DÜRR DENTAL SE
Terms of Sale, Payment and Delivery for Customers
General Terms and Conditions for Sale, Delivery and Payment
Last updated: December 2021
- Unless agreed otherwise in writing in individual cases, the Terms and Conditions of Sale, Delivery and Payment set out below form part of the contract. These Terms and Conditions of Sale, Delivery and Payment shall also be valid for all future busi-ness dealings even if they are not explicitly mentioned again. General terms and conditions of the customer shall not form part of the contract even if we do not ex-pressly oppose them. Insofar as general terms and conditions of the customer are in conflict with the Terms and Conditions of Sale, Delivery and Payment set out below, the customer is obliged to inform us expressly and in writing in good time before the contract is concluded that he does not accept the Terms and Conditions of Sale, De-livery and Payment set out below. If no such notification is provided, the customer agrees to waive any right to assert his opposing terms and conditions of business.
- All offers submitted by us are non-binding and subject to change. Orders are only deemed to have been accepted if they have been confirmed by us at our discretion by e-mail, fax or in written form. Our order confirmation is decisive in terms of the contract content unless we receive a written objection within 14 days of the date of our order confirmation; this shall not apply if the order confirmation deviates so far from the order that approval of the customer cannot be expected.
- All agreements made for the purpose of fulfilment of the contract shall be set down in writing.
- If INCOTERMS are agreed for business transactions outside of Germany, then the relevant definitions defined and published at conclusion of the contract by the Inter-national Chamber of Commerce in Paris shall apply.
- Our prices apply ex works from Bietigheim and do not include packaging, freight and insurance. Where applicable, VAT will be applied to the agreed prices at the relevant rate set out in law. In the case of invoices for contractually agreed services, which are calculated without VAT, we reserve in particular the right to subsequently bill the VAT at the legally applicable rate plus any legal or official surcharges, in the event that the position of the tax authorities with regard to the relevant circumstances has changed in the meantime or this is revealed by an audit.
- Unless stated otherwise in the order confirmation, our invoices shall be paid strictly net within 30 days of the billing date. Repairs and contract work shall be paid imme-diately strictly net in all cases.
- In the case of deliveries to customers who reside outside of the Federal Republic of Germany or of deliveries intended for export from the above sregions, we are enti-tled to demand provision of an irrevocable letter of credit from a German bank or savings bank (Sparkasse) that is authorised within Germany as a customs and tax guarantor, and to only deliver the goods on provision of a letter of credit.
- Bills of exchange or cheques are accepted only on account of payment. The custom-er shall bear all costs and expenses associated with discounting or collection of the bills of exchange.
- If, after contract conclusion, there is a substantial deterioration in the financial situa-tion of the customer or the customer is at risk of such deterioration occurring, as a result of which payments by the customer are at risk, we are entitled to declare all our existing demands for services already rendered due for immediate payment. In this case, irrespective of the term of accepted bills of exchange, we are entitled to demand payment in cash against return of the bills of exchange. Our rights from § 321 German Civil Code (BGB) remain unaffected.
- The customer is not entitled to assert a right of retention over our demands or to set them off, insofar as the counterclaims are not uncontested or not expressly recog-nised by us or legally established. Furthermore, the customer is only entitled to ex-ercise a potential right of retention insofar as his counterclaim rests on the same con-tractual relationship.
- At our discretion we are entitled to bill the agreed service via letter post or electroni-cally by e-mail.
- Shipment takes place at the cost and risk of the customer. Deliveries are only en-sured against transport damage at the express wish of the customer and at their cost.
- Risk is transferred to the customer with handover to the transport person, including in cases where partial deliveries are made. If collection by the customer is agreed then the risk is already transferred when readiness for collection is communicated.
- Delivered objects shall be accepted by the customer, even if they display non-substantial defects, notwithstanding his rights from section F of these Terms and Conditions of Sale, Delivery and Payment. This does not apply in the case of incorrect deliveries.
- Compliance with the times for delivery or service provision (delivery times, i.e. deliv-ery dates and delivery periods) is subject to compliance with the contractual obliga-tions and responsibilities of the customer. Delivery periods therefore only start with receipt of our order confirmation by the customer, but not before the customer supplies the documents, information etc. they are required to provide, and similarly not before receipt of an agreed collateral; delivery dates will shift in these cases ac-cordingly. Changes or additions to the original delivery or service scope agreed after conclusion of the contract will extend or move the original delivery periods or dates appropriately.
- The delivery time is deemed to have been met if, by the end of the period in ques-tion, the delivery item has been handed over to the transport person or readiness for collection has been communicated.
- Delivery or service disruptions due to force majeure or as a result of labour disputes, interventions by authorities, industrial disputes/disruptions, material procurement or energy supply difficulties, epidemics, pandemics, outbreaks of infectious diseases or other crises of public health, including quarantine or other restrictions of the em-ployees, for which we cannot be held responsible and/or are beyond our control, or due to other unforeseeable, exceptional circumstances that are not our fault, in each case regardless of whether these circumstances arise in our company or at one of our sub-suppliers, will extend the delivery time by the duration of the disruption. If such events substantially impede or render impossible our ability to make the deliv-ery or provide the service, and the impediment is not solely of a temporary nature, we are entitled to withdraw from the contract. In the case of impediments of a tem-porary nature, the delivery or performance periods shall be extended by the period of time during which the impediment applies, plus an appropriate grace period. If, as a result of the delay, it is not reasonable to expect the customer to accept the deliv-ery or service, then the customer can withdraw from the contract by issuing us an immediate declaration. Further claims of the customer, particularly with regard to compensation for damages, shall not apply.
- The above clause 3 does not cover cases in which we have agreed to our time obliga-tions despite the foreseeability of these circumstances or in which we have failed to take available and reasonable measures for prevention or avoidance of the default or in which in which we ourselves are to blame for the impediment. Pursuant to clause 3 above, we shall still not be responsible for the stated circumstances if they occur during an already existing delay. We will notify the customer of the start and expected duration of any such disruptions.
- If the customer suffers losses as a result of a delay for which we are responsible, then he is entitled to claim compensation for damages. Here, our liability is set out in section G of these Terms and Conditions of Sale, Delivery and Payment.
- The retention of title agreed below serves to safeguard all existing current and fu-ture demands in each case from us against the customer resulting from the business relationship that exists with us (including balance demands from a current account relationship limited to this delivery relationship).
- The delivery item remains our property until all secured claims from the business re-lationship with the customer have been paid in full (reserved item). The customer must neither pledge, mortgage, pawn nor collateralise the reserved item. In the case of distraint or seizure or other injunctions or access by third parties to the reserved item, the customer shall inform the third parties without delay that the reserved item is our property and notify us about this. If the third party is not able to reim-burse us for the legal or appropriate extrajudicial costs accrued in this context, then the customer shall be liable to us for this.
- The customer shall store the reserved item for us free of charge. Up to the transfer of ownership, the customer shall insure the reserved item against loss, breakage, fire damage, water damage and other damage. The customer now already assigns all rights from the insurance contracts relating to this matter and his claims against their underwriters to us. We herewith accept this assignment.
- In the event of enforcement: If the customer behaves in a manner that conflicts with the contract, in particular in the event of late payments, we are entitled to take back the reserved item after giving notice. Assertion of the retention of title and seizure of the reserved item by us shall not count as a withdrawal from the contract.
- Prior to enforcement. the customer is entitled to resell the reserved item in accord-ance with the above clause 4 as part of normal business under his normal conditions. If the item is resold, the claims of the customer from reselling shall now already be assigned to us as a precaution – in the event of our co-ownership of the reserved item proportionally to the co-ownership share. The same holds for other claims that apply in place of the reserved item or otherwise arise in relation to the reserved item, such as e.g. insurance claims or claims resulting from tortious liability in the event of loss or destruction. We herewith accept this assignment. Until revoked, the customer is entitled to collect these claims under his own name even after the as-signment. In this case, we can further exercise our previously unasserted right to col-lect the assigned claims ourselves and can demand from the customer that he com-municate this assignment to his debtors. Furthermore, we can also demand that the customer notifies us of the assigned claims and their debtors, provides us with all in-formation required for their collection, and hands us the corresponding documents.
- Processing or modifications of the reserved item by the customer are always carried out on our behalf and on our account, as a result of which we acquire ownership. If the reserved item is processed with other objects that do not belong to us or if the value of the processed object is higher than the value of the reserved item, then we shall however only acquire co-ownership of the new object in the ratio of the value of the reserved item to the other objects processed at the time of processing. For the object resulting from the processing, the same shall apply as for other reserved items (see above).
- If the reserved item is combined with other objects that do not belong to us, as a re-sult of which it becomes a substantial part of a new, combined object, then we shall acquire co-ownership of the new object in the ratio of the value of the reserved item to the other combined objects at the time of processing. If the combination takes place in such a way that the object of the customer is regarded as the main ob-ject, then it is taken as agreed that the customer shall transfer proportional co-ownership to us. The customer shall hold the co-ownership arising in this way for us. The clauses relating to combination shall apply analogously to cases of mixing or blending. For the new objects resulting from the mixing, blending or combination, the same shall apply otherwise as for other reserved items (see above).
- We undertake to release the securities to which we are entitled insofar as their value exceeds the accounts receivable to be secured by more than 20%. The choice of ob-jects to be released subsequently lies with us.
- Immediately after delivery to the customer or to a third party appointed by the cus-tomer, the delivered objects shall be carefully inspected. With regard to obvious de-fects or other defects that would have been recognisable during an immediate, care-ful inspection, the objects shall be deemed to be approved by the customer unless we receive a written notice of defects within 7 (seven) working days of delivery. With regard to other defects, the delivery objects are deemed to be approved by the customer if the notice of defects is not received by us within 7 (seven) working days from the day on which the defect becomes evident; however, if the defect was already evident at an earlier time during normal use then this earlier time shall be decisive for the start of the complaint period. At our request a defective delivery ob-ject shall be sent back to us carriage paid. If the notice of defects is justified, we will reimburse the costs for the cheapest method of carriage; this shall not apply if the costs increase because the delivery object is located in a different location to the place of proper use.
- Should this fail, i.e. should subsequent performance or replacement delivery be made impossible, unreasonable, refused or inappropriately delayed, the client is en-titled to withdraw from the contract or to reduce the purchase price accordingly. In the case of defective delivery or performance, the customer is entitled to demand remedying of the defect or delivery of goods free of defect / production of a new item (supplementary performance) at our discretion. If we refuse the supplemen-tary performance, it fails, becomes impossible or unreasonable for the customer, of if it is not performed within an appropriate period of time determined by the cus-tomer, then the customer can, at his own discretion, demand a price reduction or withdraw from the contract or, in the case of a service contract in accordance with § 637 German Civil Code (BGB), remedy the defect himself. Withdrawal from the con-tract is not permitted in the case of minor defects. Apart from this, our liability is based solely on section G of these Terms and Conditions of Sale, Delivery and Pay-ment.
- In the event of defects on components from other manufacturers where licensing or other factual reasons prevent us from being able to remedy them, we will, at our discretion, assert our warranty claims against the manufacturer and supplier for the account of the customer or transfer such claims to the customer. Warranty claims shall exist for such defects under the other conditions and in accordance with these Terms and Conditions of Sale, Delivery and Payment only if the judicial enforcement of the above-mentioned claims against the manufacturer and supplier was unsuc-cessful, or if it has no chance of success, e.g. due to insolvency. For the duration of the legal dispute, the statute of limitations shall be suspended for all affected war-ranty claims of the customer against us.
- Any guarantee for the quality of the purchased goods or work in the sense of § 443 German Civil Code (BGB) must be accepted by us expressly in written form.
- Claims for defects shall not apply to natural wear or if the delivery object has been modified without authorisation, in particularly through the installation of third-party components, and the defect can be attributed to this. The warranty shall also cease to apply if the customer modifies the delivery object or has it modified by a third par-ty without our approval, thereby making it impossible or unreasonably more difficult to remedy the defect. In all cases the customer shall bear the increased costs for remedying the defect that result from the modification.
- The warranty period for all new units is 24 months from delivery. The warranty period for replacement units, spare parts, units from the repair exchange programme and factory repairs is 12 months. This time limit does not apply to claims for damages on the part of the client for loss of life, bodily injury or damage to health or for grossly negligent breaches of duty by us or by our vicarious agents, which shall each lapse in accordance with the statutory definitions.
- We may refuse to remedy defects for as long as the customer is behind with his obligations.
- This does not affect a right of retention due to possible delivery defects up to twice the value of the costs of remedying the fault.
- Pursuant to the definitions in the clauses below, we guarantee that the delivery ob-ject is free of any third-party industrial property rights or copyrights. Each of the par-ties to the contract will immediately notify the other party to the contract in writing in the event that claims are made against them due to infringement of such rights.
- In the event that the delivery object infringes any third-party industrial property rights or copyrights, we will, at our discretion and at our expense, replace or modify the delivery object in such a way that no third-party rights are infringed any more but the delivery object still fulfils the contractually agreed functions, or we will obtain a right of use for the customer by concluding a licensing agreement with the third par-ty. If we are unable to achieve this within an appropriate period of time, the custom-er is entitled to withdraw from the contract or to reduce the purchase price appro-priately. Possible claims for damages from the customer are subject to the limitations set out in section G of these Terms and Conditions of Sale, Delivery and Payment.
- In the event of legal infringements due to products supplied by us from other manu-facturers, we will, at our discretion, assert our claims against the manufacturers and sub-suppliers on account for the customer or transfer such claims to the customer. In these cases, pursuant to the above clause 10, claims against us shall only exist if the judicial enforcement of the above-mentioned claims against the manufacturers and sub-suppliers was unsuccessful, or if it has no chance of success, e.g. due to insol-vency. For the duration of the legal dispute, the statute of limitations shall be sus-pended for all affected claims of the customer against us.
- Our liability for damages, regardless of legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, neglect of duties in contract negotiations and liability in tort is, insofar as each case depends on the question of blame, limited pursuant to this section G.
- We shall not be liable in cases of simple negligence on the part of persons or groups of persons who are authorised to represent us, or on the part of our legal represent-atives, employees or other vicarious agents, insofar as the infringement does not re-late to essential contractual obligations. Here, the following are deemed to be essen-tial contractual obligations: the obligation to timely delivery and installation of the de-livery object, its freedom from legal defects and such material defects that would impair its functionality or serviceability more than just insignificantly, as well as duties to advise, duties to protect and duties of care designed to enable the customer to use the delivery object in accordance with the contractual purpose, to protect the life and health of personnel of the customer, or to protect the customer’s property against significant damage.
- Insofar as we, pursuant to the above clause 2, are liable in principle for damages, this liability shall be limited to damages that we have foreseen during contract conclusion as the potential consequence of a contract infringement or that we should have foreseen under application of customary care. Indirect damages and consequential damages that are the consequence of defects of the delivery object shall further on-ly be eligible for compensation to the extent that such damages can be typically ex-pected under proper use of the delivery object.
- In the event of liability for simple negligence, our obligation to pay compensation for material damages and for further financial losses resulting from them shall be limited per claim to the amount covered by our liability insurance, but not to less than EUR 500,000.00.
- The above limitations of liability and liability exclusions apply to the same extent in favour of persons or groups of persons who are authorized to represent us, as well as to our legal representatives, employees or other vicarious agents.
- Insofar as we provide technical information or become active in a consulting role and this information or advice does not form part of the scope of the contractually agreed services owed by us, this is done free of charge and under exclusion of all lia-bility (this does not affect our liability in accordance with clause 7 below).
- The limitations in this section G do not apply to our liability due to deliberate or gross-ly negligent behaviour, for guaranteed characteristics, for loss of life, bodily injury or damage to health, or to liability in accordance with the German Product Liability Act.
- End-of-life devices (electrical and electronic devices) in the sense of the Electrical and Electronic Equipment Act that were placed on the market after 13/08/2005 in Germany as new devices can be returned to us subject to the rulings set out in clauses 2 to 4. We will deal with and/or dispose of these end-of-life devices in ac-cordance with the applicable statutory rulings. In order to return end-of-life devices to us, they shall be transported at the cost and risk of the customer and/or user to us (Höpfigheimer Straße 17, 74321 Bietigheim-Bissingen, Germany). There will be no collection of end-of-life devices or setting up of collection points. Remov-al/disassembly of the end-of-life devices is the sole responsibility of the customer and/or user. There is no obligation for customers to surrender the end-of-life devic-es to us.
- The costs associated with disposal will be borne by the customer. This also applies to a return pursuant to clause 1. If the customer passes on electrical or electronic devic-es from us to a third party, he shall contractually oblige the third party to bear the costs for disposal of these electrical or electronic devices and, in cases where they are passed on again, to impose a corresponding obligation on the relevant recipient. If the customer fails to contractually obligate third parties to whom he has passed on the electrical or electronic devices from us to bear the costs of disposal and to pass on this obligation if said devices are passed on again, then the customer shall be obliged to bear the costs of disposal of the delivered electrical or electronic equip-ment when the end-of-life device is returned to us and to indemnify us against third-party claims in this context.
- Medical devices and in-vitro diagnostics, where it can be expected that they will be-come infectious before the end of their service life, in particular suction units, sepa-rators, amalgam separators and hose systems, plus combinations of these devices, as well as active implantable medical devices, are excluded from returns pursuant to clause 1. Likewise, non-independent components of electrical and electronic devic-es, in particular rinsing units, place selection valves and spittoon valves, insofar as these are not part of an end-of-life device, are also excluded from returns pursuant to clause 1.
- If a return is excluded in accordance with clause 3 or the customer decides in accordance with clause 1 not to surrender end-of-life devices to us, then the customer has a duty to dispose of the end-of-life devices at his own cost in accordance with the requirements set out in the relevant legal regulations. To this extent the customer shall indemnify us against possible third-party claims.
- The place of performance for both parts of the contract is our company headquar-ters in 74321 Bietigheim-Bissingen, Germany. Provided the customer is a merchant in the sense of the German code of commercial law, a legal entity under public law, or a special fund under public law, then our headquarters are agreed as the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relation-ship (including proceedings involving cheques, bills of exchange and deeds). This also applies to judicial dunning procedures and to persons who have no general place of jurisdiction in Germany, as well as to persons who, after conclusion of the contract, relocate their place of residence or usual abode to a country outside of Germany, or whose place of residence or usual abode is unknown at the time when proceedings are instigated. We are also entitled, however, to file legal proceedings at the court having statutory jurisdiction.
- The legal relationships to the customer are subject solely to the laws of the Federal Republic of Germany; the UN law governing Contracts for the International Sale of Goods (CISG) shall not apply.
- The customer is not permitted – subject to the surrender of financial claims in ac-cordance with § 354 of German Commercial Code (HGB) – to transfer individual rights from this contract or the contract as a whole to third parties, unless we grant express permission to do this in writing.
- If a contractual right is not asserted, this shall not be treated as a waiver of the af-fected right, unless this is communicated to the other party to the contract by the owner of the right expressly and in written form.
- Existing rulings governing burden of proof in favour of the customer are not affected by these Terms and Conditions of Sale, Delivery and Payment.
- No additional verbal agreements have been entered into. Any deviating or supple-mentary clauses and changes to these Terms and Conditions of Sale, Delivery and Payment, including this requirement for the written form, or other contractual agreements shall be put down in writing.
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