General Terms and Conditions of Mediton GmbH
Berliner Allee 2-4, D-30855 Langenhagen, Tel. +49 511 67876 0, www.mediton.net
Berliner Allee 2-4, D-30855 Langenhagen, Tel. +49 511 67876 0, www.mediton.net
§ 1. General
All Mediton sales, services and supplies are based on the following terms and conditions. Any deviations from these conditions as well as other subsidiary agreements require the written consent of Mediton in order to be effective. All conflicting terms and conditions Mediton hereby expressly contradicts. This also applies if Mediton has not expressly objected to different terms and conditions once it has been received by Mediton. The customer accepts the sole validity of these general terms and conditions in full. This also applies in the event that it refers to its own terms and conditions.
§ 2 Offer, offer documents
Our offers are non-binding. Contractual obligations with Mediton exist only after written confirmation by Mediton. Verbal commitments by employees and representatives are only binding for Mediton if they are expressly confirmed in writing by Mediton. If an order of the orderer is to be considered as offer according to § 145 BGB, then Mediton can accept this within 4 weeks.
§ 3 Periods for deliveries / arrears
- The observance of deadlines for deliveries and services presupposes the punctual receipt of all documents to be supplied by the customer, necessary approvals and releases, in particular of plans as well as the adherence to the agreed conditions of payment and other obligations by the customer. If these conditions are not fulfilled in time, the deadlines will be extended accordingly; this does not apply if Mediton is responsible for the delay.
- Failure to meet the deadlines for force majeure, z. As natural disasters, war, riots, terror or similar events, eg. For example, strike, lockout due, the deadlines extended appropriately.
- If Mediton is in default, the purchaser, if he can prove that he has suffered damage, may demand compensation for each completed week of default of 0.5%, but not more than 5% of the price of the part of the delivery. which could not be taken into appropriate operation because of the delay.
- Claims for damages of the purchaser due to delay of the delivery and instead of the performance beyond the limits mentioned in No. 3 are excluded in all cases of delayed delivery, even after expiration of a mediton set deadline for delivery. This does not apply insofar as liability is mandatory in cases of intent, gross negligence or injury to life, limb or health; a change in the burden of proof to the detriment of the customer is not connected with this. The customer may only withdraw from the contract within the scope of the statutory provisions insofar as the delay in the delivery of Mediton is to blame.
- The ordering party is obliged to declare at the request of Mediton within a reasonable period of time whether he withdraws from the contract due to the delay of the delivery and / or demands damages instead of performance or insists on delivery.
- If shipping or delivery is delayed by more than one month after notification of readiness for shipment at the request of the purchaser, the purchaser may be charged storage fee of 0.5% of the price of the goods for each month started, up to a maximum of 5%. The proof of higher or lower storage costs remains unaffected.
§ 4 Retention of title
- Mediton retains ownership of the delivered items until all claims of Mediton against the purchaser arising from the business relationship, including claims arising in the future, have also been settled from simultaneously or later concluded contracts. This also applies if individual or all claims of Mediton were included in a current account and the balance is drawn and recognized.
- The customer is entitled to resell the reserved goods in the ordinary course of business. It hereby assigns to Mediton all claims arising from the resale to customers or third parties in accordance with the following provisions. If reserved goods are sold unprocessed or after being processed or combined with items that are exclusively the property of the customer, the customer hereby assigns all claims arising from the resale to Mediton in full. If the reserved goods are sold by the purchaser together with non-Mediton goods after processing / connection, the purchaser hereby assigns the claims resulting from the resale in the amount of the value of the reserved goods with all ancillary rights and rank before the rest. Mediton hereby accepts the assignment. The purchaser is authorized to collect these claims even after assignment. Mediton's right to collect the claims itself remains unaffected, however, Mediton undertakes not to collect the claims as long as the Purchaser duly fulfills its payment and other obligations. Mediton may demand that the purchaser disclose the assigned claims and their debtors to Mediton, provide all information necessary for collection, hand over the associated documents and notify the debtors of the assignment.
- Any treatment or processing of the reserved goods is made by the purchaser for Mediton without any obligation for Mediton. In the event that the reserved goods are processed, combined or mixed with other goods not belonging to Mediton, Mediton shall be entitled to co-ownership of the new goods in proportion to the value of the reserved goods at the time of processing, combining, mixing or mixing to. If the purchaser acquires the sole ownership of the new item, the purchaser and Mediton agree that the purchaser grants Mediton co-ownership of the new item in proportion to the value of the processed or combined, mixed or blended reserved goods and stores them for Mediton free of charge.
- If the value of the existing securities exceeds the claims to be secured by more than 20%, Mediton is obliged to release them at the request of the customer.
§ 5 Material defect liability
- Claims for defects expire eighteen months after delivery, unless
a) the product supplied by Mediton is a product which has been used in accordance with its normal use for a building and which has caused its defectiveness or
b) they are claims of the kind regulated in § 479 BGB or they are claims according to § 634a section 1 no. 2 or
c) the defect was fraudulently concealed or is based on a deliberate breach of duty by Mediton or legal representatives of Mediton or vicarious agents of Mediton.
- In cases a) to c) and for claims for damages that are not excluded under § 7 (2), the statutory periods of limitation apply.
- The purchaser must immediately notify Mediton in writing of all material defects alleged by him.
- In the case of complaints, payments of the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The orderer can withhold payments only if a notice of defect is asserted, over whose legitimacy no doubt can exist. If the notice of defect was wrongly made, Mediton is entitled to demand compensation for expenses incurred by the customer.
- Mediton must always be given the opportunity of subsequent performance within a reasonable period of time.
- If the supplementary performance fails, the customer can - without prejudice to any claims for damages under § 7 - withdraw from the contract or reduce the remuneration.
- Claims for defects do not exist in the event of insignificant deviation from the owed property, with insignificant impairment of usability, natural wear or damage after the transfer of risk as a result of faulty or negligent treatment, excessive use, unsuitable operating resources, defective construction work, unsuitable ground or due to special external influences, which are not required under the contract, as well as software defects that are not reproducible. If changes or repairs are made by the customer or a third party in an improper manner, there are no claims for material defects for these and the resulting consequences.
- Claims of the purchaser for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the object of the delivery is subsequently transferred to a location other than that agreed upon conclusion of the contract Place of delivery, unless the shipment complies with its intended use.
- Legal recourse claims of the purchaser pursuant to § 478 BGB (entrepreneur's recourse) against Mediton exist only to the extent that the purchaser has not made any agreements with his purchaser beyond the legal claims for defects. For the extent of the recourse claim of the purchaser against Mediton, paragraph 8 shall apply accordingly.
- For damage claims, § 7 (other claims for damages) also applies. Further or other than those regulated in this § 5 claims of the customer against Mediton or our vicarious agents due to a material defect are excluded.
§ 6 Impossibility / contract adjustment
- Insofar as the delivery or service for Mediton is impossible, the purchaser is entitled to demand compensation, unless Mediton is not responsible for the impossibility. However, the claim for damages of the purchaser is limited to 12% of the value of that part of the delivery which can not be put into proper operation because of the impossibility. This restriction does not apply insofar as liability is mandatory in cases of intent, gross negligence or injury to life, limb or health; a change in the burden of proof to the detriment of the customer is not connected with this. The right of the customer to withdraw from the contract remains unaffected.
- Insofar as unforeseen events within the meaning of § 3 (2) significantly change the economic meaning or the content of the delivery or have a significant effect on the operation of Mediton, the contract shall be adjusted appropriately in accordance with good faith. Insofar as this is not economically justifiable, Mediton has the right to withdraw from the contract. If Mediton wishes to make use of this right of withdrawal, Mediton shall immediately notify the orderer after having recognized the significance of the event, even if an extension of the delivery time was initially agreed with the customer.
§ 7 Other claims for damages
- Claims for damages and reimbursement of expenses of the customer, for whatever legal reason, in particular due to breach of duties arising from the contractual relationship and from tort are excluded.
- Claims for damages of the customer against Mediton exist according to the legal regulations in unlimited amount, if this
a) are based on injury to life, limb or health and are caused by willful or negligent breach of duty by Mediton, one of its legal representatives or vicarious agents; or
b) based on the product liability law or
c) based on a willful or grossly negligent breach of duty by Mediton, a legal representative or vicarious agent or
d) based on malice or
e) Mediton has assumed a procurement risk or a guarantee and is therefore liable.
- If damage is only due to negligent breach of a contractual obligation (cardinal obligation) by Mediton, a legal representative or vicarious agent, Mediton shall also be liable for damages, but limited in amount to typical and foreseeable damage, unless Mediton is liable according to sentence 1 a) to e) unlimited. Material contractual obligations (cardinal obligations) within the meaning of the above provisions are obligations whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the buyer may regularly rely. Furthermore, essential contractual obligations (cardinal obligations) are those whose breach jeopardizes the achievement of the purpose of the contract. It remains with the legal burden of proof distribution.
- Insofar as the purchaser is entitled to claims for damages pursuant to this § 7, these shall become statute-barred within eighteen months after the occurrence of the damage.
§ 8 Costs for orders not executed
Since troubleshooting time is working time, in the event that no warranty work is available, the costs incurred and incurred will be charged to the purchaser if an order can not be carried out because:
- the fault complained about could not be determined in accordance with the rules of technology;
- the customer culpably misses the agreed date;
- the order was withdrawn during the execution.
§ 9 Prices
- Prices for the assembly of devices / components / systems or parts thereof are charged separately to the purchaser. Unless otherwise agreed, the list prices and billing rates generally stipulated by Mediton in the intended installation time shall prevail. In the case of storage-programmed systems, the orderer is obliged to communicate the user data in good time before delivery of the system to Mediton (this includes, for example, telephone number lists, IP number ranges, etc., detailed explanation in Annex 1). If the purchaser changes his / her information / data or orders owing to his / her median, these changes will be invoiced separately by mediton with the fixed list prices. If the customer requests the delivery or installation of the pipeline network, this will be charged separately by Mediton. The basis for calculation here are the list prices valid for the planned installation time for oversize invoices.
- Price changes to the prices specified in the contract are not permitted until after the expiration of five months, if the wages customary in the industry have increased between the conclusion of the contract and the agreed delivery date, or if the prices of suppliers of Mediton have changed. In this case Mediton can adjust the price according to the respective change. This provision shall also apply in the event of a change in statutory value added tax and in the event that the delivery of Mediton's plant / plant components / services is delayed because the customer does not fulfill its obligation to ensure proper and professional assembly (further details in Appendix 1), not completely or not done on time.
- Freight and packaging will be charged separately.
- All prices are exclusive of VAT. This will be charged according to the legal regulations.
§ 10 Transfer of risk / receipt / partial delivery
- The risk also passes to the purchaser in the case of freight-free delivery as follows:
- in the case of deliveries without erection or assembly, when they have been brought for shipment or picked up. At the request and expense of the customer, deliveries will be insured by Mediton against the usual transport risks;- on delivery with installation or assembly on the day of the takeover in the operation of the customer or his customer or, as agreed, after flawless trial operation.
- If the dispatch, the delivery, the beginning, the implementation of the installation or assembly, the takeover in the operation of the customer or the trial operation for reasons for which the purchaser is responsible delayed or the purchaser for other reasons in default of acceptance, the risk goes to Orderer over.
- The customer may not refuse to accept deliveries due to insignificant defects.
- Partial deliveries are permitted.
§ 11 Lump-sum compensation for refusal of acceptance
If the purchaser is in default with the acceptance of the services ordered by Mediton and Mediton sets a reasonable deadline for the acceptance of the services, Mediton may after this period either demand the fulfillment of the contract or a compensation for damages based on 15% of the order value amounts. Both parties reserve the right to prove that they have incurred significantly higher or substantially less or no damage whatsoever. These regulations about the
Flat-rate calculation of the damage shall also apply if, in the event of the insolvency of the customer, the insolvency administrator makes use of his right not to fulfill the contract.
§ 12 Terms of payment
- Payments are due without any deduction as follows:a) For contracts with an order value up to 10,000.00 Euro net cash after deliveryb) for contracts with an order value of more than € 10,000.00 and a delivery period of up to three months, 50% of the contract value at the time of conclusion of the contract and the remainder at the time of delivery,c) in the case of contracts with an order value of more than € 10,000.00 and a delivery period of more than three months, 30% of the order value upon conclusion of the contract, after expiry of the first third of the scheduled delivery time, after expiry of the second third of the scheduled delivery time and the remainder upon delivery ,
- Checks are accepted by Mediton only on account of performance. Changes are not accepted by Mediton.
- The assertion of a right of retention by the customer is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or legally determined.
§ 13 Property and copyright of documents
Mediton reserves the ownership as well as the copyright of technical documents, illustrations and drawings provided to the orderer.
§ 14 Jurisdiction, place of fulfillment, effectiveness
- For all present and future claims arising from the business relationship with merchants within the meaning of the German Commercial Code, legal persons under public law or special assets under public law including check claims, the place of jurisdiction is - without prejudice to our right to bring proceedings at any other legally established place of jurisdiction - the headquarters of Mediton agreed.
- Unless otherwise stated in our order confirmation, our place of business is the place of performance.
- The invalidity of individual provisions of these conditions does not affect the validity of the remaining provisions
As of April 2018