General Terms and Conditions of Sale and Delivery (B2B)
Cellavent Healthcare GmbH
Am Trippelsberg 43
1. General Provisions
1.1. These General Terms and Conditions of Sale and Delivery of Cellavent Healthcare GmbH, Am Trippelsberg 43, 40589 Düsseldorf, apply exclusively to companies within the meaning of Section 14 BGB [German Civil Code] i.e. natural persons or legal entities, which, in respect of the purchase of goods, are acting in the performance of their commercial or independent professional activities (hereinafter referred to as “Purchasers”).
1.2 These General Terms and Conditions of Sale and Delivery apply exclusively to all contracts concluded between ourselves and the Purchaser concerning the delivery of goods. Differing terms and conditions of purchase or other differing terms and conditions of the Purchaser shall not apply unless we have expressly acknowledged them in writing or text form. Our silence regarding such differing terms and conditions shall not be deemed in particular to be consent, and this shall also apply to future contracts.
2. Quotation, conclusion of contracts, scope of delivery
2.1 Our quotations are subject to change and are not binding. If the Purchaser places a delivery order based on quotations subject to change, a contract shall be concluded, also in day-to-day business, only upon our order confirmation in writing or text form if the Purchaser requests such confirmation. In all other cases, the contract shall be concluded by delivery of the goods. If an order confirmation is provided, this alone shall govern the content of the contract, in particular the scope of delivery and date of delivery.
2.2 Prices and performance data and other declarations or assurances shall be binding for us only if they have been made or confirmed in writing or text form.
2.3 Any documents, drawings, details of weight, samples etc. enclosed with our quotation are only determined approximately. In particular, these are neither a guarantee nor is hereby a procurement risk assumed unless this is expressly indicated in writing or text form as “guaranteed by law” resp. “assumption of a procurement risk”. Any reference to standards and similar technical regulations as well shall not indicate a property of our products unless this is expressly indicated as a “property of the product”.
2.4 We shall only be obliged to deliver from our own stock (obligation to deliver from stock).
2.5 Our products are natural products. We are, therefore, entitled to supply deviations in colour, structure, texture, dimension, weight, or taste from the contractually agreed goods that are customary in the trade and reasonable for the Purchaser.
2.6 We are entitled to deviations in quantity (excess or short deliveries) to the extent customary in the trade and reasonable for the Purchaser but not more than a 10% deviation from the contractually agreed quantity.
2.7 In the absence of other written agreements, our deliveries shall comply in their quality with the statutory requirements applicable to the respective product at our registered office. Compliance and compatibility with any laws and official requirements deviating from this applicable at the place of delivery or, if different from this, at the Purchaser’s registered office shall not be owed, unless this was expressly agreed by the parties in writing. The same shall apply to statutory and official requirements in territories in which resp. to which the product is resold resp. delivered by the Purchaser.
3. Product samples, samples, customised products
3.1 Properties of test versions, sample specimens resp. samples shall only become an integral part of the contract if expressly agreed in writing or text form.
3.2 If agreed, we shall make sample specimens resp. samples of the ordered products available to the Purchaser. A sample specimen or sample shall serve only as a demonstration piece. The properties of sample specimens or samples shall only become an integral part of the contract if this was expressly agreed in writing or text form (see paragraph 3.1). The Purchaser shall not have the right to exploit and pass on test versions, sample specimens resp. samples. We shall retain title to our test versions, sample specimens resp. samples, unless a purchase was expressly agreed, and they may not be either exploited or made accessible to third parties without our consent in writing or text form. All copyrights, design rights and utility model rights to test versions, sample specimens resp. samples shall remain with the holders of the rights despite them being provided to the Purchaser.
4.1 Prices are euro prices unless otherwise stated and do not include turnover tax. This shall be invoiced separately at the respectively valid rate in accordance with respectively applicable tax provisions.
4.2 Unless otherwise agreed in writing or text form, prices are ex works or ex our warehouse (EXW Incoterms 2020) and exclude in particular packaging and shipping costs as well as customs duty and freight.
4.3 We shall have the right at our reasonably exercised discretion (Section 315 BGB, subject to judicial review according to Section 315 (3) BGB) to increase the prices for our deliveries and services unilaterally where production costs, material costs and/or procurement costs, wage and ancillary wage costs, social security contributions as well as energy costs and costs due to legal requirements, environmental charges, currency regulations, changes in customs duties and/or other public charges increase if these have a direct or indirect impact on the costs of our contractually agreed deliveries and services and increase by more than 5% and if more than 2 months elapse between conclusion of the contract and delivery/service. An increase as mentioned above shall be excluded if the increase in costs for individual or all of the above- mentioned factors is set off by a reduction in costs for other of the above- mentioned factors with respect to the overall cost burden for the delivery/service (cost balancing). If above-mentioned cost factors are reduced, without the reduction in costs being set off by the increase in cost factors other than those mentioned above, the reduction in costs shall be passed on to the Purchaser through a price reduction. If the new price based on our right to adjust prices as stated above is 25% or higher than the original price, the Purchaser shall have the right to rescind contracts not yet executed in full with respect to the part of the contract not yet fulfilled. The Purchaser can, however, assert this right only immediately after notification of the increased remuneration.
5. Terms of payment, retention, set-off
5.1 Unless otherwise agreed in writing or text form, all payments shall be made free payment office at the latest within 14 days of the invoice date without deduction. Terms of payment shall be deemed met if the amount is at our disposal within the payment deadline.
5.2 In the event of default in payment, default interest of 9 percentage points above the respective base interest rate when the claim for payment becomes due shall be charged. The right to assert damage beyond this is reserved.
5.3 The Purchaser shall have no right of retention if it is not based on the same contractual relationship. Set-off against disputed claims or claims which have not been recognised by declaratory judgment shall be excluded. We shall have the right to avert the exercise of a right of retention by provision of security, also by guarantee.
5.4 We shall have the right to request the Purchaser to provide securities or advance payments to an appropriate extent for our delivery.
5.5 In the case of the first transaction, a delivery shall be made, unless otherwise agreed, only after advance payment.
6. Retention of title
6.1 We shall retain title to the goods (goods subject to retention of title) until all claims against the Purchaser, to which we are entitled, have been met even if payment has been made for individual goods. Pledging or assigning goods subject to retention of title as security shall not be admissible.
6.2 The Purchaser now already assigns to us, by way of precaution, the future claims against its customers arising for us from resale or rental, without the need for special declarations at a later date, in the event of the admissible resale or rental of the goods subject to retention of title in the ordinary course of business, until payment of all our claims. The assignment shall also cover balance claims resulting from existing current account relationships or from the termination of such relationships of the Purchaser with its customers. If the goods subject to retention of title are resold or rented together with other items, without a unit price being agreed for the goods subject to retention of title, the Purchaser shall assign to us, with priority over the remaining claim, that portion of the total price claimed resp. the total rent which corresponds to the value of the goods subject to retention of title invoiced by us. The Purchaser shall be authorised to collect the assigned claims from the resale or rental until this is revoked. The Purchaser shall not, however, have the right to dispose of the assigned claims in another way e.g. by assignment. At our request, the Purchaser shall notify the customer of the assignment and shall deliver the documents required to assert our rights against the customer, e.g. invoices, to us and shall provide the required information.
6.3 If the Purchaser processes the goods subject to retention of title, transforms them or combines them with other items, they shall be processed, transformed or combined for us. We shall become direct owner of the article produced by processing, transformation or combination. If this is not possible for legal reasons, we and the Purchaser agree that we shall become the owner of the new article at all times during processing, transformation or combination. The Purchaser shall keep the new article for us with the due diligence of prudent commercial judgment. Articles created from processing, transformation or combination shall be deemed goods subject to retention of title. Where an item is processed, transformed or combined with other items that do not belong to us, we shall have co-ownership of the new article in the amount of the portion resulting from the ratio of the value of the processed, transformed or combined goods subject to retention of title to the value of the new article. If the new article is sold or rented, the Purchaser herewith assigns to us by way of precaution its claim with all ancillary rights against its customer arising from the sale or rental without the need for special declarations at a later date. The assignment shall only apply, however, in the amount which corresponds to the value of the processed, transformed or combined goods subject to retention of title invoiced by us. The portion of the claim assigned to us shall take precedence over the remaining claim.
6.4 If the value of the security exceeds our claims against the Purchaser from the ongoing business relationship in total by more than 20%, we shall be obliged, at the Purchaser’s request, to release securities, to which we are entitled, at the Purchaser’s option.
7. Delivery, force majeure, delivery subject to own receipt of delivery, storage
7.1 Specified delivery times are not binding unless otherwise agreed in writing or text form. If delivery dates and periods are not binding or approximate (ca., about etc.), we shall use our best efforts to comply with them. Delivery periods agreed as binding in writing or text form shall commence upon receipt of the order confirmation by the Purchaser but not before all details about the execution of the order have been clarified and all other requirements to be fulfilled by the Purchaser are met. This shall accordingly apply to delivery dates. Deliveries shall be admissible before expiry of the delivery period. Delivery periods shall only be binding when they are expressly designated as binding.
7.2 If we do not receive deliveries or services from our sub-contractors for us to provide deliveries or services which are due from us under the contract, despite due and sufficient stocking in terms of quantity and quality under our delivery or service agreement with the Purchaser, for reasons for which we are not responsible, or they are incorrect or not in due time, or events of force majeure occur of significant duration (i.e. of longer than 14 calendar days), we shall notify the Purchaser in writing or text form in due time. In such case, we shall have the right to postpone the delivery for the duration of the obstruction or to rescind the contract in whole or in part for that part of the contract not yet fulfilled if we have met our foregoing duty to provide information and have not assumed a procurement risk. Events of force majeure are strikes, lockouts, official intervention, epidemics and pandemics, energy shortages and shortages of raw materials, transport bottlenecks through no fault of our own, company obstructions through no fault of our own, e.g. due to fire and water damage, and damage to machinery, and any other obstructions which, when considered objectively, were not culpably caused by us.
7.3 If a delivery and/or service date or delivery and/or service period is agreed with binding force and the agreed delivery or service date or the agreed delivery and/or service period is exceeded due to events according to paragraph 7.2 above, the Purchaser shall have the right, after a reasonable extension of time has elapsed without success, to rescind the contract for that part of the contract not yet fulfilled. The Purchaser shall have no further claims, in particular claims for damages, in this case, if we have met our foregoing duty to provide information. The above provisions pursuant to paragraph 7.2, sentence 1 and 2, shall apply accordingly if the Purchaser cannot be objectively expected to adhere to the contract further for the reasons stated in paragraph 7.3, also if a fixed delivery and/or service date has not been contractually agreed.
7.4 If shipment is delayed at the Purchaser’s request or for reasons, for which the Purchaser is responsible, we shall have the right to store the goods, beginning upon expiry of the reasonable period set in writing or text form in the notice that the goods are ready for shipment, at the Purchaser’s risk of loss and deterioration of the goods, and to invoice the costs incurred for this at 0.5% of the net invoice amount of the stored goods for each full week or part thereof (up to a maximum amount totaling 10% of the net invoice amount of the stored goods). The stored goods shall only be insured at the Purchaser’s specific request. This shall not affect the assertion of further rights. The Purchaser shall have the right to prove that no costs or considerably lower costs were incurred.
8. Passing of risk
8.1 Unless otherwise agreed, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon the delivery item being handed over by us to the forwarding agent, carrier or third parties otherwise appointed to handle the shipment. This shall also apply if partial deliveries are made or we have taken over other services (e.g. shipment or installation).
8.2 If shipment is delayed due to circumstances for which the Purchaser is responsible or the shipment is sent at the Purchaser’s request at a date which is later than the agreed delivery date, the risk shall pass to the Purchaser for the period of the delay from the date on which the notice is sent stating that the delivery is ready for dispatch. We shall be obliged at the Purchaser’s request and expense to take out the insurances requested by the Purchaser.
8.3 Deliveries shall not be insured against theft, breakage, transport and fire damage without specific request by the Purchaser. If the Purchaser requests the conclusion of an insurance policy, this shall be concluded at the Purchaser’s expense. The Purchaser shall provide any cooperation required.
9. Claims for defects
9.1 The Purchaser shall inspect the goods immediately upon receipt if this is expedient in the ordinary course of business and, if a defect is found, shall notify us immediately in writing or text form. Defects shall be documented pictorially, if possible, and transmitted to us. Negotiations on any notices of defects shall not constitute our waiver of the objection that the notice was not in due time, unfounded in fact or otherwise insufficient.
9.2 If the Purchaser fails to provide this notice, the goods shall be deemed approved unless it is a defect which could not be detected in the course of a normal inspection. Sections 377 et seq. HGB [German Commercial Code] shall furthermore apply.
9.3 Obvious damages sustained during transport or other defects identifiable already at the time of delivery must also be confirmed by the deliverer’s signature on the respective transport document when delivery is accepted. The Purchaser shall ensure that a corresponding confirmation is provided.
9.4 Supplementary performance shall be provided at our option by remedying the defect or supplying an article free of defects. If supplementary performance fails, the Purchaser shall have the right at its option to make a reduction or rescind the contract. This shall not affect the right to assert damages according to paragraph 10 of these General Terms and Conditions of Sale and Delivery.
9.5 Place of rectification is the place to which we have delivered as agreed. If the costs of supplementary performance increase due to the fact that the Purchaser has transported the goods to a place other than the place of our delivery, the costs incurred as a result shall be borne by the Purchaser.
9.6 Claims for defects shall become statute-barred within one year after the risk passes pursuant to paragraph 8 of these General Terms and Conditions of Sale and Delivery. This shall not apply if we are culpable of fraudulent intent, intent or gross negligence and in the cases pursuant to paragraph 10.2 (a) – (e) below. The periods of limitation arising from Sections 438 (1) No 2, 445b (1) and 634a (1) No 2 BGB shall remain unaffected.
9.7 Our warranty and liability arising therefrom shall be excluded if defects and damages connected therewith cannot be proved to be due to defective goods or instructions on use. In particular, warranty and liability arising therefrom shall be excluded with respect to the consequences of incorrect use, excessive use or inappropriate storage conditions, for example the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond to the envisaged, average standard influences. This shall not apply in the case of fraudulent or intentional conduct on our part or injury to life, limb or health or liability according to the Produkthaftungsgesetz [German Product Liability Act].
10.1 We shall not be liable, in particular not for claims by the Purchaser for damages or reimbursement of expenses, for whatever legal reason, and/or in the case of breach of duty from the obligation and tort.
10.2 The above exclusion of liability shall not apply
(a) in the case of own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
(b) in the case of violation of material contractual obligations; material contractual obligations are obligations, the fulfilment of which defines the contract, and on which the Purchaser may rely;
(c) in the event of injury to life, limb and health, also caused by legal representatives or vicarious agents;
(d) where we have assumed a guarantee for the quality of the goods or the existence of an outcome of performance or a procurement risk;
(e) in the case of liability under the Produkthaftungsgesetz or other mandatory statutory liability.
10.3 If we or our vicarious agents are responsible only for slight negligence and none of the cases specified in paragraph 10.2 (a), (c), (d) and (e) above exist, our liability shall be limited in amount, also in the case of violation of material contractual obligations, to the damages which were foreseeable and typical for the contract at the time the contract was concluded.
10.4 Our liability is limited in amount for each individual event of damage to a maximum liability coverage of EUR 1,000,000.00. This shall not apply if we are responsible for fraudulent intent, intent or gross negligence, for claims due to injury to life, limb or health and in the case of a claim based on a tortious act or an express, assumed guarantee or assumption of a procurement risk pursuant to Section 276 BGB or in cases of different higher liability coverage mandatory by law.
10.5 Any further liability shall be excluded.
10.6 Exclusion resp. limitation of liability according to paragraph 10.1 to 10.5 above and paragraph 10.7 shall apply to the same extent for the benefit of our executive and non-executive employees and other vicarious agents as well as our sub-contractors.
10.7 If the Purchaser is entitled to damage claims according to this paragraph 10, these shall become statute-barred upon expiry of the period of limitation applicable to the warranty claims for defects pursuant to paragraph 9.6 of these General Terms and Conditions of Sale and Delivery. Paragraph 10.2 of these General Terms and Conditions shall apply accordingly. The periods of limitation arising from Sections 438 (1) No 2, 445b (1) and 634a (1) No 2 BGB shall remain unaffected.
10.8 There is no connection between the reversal of the burden of proof and the foregoing provisions.
11.1 The Purchaser undertakes to keep confidential all facts, documents and (product) knowledge, of which the Purchaser becomes aware in the course of performing the contractual relationship with us, and which contain technical, financial, business or market-related information about our company or our products, if we have specified that the respective information must be kept confidential or there is an obvious interest in its confidentiality (hereinafter referred to as “Confidential Information”). The Purchaser shall use the Confidential Information solely for the purpose of implementing and performing the contractual relationship with ourselves in accordance with the contract. This obligation of the Purchaser shall commence upon receipt of Confidential Information for the first time.
11.2 The Purchaser shall oblige its personnel, who process or have access to the Confidential Information, to maintain confidentiality in the same way. Disclosure of Confidential Information to third parties by the Purchaser shall require our express and prior consent in writing or text form.
11.3 The foregoing obligation to maintain confidentiality shall not exist if it is proved that the respective Confidential Information:
(a) is state of the art in the public domain or this information becomes state of the art without any action by the Purchaser; or
(b) was already known to the Purchaser or is disclosed by a third party authorised to disclose it; or
(c) is developed by the Purchaser without any action by ourselves and without exploitation of other information or knowledge acquired through the contractual contact; or
(d) must be disclosed due to mandatory statutory provisions or orders by a court or official authority.
12. Export control / Product approval / Import regulations
12.1 In the absence of any contractual agreements to the contrary with the Purchaser, the delivered goods are intended for placement on the market for the first time within the Federal Republic of Germany.
12.2 The export of certain goods by the Purchaser from there may be subject to authorisation e.g. because of their nature or intended purpose or final destination. The Purchaser itself shall be obliged to check this and to comply strictly with the relevant export regulations and embargos for these goods, especially of the European Union (EU), Germany resp. other EU Member States and, if applicable, the USA or Asian or Arab countries and all third countries involved, if the Purchaser exports the products supplied by us or has them exported.
12.3 The Purchaser shall in particular check and ensure, and, on request, provide evidence to us that
(a) the goods provided are not intended for use in armaments, nuclear facilities or weapon technology;
(b) no companies and persons specified on the US Denied Persons List (DPL) are supplied with original US goods, US software and US technology;
(c) no companies and persons specified on the US Warning List, US Entity List or US Specially Designated Nationals List are supplied with original US products without relevant authorisation;
(d) no companies and persons are supplied who are specified on the List of Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the EU Terrorist List or other relevant negative lists for export controls;
(e) no recipients are supplied that violate other export control regulations, especially of the EU or the ASEAN countries;
(f) all early-warning indications of the competent German or national authorities of the respective country of origin of the delivery are complied with.
12.4 Goods supplied by us may only be accessed and used if the above- mentioned checks and assurances have been carried out resp. provided by the Purchaser; otherwise the Purchaser must refrain from carrying out the intended export and we shall not be obliged to perform.
12.5 Where goods supplied by us are passed on to third parties, the Purchaser undertakes to oblige such third parties in the same way as specified in paragraph 12.1-12.4, and to notify them of the need to comply with these legal provisions.
12.6 The Purchaser shall at its own expense ensure, where delivery outside the Federal Republic of Germany is agreed, that the goods to be supplied by us comply with all national import regulations of the country, unless we have expressly assumed this obligation.
12.7 The Purchaser shall indemnify us against all damages and expenses resulting from the culpable breach of the foregoing obligations pursuant to paragraph 12.1-12.6.
13. Product liability and product recall
13.1 The Purchaser shall inform us immediately of product faults, of which the Purchaser becomes aware, complaints from customers, authorities or in general from the market as well as risks when using our goods. For the avoidance of doubt, it is noted that the Purchaser is also obliged in this respect to give notification of defects immediately. In the event of a product recall becoming necessary or other market correction measures required as a result thereof, the Purchaser must support us appropriately and follow the measures ordered by us as far as reasonable. The Purchaser must in particular cease distribution of the goods concerned, inform customers known to the Purchaser as specified by us and return to us all products of the recalled type which are located at the Purchaser.
13.2 If any third-party claims asserted directly against us arising from product or producer’s liability are causally attributable to the fact that the Purchaser has changed goods supplied, especially their quality, processed them and/or removed or altered warning notices on them (hereinafter referred to collectively as “Product Changes”), the Purchaser shall indemnify us in full against such claims, including attorneys’ fees and/or court fees necessarily incurred by us in the course thereof, or shall reimburse them to us, unless the Purchaser is not responsible for the Product Changes causing the claims. This shall apply accordingly if claims by authorities are asserted against us, for which the Product Changes are the cause. If indemnification is ruled out due to the nature of the claim, the Purchaser must reimburse us for all costs, damages etc. incurred by the official measure. In the event of Product Changes, the Purchaser’s claims against us under warranty for reimbursement of costs related to recall or product warning or other damages resulting from the Product Change shall be excluded, unless we have caused the corresponding damages intentionally or through gross negligence.
13.3 The Purchaser shall have a claim for reimbursement of costs, damages etc., which are incurred by the Purchaser in the course of voluntary measures or market correction measures ordered by authorities, only in accordance with paragraph 9 and 10 of these General Terms and Conditions of Sale and Delivery
14. Data protection
15. Final Provisions
15.1 Contracts concluded with us may only be transferred to third parties with our consent in writing or text form. The same applies to the claims arising from contracts concluded with us.
15.2 Amendments to and modifications of these General Terms and Conditions of Sale and Delivery shall only be valid when given in writing. This shall also apply to this requirement of written form itself. This shall not affect the precedence of an individual agreement pursuant to 305b BGB.
15.3 Place of performance for deliveries and payments is Düsseldorf.
15.4 Any disputes arising between ourselves and the Purchaser and in connection with the contract shall be settled exclusively before a competent Düsseldorf court of law. We shall also have the right at our option to bring an action against the Purchaser at its place of general jurisdiction.
15.5 The law of the Federal Republic of Germany shall apply, to the exclusion of the UN Sales Convention (CISG).