General terms and conditions of DAVITA®
DAVITA® Medizinische Produkte GmbH & Co. KG
1. Scope
Unless otherwise agreed in writing, these Terms and Conditions shall exclusively apply to all deliveries and services. Any contrary or deviating terms and conditions of the Buyer shall not be binding for us, even though we have not expressly contradicted them or have effected the delivery without raising any objections against any contrary terms and conditions.
2. Offer and Orders
Our offers as well as quotations, dimensional and service information and other data from our catalogues and publications are subject to alteration.We reserve the right to make modifications to the design and construction at any time. Any contractual obligations shall only arise to us by our written order confirmations.
3. Delivery
If the Seller is delayed in his delivery the Buyer shall be entitled to withdraw from the contract after granting some respite. Any claim for compensation to the Seller due to such delay shall be ruled out, unless he has caused such delay by gross negligence or with intent. The same shall apply to the liability of the Seller for any act of his legal representative or vicarious agents.
Part deliveries shall be permissible. The Buyer shall be obliged to accept part deliveries. This shall not affect the right of the Buyer to withdraw from the contract or to claim compensation due to any delay in supplying the rest of the delivery after the respite granted has elapsed. The Buyer shall only be liable for compensation if such delay is based on gross negligence or intent. Any hold-ups in our performance caused by any events, force majeure or other unforeseen, exceptional or inevitable occurrences, especially strike, even illegal strike or lockout, shall entitle us to cancel our supply commitments in total or partly.
This shall also apply to any interruptions in operation caused by delays in our obtaining essential raw materials or other input materials, unless these are only temporary breakdowns.
4. Prices and Terms and Conditions of Payment
All prices shall be understood to be on an ex works basis and plus the legal value-added tax or in accordance with separate agreements. Our deliveries will generally be made on the basis of cash on delivery or cash in advance, or in accordance with a separate agreement.
Setting off any payments by any counterclaims shall be ruled out. Any undisputed or effectively established claims of the Buyer shall be excluded from this set-off ban. The assertion of any right of retention shall be ruled out. Drafts will only be accepted for payment or on the basis of special agreements. Any discount, collecting or other charges shall be on the Buyer's expense.
If the payment period is exceeded we shall charge interest for late payment of 4 % (four per cent) above the respective discount rate of the Deutsche Bundesbank. If a buyer falls behind with the payment of his invoice, and if he has to be responsible for such delay, all his debts from the contractual relationship shall become immediately due.
5. Reservation of Ownership
Any delivery and service of the Seller will be supplied/rendered under the reservation of ownership. Among merchants, the following shall, in addition, be agreed upon: The Buyer may only sell the supplied goods and the things produced from their processing within the course of normal business and under the reservation of ownership.
All the goods supplied shall remain our property until all debts resulting from the entire business relation have been completely paid, even though the goods have already been resold to any third party. Any pawning and assignment as security in favour of any third party shall be ruled out. The Buyer shall be obliged to immediately inform the Seller of any access of any third-party persons to the goods supplied under the reservation of ownership by sending an attachment record. The returns from the resale of the goods shall, in each case, be considered to have been assigned to us to the amount of our own purchase price claim, even proportionally, if the resale is made together with other goods not supplied by us.
The Buyer shall be entitled to collect the claims from the resale of our goods as long as he fulfils his own obligations to pay in accordance with the contract. Otherwise, the returns realised from the resale of our goods shall directly become our property and must be immediately paid to us and kept separately from the remaining property of the Buyer until paid to us. If the value of the object supplied to us under the reservation of ownership and serving as security exceeds our total claim by more than 20 % (twenty per cent) we shall, on the Buyers request, be obliged to make corresponding repayment.
In case of default, the Customer shall, on the Seller's request, immediately return to the Seller the goods not resold yet.
7. Returns
Returns should be made in the original packing and, unless any particular written agreements are applicable, can only be made with our prior consent and carriage free for us. The Buyer will be charged for any costs for freight, taking back, repair and re-packing; this shall not apply to any cases according to Clause 6 and in case of any justified withdrawal of the Buyer from the contract.
8. Place of Performance and Place of Jurisdiction
The place of performance shall be Kleve. The place of jurisdiction for any claims given rise by this contractual relationship, especially for purchase price claims, shall be the Kleve Magistrate's Court for both parties. If a district court is responsible for judgement the Kleve District Court shall be the place of jurisdiction. We shall, however, reserve to assert our rights at the court responsible for the Buyer's domicile.
9. Final Provisions
Unless any arrangement or any deviating arrangement has been fixed in these Terms and Conditions of Delivery and Payment, the German Civil Code (BGB) and the Commercial Code (HGB) shall always be applicable. If any of the provisions of these Terms and Conditions of Delivery and Payment has been declared void by a written agreement all remaining provisions shall remain applicable without any restrictions.
Also for export contracts, the German national law, especially the regulations of the Civil Code, of the Law of General Terms and Conditions of Trade and of the Commercial Code, are understood to be applicable.
(Version as of 04/05)
Davita® Medizinische Produkte GmbH & Co. KG
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