Standard terms and conditions of business
I. Content and conclusion of supply contracts
1. The following terms and conditions apply to all contracts that MEDIK Hospital Design GmbH concludes as the seller of the goods traded and services provided by it.
2. The following terms and conditions are always binding on both parties. Variations only become legally valid if they have been confirmed by us in writing, with the sequence of the STCBs or purchase terms and conditions submitted being irrelevant here. Order fulfilment and supply are made on our terms and conditions. Our offers are always non-binding. We will of course pass on any changes to articles to the customers’ benefit, technical improvements, new colours or more modern design. These standard terms and conditions of business apply exclusively to our supplies and services.
3. These terms and conditions apply to all contracts, supplies and other services including consultancy services in business dealings with non-consumers within the meaning of § 310 Para. 1 BGB (Civil Code). The terms and conditions of purchase and other terms and conditions of the ordering party are not binding on us, even if we do not explicitly reject them.
4. The version of the Verdingungsordnung für Bauleistungen (VOB, Contracting rules for the award of construction contracts, Parts B and C) valid as at the date of conclusion of the contract applies to all construction services including installation in so far as the order is placed by a party to the contract operating in the building trade and in all other cases the STCBs apply.
5. Our quotations are non-binding. The order is only deemed to be accepted upon receipt of our written order confirmation.
6. The buyer’s wishes regarding subsequent changes or cancellation of the order may only be considered on the basis of a special agreement and only in so far as a start has not been made on manufacture or cutting to size.
7. The order confirmation is definitive with regard to the content and scope of the order. Statements about technical data made before or in connection with the order confirmation and any documents, images, drawings and brochures passed to the ordering party are only binding if this has been expressly confirmed in writing.
8. A purchase contract does not come into effect until it has been confirmed by us in writing. In the absence of such a written confirmation, the purchase contract comes into effect with the uncontested acceptance of the goods and/or service and an invoice raised by us.
9. Variations to these standard terms and conditions of business, supplementary agreements and ancillary agreements are only valid if they have been expressly confirmed by us in writing. The same applies to subsequent amendments and supplements to supply contracts already concluded.
10. In view of the constant technical development and improvement of our products and those of other manufacturers, we reserve the right to make changes to the structure and design compared with the statements made in our various printed materials in so far as they do not adversely affect the value of the products offered.
1. Prices are non-binding and are deemed ex-works or ex-warehouse of the seller with the addition of packaging costs, transport costs and statutory Value Added Tax at the buyer’s expense and risk. Prices as at the date of order confirmation apply to supplies.
2. In our price calculations we assume that the elements underlying the issue of the quotation remain unchanged, any necessary preparation work has already been carried out in full and we can perform our services in one go and without hindrance. Our quotations are based on the buyer’s technical specifications without our knowledge of local conditions.
3. If the supply or service is provided 4 months after the conclusion of the contract or later, the parties to the contract undertake to renegotiate the price in the event of changes in costs, wages etc.
4. We are entitled to demand payments on account if our service is delayed beyond the agreed period for reasons for which we are not to blame.
5. The transport packaging will beinvoiced at actual cost. You will return the packaging to us at your expense and we will take care of its disposal. If you do not return the transport packaging to us, you will be responsible for its disposal in accordance with the provisions of the Verpackungs-Verordnung (Packaging Regulations).
6. The statutory Value Added Tax applicable in each case and the packaging costs will be invoiced separately.
III. Delivery periods and delay
1. We will fulfil promised delivery periods where possible. If we experience delays, the ordering party cannot cancel the contract unless it has granted us a reasonable extension period of at least three weeks. All other claims by the ordering party in the event of non- or late delivery are excluded.
2. An agreed delivery period commences on the date of our order confirmation. The period has been observed provided that the item to be delivered was dispatched before the expiry of this period.
3. The delivery period will be extended by the period during which the ordering party has not yet passed to us all statements and documents necessary to the fulfilment of the order.
4. All agreed delivery periods apply subject to correct and timely delivery to us by our suppliers.
5. The delivery period is extended by a reasonable amount if measures are taken in the context of work stoppages, in particular strikes and lock-outs, and circumstances for which we are not to blame such as mobilisation, war, riot and interruptions to operations if these hindrances can be proven to delay the completion or delivery of the subject of the delivery.
6. Nor are we to blame for the circumstances referred to above if they arise during an existing delay.
7. We will inform the ordering party as soon as possible of the start and end of such hindrances in serious cases.
8. The buyer may not reject separate part deliveries.
IV. Delivery, dispatch, transfer of risk, packaging
1. The seller will select the best dispatch method from its point of view and part deliveries will be avoided if possible but in individual cases they may be unavoidable. Individual dispatches will be made in accordance with your statements or dispatch documents. The delivery period will be as quick as possible in the case of fixed dates.
2. The nature of the packaging will be selected by the seller if the buyer has communicated no (confirmed) wishes. Costs will be passed on at the actual cost to the seller and will be kept as low as possible. Packaging will be provided not item by item but exclusively on the basis of technical transport and production and environmental policy considerations.
3. The seller delivers exclusively ex works in accordance with Incoterms 2010 guidelines. The buyer must take out transportation insurance.
4. We are entitled to make part deliveries unless expressly agreed otherwise. Part deliveries are treated as separate deliveries with regard to payment terms, transfer of risk and duties under guarantees.
5. We may determine the nature and method of dispatch and the company engaged for the dispatch as we see fit in so far as the buyer does not give any instructions.
6. Risk is transferred to the buyer as soon as the consignment with the subject of the delivery leaves our warehouse. This also applies in the event of the use of the buyer’s own means of transport.
1. Our order confirmation or invoice is definitive regarding all the terms and conditions relating to the services (installation, training courses, service work).
2. All the services provided are non-physical services. The statutory provisions for work services do not apply. Defects that are detected after we have completed our service will only be corrected free of charge in so far as they have been caused by the fault of the seller or where the seller should have known better. Additional functions requested by the ordering party are excluded from this.
3. The seller is liable for physical and other damage for which it is to blame up to a maximum of €50,000 in total. Within these limits, the seller is liable in the event of damage or loss for which it is to blame subject to a maximum in the amount of the cost incurred if the ordering party has taken a data backup at regular intervals but in any event at least once a day.
4. Any liability for systems that are used for security (access systems or similar systems) and their protection functions consisting of hardware and software and any configuration services is always excluded.
5. These limitations of liability do not apply in so far as the damage or loss was caused by deliberate act or gross negligence. The seller’s liability for lost profits is excluded.
6. Any liability for consequential loss or damage arising from the services performed by the seller and any defective operation of software by the ordering party or hardware and/or software faults is hereby agreed to be excluded.
1. Payments shall be made in accordance with the statements on our order confirmation or invoice. Unless otherwise agreed, payments are due upon handover of the delivery or service at the latest. Payments are always applied to the settlement of the oldest outstanding debts plus any interest for arrears applicable to them. Promised discounts will not be granted if the buyer is in arrears with payment of earlier deliveries.
2. The right to assign receivables is reserved.
3. If the customer does not fulfil the agreed payment terms, the seller is entitled per §286 and §288 BGB to charge interest of 8% above the relevant base rate on arrears from the due date. The right is reserved to claim more extensive losses arising from arrears.
4. Bills of exchange and cheques will only be accepted by agreement and subject to them being cleared. Discounting and collection charges shall be borne by the ordering party. We accept no liability for timely presentation.
5. If agreed part payment instalments are not observed, the balance will be due immediately. If we become aware of a dishonoured bill of exchange or cheque, the cessation of payment or any other concrete sign of a major deterioration in the ordering party’s assets, without taking into account any agreed postponement we may demand immediate payment of all outstanding receivables. Moreover, in these cases we may make the delivery of further ordered goods dependent on payment of the purchase price in advance.
6. Setoff against counterclaims that are contested by us and which have not been determined by force of law is prohibited.
7. In commercial business dealings, the retention of the purchase price because of such counterclaims is excluded.
8. First-time ordering parties may only ever receive the first two orders in return for cash payment, payment in advance or cash on delivery.
VII. Reservation of title
The goods remain the seller’s property until full payment. The buyer may continue to sell the goods delivered in the course of its regular business dealings but for security it shall assign to the seller all claims due to it immediately or at a later date.
VIII Guarantee and liability for defects
1. Guarantee claims by the buyer exist to the extent that they arise from guarantee claims of the seller against the relevant manufacturer in business dealings among genuine business people. To this end the seller assigns its guarantee claims against the relevant manufacturer to the ordering party. The latter in turn authorises us to make the guarantee claims in our own name.
2. We guarantee that the subjects of the delivery are free from defects according to the state of the art.
3. We give no guarantee for any damage or loss that has arisen from inappropriate or incorrect use, failure to observe user instructions or incorrect or negligent handling. Glass breakage is in general excluded from the guarantee.
4. Any guarantee lapses if the ordering party allows persons not authorised to do so to interfere with and/or carry out repairs on devices without the express agreement of us or the manufacturer.
5. Obvious defects are to be reported without delay and within 3 working days following receipt of the delivery at the latest and in any event before further processing or incorporation. Otherwise all claims for defects relating to these are excluded. In commercial dealings, §§ 377, 387 HGB (Commercial Code) also apply.
6. In the event of justified complaints we are entitled, taking into account the nature of the defect and the justified interests of the buyer, to determine the nature of the subsequent fulfilment (replacement delivery, making good). If the defect may only be corrected at disproportionately high expense or cost, we are entitled, in so far as this is reasonable for the customer – to refuse to perform subsequent fulfilment and instead to grant a reduction in the purchase price. Cancellation is excluded in the event of minor defects.
IX. Liability in other cases
1. The liability of the seller and its agents for damage caused on the buyer’s premises is limited to cases of breach of major contractual duties and to damage or loss that we should have foreseen at the time of conclusion of the contract as a possible consequence of the breach of contract on the basis of its nature and extent, taking into account the circumstances that it knew of or should have known of. In addition, in the event of grossly negligent action by its agents not in management positions, the seller’s liability is limited to compensation for the foreseeable damage or loss typical of such a contract.
2. In all other cases that are not dealt with by the other party in these terms and conditions of sale, all claims by the ordering party for compensation for damage or loss of any kind are excluded regardless of the legal basis on which they are derived. This exclusion of liability also applies in particular in the event of inadequate performance and breach of secondary precontractual and contractual duties and also applies to extra-contractual claims, in particular claims arising from unlawful acts and product liability. This exclusion of liability covers our employees and agents. This exclusion of liability does not apply in the event of deliberate act or gross negligence.
3. The seller is liable for damage or losses for which it is to blame up to a maximum in total of € 1,000,000 for personal injury and € 100,000 for physical damage and other losses. The service provider’s liability for lost profits is excluded.
X. Cancellation of and compensation for unfulfilled orders
1. We may cancel the contract if we become aware of cessation of payments, the commencement of insolvency proceedings or in-court settlement proceedings, the refusal of insolvency because of a lack of assets, dishonoured bills of exchange or cheques or other specific reasons for believing that the ordering party’s asset situation has deteriorated.
2. If we cancel the contract or the order is not fulfilled for reasons for which the ordering party is to blame, then the ordering party must pay us fixed compensation of 15% of the purchase price for our costs and lost profits. We reserve the right to demand higher compensation that can be evidenced.
3. This fixed compensation is reduced to the extent that the ordering party proves that costs or losses were not incurred.
The ordering party within the meaning of our terms and conditions is any person taking our products, regardless of whether they are a buyer, a customer, a client or an ordering party.
XII. Data protection
The buyer is hereby informed that we process personal data gathered in the context of the business relationship in accordance with the provisions of the Bundesdatenschutzgesetz (Federal Data Protection Act).
XII. Place of fulfilment, jurisdiction, partial invalidity, applicable law
1. The place of fulfilment and jurisdiction is Hamburg.
2. Hamburg is agreed as the place of fulfilment for all services due from either party arising from the contract including any claims for returns/refunds.
3. In business dealings with commercial parties who are not included in the traders referred to in §4 HGB and with legal persons under public law, Hamburg is agreed as the place of jurisdiction for all legal disputes arising from the contract including issues relating to bills of exchange and cheques. We are also entitled to bring an action at the place of the customer’s registered office.
4. In the event of the invalidity of individual terms of the supply contract or of these standard terms and conditions of sale, the other terms remain binding and effective.
5. German law applies to cross-border delivery movements. The application of the Uniform Law on the International Sale of Goods is excluded.
MEDIK Hospital Design GmbH
Hamburg, April 2016