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DJM Medical Instrument GmbH –

General Terms and Conditions

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1.        Scope of application

a）These General Terms and Conditions govern all of our business relationships with our customers ("Buyers"). The General Terms and Conditions apply only if the Buyer is an entrepreneur (Section 14 German Civil Code (BGB)), a legal entity under public law, or a special fund under public law.

b）The General Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 651 German Civil Code (BGB)). Unless otherwise agreed, the General Terms and Conditions shall apply in the version valid at the time that the Buyer places an order or at least in the version communicated to him most recently in textual form as a framework agreement for similar future contracts without us having to refer to them again in each individual case.

c）Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and insofar as we have expressly consented that they are valid. This consent requirement also applies if we deliver the goods to the Buyer unconditionally with knowledge of the Buyer’s Terms and Conditions.

d）Individual agreements made with the Buyer in separate cases (including side agreements, addenda, and changes) have priority over these General Terms and Conditions. A written contract or our written confirmation shall be decisive for the content of such agreements in the absence of proof to the contrary.

e）Legally relevant declarations and notices of the Buyer in relation to the agreement (setting of deadlines, notification of defects, cancellation or reduction, etc.) must be submitted in writing (letter, e-mail, fax, etc.). Statutory formal requirements and regulations requiring additional proof, in particular if there are doubts about the authorisation of the person making a declaration, remain unaffected.

2.        Conclusion of the contract

a）Our offers are non-binding. This also applies if we have provided the Buyer with catalogues, technical documentation (drawings, plans, calculations, and references to DIN standards, etc.), and other product descriptions or documents (including in electronic form); we reserve the copyright and ownership rights to such documents.

b）When the Buyer orders goods, it is considered a binding contractual offer. Unless otherwise stated in the order, we reserve the right to accept this contract offer within 10 days of its receipt.

c）The acceptance can either be indicated in writing in the form of an order confirmation or by delivery of the goods to the Buyer.

3.        Delivery time and delivery delay

a）We will approve or specify the delivery period on a case-by-case basis at the time of order acceptance.

b）If binding delivery deadlines cannot be met for reasons for which we are not responsible (unavailability of the service), the Buyer will be informed immediately and at the same time notified of the probable new delivery deadline. If it turns out that delivery still cannot be made during the new delivery period, we reserve the right to cancel the contract in whole or in part. We will immediately reimburse any consideration that the Buyer has already paid. Cases of non-availability of the service in this sense include in particular the failure of our supplier to deliver goods on time, cases where we have concluded a matching cover transaction, cases where neither we nor our suppliers are at fault and cases where we are not obliged to procure goods in individual cases.

c）Cases of default of deliveryare determined by statutory provisions. In any case, the Buyer must submit a warning notice. If we are at fault for a delivery delay, then the Buyer can demand payment of a lump sum to compensate for damages caused by delay. The lump sum penalty for each complete calendar week of delay amounts to 0.5% of the net price (delivery value). However, the total sum cannot exceed more than 5% of the delivery value of the goods that are delivered late. We reserve the right to prove that the Buyer has incurred no damage or only a much lower level of damage than the above lump sum.

d）The rights of the Buyer in accordance with Section 8 of these General Terms and Conditions and our statutory rights, in particular in the case of the non-applicability of the obligation to deliver goods (for example, due to impossibility or unreasonableness of the delivery and/or subsequent performance), remain unaffected.

4.        Delivery, passing of risk, acceptance and default of acceptance

a）Delivery is ex warehouse, which is the place of delivery and any subsequent performance. The goods will be shipped to another destination (sale by delivery) at the request and expense of the Buyer. Unless otherwise agreed, we reserve the right to determine shipment method ourselves (in particular, the transport company, means of transport and packaging).

b）The risk of accidental loss and accidental deterioration of the goods passes to the Buyer at the latest at the time of handover. However, in the case of a sale by delivery, the risk of accidental loss of and accidental deterioration of the goods as well as the risk of delay shall pass upon handover of the goods to the forwarder, the carrier or the person or institution designated to carry out the shipment. Insofar as a formal acceptance has been agreed on, this is the decisive consideration for the passing of risk. In all other respects, the statutory provisions of the law on contracts apply accordingly to an agreed formal acceptance. The handover or acceptance occurs regardless of whether the Buyer is in default of acceptance.

c）If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we reserve the right to demand compensation for the resulting damages, including additional expenses. In these cases we charge a flat-rate fee of EUR 50 per calendar day, starting with the delivery date or (in the absence of a delivery term) with the notice that the goods are ready to ship. Our right to prove higher damages and our legal claims (in particular, compensation for additional expenditures, reasonable compensation and termination) remains unaffected. However, the lump sum should be used to offset further claims. The Buyer has the right to prove that we have incurred no damage or only a much lower level of damage than the above lump sum.

5.        Prices and terms of payment

a）Unless otherwise agreed in individual cases, our current prices at the time of the conclusion of the contract shall apply, ex warehouse, plus statutory VAT.

b）In the case of a sale by delivery (Section 4 (1)), the Buyer bears the transport costs ex warehouse and the costs of any transport insurance desired by the Buyer.The Buyer shall bear any duties, fees, taxes and other public levies.

c）The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we reserve the right at any time, including as part of an ongoing business relationship, to deliver goods in whole or in part only upon prepayment for said goods. We will issue notice of such reservation at the latest at the time of the order confirmation.

d）The Buyer will be considered to be in default of payment upon expiration of the above payment period.The purchase price is subject to interest at the applicable statutory default interest rate during the period of default.We reserve the right to assert further damages caused by delay.For merchants, our claim to the commercial default interest under Section 353 German Commercial Code (HGB) remains unaffected.

e）The Buyer is only entitled to assert offset or retention rights insofar as his claim is legally established or undisputed.If defects are discovered in the delivered goods, the counterclaims of the Buyer, in particular those pursuant to Section 7 (6) Sentence 2 of these Terms and Conditions, are not affected.

f）If it becomes apparent, after conclusion of the Agreement, that our claim to the purchase price is jeopardized due to the Buyer’s lack of capacity to pay, we are entitled to cancel the Agreement in accordance with statutory provisions for refusal to deliver goods and, if applicable after providing notice of a final payment deadline, entitled to rescind the Agreement (Section 321 German Civil Code (BGB)). We reserve the right to immediately rescind agreements for the manufacture of individual goods (that are custom-made). The statutory provisions on the dispensability of setting deadlines remain unaffected.

6.         Retention of title

a）Until all of our current and future receivables due under the purchase agreement and ongoing business relationship are paid in full, we reserve ownership of the goods that are sold.

b）The goods subject to retention of title may not be pledged to third parties or transferred as receivables before full payment of the secured claims is made. The Buyer must notify us immediately in writing if a motion for the opening of insolvency proceedings is made or if a third party accesses (e.g. seizes) the goods belonging to us.

c）If the Agreement is breached by the Buyer, in particular due to non-payment of the purchase price that is due, we are entitled to rescind this Agreement in accordance with statutory provisions and/or to demand the goods be returned on the basis of the retention of title. The claim to return the goods does not automatically include a declaration that the Agreement is rescinded. We are only entitled to demand the goods be returned and to reserve the right of rescission. If the Buyer does not pay the purchase price that is due, we may only assert these rights after the expiration of a reasonable payment deadline that we set for the Buyer or if such a deadline is dispensable in accordance with the statutory provisions.

d）The Buyer is authorized until further notice in accordance with the provisions under (c) to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall additionally apply.

• The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If the property rights of third parties remain after the processing, mixing or combining the goods of third parties, we will acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In addition, the same applies to the resulting product as to the goods delivered under reservation of title.
• The Buyer hereby assigns to us the receivables from third parties arising from the resale of the goods or the product as a whole or in the amount of our possible co-ownership share in accordance with the preceding Sub-section. We accept the assignment. The obligations of the Buyer mentioned in Sub-section 2 also apply with regard to the assigned receivables.
• Besides us, the Buyer remains authorized to collect the receivable. We undertake not to collect the receivable as long as the Buyer meets his payment obligations to us, there is no defect of his capacity to pay, and we do not assert the reservation of title by exercising a right in accordance with Sub-section 3. If this, however, is the case, we can demand that the Buyer inform us of the assigned receivables and their debtors, provide all information necessary for collection, hand over related documents, and notify debtors (third parties) of the assignment. In addition, in this case, we are entitled to revoke the Buyer's authority to resell and process the goods subject to the retention of title.
• If the realizable value of the securities exceeds our receivables by more than 10%, we will, at the request of the Buyer, release the securities of our choice.

7.         Buyer’s claims for defects

a）The statutory provisions govern the rights of the Buyer in the case of material and legal defects (including wrong delivery and delivery shortfalls as well as improper installation or faulty assembly instructions) unless otherwise stated below. In all cases, the statutory special provisions for delivery of unprocessed goods to a consumer remain unaffected, even if the latter has further processed them (supplier recourse in accordance with Sections 478 German Civil Code (BGB)). Claims arising from supplier recourse are excluded if the defective goods are further processed by the Buyer or another contractor, e.g. due to incorporation into another product.

b）The basis of our liability for defects is above all the agreement that is concluded concerning the quality of goods. All product descriptions, which are the subject of the individual Agreement or have been made public by us (in particular in product catalogues or on our Internet homepage), shall constitute an agreement on the condition of the goods.

c）If no condition was agreed on, it must be judged in accordance with the legal provisions whether or not there is a defect (Section 434 (1) Sentences 2 and 3 German Civil Code (BGB)). However, we do not assume any liability for public statements made by the manufacturer or other third parties (for example, advertising statements).

d）The claims for defects of the Buyer presuppose that he has complied with his statutory obligations to examine the goods and notify us of any defect (Sections 377, 381 German Commercial Code (HGB)). If there is a defect that is discovered at the time of delivery, the examination, or at any later date, we must be notified immediately in writing. If the Buyer fails to properly examine the goods and/or report a defect, our liability for the defect that is either not reported at all, is not reported in a timely manner or is reported in an improper manner is excluded under statutory provisions.

e）If the delivered goods are defective, we can first of all choose whether we provide supplementary performance by rectifying the defect (repair) or by delivering a defect-free product (replacement delivery). Our right to refuse supplementary performance in accordance with the statutory requirements remains unaffected.

f）We reserve the right to make the owed supplementary performance dependent on the condition that the Buyer pay the purchase price that is due. The Buyer is, however, entitled to retain a portion of the purchase price that is commensurate with the defect.

g）The Buyer must give us the time and opportunity required to perform the owed supplementary performance, in particular by handing over the rejected goods for examination purposes. If the good is replaced, the Buyer has to return the defective item in accordance with statutory regulations. The supplementary performance does not include the removal of the defective item or its reinstallation if we were originally not obliged to install it.

h）The necessary expenses that are incurred for the purpose of testing and supplementary performance, including in particular transport, travel, labour and material costs as well as any removal and installation costs, shall be borne or reimbursed by us in accordance with the statutory provisions if a defect actually exists. Otherwise, we may recover from the Buyer the costs incurred from an unjustified request to rectify the defect (in particular, inspection and transport costs),   unless the lack of a defect was not apparent to the Buyer.

I）In urgent cases, e.g. in case of endangerment of operational safety or to avoid disproportionate damage, the Buyer has the right to remedy the defect himself and to demand reimbursement of costs from us for any expenses that are objectively necessary. We must be informed of such action without undue delay, if possible in advance. The right of self-remedy does not exist if we were entitled to refuse a corresponding supplementary performance in accordance with statutory provisions.

j）If the supplementary performance fails or if a reasonable period to be set by the Buyer for the supplementary performance has expired without the achievement of the supplementary performance or such period is dispensable in accordance with statutory provisions, the Buyer may rescind the purchase agreement or reduce the purchase price. There is no right of rescission for a minor defect.

k）Claims by the Buyer for damages or compensation for fruitless expenditures may only be made in accordance with Section 8, even in case of defects, and are otherwise excluded.

8.        Other liability

a）Unless otherwise stated in these General Terms and Conditions, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with statutory regulations.

b）We are liable for damages (regardless of the legal reason) in case liability for fault is established due to intent and gross negligence. In the case of ordinary negligence, we are liable only subject to a milder standard of liability in accordance with legal provisions (for example, for care in our own affairs)

•  for damages resulting from injury to life, body or health,
• for damages resulting from the material breach of a material contractual obligation (an obligation whose fulfilment enables the proper execution of the contract in the first place and the compliance with which the contractual partner as a rule relies and may expect to rely on). However, in this case, our liability is limited to compensation for foreseeable and typically occurring damages.

c）The restrictions on liability resulting from Sub-section 2 shall also apply to breaches of duty by or for the benefit of persons whose fault we are liable for under statutory provisions. They do not apply, however, if we fraudulently concealed a defect or assumed a guarantee concerning the quality of the goods, or to claims of the Buyer under the German Product Liability Act.

The Buyer may only rescind or terminate the contract on the grounds of a breach of obligation that does not exist in a defect if we are responsible for such breach of obligation. The Buyer’s free right of termination (especially in accordance with Sections 651, 649 German Civil Code (BGB)) is excluded. In all other respects, the legal requirements and legal consequences apply.

9.        Statute of limitations

Notwithstanding Section 438 (1) No. 3 German Civil Code (BGB), the general limitation period for claims arising from material and legal defects is one year from the date of delivery. Insofar as formal acceptance has been agreed, the limitation period begins at the time of acceptance.

10.      Choice of law and jurisdiction

a）For these General Terms and Conditions and the contractual relationship between us and the Buyer, the law of the Federal Republic of Germany applies to the exclusion of international uniform law, in particular the UN Sales Convention.

b）If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, then the exclusive place of jurisdiction (also the international place of jurisdiction) for all disputes arising directly or indirectly from the contractual relationship is our place of business in Willich. The same applies if the Buyer is an entrepreneur within the meaning of Section 14 German Civil Code (BGB). However, in all cases, we are also entitled to bring action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or an overriding individual agreement or at the general place of jurisdiction of the Buyer. Prevailing statutory regulations, especially exclusive jurisdictions, remain unaffected.