Terms and Conditions
- General information
With respect to contracts with traders and retailers, the following terms and conditions apply exclusively. We herewith explicitly object to any terms and conditions of the buyer deviating from these conditions. Other conditions shall only apply if ABC Breast Care has expressed consent in written form. Any deviating agreements made by our staff shall only apply when confirmed by us in written form.
Except otherwise stipulated, our offers are non-obligatory. Orders are accepted through written confirmation or immediate execution. The placement of an order has a commitment period of 2 weeks. Design or technical specifications may be subject to alterations without prior notice.
Our prices as stated in our price list are net prices exclusive of statutory value added tax, customs duties and other public charges. Prices stated in existing contracts may only be changed if the interval between contract formation and execution exceeds a period of 4 months.
- Conditions of Payment
Subject to deviating arrangements in individual cases, orders are shipped on account, payable within 30 days. Subject to the following requirements, we grant 3 % prompt payment discount for full payment within 14 days after the date of invoice, as well as for payment via direct debit within 30 days. The buyer shall be in default 30 days after receipt of goods without the requirement of a warning.
Optionally, deliveries will be executed against cash on delivery or payment in advance. The applicable payment method will be stated in advance. Any stipulated discounts may only be deducted once all previous invoices have been settled. In the event of default, we shall be entitled to demand default interest in the amount of 9 % above the applicable base interest rate in accordance with § 247 BGB, starting with the first day of default. Both the buyer and ABC Breast Care are entitled to provide evidence for a higher or respectively lower loss/damage. The statutory interest rate shall hold as a minimum. Setoff of claims or assertion of a right of retention against our demands is only possible in case of undisputed, legal claims that have been acknowledged by ABC Breast Care.
For shipping, including insurance, the buyer will be charged at cost. Any information regarding delivery time and date is non-binding for ABC. However, we shall endeavor to the best of our ability to comply with the stated delivery deadlines. If a binding delivery date is exceeded or unreasonably prolonged, the buyer is entitled to withdraw from the contract after having set an appropriate period of grace of at least 14 business days. Compensation claims, including compensation for loss of profit or for consequential damage or loss, shall be excluded, unless we are culpable of intention or gross negligence. Saturdays are not business days. We do not take responsibility for the impossibility of deliverance or delay in delivery caused by unforeseeable circumstances concerning us or our suppliers. Unforeseeable circumstances can be force majeure, all forms of disruption in operations, delays caused by strikes, legal lockouts, or fire as well as the shortage of labor, energy or raw materials. The right to deliver by installments remains reserved.
- Returns and Exchanges
We are not obliged to exchange or refund a product that is free from defect or damage and that was delivered on time. If we, nevertheless, agree to a refund as an exception, we charge 10% of the net value as a processing charge. This charge will be announced prior to the execution of the exchange. Products are expected to be returned unaltered and undamaged in their original packaging. Special orders or reduced goods are excluded from any exchange or return.
- Passing of risk
Upon transfer of the goods, ABC shall pass the risk of accidental loss, in particular the risk of transportation, to the carrier (mail company, railway company, freight forwarder etc.). Upon unpacking or unloading of the goods in the warehouse, the risk shall be passed to the buyer. The buyer is responsible for transportation insurance. Where shipment is delayed due to circumstances within the control of the purchaser, the risk passes to the buyer upon notification that the commodities are available for dispatch.
- Guarantee and Liability
Notices of apparent transportation damage have to be substantiated by the carrier upon delivery. For any transportation damage that can only be noticed after the goods have been unpacked, ABC must be notified in written form immediately, but not later than within three business days from the date of delivery (receipt of the goods). In order to ensure timely, complete and fault-free delivery, the buyer is obligated to examine the goods supplied by us immediately. Any reports in respect to incomplete or incorrect deliveries or due to apparent defects and nonconformities are to be reported in writing promptly, however, not later than a week upon delivery. If no such report is made, the goods shall be deemed to have been approved. Any accommodating arrangements made as a gesture of goodwill shall not be binding for future business relations unless otherwise stated. Hidden damage or defects are to be reported instantly upon their being identified. The buyer is obliged to enable ABC or its vicarious agents to perform full examination of the deficient item during normal business hours. Hidden defects not discovered within this period despite careful examination must be claimed in writing immediately on identification. Any modification or attempt at repair to the commodities will void the warranty. The warranty period is 12 months, starting with the passing of risk, unless the existence of defects has been concealed fraudulently. In case of justified punctual complaint, we will, at our discretion, repair or exchange the defective goods or arrange for a credit note. Should we fail to comply with our warranty obligations, the customer is entitled to demand the cancellation of the contract.
Further claims of the purchaser, in particular compensation claims, are explicitly excluded. The preceding restriction to liability does not apply insofar as the cause of damage is due to malice or gross negligence of our executive employees, executive bodies or vicarious agents. The exemption from liability is also void if there was a quality warranty including the risk of consequential loss and the damage incurred is subject to its absence. Our liability shall be limited to foreseeable loss. We agree to full liability for culpable injury to life, body or health insofar as it arises from a grossly negligent violation committed by us or our vicarious agents. The preceding restrictions to liability do not affect any liability pursuant to the Product Liability Act or other mandatory, statutory provisions.
- Reservation of proprietary rights
All supplied commodities shall remain the property of ABC Breast Care until full payment of all claims has been received, including default charges and costs of legal enforcement.
The customer is only entitled to resell goods subject to retention of title as a proper course of business, if he agrees to transfer all claims – including future claims – that accrue from such resale, to ABC. If the goods sold under retention are reworked or assembled or compounded with objects being property of the buyer, the buyer yet assigns the claims resulting from the resale with all supplementary rights in full, in case of property of a third party at least up to the value of the goods sold under retention, to us. We accept the assignment. Upon request, the buyer is obliged to inform us about the condition of the claims assigned to us and the name of the third-party debtor and, if necessary, to disclose all sales documents. After the assignment the buyer is precariously entitled to collect the accounts receivable. Our authorization to collect the receivables ourselves shall remain unaffected thereby. However, we will not make use of this right as long as the buyer fulfills his contractual obligations (payment, reporting and disclosure). We shall be obliged to release the reserved goods at the customer’s request if the value of existing sureties exceeds the secured claims by more than 20%.
In the event of distraint or confiscation of goods sold under title retention, or if third parties gain access, the buyer is obliged to inform us immediately. Moreover, the customer must reimburse or indemnify us for costs that arise in connection with the release or return of the goods. If the buyer acts in violation of the contract, particularly in the event of default, we are entitled to reclaim goods subject to retention of title. The buyer is obliged to surrender the property. The buyer shall furthermore be obliged to immediately provide the vendor with information about the location of the goods subject to retention. The buyer yet waives his right of ownership, we accept this assignment. The retraction claims of the reserved good – as far as instalment laws are not applicable – does not result in a withdrawal from the contract.
- Place of performance, applicable law and jurisdiction
The laws of the Federal Republic of Germany shall apply exclusively with the exception of the UN Sales Convention (CISG).
Exclusive place of jurisdiction for all disputes arising out of or in connection with this agreement is Rosenheim.
Place of performance for all obligations – for ABC Breast Care as well as for the customer – is the head office of ABC Breast Care.
- Written form
Any alterations or modifications of these terms and conditions shall require written form. This shall apply to the requirement of written form also.
ABC Breast Care GmbH • Heft 8 • 83115 Neubeuern • Tel.: +49(0)8035/9039-550 • Fax: +49(0)8035-9039-559 • e-mail: firstname.lastname@example.org