GENERAL TERMS AND CONDITIONS OF BUSINESS
1. Validity of the conditions
1.1 All agreements and offers are based exclusively on these general terms and conditions. They are deemed to be acknowledged by placing an order or accepting delivery. They also apply to all future business relationships, even if they are not expressly agreed again. Pearce Medical GmbH will not accept any differing conditions from the customer.
1.2 Assurances, additional agreements or other contractual changes requested by the customer are only valid if expressly confirmed in writing by Pearce Medical GmbH.
2. Offer, conclusion of contract and content of contract
2.1 The offers from Pearce Medical GmbH are always subject to change and non-binding. Contracts are only concluded with written confirmation from Pearce Medical GmbH. If delivery takes place immediately without an order confirmation, the invoice is also considered an order confirmation.
2.2 Drawings, illustrations, dimensions, weights and other performance data are only binding if this has been expressly agreed in writing.
2.3 Partial deliveries are permitted.
3. Prices and payment conditions
3.1 The prices of Pearce Medical GmbH’s offers and price lists are quoted unpackaged in euros, excluding VAT and excluding freight from the manufacturer’s factory. The prices valid on the day of delivery will be charged.
3.2 Invoices must be paid immediately after the invoice has been issued, without any deductions or expenses. Bills of exchange and checks are only considered payment once they have been cashed. Repair invoices are payable immediately and without deductions.
3.3. Pearce Medical GmbH is entitled to initially offset the customer’s payments against the customer’s older debts. If costs and interest have already been incurred, Pearce Medical GmbH is entitled to offset the payment first against the costs, then against the interest and finally against the main service.
3.4 Offsetting against counterclaims of the customer that are disputed by Pearce Medical GmbH or have not been legally established is excluded. The customer can only assert a right of retention based on counterclaims from the same contract.
3.5 If the customer defaults, Pearce Medical GmbH is entitled to charge interest of at least 6% p.a. above the base interest rate in accordance with Section 247 of the German Civil Code (BGB) from the relevant point in time. If Pearce Medical GmbH demonstrates a higher interest rate or the purchaser demonstrates a lower interest rate, the interest must be set higher or lower accordingly.
3.6. If the customer defaults on a payment or if there are concrete indications of his impending insolvency, Pearce Medical GmbH can stop the continuation of the orders in progress and demand appropriate security for the fulfillment of the contract. If the customer does not provide such security in the short term, Pearce Medical GmbH is entitled to withdraw from the contract and to invoice the customer for the costs incurred up to that point as well as lost profits.
4. Delivery and service time
4.1 The dates and deadlines stated by Pearce Medical GmbH are non-binding unless expressly agreed otherwise in writing. The Delivery period begins as soon as all details of the execution have been clarified and both parties agree on the terms of the transaction.
4.2 The delivery time is deemed to have been met if the subject matter of the contract has left Pearce Medical GmbH or the readiness for dispatch has been communicated in writing. Subsequent requests for changes or additions from the customer extend the delivery time appropriately. The same applies in the event of unforeseen events that are beyond the control of Pearce Medical GmbH, such as force majeure, labor disputes, strikes, lockouts, delays in the delivery of essential raw materials, materials or parts. The same applies if the circumstances mentioned occur at the supplier of Pearce Medical GmbH. The events described entitle Pearce Medical GmbH to postpone the delivery or service for the duration of the hindrance plus an appropriate start-up time or to withdraw from the contract in whole or in part due to the part that has not yet been fulfilled.
4.3 If there is a delay in delivery for which Pearce Medical GmbH is responsible, the purchaser can set Pearce Medical GmbH a reasonable grace period in writing with the indication that he refuses to accept the contractual item after the deadline has expired. If the deadline has expired without result, the purchaser is entitled to withdraw from the contract by means of a written declaration or, in the event of intent or gross negligence, to demand compensation instead of performance. Further claims for damages by the customer are excluded. The same applies to disruptions in performance due to the impossibility of delivery/service for which Pearce Medical GmbH is responsible.
5. Delivery, shipping, transfer of risk
5.1 Unless otherwise agreed, Pearce Medical GmbH delivers freight collect and uninsured ex works.
5.2 The risk passes to the customer as soon as the shipment has been handed over to the person carrying out the transport or has left the Pearce Medical GmbH warehouse for shipping.
5.3 If shipping is delayed for reasons for which the customer is responsible, the risk passes to him from the day the item is ready for shipping
6. Delay in acceptance, ordering on demand
6.1 If the purchaser does not accept the subject matter of the contract or does not accept it on time, Pearce Medical GmbH is entitled to either set a reasonable grace period with the announcement that after the expiry of this period it will dispose of the subject matter of the contract elsewhere and supply the purchaser again with a reasonable extended period or to invoice the contractual item immediately and store it at his own expense and risk. In the latter case, the customer will be charged for the costs incurred for storage, starting one month after notification of readiness for dispatch. This does not affect the right of Pearce Medical GmbH to withdraw from the contract under the legal conditions or to demand compensation instead of performance. If Pearce Medical GmbH claims damages instead of performance, 25% of the invoice amount can be claimed as compensation without proof, unless the customer can prove that damage actually only occurred in the smaller scope of delivery. We reserve the right to claim demonstrably higher damages.
6.2 Unless otherwise agreed, orders that are confirmed on demand by Pearce Medical GmbH must be accepted no later than one year from the order date. If the goods are not called up within the specified period, the provisions of the previous paragraph of these General Terms and Conditions apply accordingly.
7. Retention of title
7.1 Pearce Medical GmbH reserves ownership of the items delivered until the purchase price has been paid in full and other claims arising from the existing business relationship with the customer have been fulfilled.
7.2 The reserved goods may not be pledged, assigned as security or otherwise encumbered with third-party rights. The purchaser is only entitled to resell and combine with other movable items within the scope of his normal business operations. The purchaser must ensure that Pearce Medical GmbH’s retention of title remains in effect wherever possible and assigns the purchase price claim for the – if necessary processed – item from its customers to Pearce Medical GmbH in full. Pearce Medical GmbH hereby accepts the assignment. The purchaser must name the buyers upon request.
7.3 At the request of the purchaser, Pearce Medical GmbH releases security interests if the security value exceeds the claims to be secured by more than 20% and the security interest is divisible.
7.4 In the event of late payment, impending suspension of payments, as well as in cases of unsatisfactory information about the customer’s creditworthiness or of compulsory execution or bill of exchange protests directed against him, Pearce Medical GmbH is authorized to take possession of the reserved goods. The customer is obliged to hand them over. The purchaser bears all costs of taking back and using the reserved goods. The exploitation costs amount to 10% of the exploitation proceeds including sales tax without proof. They must be set higher or lower if Pearce Medical GmbH can prove higher costs or the purchaser can prove lower costs. The proceeds will be credited to the purchaser by Pearce Medical GmbH after deduction of costs and other claims related to the contract. The assertion of the retention of title and the seizure of the delivery items by Pearce Medical GmbH do not constitute withdrawal from the contract.
7.5 Any actual or legal access by third parties to the reserved goods as well as their damage or loss must be reported to Pearce Medical GmbH immediately in writing. The purchaser shall bear all costs incurred by Pearce Medical GmbH in these cases.
7.6 The purchaser must insure the reserved goods appropriately against all usual risks and treat them with care. The purchaser’s claims against insurance in the event of damage are assigned to Pearce Medical GmbH upon conclusion of the contract in the amount of the value of the reserved goods.
7.7 Any treatment, processing, mixing or combination of the reserved goods is carried out on behalf of Pearce Medical GmbH, without any liabilities arising from this.
8. Warranty
8.1 Noticeable defects must be reported to Pearce Medical GmbH in writing immediately after receipt of the contractual item, and hidden defects must be reported in writing to Pearce Medical GmbH immediately after they are discovered. The subject matter of the contract is deemed to have been approved if a complaint about defects is not received within eight working days of arrival of the goods. Defects that cannot be discovered within this period even after careful inspection must be reported to Pearce Medical GmbH in writing immediately upon discovery.
8.2 In cases of justified notice of defects, payments may only be withheld by the purchaser to the extent that is proportionate to the defects.
8.3 Pearce Medical GmbH is liable for defects reported in a timely manner as follows:
a) Those parts which, as a result of a circumstance prior to the transfer of risk, in particular due to faulty design, defective building materials or workmanship, turn out to be unusable or not insignificantly impaired in their usability are to be repaired or delivered new at Pearce Medical GmbH’s discretion. Multiple attempts at repair or new deliveries are permitted. Replaced parts become the property of Pearce Medical GmbH.
b) The purchaser is obliged to give Pearce Medical GmbH the necessary time and opportunity to carry out all repairs and replacement deliveries that Pearce Medical GmbH deems necessary, otherwise Pearce Medical GmbH will be released from liability for defects.
c) No liability for defects is assumed in the event of insignificant deviations from the agreed quality or in the event of defects caused by unsuitable or improper use, incorrect assembly or commissioning on the part of the purchaser or third parties, natural wear and tear, incorrect or negligent treatment or maintenance, unsuitable operating materials or Replacement materials, inadequate installation work, chemical, electrochemical or electrical influences have occurred. The warranty obligation also does not apply if the purchaser or third parties carry out repairs, damage or changes that are causally related to the claimed defect without the consent of Pearce Medical GmbH.
8.4 If repairs or replacement deliveries are impossible, have ultimately failed or are unreasonably delayed, the purchaser can demand that the contract be canceled or the purchase price reduced. All other contractual and non-contractual claims of the customer against Pearce Medical GmbH and its vicarious agents are excluded, in particular claims for damages due to direct or indirect damage, loss of profit and from the implementation of the warranty, unless Pearce Medical GmbH is guilty of intent or gross negligence represented or is liable for compelling legal reasons.
8.5 The statutory statute of limitations for warranty claims also applies to all other claims of the purchaser, including contractual and non-contractual claims for damage
9. Final provisions
9.1 The law of the Federal Republic of Germany applies to these general terms and conditions and the entire legal relationship between Pearce Medical GmbH and the customer, excluding the conflict of laws and the United Nations Convention on Contracts for the International Purchase of Goods.
9.2 To the extent permitted by law, Dortmund is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
9.3 Should a provision of these general terms and conditions and the other agreements made be or become invalid, this will not affect the validity of the rest of the conditions. The contractual partners are obliged to replace the ineffective provision with a provision that is as economical as possible.