Our Sales Terms shall apply to all present and future business relations with our Customers. Customers in the sense of these General Sales Terms shall be entrepreneurs and consumers.
Entrepreneurs in the sense of the Sales Terms shall be natural persons or legal entities or partnerships having legal capacity with whom a business relationship is entered into and who engage in commercial activity as a business or independent contractor.
Consumers shall be natural persons with whom a business relationship is entered into without being able to ascribe to these persons any commercial activity as a business or independent contractor.
These Sales Terms are exclusive; we do not accept Customer's terms that conflict with or deviate from our Sales Terms unless we expressly agree to their applicability in writing.
All covenants made between us and the Customer for the purpose of performing the agreement are expressed in writing in this Agreement.
The Customer shall receive a written order confirmation with our General Sales Terms. This confirmation does not represent acceptance of the offer. If the order qualifies as an offer in the sense of §145 of the German Civil Code, we can accept this offer within 2 weeks.
Insofar as the Customer is a consumer, then the signed order is a binding offer which we are authorized to accept within two weeks of receipt. Acceptance shall be effected by sending a separate confirmation in writing that contains all essential conditions.
The consumer can cancel his order within two weeks in writing without giving reasons or, if the item has been provided to him before this period has expired, by returning the merchandise. The timely dispatch of the cancellation or the item shall be deemed sufficient to comply with the cancellation period.
A cancellation shall not exist if the merchandise has been manufactured according to the customer's specifications or is not suitable for return due to its nature, is perishable, or has passed its expiration date.
The cancellation shall be addressed to:
PETER BREHM GmbH
Am Mühlberg 30
Tel. +49 9135 7103-0, Facsimile: +49 9135 7103-16
Consequences of cancellation: In case of a valid cancellation, goods and services received by either party and, in applicable cases, derived benefits (e.g. interest) shall be returned. In the event that you cannot return the merchandise received in whole or in part or only in worse condition, you shall be required to compensate us accordingly for the loss of value. This shall not apply if the deterioration of the merchandise is exclusively due to its inspection, as it would be possible in a retail store. Apart from this, you can avoid the obligation to compensate for lost value due to proper use of the item by not putting the item to use as if it were your property and by refraining from anything that could reduce its value. Items suitable for parcel shipping with a merchandise value of over €40.00 shall be returned at our expense and risk. Items not suitable for parcel shipping will be collected at your premises. Obligations to refund payments shall be fulfilled within 30 days. This period shall commence for you upon sending your cancellation notice or the item and for us upon receipt thereof.
We reserve ownership rights and copyrights to all documents such as illustrations, calculations, drawings, and other documents that are supplied to the Customer in connection with the placement of the order. This shall also apply to documents that are designated as "confidential." These documents may not be made available to third parties unless we give the Customer our express written consent to do so. Insofar as we do not accept the Customer's offer within the period of No. 2, these documents shall be returned to us without delay. The covenants regarding confidentiality that have been concluded separately with the Customer shall apply.
PETER BREHM GmbH sells the Contract Products to the Customer at the respective list prices applicable at the time of the conclusion of the Purchase Agreement. Insofar as nothing to the contrary follows from the order confirmation, all prices shall apply "ex works."
Insofar as the Customer is an entrepreneur, statutory value-added tax is not included in our prices but shall be shown separately in the invoice in the statutory amount. Shipping costs are also not included in our prices; they are invoiced separately. The deduction of a discount shall require a special written agreement.
For consumers, all prices shall apply exclusive of value-added tax and shipping costs.
In the case of consumers, we reserve the right in the case of agreements with an agreed delivery time of more than 4 months (longer term contracts) to adjust prices according to changes in costs, especially increases in wages, material costs, or market acquisition prices. We will demonstrate these increases to the Customer on request. The Customer shall be entitled to withdraw from the Agreement if the price increase amounts to more than 5% of the agreed price. Insofar as the Customer is an entrepreneur, a legal entity under public law, or a special fund under public law, price changes according to the present arrangement shall be permitted if the time period between the conclusion of the Agreement and the agreed delivery date exceeds six weeks.
Insofar as nothing to the contrary follows from the order confirmation, the sale price, in the case of entrepreneurs the net sale price (without discount) shall be payable within 30 days of the date of the invoice. The statutory regulations regarding the consequences of default shall apply. For every dunning notice except the initial notice, we shall charge a flat-rate dunning fee of €5.00.
Payment by bill of exchange is permitted only in the case of explicit agreement and is deemed paid only under this circumstance. Discount and collection charges shall be borne by the Purchaser.
In the case of payment by check, payment does not occur with the receipt of the check by PETER BREHM GmbH but only when the check is credited to our account.
PETER BREHM GmbH's contract partner can only offset such counterclaims as have been have been recognized by us or established with legal force. The Purchaser may not exercise a right to withhold payment that is not based on the same legal relationship.
Insofar as nothing to the contrary follows from the order confirmation, the delivery is agreed to be "ex works."
The period of delivery specified by us shall only commence after all technical questions have been resolved. The Vendor shall be authorized to make partial deliveries.
Adherence to delivery dates shall also be subject to timely and proper fulfillment of the Customer's obligations. The right to raise objection to nonperformance of the Agreement is reserved.
If the Customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand reimbursement of any losses incurred by us to this extent, including any additional expenses. In particular, we shall be entitled to store the merchandise at the Customer's cost and risk. The date of storage is then deemed to be the delivery date in such cases and the warehouse receipt replaces the shipping documents.
In the event that the conditions mentioned in paragraph 4 arise, the risk of accidental loss or deterioration of the purchased item shall pass to the Customer at the moment that he is in default of acceptance or payment.
We shall be liable in accordance with statutory provisions governing delay in delivery insofar as the Customer is authorized to assert that his interest in continued performance of the Agreement has ceased. This shall also apply in the case that the delay in delivery has arisen from an intentional or grossly negligent breach of contract for which we are responsible; any fault of our representatives or vicarious agents shall be attributable to us. Our liability shall otherwise be limited to foreseeable, typically occurring damage.
We shall be liable within the statutory provisions, insofar as the delay in delivery for which we are responsible has arisen from a culpable breach of major contractual obligations. In this case, the damage shall be limited to the foreseeable, typically occurring damage.
We make sure to take the necessary precautions for procuring the merchandise to be supplied. We shall be authorized to withdraw from the Agreement should delivery be rendered impossible or not insubstantially more difficult due to force majeure, in particular intervention of public authorities, factory shutdowns, strike, or other circumstances for which we are not responsible. The Customer shall then be informed in writing of the occurrence of such events without delay. In the event of withdrawal, we shall undertake to repay without delay any considerations already rendered.
The merchandise is packaged according to commercial standards. Loan packaging shall be emptied by the contracting party without delay and returned in perfect condition. It may not be filled with other merchandise or put to other use. Return shipments from the consumer are free of charge to the consumer.
We reserve title to the purchased item until receipt of all payments from the Supply Agreement. Insofar as the Customer is an entrepreneur, we reserve title to the purchased item until receipt of all payments from the business relationship.
Should the Customer act in breach of the Agreement, in particular in case of default, we shall be authorized to repossess the purchased item. Our repossession of the purchased item constitutes withdrawal from the Agreement. After repossession of the purchased item we shall be entitled to use it and offset the proceeds of the use against the Customer's liabilities, after deducting appropriate usage costs.
The Customer shall undertake to treat the purchased item with care. In particular, he shall undertake to insure the conditional merchandise at his expense against fire, water, and theft at its original replacement value and to assign the insurance claims to us.
In the event of seizures or other actions by third parties, the Customer must notify us in writing without delay so that we can bring suit in accordance with §771 of the German Code of Civil Procedure. Insofar as the third party is not able to reimburse us for the court and out-of-court costs of a suit in accordance with §771 of the German Code of Civil Procedure, the Customer shall be liable for the loss we incur.
The Customer is authorized to resell the merchandise in the ordinary course of business; however, he assigns to us all claims in the amount of the final invoice amount (including value-added tax) of our claims accruing to him from the resale to his customers or third parties, regardless of whether the purchased item has been resold with or without processing. The Customer's claim transferred to us in advance shall also apply to the confirmed balance of account as well as to the causal balance existing in case of bankruptcy of the buyer.
The Customer shall still be authorized to collect this debt after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we agree not to recover the claim ourselves as long as the Customer complies with his payment
obligations arising out of the proceeds collected, is not in default, and in particular has not filed a petition for the opening of composition or bankruptcy proceedings or has suspended payments. However, if this is the case, we can demand that the Customer disclose to us the assigned claims and the identity of the debtors, submit the appropriate documents, and notify the debtors (third parties) of the assignment.
The processing and reworking of the purchased item by the Customer shall always be on our behalf. If the purchased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased item (final invoice amount including value-added tax) relative to the value of the other processed objects at the time of the processing. For the item produced through processing, the same shall apply as for the item supplied under retention of title.
If the purchased item is inseparably mixed with items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the purchased item (final invoice amount including value-added tax) relative to the value of the other mixed objects at the time of the mixing. Should the items be mixed together in such a way that the Customer's item is considered to be the main item, it shall be deemed agreed that the Customer transfers to us proportional co-ownership. The Customer shall retain the sole ownership thus arising on our behalf.
We undertake to release the securities to which we are entitled at the Customer's request insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is at our discretion.
The Customer's rights with regard to defects, insofar as he is an entrepreneur, are subject to his having duly complied with his inspection and complaint obligations pursuant to §377 of the German Commercial Code.
Obvious defects in the merchandise and obvious deviations in quantity shall be communicated to us in writing within one week of receipt of the merchandise.
Consumers must notify us of obvious defects in writing within a period of two months from the
time when the nonconformity of the merchandise to contract was ascertained.
The timely dispatch of the notification shall be deemed sufficient to comply with the time period. Should the merchandise supplied have any defects already present at the time when risk was transferred, we shall, at our discretion, either repair the merchandise or supply a replacement, provided that the notice of defects was given in due time. If the item in question is a consumable item, the entrepreneur is only entitled to the right of reduction of the purchase price. This shall not apply if the defect was maliciously concealed or for which a guarantee of quality had been assumed.
Insofar as the Customer is a consumer, he shall first have the choice as to whether the subsequent performance shall be by means of repair or replacement. However, we are entitled to refuse the choice of subsequent performance if such performance can only be rendered at unreasonable
cost and if the other type of subsequent performance does not cause any significant disadvantage to the consumer.
In the event of a correction of a defect, we shall be obligated bear all the costs involved, in particular the costs of transportation, travel, labor, and material.
If the subsequent performance fails, the Customer shall be entitled to demand withdrawal from the contract or reduction in price, at his discretion.
We shall be liable within the statutory provisions insofar as the Customer asserts damage compensation claims on grounds of intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of willful breach of contract, our liability for claims for damages shall be limited to the foreseeable, typically occurring damage.
We shall be liable within the statutory provisions, insofar as we have culpably violated a major contractual obligation; in this case, the liability for damages shall be limited to the foreseeable, typically occurring damage.
Insofar as the Customer is entitled to replacement of the loss instead of the performance, our liability shall be limited to the foreseeable, typically occurring damage.
Repairs and modifications by third parties shall void the warranty rights as this can impair the suitability of the merchandise for its intended use. Repairs to the merchandise may only be undertaken by us as the characteristics of the merchandise affect its safety. We shall accept no responsibility for the safety, reliability, and function of the merchandise if it has not been used in accordance with the respective operating instructions.
Liability in the event of culpable loss of life, bodily injury, or health impairment as well as liability under the German Product Liability Act shall remain unaffected.
The limitation period for claims arising from defects shall be 12 months (2 years for consumers), calculated from the time of transfer of risk.
For used items, the limitation period for consumers shall be one year from the delivery of the item; liability vis-à-vis entrepreneurs is excluded.
The limitation period in the case of recourse for a delivery according to §478 and §479 of the German Civil Code remains unaffected; it is 5 years, calculated from from the delivery of the defective item.
Certain products are designated by us as disposable products. With these products, resterilization and reprocessing change the product specifications, which can impair their suitability for use. Therefore, we regard these products as unsuitable for reuse. Therefore, in light of the risks involved we explicitly warn against reuse of disposable products.
Should the Customer reuse disposable products despite the aforementioned warning, he shall do so at his own risk. In this respect, we explicitly state that we shall not be liable on any legal grounds for damages resulting from the reuse of disposable products, and that the Customer shall have no claims arising from defects because of the unsuitability of disposable products for reprocessing.
In this respect, the Customer shall indemnify us against any and all claims from third parties arising from or in connection with the resterilization, reprocessing, and/or reuse of disposable products, including the legal defense costs arising in this connection.
Insofar as the Customer is a merchant, the place of jurisdiction is our business domicile; however, we shall be authorized to sue the Customer at his domicile as well.
The law of the Federal Republic of Germany shall apply; UN purchase law shall be excluded.
Insofar as the Customer is a merchant, a legal entity under public law, or a partnership having legal capacity, the place of jurisdiction is our business domicile; however, we shall be authorized to sue the Customer at his domicile as well. Insofar as nothing to the contrary follows from the order confirmation, the place of performance is our business domicile.
Should individual provisions of this Agreement be or become invalid or if the Agreement should contain an omission, the validity of the remaining provisions shall not be affected.
Current as of October 2010