, chemical electrochemical or electrical influences, insofar as they are not the fault of ME.
9. The buyer shall, after consultation with ME, give ME the necessary time and opportunity to carry out all repairs or replacement deliveries which ME deems necessary in its reasonable discretion. Otherwise ME shall be released from liability for defects. Only in urgent cases of danger to operational safety and to prevent disproportionately large damage, in which case ME shall be notified immediately, or if ME is in default with the rectification of the defect, shall the buyer have the right to rectify the defect itself or have it rectified by third parties and to demand reimbursement of the necessary costs from ME.
10. Modification and repair work carried out improperly by the buyer or third parties without prior approval by ME shall exclude liability and warranty.
IX. Limitations of liability
1. Claims for damages arising from impossibility of performance, from positive breach of contract arising from culpa in contrahendo and from tort shall be excluded both against ME and against its vicarious agents or persons employed in the performance of its obligations, unless the costs incurred are charged to the customer intentionally. or gross negligence is involved. This shall also apply to claims for damages due to non-fulfilment, but only to the extent that compensation is demanded for indirect or consequential damage caused by a defect, unless liability is based on a warranty which is intended to protect the buyer against the risk of such damage. ME shall not be liable in the event of a slightly negligent breach of immaterial contractual obligations.
2. However, in the case of gross negligence, no compensation shall be paid to merchants for damage not typical of the contract and not foreseeable at the time of conclusion of the contract, unless compensation is to be paid on account of a warranted characteristic.
3. The above limitations of liability do not apply to claims of the buyer arising from product liability. Furthermore, the limitations of liability do not apply in the event of attributable bodily injury or damage to health or loss of life of the buyer.
Claims for damages by the buyer due to a defect shall become statute-barred after one year from acceptance of the goods.
4. This shall not apply if ME can be accused of gross negligence, as well as in the case of bodily injury and damage to health attributable to ME or in the case of loss of life of the buyer.
X. Severability clause
Should individual provisions of the contract, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
XI. Place of performance and jurisdiction
1. These terms and conditions and the entire legal relationship between ME and its business partners shall be governed exclusively by the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
2. The place of performance and jurisdiction for all disputes arising from the contractual relationship shall be the registered office of ME. The same shall apply if the contractual partner moves its domicile or usual place of residence abroad after conclusion of the contract or if its domicile or usual place of residence is unknown.
Status 6/2016
Technical changes, misprints or errors excepted.
MEDAN GmbH
Auf dem Brühl 6
D-72658 Bemplfingen
Tel: +49-7123.92 999 0
Fax: +49-7123.92 999 29
E-mail: info@medan-gmbh.com