DEHAS Medical Systems GmbH, Wesloer Straße 107 – 109, 23568 Lübeck

General Conditions of Sale and Delivery

1. General
1.1 The following General Terms and Conditions of Sale and Delivery (hereinafter referred to as GTSD) shall apply to all present and future deliveries as well as other services including any consulting services and information provided by DEHAS Medical Systems GmbH (hereinafter referred to as “the Seller”). This shall also apply if the Seller does not refer the Customer to these GCSD again in subsequent transactions. The customer’s terms and conditions shall not become part of the contract under any circumstances, even if the seller does not expressly object to them again. Rather, these GCSD as of 01/2022 shall apply exclusively in any case.

1.2 These General Terms and Conditions of Sale shall only apply to entrepreneurs, legal entities under public law and special funds under public law within the meaning of §310 Para. 1 GERMAN CIVIL CODE.

1.3 The Seller’s offers are subject to change. There is no obligation to deliver until the seller has issued an order confirmation in writing.

1.4 All agreements made between the Seller and the Customer shall be set out in writing in the contract.

1.5 The current version of the lNCOTERMS shall be decisive for the interpretation of trade terms.

1.6 The Customer may only assign its claims against the Seller under this contract to third parties with the Seller’s prior express consent.

1.7 Insofar as individual provisions of these GCSD are or become invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by the provision that is customary in the industry for this case, or, in the absence of a permissible provision that is customary in the industry, by the corresponding statutory provision.

2. prices and payment terms

2.1 Prices are ex works or ex Seller’s distribution warehouse DAP, against onward invoicing, otherwise EX Works with collection, unless otherwise agreed in writing. Value added tax at the respective statutory rate shall be added. For small orders of less than EUR 150 (net excluding VAT), the Seller may charge a small quantity surcharge of EUR 25 (net plus VAT) per delivery, unless otherwise agreed.

2.2 Unless otherwise agreed in writing in individual cases, all invoices shall be payable without deduction within 30 days of the invoice date at the latest.

2.3 The seller is entitled to assign claims against buyers located in Germany and countries of the EU to abcfinance GmbH, Kamekestr. 2-8, 50672 Cologne, Germany, for refinancing purposes. The buyer will be informed at the time of conclusion of the contract whether an assignment of the claim will take place. In these cases, payments with debt-discharging effect can only be made to abcfinance GmbH. The buyer will be informed of the bank details when the contract is concluded.

Payments shall be made exclusively to the accounts listed in the Seller’s invoice in the agreed currency, quoting the invoice number. They are to be paid on the due date free of charges and without any deduction. In the case of payments of any kind, fulfilment shall only occur on the day on which the seller can dispose of the payment without restriction.

2.4 The Seller is not obliged to accept bills of exchange or cheques. If they are granted, they will only be accepted subject to the possibility of discounting against reimbursement of all expenses on account of performance. The seller is likewise not obliged to present bills of exchange and cheques in good time or to lodge protests.

2.5 If the customer is in default of payment, the seller is entitled to charge interest on arrears from the 1st day at a rate of 5 (five) percentage points p.a. above the respective base interest rate pursuant to § 247 German Civil Code (BGB). We reserve the right to assert further damage caused by delay.

2.6 The customer shall only be entitled to rights of set-off or retention if its counterclaims have been legally established, are undisputed or have been recognised by the seller. This restriction does not apply to the right of retention under § 320 German Civil Code (BGB).

2.7 If an application for the opening of insolvency proceedings against the customer’s assets has been filed, if the customer has initiated out-of-court proceedings for the settlement of debts or has suspended payments, or if the seller becomes aware of other circumstances which substantially reduce the customer’s creditworthiness and as a result of which the provision of the consideration owed by the customer appears to be at risk, the seller shall be entitled to demand security for outstanding deliveries by way of advance payment or by way of a bank guarantee (at the customer’s discretion), setting a deadline of at least one week, and to refuse its performance until the security has been provided. After the unsuccessful expiry of a reasonable period, the seller is further entitled to withdraw from this contract and to claim damages. In addition, the Seller may in this case revoke the right of resale together with the collection authorisation pursuant to clauses (5.3) and (5.6) as well as the right to process, combine and mix goods already delivered pursuant to clauses (5.2) and (5.3) and demand the return of the delivered goods.

3. Delivery and acceptance

3.1 The Seller’s delivery obligation is subject to complete, correct and timely self-supply, insofar as the Seller procures the goods as a whole or components of the goods from a sub-supplier. This does not apply if the non-delivery or delay is the fault of the seller. Failure to attend through no fault of the Seller shall entitle the Seller to withdraw from the contract.

3.2 The customer shall bear the risk and costs of shipment of the goods ex works/delivery warehouse (DAP / EXW) as well as the costs of any transport insurance from the time the goods leave the DEHAS building. This also applies if the transport is carried out by a company selected by the seller.

3.3 Unless otherwise agreed, the risk shall pass to the customer directly ex works of the seller, even in the case of carriage paid delivery. The standard insurance sum on the part of DEHAS is limited to 500 euros.

3.4 If the goods are ready for dispatch and if dispatch or delivery to place or acceptance is delayed for reasons for which the Seller is not responsible, the risk shall pass to the Customer upon receipt by the Customer of the notification of readiness for dispatch.

3.5 The customer may not reject excess or short deliveries to a reasonable extent and shall pay for them immediately upon receipt. The complaint about an excess or shortfall in performance does not entitle the customer to reject further deliveries under the same or another contract. In the case of custom-made products, the seller reserves the right to deliver 10% more or less than the quantity ordered. In any case, only the quantity actually delivered shall be invoiced.

3.6 The Customer shall also be in default of acceptance upon readiness for dispatch if, in the case of delivery EXW or agreed collection obligation, the delivery is merely offered to him by the Seller in writing or the Customer has declared that he will not accept the delivery.

3.7 Goods reported ready for dispatch in accordance with the contract must be accepted by the customer without delay. Otherwise, the seller is entitled to either ship or store the goods at the expense and risk of the customer, at the seller’s discretion, and to invoice the customer after a period of one week. The same shall apply if the goods are not called or not called in full within the agreed call period.

3.8 If the customer is more than one month in arrears with the fulfilment of the obligations resulting from the above provisions, the seller may – without prejudice to further rights – demand a contractual penalty of 5 (five) per cent of the invoice value from the customer instead of the fulfilment of the contract and dispose of any goods stored elsewhere. The contractual penalty shall be set off against any damages to be paid by the customer. Any quantity discount granted for earlier deliveries on the basis of this order shall be paid by the customer.

3.9 The customer shall provide proof of shipment. For this purpose, he must prove the shipment of the goods by sending the corresponding original document to the seller within four weeks after collection/shipment of the goods. If the document is not received by the seller within this period, the seller is entitled to charge the customer the sales tax applicable at that time on the net value of the goods.

4. Delivery periods and delivery dates

4.1 Compliance with delivery periods and deadlines is subject to the timely fulfilment of the customer’s contractual obligations. Delivery periods shall commence on the date of the Seller’s order confirmation, but not before clarification of all details of the execution of the order and receipt of all documents required for the execution of the order and other information to be provided by the Customer as well as receipt of any agreed advance payment. The delivery period shall also be deemed to have been met if the goods leave the factory or warehouse at the agreed time or the customer has been notified of readiness for dispatch, but the goods cannot be dispatched on time through no fault of the seller. The above provisions shall apply accordingly to delivery dates.

4.2 Unforeseeable events beyond the Seller’s control such as, for example, epidemics, pandemics, war, threat of war, riots, acts of violence by third parties against persons or property, sovereign intervention including monetary and trade policy measures, industrial disputes at the Seller or its suppliers or transport companies, interruptions to the scheduled transport connections, fire, shortage of raw materials, shortage of energy and other disruptions to operations at the Seller or its suppliers for which the Seller is not responsible shall extend firmly agreed delivery periods and dates by the duration of the hindrance. This shall also apply if the Seller is already in default of delivery or if the aforementioned impediments to performance already existed prior to the conclusion of the contract but were not known to the Seller. The Seller shall notify the Customer of any impediments of the aforementioned kind without delay.

4.3 If delivery delays due to this last longer than two months, both parties are entitled to withdraw from the contract. However, the customer may only withdraw from the contract if the seller does not declare within a week’s time whether he intends to withdraw from the contract or to deliver within a reasonable period of time. The same right of withdrawal shall arise irrespective of the aforementioned period if the performance of the contract has become unreasonable for one of the parties in view of the delay that has occurred.

4.4 For all articles and products that are specially ordered or manufactured for the customer (customer-specific or special construction) or are ordered in quantities that are not customary but are owed to a situation or circumstance (special events such as war or pandemic), a right of withdrawal on the part of the customer shall not apply, regardless of the circumstances, but only after the order has been confirmed by the seller.

5. Reservation of ownership

5.1 All goods delivered shall remain the property of the Seller until complete and final fulfilment of all claims arising from the business relationship, irrespective of the legal reason (reserved goods). The same shall also apply with regard to claims arising in the future or conditional claims from contracts concluded at the same time or later within the framework of the business relationship. In the case of a current invoice, the reserved property serves as security for the seller’s claim arising from a current account relationship.

5.2 Treatment and processing of the goods subject to retention of title shall be carried out for the Seller as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating the Seller. In the event that the customer processes, combines or mixes the reserved goods with other goods not belonging to the seller, the seller shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If the Seller’s ownership of the goods subject to retention of title lapses as a result of combining, mixing or processing the goods subject to retention of title, the Customer hereby assigns to the Seller the ownership rights to which it is entitled in the new stock or the new item to the extent of the invoice value of the goods subject to retention of title and shall keep them in safe custody for the Seller free of charge with due commercial care. If the Seller acquires ownership or a share in ownership of the new item, he shall transfer to the Customer his ownership or co-ownership share in the new item subject to the condition precedent of full payment of the purchase price.

5.3 The customer may sell the goods subject to retention of title in the ordinary course of business and only on his normal terms and conditions, provided that at the same time the claims from the resale are transferred to the seller in accordance with clauses (5.4) to (5.6). The customer is not entitled to dispose of the reserved goods in any other way, in particular not to pledge or assign them as security. The aforementioned authority shall expire in the event of default of payment by the customer. It may furthermore be revoked by the Seller in the cases listed under clause (2.6), in the event of a breach of the above obligations and in the event of non-payment of the invoice when due. In these cases, the customer is also prohibited from processing the reserved goods and combining or mixing them with other goods.

5.4 The claims and other entitlements including all ancillary rights of the customer from the resale of the reserved goods are already assigned now, i.e. upon agreement of these GCS, to the seller, who hereby accepts the assignment. They shall serve as security for the Seller’s claims to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not supplied by the seller, the claim from the resale is hereby assigned in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. In the event of the sale of goods in which the Seller has co-ownership shares pursuant to clause (5.2), a part corresponding to its co-ownership share is hereby assigned to the Seller.

5.5 The customer is entitled to collect claims from the resale. He shall inform the seller immediately of any impairment of his rights by third parties, handing over the documents necessary for an intervention. Any intervention costs incurred shall be borne by the customer.

5.6 If the customer is more than two weeks in arrears with its payment obligations to the seller, the seller may demand the return of the goods subject to retention of title and collect the claims and other entitlements assigned to the seller. Furthermore, the seller may realise the reserved goods to satisfy his claims as soon as the seller has either withdrawn from the contract or the conditions for claiming damages instead of or in addition to performance have occurred.

5.7 If the realisable value of the existing securities exceeds the secured claims by a total of 10 (ten) per cent, the Seller shall be obliged to release securities of the Seller’s choice at the Customer’s request.

6. Quality of the goods and liability for defects

6.1 Insofar as the Seller provides the Customer with or receives samples or specimens from the Customer, mentions analyses, DIN regulations, other domestic or foreign quality standards or provides other information about the quality of the goods, these shall only serve to describe in more detail the services to be provided by the Seller. This does not constitute a quality guarantee.

6.2 In particular, the Seller is not obliged to check whether the goods serve the specific purpose intended by the Customer or are suitable for that purpose. Contrary to the above provision, in the case of new parts which the seller develops for the customer according to the customer’s wishes, an individual agreement is required with regard to the specific purpose of use.

6.3 The customer shall immediately inspect the delivered goods with the thoroughness that can reasonably be expected of him and – if necessary by means of a trial processing – check the quality of the delivered goods and notify us of any recognisable defects in writing without delay, at the latest within 5 (five) working days of receipt of the goods (as far as possible and reasonable, enclosing samples), stating the invoice, production and dispatch number. Hidden defects shall be reported in the same way after their detection in the ordinary course of business. Otherwise, the goods shall be deemed to have been approved without reservation. Any further obligations of the customer under § 377 of the German Commercial Code (HGB) shall remain unaffected.

6.4 If the customer fails to protect rights of recourse against third parties, processes defective goods without prior quality control or delivers goods reported as defective to third parties without having previously given the seller the opportunity to inspect reported defects, all claims for defects shall lapse. The same applies to the consequences of unsuitable or improper use of the goods, faulty assembly or commissioning by the customer or third parties, improper modifications to the delivered goods, natural wear and tear and faulty or negligent handling.

6.5 In the event of justified notices of defects or complaints, the Seller shall be entitled, at its discretion, to subsequent performance by remedying the defect or by replacement delivery. Sorting measures by the customer must be agreed in writing with the seller before commencing. In the event of subsequent performance, the customer shall bear the additional costs that are based on the fact that the delivered goods were taken to a place other than the place of performance.

6.6 If the supplementary performance chosen by the Seller repeatedly fails, is unreasonable for the Customer, is refused by the Seller or is delayed beyond a reasonable period for reasons for which the Seller is responsible, the Customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the purchase price.

6.7 Claims based on defectiveness of the goods shall become statute-barred one year after the transfer of risk. This shall not apply insofar as the law pursuant to § 438 para. 1 no. 2 German Civil Code (buildings and objects for buildings), § 479 para. 1 German Civil Code (right of recourse) and § 634 a para. 1 no. 2 German Civil Code (construction defects) prescribes longer periods or insofar as the Seller is liable due to intent.

6.8 Product-specific guarantees or guarantees for products with vacuum insulation are specified per product group or on the order confirmation.

6.9 Claims for damages are further limited in accordance with clause (7).

7. Limitation of claims for damages and reimbursement of expenses

7.1 Claims for damages and reimbursement of expenses by the customer against the seller or the seller’s employees as well as representatives and vicarious agents, irrespective of the legal grounds, shall be excluded, unless liability is assumed due to intent, gross negligence, assumed guarantee, assumed procurement risk, injury to life, body, health or material contractual obligations. This also applies to any claims for damages due to incorrect supplier declarations. This provision does not imply a change in the burden of proof to the detriment of the customer.

7.2 Claims for damages and reimbursement of expenses of the Customer against the Seller or the Seller’s employees as well as representatives and vicarious agents due to breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract. Material contractual obligations are obligations the breach of which jeopardises the purpose of the contract, e.g. in the event of a substantial delay, a not merely insignificant breach of obligations to cooperate, provide information or maintain secrecy or a not merely insignificant breach of obligations with which the contract stands or falls. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

7.3 When determining the amount of the compensation claims to be fulfilled by the Seller, the Seller’s economic capacity, the type, scope and duration of the business relations of the contractual partners and the installation situation, in particular a specifically unfavourable installation situation of the supplied part, shall be taken into account appropriately, except in the case of intent, gross negligence or injury to life, body and health in favour of the Seller. The Seller’s compensation shall be in reasonable proportion to the value of the supplier part concerned.

7.4 Contractual claims for damages and reimbursement of expenses against the Seller or its employees as well as representatives and vicarious agents, irrespective of the legal grounds, shall become statute-barred after one year at the latest. The special provision for claims based on defective goods in clause (6.7) remains unaffected.

7.5 Insofar as the Seller is compulsorily liable under the Product Liability Act of 15 December 1989 for property damage and personal injury caused by defects in a product, the provisions of the Product Liability Act shall apply with priority. For an internal compensation according to § 5 sentence 2 of the Product Liability Act, the above rules shall apply.

8. Property rights

The Seller reserves the copyright to drawings and other construction documents. These may not be made accessible to third parties. Insofar as the Seller manufactures the goods according to drawings, samples or other information provided by the Customer and infringes the industrial property rights of third parties in the process, the Customer shall indemnify the Seller against all claims in connection therewith.

9 Place of performance, place of jurisdiction and applicable law

9.1 Place of performance for delivery and payment is Lübeck, Germany, unless otherwise agreed in writing.

9.2 Lübeck shall be the place of jurisdiction for any legal disputes arising from this contract and its creation and effectiveness, including disputes arising from cheques or bills of exchange, provided that the customer is a merchant or a legal entity under public law or a special fund under public law. However, the seller may sue the customer at any other place of jurisdiction given under the Code of Civil Procedure.

9.3 The contractual relationship shall be governed by the law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.

Stand January 2022