General Terms and Conditions of Sale of W&O medical esthetics GmbH
§ 1 Scope of Application, Data Protection
(1) If the Customer as merchant within the scope of §14 of the German Civil Code (BGB), the following standard terms and conditions shall govern exclusively govern all business relationships between ourselves and the Customer or any subsequent version in force at the time the order is placed. Any terms of the Customer which contradict or deviate from the terms and conditions below shall not apply except where we have expressly agreed to the same in writing.
(2) A Customer acting as merchant is a private individual or a legal entity or a partnership with legal capacity that is acting in the course of his business or profession. A partnership with legal capacity is a partnership capable of acquiring rights and liabilities.
(3) Insofar as is necessary for the handling of our business, we are entitled to store and process the Customer’s data in electronic form to the extent permitted by data protection laws (in particular §28 of the German Data Protection Act). For the purpose of collection, processing, and use of personal data we shall only use employees which are bound not to disclose the same.
§ 2 Quotations, Changes, Commercial Terms
(1) Our quotations are without obligation; a contract shall only be concluded when we acknowledge the order in writing (§126b BGB), or where orders are executed by us.
(2) Any changes, supplements and/or cancellation of a contract must be in writing.
(3) Where trade terms in accordance with the International Commercial Terms (INCOTERMS) are agreed, the INCOTERMS 2010 shall apply.
§ 3 Risk, Method of Shipment, Delivery Dates
(1) Except where otherwise agreed, we supply our goods and services EXW (ex works) our warehouse; we reserve the right to determine the method and route of shipment and the shipper.
(2) Supply of goods or services by installment is permitted except where unreasonable for the Customer.
(3) The commencement of the delivery term quoted shall be subject to clarification of all technical matters and proper and timely performance of his obligations by the Customer.
(4) Where we fail to deliver upon an agreed delivery date, and such failure is caused by an act or omission on our part, the Customer shall grant us an extension in writing of not less than 4 weeks. Where upon the expiry of the grace period, delivery is still not forthcoming and the Customer desires to rescind the contract or demand damages in lieu of performance, the Customer shall prior thereto set a final and reasonable deadline in writing expressly indicating his intention. The Customer is obliged at our request to declare within a reasonable period whether he shall rescind the contract due to the delay in delivery and/or demand damages in lieu of performance, or insist upon performance.
§ 4 Act of God
In the event of act of god we are entitled to suspend performance of our obligation to deliver. Where there is a considerable change in the circumstances prevalent at the formation of the contract, we reserve the right to rescind the contract. An act of god shall be any circumstance beyond our control which renders the supply of goods or services difficult or impossible irrespective of whether the circumstance occurs at our premises or with our suppliers or vicarious agents.
§ 5 Prices, Payment, Offset, Withholding of Monies
(1) Where orders are placed without any price agreement, the usual market price shall be deemed to be agreed.
(2) Our prices are EXW (ex works) our principle place of business and do not include the cost of packing, insurance, freight and VAT unless otherwise agreed. Where customized packing is agreed, we shall be entitled to manufacture the same ourselves or have it manufactured by a third party and to invoice the Customer the cost incurred thereby.
(3) Where the delivery or performance date is more than 3 months after the contract date, we are entitled upon timely notification to the customer and prior to delivery or performance to adjust the price in such a manner as is necessitated by any general price development beyond our control (e.g. exchange rate fluctuations, currency regulations, changes in customs duties, increases in material and production costs), or by changes of suppliers. For supplies of goods or services within three months after the contract date, the contract price shall apply in any event. In relation to framework agreements with a price clause, the three month period shall begin to run upon the effective date of the agreement.
(4) Except where otherwise agreed, the Customer shall remit payment of the agreed price without deduction within 21 days after supply the goods or services. Any discount must be agreed in writing. Upon expiry of the payment term the customer shall be deemed in default of payment in accordance with §286 sub-section. 2 No. 2 of the German Civil Code.
(5) We shall be entitled to demand down-payments or payment in advance when the Customer places a initial order, or has its place of business abroad, or where we have reason to doubt that Customer will remit payment on time or in full. Where one of the circumstances aforesaid occurs after the contract has been concluded, we shall be entitled to revoke the term of payment agreed and to declare any outstanding amount due for payment immediately.
(6) The Customer may only set off undisputed counterclaims or counterclaims against which we have no further recourse to appeal. The Customer shall only be entitled to rights of retention insofar as these are based on the same legal transaction.
§ 6 Retention of Title
(1) Goods sold shall remain our property until payment of all claims under the business relationship has been received from the Customer (reserved goods).
(2) The Customer may resell goods subject to reservation of ownership in the framework of due business activities. If the Customer sells these goods without receiving the full purchase price in advance or contemporaneously with the surrender of the item purchased, he shall agree a reservation of title with his customers in accordance with these conditions. The Customer hereby assigns to us his claims arising from resale and the rights under the reservation of title agreed. He agrees at our request to notify the assignment to customers and to provide us with the information required to claim our rights against the customers, and to hand over documents. Irrespective of the assignment, the Customer shall only be authorized to collect payments from the resale as long as he complies duly with his obligations to us.
(3) If the value of the securities provided to us exceeds our claims by more than 20 percent, we undertake to release securities of our choice on demand by the Customer. If we claim reservation of title, this shall only be deemed to be a withdrawal from the contract if we declare this expressly in writing beforehand.
(4) In the event that the above retention of title clauses are void or unenforceable according to the law of the state/country in which the goods are situated, the collateral security which corresponds to the retention of title in that state/country is deemed to be agreed
§ 7 Customer’s Rights in the Case of Defects
(1) The goods supplied by us correspond to the regulations and standards currently in force in the European Union, including the requirements of the Directive 93/42/EEC. We give no guarantee that the goods comply with other national regulations. Where the goods are to be used outside the European Union it is the responsibility of the Customer to ensure that the goods are in conformity with the relevant legal requirements and standards, and where required, the Customer shall carry out any notification or authorization procedure requested by any authority in order to lawfully import and market the goods in the country concerned at his own costs and expense.
(2) Where the goods delivered by us are defective and the Customer has notified us of the same in writing not later than 7 days after the delivery date, we shall – at our option – deliver a replacement. The Customer shall grant us a reasonable period of not less than 15 working days to carry out the same. We shall pay return freight and shipping charges to the original shipment location.
(3) If there is a dispute as to whether the goods comply with the specifications or as to whether the goods are defective, such dispute shall be resolved by an independent European pharmaceutical testing organization of recognized repute to be selected by us without delay. The charges of such testing organization shall be borne by the party against which the dispute is resolved. Until such dispute is resolved, the Customer shall retain and preserve the goods in question and shall not dispose thereof without our prior written consent.
(4) In the event that we are not in a position to deliver a replacement, the Customer is entitled to rescind the contract or to demand a reasonable reduction of the purchase price. Rescission of the contract is only permissible where the Customer prior thereto sets a final and reasonable deadline in writing expressly indicating his intention.
(5) The Customer shall retain a right or recourse against us within the meaning of §478 of the German Civil Code (BGB) insofar as the Customer has not agreed terms with his customer which exceed the statutory liability for defects.
§ 8 Damages
(1) Except where otherwise provided below, any claim of the Customer for damages other than those claims set out in §7 aforesaid are hereby excluded irrespective of the legal grounds upon which it is based. Accordingly we do not accept liability for any damage not incurred by the goods themselves nor do we accept any liability for loss of profit or any other pecuniary loss suffered by the Customer. To the extent that our contractual liability is excluded or limited, such exclusion or limitation shall apply in relation to the personal liability of employees, representatives, and vicarious agents.
(2) The aforesaid limitation of liability shall not apply where the damage incurred has been caused by willful default or by gross negligence, or where personal injury has been suffered. The same shall apply in relation to any limitation of liability of a guarantee of quality given with regard to the goods or services supplied.
(3) Where we are in negligent breach of a material term of the contract, our liability to compensate damage to property shall be limited to such loss as was typically foreseeable at the time the contract was made. A material term of the contract shall be any term which places the Customer in the legal position provided for under the contract in terms of its content and purpose, and any term which must be complied with in order to ensure proper performance of the contract and upon the performance of which the Customer relied or could be reasonably expected to rely.
(4) Beyond the aforesaid we shall only be liable to the extent of our insurance coverage insofar as we are insured against the damage which has been incurred and subject to payment of the insurance benefit.
(5) Any other liability in damages is hereby excluded.
(6) The aforesaid exclusions/ limitation of liability shall not apply insofar as we are liable at law for personal injury or damage to property, or are mandatorily liable for any other legal reason.
(7) Any assignment of the Customer’s claims provided for in §§8 and 9 above is not permitted. Section 354 a of the German Commercial Code (HGB) shall remain unaffected.
§ 9 Limitation
The limitation period for claims based on the supply of defective goods and services as well as for claims for damages is one year. The limitation period aforesaid shall not apply in relation to claims based on wilful default, gross negligence, or to personal injury claims and to claims under product liability laws nor shall the limitation period apply where longer limitation periods are prescribed by law (e.g. for structures as per §§438 s.1. No. 2 of the German Civil Code (BGB), rights of recourse as per §479 German Civil Code (BGB), and building defects as per §634a s.1 No.2 German Civil Code (BGB).
§ 10 Trademarks
The goods are identified by the trademark. The Customer acknowledges and recognizes our sole and exclusive rights in the ownership of the trademark and agrees that he will not, at any time, for any reason whatsoever, adopt, file and/or use any trademark, trade name, word or symbol which is identical or confusingly similar to the trademark. Except where otherwise agreed, we only grant the Customer a simple license to use the same in the country of destination and for the term of the contract. The license does not include the right to copy and process the goods.
§ 11 Non-Disclosure
(1) The parties shall not disclose to third parties or utilize for their own commercial purpose any confidential information including know-how and business ideas of the other party which are disclosed or of which they became aware during the cooperation, either during or after the term of the contract. The aforesaid shall further apply to the existence and content of this contract. The parties shall ensure that their staff is also bound by this non-disclosure obligation.
(2) This non-disclosure obligation shall not apply to information which
– was already known to the other party prior to the contract;
– was legally acquired from third parties;
– is or comes into the public domain or is the state of the art;
– is cleared for disclosure by the disclosing party.
The non-disclosure obligation for technical information shall cease 5 years after termination of the parties’ collaboration.
(3) Upon termination of the contract the parties shall return all confidential documents and information to the disclosing party or at their request destroy the same and provide evidence thereof.
(4) The parties shall comply with data protection law requirements, in particular where access is granted to the premises or to hardware or software of the other party. They shall ensure that vicarious agents and third parties acting on their behalf shall also comply with the same, and in particular shall ensure that they are bound to keep data secret prior to the commencement of their works. The parties do not intend to process or use personal data, only in exceptional circumstances as an ancillary effect of the parties’ contractual performance. Personal data shall be treated by the parties in conformity with statutory data protection requirements.
§ 12 Other Matters
(1) For Customers whose principle place of business is situated in the European Union, all disputes arising from these terms and conditions shall be resolved before the courts in Wetzlar, Germany. We reserve the right to sue the Customer at his principle place of business.
For Customers whose principle place of business is situated outside the European Union all disputes arising from these terms and conditions shall be finally settled in accordance with the rules of the German Institution of Arbitration e.V. (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Frankfurt am Main, Germany. The arbitral tribunal shall consist of three arbitrators. The arbitration shall be in English.
(2) The laws of the Federal Republic of Germany shall govern all legal relationships between the Customer and ourselves.
(3) In the event that individual provisions of these General Terms and Conditions are invalid in whole or in part, this shall not affect the validity of the remaining provisions.