Conditions
____________________
General
terms and conditions for deliveries and services Ahrensburg, January
2024
1
General – Scope
1.1
For legal transactions regarding deliveries and/or services from
Daniel Becker Orthesis (hereinafter: “Contractor”), these General
Terms and Conditions for Deliveries and/or Services (“GTC”) apply
exclusively if the purchaser is domestic or foreign Company i. S. of
Section 14 Paragraph 1 BGB, to be a legal entity under public law or
a special fund under public law within the meaning of of Section 310
Paragraph 1 BGB (hereinafter: “Purchaser”).
1.2
These General Terms and Conditions also apply to all future
transactions regarding deliveries and/or services from the contractor
from ongoing business relationships with the customer.
1.3
The validity of any conflicting, supplementary and/or deviating terms
and conditions of the purchaser is contradicted. These only apply if
and to the extent that the contractor has expressly agreed to their
validity in writing.
1.4
These General Terms and Conditions also apply if the contractor
carries out the delivery or service without reservation despite being
aware of the purchaser's conflicting, supplementary or deviating
terms and conditions.
1.5
Deliveries within the meaning of these General Terms and Conditions
are deliveries of products, in particular components and kits for
orthopedic devices, as well as deliveries of spare parts based on a
purchase contract or a contract for the manufacture and delivery of a
movable item within the meaning of Section 650 of the German Civil
Code (BGB).
1.6
Services within the meaning of these General Terms and Conditions are
work and/or services, in particular manufacturing, project planning
and planning work, repairs and consulting services.
2
Conclusion of contract / materials
2.1
A contract with the contractor is only validly concluded when the
contractor accepts the order received in writing or when the
contractor has carried out the delivery and/or service ordered by the
customer. The same applies to requests from the customer that are
aimed at additions, changes or extensions to the contractually agreed
scope of delivery and/or services.
2.2
Offers from the contractor are non-binding unless the offer expressly
states otherwise.
2.3
Information provided by the contractor regarding the delivery and/or
service item that is provided in documents or otherwise to the
customer (e.g. dimensions, weights, performance values, technical
data) are not guaranteed characteristics, but rather only
descriptions or identification of the delivery or service. They are
understood to be without the influence of any physical disturbances
or other external influences, such as disturbances from the
environment, and are only binding if they are expressly included in
the contract in writing.
2.4
The contractor reserves all rights, in particular all property rights
and copyrights, to all calculations, drawings, data, plans and other
documents and materials (hereinafter collectively referred to as
“materials”) provided to the customer or otherwise made
accessible - including in electronic form without restrictions. The
customer may only use the materials and make them accessible to third
parties to the extent that this is necessary for the purposes of
fulfilling the contract. The purchaser is not permitted to use the
materials or pass them on to third parties for other, non-contractual
purposes without the prior written consent of the contractor. The
customer must store the materials carefully and protect them from
unauthorized access by third parties.
2.5
If, as agreed, the purchaser is provided with materials together with
the delivery or service item that are required for the intended use
of the delivery or service item, the purchaser is granted a
non-exclusive right to use these materials to the extent that the use
of the materials is for is required for the contractually agreed and
intended use of the delivery or service item. Within the limits of
this right of use, the customer is also entitled to grant third
parties corresponding rights of use to the materials. The purchaser
is not permitted to use the materials for any other or additional
purposes.
3
prizes
3.1
The contractor's prices for deliveries and/or services are always net
in EURO plus VAT at the respective statutory rate.
3.2
For deliveries, the prices are ex works and do not include costs for
packaging, shipping and other ancillary or additional costs (e.g. for
installation and/or commissioning).
3.3
Unless expressly agreed otherwise, in the event of a foreign delivery
or in the case of services provided by the contractor abroad, all
customs duties and other taxes levied outside the Federal Republic of
Germany will apply taxes, duties and fees as well as associated costs
are borne by the purchaser.
3.4
If, in the case of foreign deliveries, a delivery including
assumption of the costs for customs duties, fees and/or other charges
has been agreed upon by the contractor, contrary to Section 3.3, the
price stated by the contractor in the offer is based on the price at
the time the offer was submitted and the contractually agreed price
the rates for customs duties, fees and/or other charges in force at
the time of conclusion of the contract. The costs actually incurred
upon delivery for customs duties, fees and/or other charges will be
calculated by the contractor and paid by the purchaser. Any
applicable sales tax will be charged additionally.
3.5
The agreed prices only apply to the respective delivery or order.
4
Delivery/service, cooperation of the purchaser
4.1
Unless otherwise agreed, delivery is made Ex Works in accordance with
Incoterms 2010. The place of performance for the delivery is the
warehouse at the contractor's headquarters. This also applies if
partial deliveries are agreed or it is agreed that after the delivery
item has been brought to the final destination, the contractor will
provide additional services at the destination with regard to the
delivery item, such as setting up, assembly, installation or
commissioning of the delivery item.
4.2
If shipment by the contractor to a destination other than the
warehouse at the contractor's headquarters is agreed, the delivery
item will be shipped at the purchaser's expense and risk. In this
case, the contractor is entitled to determine the type of shipment
(in particular the transport company, shipping route, packaging)
itself. At the express request of the purchaser, the contractor will
insure the shipment against theft, breakage, transport, fire and
water damage and other insurable risks at the purchaser's expense.
4.3
Unless a total delivery has been expressly agreed, the contractor is
entitled to make partial deliveries unless this conflicts with a
recognizable legitimate interest on the part of the customer.
4.4
If it is agreed that the contractor must also carry out assembly,
assembly, installation, commissioning or carrying out functional
tests at the destination with regard to the delivery item, the
purchaser is obliged to provide the contractor with sufficient
information to provide the necessary equipment, instruments,
operating and consumable materials including power supply and other
materials in a timely manner at your own expense. At the contractor's
request, the purchaser must also provide the required number of
assistants to provide support at his own expense.
4.5
Special features of foreign transactions a) If an end-use declaration
is required for a foreign delivery in order to obtain an export
license in accordance with the requirements of the Federal Office of
Economics and Export Control (hereinafter "BAFA"), the
purchaser will inform the contractor in a timely manner, at the
latest, unless otherwise agreed provide one within four (4) weeks of
the conclusion of the contract or have it extended or renewed at the
contractor's request if this is necessary for export law reasons.
Upon request, the contractor will provide the purchaser with a
corresponding template for an end-use declaration. b) If further
forms, documents or other information are or become necessary for the
end-use declaration and/or otherwise to support the application for
the issuance of an export permit, the purchaser will also provide
these without culpable delay upon request by the contractor and in
accordance with the requirements of BAFA teach. In the event of a
final negative decision on an application for the issuance of an
export license for the ordered deliveries, the contractor is entitled
to withdraw from the contract. Exercising this right of withdrawal
does not entitle the purchaser to compensation. c) If the contractor
provides services abroad, the customer must, unless otherwise agreed,
ensure at his own expense in a timely manner that the contractor is
provided with all necessary import and export tools, equipment and
other materials, if these are necessary any necessary permits may be
granted.
5
Deadlines / Dates, Default
5.1
Delivery and service deadlines as well as delivery and service dates
are only binding if they have been agreed in writing in the contract.
Unless otherwise agreed, the delivery or service period begins when
the contractor sends the order confirmation. As for delivery if an
advance service (e.g. provision of documents, plans, approvals,
releases, etc.) and/or a down payment from the customer is agreed,
the delivery or service period only begins when the advance service
is fulfilled and/or the down payment is received.
5.2
In the case of an Ex Works delivery, the delivery deadline or the
delivery date is met if the delivery item is ready for collection at
the agreed location by the end of the deadline or the delivery date.
In the event of an agreed shipment of the delivery item, the delivery
deadline or delivery date is deemed to have been met if the delivery
item has left the contractor's factory by the end of the deadline or
by the agreed date at the latest.
5.3
A performance deadline or a performance date is deemed to have been
met if the contractual services have been carried out within the
agreed deadlines or by the agreed date. They are also deemed to have
been adhered to if minor rework is required or the object of the
service still has insignificant defects, provided that the
functionality of the object of the service is only insignificantly
impaired.
5.4
Compliance with deadlines or appointments requires the timely receipt
of all documents to be delivered by the customer and the necessary
approvals and releases to be provided (in particular plans and
drawings), compliance with the agreed payment terms and the timely
and proper fulfillment of other obligations to cooperate by the
customer. If these requirements are not met in a timely manner, the
deadlines will be extended and/or the dates will be postponed
accordingly. This does not apply if the contractor is responsible for
the delay.
5.5
Delivery and service deadlines are extended and delivery and service
dates are postponed by the duration of a hindrance plus a reasonable
start-up time due to force majeure or other unforeseeable
circumstances for which the contractor is not responsible. If the
hindrance lasts longer than 3 months, the contractor and the customer
are entitled to withdraw from the contract. In this case, the
contractor can demand from the customer the expenses incurred until
the work is stopped. Claims for damages are excluded in this case.
5.6
The circumstances mentioned in the first sentence of Section 5.5
above are not the responsibility of the contractor, even if they
arise during an already existing delay. The purchaser's claim to
compensation for damage caused by the delay up to the occurrence of
the respective circumstance remains unaffected.
5.7
The contractor is entitled to a reasonable extension of delivery and
service deadlines and/or to a postponement of delivery and service
dates if the contractor carries out changes, additions or extensions
to the scope of delivery and/or services at the request of the
customer.
5.8
The occurrence of a delay in delivery or performance by the
contractor is determined in accordance with the statutory provisions.
The contractor will not be in default if he is unable to meet a
deadline or date due to a supplier not delivering on time, provided
that the contractor has concluded a congruent hedging transaction in
a timely manner.
5.9
If the delivery is delayed at the request of the customer, the
contractor is entitled to reimbursement of the costs incurred by
further storage after one month from notification that the goods are
ready for collection or ready for dispatch.
6
Acceptance and Default of Acceptance
6.1
When due, the purchaser must accept the delivery/service from the
contractor immediately upon request from the contractor. This
acceptance obligation is the purchaser's main obligation. The
purchaser may not refuse to accept deliveries or services due to
insignificant defects.
6.2
If the customer defaults on accepting the delivery/service, the
contractor is entitled to a flat-rate compensation of 0.5% of the
agreed order value for each completed week of delay in acceptance,
but a maximum of 15% of the agreed order value. The contractor's
right to prove and assert higher damages as well as other legal
claims of the contractor remain unaffected. However, the flat-rate
compensation must be offset against any further claims. The purchaser
is permitted to prove that the contractor suffered no damage at all
or only suffered significantly less damage than the above-mentioned
flat-rate compensation.
6.3
The risk of accidental loss or accidental deterioration of the item
of delivery or service passes to the customer at the point in time at
which the customer defaults on acceptance.
7
acceptance
7.1
Acceptance of the delivery or service will only take place if this
has been agreed in writing or is required by law. If acceptance has
been agreed or provided for by law, acceptance must be carried out
within 14 days of completion of the service, unless expressly agreed
otherwise. Acceptance may not be refused due to insignificant
defects, in particular not due to defects that do not or only
insignificantly affect the functionality of the delivery or service
item.
7.2
If the contractor has reported completion of the delivery or service
to be accepted and the purchaser does not refuse acceptance within a
period of 14 days from the notification of completion, conclusively
stating at least one defect, the delivery or service in question is
deemed to have been accepted.
7.3
Acceptance of the delivery or service is also deemed to have taken
place as soon as the customer has used the delivery or service item
for more than a week without notifying any defects. This does not
apply if use was unavoidable for the purchaser due to special
circumstances.
7.4
If the customer waives an agreed or legally stipulated acceptance or
if he is not present at the acceptance despite timely notification
for reasons for which he is responsible, the acceptance test carried
out by the contractor is deemed to be acceptance.
7.5
If, in addition to the final acceptance, further previous interim
acceptances, in particular technical acceptance tests, have been
agreed, such as a functional test in the contractor's medical supply
store (“Factory Acceptance Test”), the provisions of this Section
7 apply to these interim acceptances accordingly, with the exception
of Section 7.3. Interim acceptances are not considered acceptance in
the legal sense according to Section 640 of the German Civil Code
(BGB), unless otherwise contractually agreed.
7.6
All costs for acceptance and any acceptance tests, including interim
acceptance, are to be borne by the purchaser. This includes, in
particular, costs for materials, operating supplies, consumables,
accessories, auxiliary equipment, etc. as well as expenses for the
purchaser's own staff as well as for other experts and any other
persons who take part in the acceptance test on behalf of the
purchaser. Excluded from this are the expenses for the contractor's
personnel. These are borne by the contractor himself.
8
Transfer of risk
8.1
Transfer of risk for deliveries. a) In the case of an Ex Works
delivery, the risk of accidental loss and accidental deterioration of
the delivery item as well as the risk of delay passes to the customer
as soon as the delivery item has been made available for collection
by the contractor at the agreed delivery location. If it has been
agreed that the delivery item will be shipped by the contractor, the
above risks are transferred to the purchaser when the delivery item
is handed over to the freight forwarder, the freight carrier or the
person otherwise designated to carry out the transport. b) If the
contractor takes items into custody for the customer, e.g. For
example, items and/or materials provided by the purchaser for the
execution of the delivery or service will be stored at the
purchaser's expense and risk. Unless otherwise agreed, the purchaser
is obliged to pay the contractor the usual remuneration of a
commercial warehouse keeper for storage. If the customer is in
default of acceptance, Sections 6.2 and 6.3 of these General Terms
and Conditions apply exclusively. c) If an acceptance test has been
agreed with regard to a delivery item, the acceptance is only
considered the time of transfer of risk if it concerns a work
contract.
8.2
Transfer of risk for on-site services a) The risk of accidental
damage or accidental loss of the object of the service as well as
accidental deterioration of the work lies with the customer for
on-site services, whether in connection with a previous delivery by
the contractor or without such. b) The contractor will take care of
items and materials provided by the purchaser on site for the service
in accordance with the agreements made in this regard for the purpose
of providing the service. The risk of accidental loss and accidental
deterioration of these items and materials remains with the
purchaser. Section 14 applies to damage to these items and materials
for which the contractor is responsible.
8.3
Transfer of risk for services at the contractor's works a) If
services on the purchaser's items are to be carried out by the
contractor or his vicarious agents, e.g. B. repairs, maintenance work
or adjustments, the customer must provide the subject of the service
to the contractor in a timely manner at his own expense and risk to
send. b) If the purchaser's items have been taken over by the
contractor for the purpose of providing the service in accordance
with Section 8.3 a), they will be sent back to the purchaser at the
purchaser's expense and risk after the service has been provided. c)
If the return to the purchaser is delayed due to a circumstance for
which the purchaser is responsible or if the return is carried out at
the request of the purchaser at a later date than the agreed
completion date, the risk of accidental loss and accidental
deterioration arises on the day of notification of readiness for
dispatch the purchaser. The same applies to delays or hindrances in
the event of force majeure or other unforeseen circumstances for
which the contractor is not responsible. d) If collection has been
agreed instead of return, the customer must collect the items within
14 days of notification of completion of the service. If this does
not happen, the risk of accidental loss and accidental deterioration
passes to the purchaser upon expiry of the 14-day period and the
contractor has the right to return the items to the purchaser without
special notice at the purchaser's expense and risk. e) The above
provisions in accordance with a) to d) of this Section 8.3 do not
apply if the services on the purchaser's items involve work to
correct defects.
9
Retention of title
9.1
The contractor reserves ownership of the delivery items (hereinafter
referred to as “reserved goods” in this Section 9) until receipt
of all payments from the corresponding contract with the customer,
including all payments for agreed extensions to the scope of delivery
and any options exercised by the customer. If the purchaser behaves
in violation of the contract, in particular in the event of late
payment, the contractor is entitled, provided the legal requirements
are met, to withdraw from the contract and to demand the return of
the reserved goods due to the withdrawal. The contractor's request
for the return of the reserved goods always constitutes a withdrawal
from the contract. After taking back the reserved goods, the
contractor is authorized to use them; the proceeds from the use are
to be offset against the purchaser's liability - less appropriate
costs of use.
9.2
The customer is obliged to treat the reserved goods with care; In
particular, he is obliged to adequately insure them at their new
value against fire, water and theft damage at his own expense. If
maintenance and inspection work is necessary, the purchaser must
carry this out in a timely manner at his own expense.
9.3
If the reserved goods are seized or other interference with the
reserved goods by third parties, the purchaser must immediately
notify the contractor in writing. General Terms and Conditions
Ahrensburg, January 2024.
9.4
The customer is entitled to resell the reserved goods in the ordinary
course of business; He now assigns all claims against his customers
from the resale to the contractor in the amount of the final invoice
amount agreed with the contractor (including sales tax), regardless
of whether the reserved goods were resold without or after
processing. The customer remains authorized to collect these claims
even after the assignment. The contractor's authority to collect the
claims himself remains unaffected. The contractor undertakes not to
collect the claims as long as the purchaser meets his payment
obligation to the contractor, does not default on payment and no
application has been made to open insolvency or composition
proceedings or payments have been suspended. However, if this is the
case, the contractor can demand that the customer informs him of the
assigned claims and their debtors, provides all the information
required for collection, hands over the associated documents and
informs the debtor in question of the assignment.
9.5
If the reserved goods are resold together with other items without an
individual price being agreed for the reserved goods, the purchaser
assigns to the contractor, with priority over the remaining claims,
that part of the total price claim which corresponds to the price of
the reserved goods invoiced by the contractor.
9.6
The contractor undertakes to release the securities to which he is
entitled at the request of the customer to the extent that the value
of the security exceeds the claims to be secured by more than 10%;
The selection of the securities to be released is the responsibility
of the contractor.
9.7
If the above ownership clauses are not effective under the law of the
country in which the delivery item is located, it is at least agreed
that ownership of the delivery the item remains with the contractor
until all payments from the corresponding contract with the customer
have been received. Should this also be impermissible, but the law of
the country in which the delivery item is located allows the
contractor to reserve other security rights in the delivery item,
then the contractor can exercise all rights of this kind. The
purchaser is obliged to cooperate with the measures taken by the
contractor to protect his property rights or the rights that replace
them in the delivery item.
10
payments
10.1
All payments by the customer must be made to the contractor within 14
days of receipt of the respective invoice without any deductions. The
contractor is entitled to make partial invoices. Payment deadlines
are deemed to have been met if the contractor can dispose of the
payment amount within the specified period.
10.2
The contractor will only accept bills of exchange - if at all - after
prior written agreement and only subject to their discountability and
on account of performance. All discount charges and other additional
costs are borne by the purchaser and must be reimbursed to the
contractor immediately. Bills of exchange and check amounts will only
be credited when the equivalent value is available to the contractor
without reservation.
10.3
In the event of late payment, the contractor is entitled to charge
default interest at an annual rate of 9 percentage points above the
respective base interest rate from the time of default. The
contractor reserves the right to make further claims.
10.4
If the customer stops making payments, is over-indebted, or if
insolvency proceedings are filed, or if the customer defaults on
several payment obligations, the contractor's total claims from
current contracts become due immediately.
11
Assignment / Offsetting / Retention
11.1
The purchaser is not entitled to assign rights and/or obligations
arising from the contract or claims against the contractor in whole
or in part to third parties without the contractor's prior written
consent. However, this does not apply to monetary claims in
accordance with Section 354a Paragraph 1 of the German Commercial
Code (HGB).
11.2
The customer is only entitled to offset if and to the extent that his
counterclaims have been legally established, are undisputed or have
been recognized by the contractor.
11.3
The customer is only entitled to exercise a right of retention or
refusal of performance if his counterclaim is based on the same
contractual relationship and if either a) his counterclaims have been
legally established, are undisputed or recognized by the contractor
or b) if he claims defects in the delivery or service item and these
defects have been identified, acknowledged by the contractor or at
least made credible by the purchaser (e.g. through written
confirmation from an independent expert).
11.4
The contractor is entitled to offsetting and retention rights to the
statutory extent.
12
Liability for defects The contractor is liable for defects in
deliveries and services as follows:
12.1
If the customer is a merchant, claims for defects in the event of a
delivery require that the customer notifies the contractor in writing
of any obvious defects immediately, at the latest within 12 days of
receipt of the delivery. Hidden defects must be reported to the
contractor in writing by the purchaser immediately after they are
discovered. If the purchaser does not report a defect in a timely and
proper manner in accordance with the above provisions, the respective
delivery item is deemed to have been approved in view of this defect
and claims for defects due to this defect are excluded.
12.2
Claims for defects do not exist if there are only insignificant
deviations from the agreed quality (for night positioning rails 0.5cm
per ordered dimension) of the delivery or service or only
insignificant impairment of usability.
12.3
If the customer carries out performance measurements or other
performance checks to prove a defect, the contractor's acknowledgment
requires that a representative sent by him for this purpose takes
part in the measurements and checks. However, the contractor reserves
the right in any case to examine the delivery or service item itself
and to carry out its own measurements and checks. General Terms and
Conditions Ahrensburg, January 2024.
12.4
If there is a defect in the delivery or service item, the purchaser
must first give the contractor the opportunity to remedy this within
a reasonable period of time to be set by the purchaser, at the
contractor's discretion, either by free repair, replacement or
replacement delivery, whereby the contractor is given at least two
attempts at supplementary performance are entitled.
12.5
Subject to the provisions in Section 12.6 below, the contractor shall
bear the expenses necessary for the purpose of subsequent
performance, in particular transport, travel, labor and material
costs, unless the subsequent performance entails disproportionate
costs for the contractor.
12.6
Deviating from Section 12.5, the contractor does not have to bear the
expenses for subsequent performance to the extent that the expenses
increase due to subsequent movement of the delivery item to a
location other than the original place of delivery or performance
(place of performance) and can reimburse these additional costs from
the purchaser unless the shipment corresponded to the intended use of
the delivery or service item.
12.7
If the subsequent performance has failed or if the reasonable
deadline set by the customer for subsequent performance in accordance
with Section 12.4 has expired without result or is dispensable
according to the statutory provisions, the customer can demand a
reduction in price or withdraw from the contract and demand
compensation for damages and/or reimbursement of expenses. However,
claiming damages and/or reimbursement of expenses is only possible in
accordance with Section 14 of these General Terms and Conditions.
12.8
In the case of a contract for work and services, the purchaser is
entitled, in addition to the rights mentioned in paragraph 12.7 above
and if the conditions specified therein are met, to remedy the defect
himself and to demand reimbursement of the necessary expenses from
the contractor.
12.9
The contractor's liability for defects is excluded if defects are
caused by items or materials provided by the customer or third
parties or are due to the services of the customer's staff or third
parties commissioned by the customer. The contractor is only liable
for incorrect work carried out by the personnel provided by the
customer if it can be proven that this is due to incorrect
instructions given by him or a grossly negligent breach of his duty
of supervision.
12.10
The contractor is not liable for defects or defects in the delivery
or service item to the extent that they were caused by the following:
unsuitable or improper use by the customer or third parties,
incorrect adaptation, assembly or commissioning by the customer or
third parties, natural wear and tear, incorrect or negligent handling
by the purchaser or third parties, use of unsuitable operating
resources or replacement materials or improper maintenance by the
purchaser or third parties, repair or repair work carried out
improperly by the purchaser or third parties or changes to the
delivery or service item made without the consent of the contractor.
12.11
If the purchaser wrongly complains about the existence of a defect
for which the contractor is responsible, the contractor is entitled
to demand reimbursement from the purchaser for the reasonable
expenses incurred by him in eliminating the defect or checking the
defect.
12.12
The purchaser's recourse claims against the contractor in accordance
with § 445a BGB (seller's recourse) only exist to the extent that
the purchaser has not made any agreements with his buyer that go
beyond the statutory claims for defects. The following also applies
to legal defects:
12.13
Unless otherwise agreed, the contractor is only obliged to provide
the delivery or service owed in the country of the place of delivery
or service free of third-party rights.
12.14
If a third party raises justified claims against the purchaser due to
the violation of industrial property rights or copyrights
(hereinafter collectively referred to as “property rights”) by
the delivery items delivered by the contractor, the contractor will,
at its discretion, either a) at its own expense, for the agreed or
assumed use of the delivery item obtain sufficient right of use and
grant it to the purchaser or b) change the delivery item in such a
way that the property right is not violated or c) replace the
delivery item, provided that this does not affect the agreed or
assumed use of the delivery item by the purchaser.
12.15
In the event of an infringement of intellectual property rights
through a service provided by the contractor, Section 12.4 applies
accordingly, with the proviso that Section 12.14c) does not apply.
12.16
If the contractor is unable to fulfill the obligations in accordance
with clauses 12.14 or 12.15 or is not able to do so under reasonable
conditions, the purchaser is entitled to the statutory claims and
rights. Section 14 applies to claims for damages.
12.17
The Contractor's obligations in accordance with Sections 12.14 to
12.16 only exist if and to the extent that the Purchaser immediately
notifies the Contractor in writing of the assertion of claims arising
from intellectual property rights informed by third parties and
proceeds in agreement with the contractor when dealing with these
claims and pursuing his rights.
12.18
The contractor is not liable for the violation of third-party
property rights if the violation is based on drawings, developments
or other information or specifications from the customer for the
production of the delivery item or the provision of the service. In
this case, the purchaser must indemnify the contractor from
third-party claims.
12.19
The contractor's liability for the violation of third-party property
rights is also excluded if the violation was caused by changes made
by the purchaser to the delivery item or the service or the
installation of additional equipment or the connection of the
delivery item to other devices or devices.
13
Limitation of claims for defects
13.1
Deviating from § 438 para. 1 no. 3 BGB and § 634a para. 1 no. 1
BGB, the limitation period for claims for defects by the customer in
the cases regulated there is one year, calculated from delivery or,
if acceptance has been agreed or provided for by law , from
acceptance.
13.2
The above provisions regarding the beginning and duration of the
limitation periods in accordance with Section 13.1 apply equally to
all contractual and also all non-contractual claims for damages by
the customer that are based on a defect in the delivery or service
item, unless the application of the regular statutory limitation
period (§ § 195, 199 BGB) leads to a shorter statute of limitations
in individual cases.
13.3
To the extent that the provisions in accordance with Sections 13.1 to
13.2 above deviate from the statutory limitation periods, this does
not apply to the purchaser's claims for damages due to a defect, for
which the Contractor has unlimited liability in accordance with
Section 14.2. In this case, the statutory limitation period applies.
General Terms and Conditions Ahrensburg, January 2020
14
Liability / Compensation
14.1
Claims for compensation for damages and expenses of the customer,
regardless of the legal reasons, in particular due to breach of
obligations arising from the contractual relationship and unlawful
acts, only exist in accordance with the following provisions of this
Section 14.
14.2
For products that need to be adjusted, the purchaser is solely
liable, regardless of how or how the damage occurred.
14.3
The contractor's liability for all damages and expenses incurred by
the purchaser in the event of simple negligence is excluded, unless
the contractor has culpably violated an essential contractual
obligation (cardinal obligation). Essential contractual obligations
(cardinal obligations) are those obligations whose fulfillment makes
the proper execution of the contract possible in the first place and
on whose fulfillment the purchaser has trusted and was allowed to
trust.
14.4
If the contractor is liable in accordance with Section 14.3 above for
simply negligent violation of essential contractual obligations,
liability is limited to the amount of damage that is typically
foreseeable in the contract.
14.5
To the extent that the contractor's liability is excluded or limited
in accordance with this Section 14, this also applies to the personal
liability of its employees, employees, employees, representatives and
vicarious agents.
14.6
The limitation period for the purchaser's claims for damages and/or
reimbursement of expenses caused by a defect in the delivery or
service item is governed by the provisions in Section 13.3.
Otherwise, the statutory limitation period applies to the purchaser's
claims for damages and/or reimbursement of expenses in accordance
with this Section 14.
14.7
A change in the legal burden of proof is not associated with the
above provisions in this Section 14.
15
Software use If software is included in the delivery and/or service
items, the purchaser has the non-exclusive right to use the software
to the extent that use is necessary for the contractually stipulated
and intended use of the respective delivery and/or service item.
Within the limits of this right of use, the customer is also entitled
to grant third parties a corresponding right to use the software. The
purchaser is not permitted to use the software any further or beyond
this.
16
Secrecy
16.1
The purchaser is obliged to provide access to all materials within
the meaning of Section 2.5 as well as all business or trade secrets,
in particular technical know-how and economic operating data, of the
contractor, which are provided to the purchaser in connection with a
contract or otherwise become known (together hereinafter:
“Confidential Information”) must be treated confidentially
towards third parties, not made accessible to third parties and
protected from access by third parties, unless the purchaser is as in
section 2.5 authorizes the transfer of confidential information to
third parties or the contractor has previously agreed in writing to
the transfer of confidential information to a third party.
16.2
The confidentiality obligation according to Section 16.1 does not
apply or no longer applies to confidential information that is
publicly known or becomes known without breach of the confidentiality
obligation, which was already known to the customer before it was
communicated by the contractor or which the customer otherwise
lawfully obtained. The obligation of confidentiality does not apply
to the extent that it conflicts with the assertion of legal claims by
the purchaser.
16.3
This confidentiality obligation remains in force even after the
termination of a contract and must also be imposed on third parties
if confidential information is permitted to be passed on to third
parties.
17
Dispute Resolution / Applicable Law
17.1
All disputes arising from or in connection with all contracts between
the contractor and the customer, of which these General Terms and
Conditions are part of the contract, or regarding their validity,
will be settled in accordance with the arbitration rules of the
German Institution for Arbitration e.V. (DIS), excluding the ordinary
finally decided by legal process. The arbitration tribunal consists
of three arbitrators. The place of arbitration is Ahrensburg,
Germany.
17.2
These General Terms and Conditions and all contracts between the
contractor and the customer, in which these General Terms and
Conditions are part of the contract, are subject exclusively to
German law, excluding the United Nations Convention on Contracts for
the International Sale of Goods (UNCITRAL/CISG).
18
Partial invalidity If individual provisions of these General Terms
and Conditions or of a contract for deliveries and services, of which
these General Terms and Conditions are part, are or become invalid,
this will not affect the effectiveness of the remaining provisions of
these General Terms and Conditions or the contract.
Daniel
Becker Orthosis, March 2024