General terms and conditions
Mediagnost Company for Research and Production of Diagnostics Ltd (Mediagnost)
Stand: April 2019
§ 1 Validity
All contract conclusions, deliveries and other services between Mediagnost and the Buyer are exclusively based on the following terms and conditions and apply in business transactions with entrepreneurs as defined by § 14 BGB (German Civil Code). Deviating or supplementary conditions of the Buyer as well as collateral agreements are only binding if they are confirmed in writing by Mediagnost.
§ 2 Offer and conclusion of contract
Price and service specifications in brochures, advertisements or other written documents are only binding for Mediagnost if they have been submitted or confirmed by Mediagnost in writing.
This also applies to contract amendments after conclusion of the contract.
The orderer's offer requires a written order confirmation by Mediagnost in order to be legally accepted. If the Buyer is a merchant and if Mediagnost's order confirmation contains deviations from the Buyer's order, the deviations shall be deemed approved unless the Buyer objects in writing within 5 calendar days after the date of issue of the order confirmation.
§ 3 Prices and terms of payment
- The agreed prices result from the order confirmation or the written offer of Mediagnost. All prices are exclusive of value added tax. It will be invoiced separately at the applicable statutory rate. The prices are valid ex warehouse including the customary product packaging.
- All payments shall be made within 30 calendar days of receipt of an invoice or partial invoice, unless a different payment term has been agreed in writing. Payments shall be made in cash, by check or bank transfer. Checks will only be accepted on account of performance. Discounts shall only be granted if agreed in writing.
- A right of retention on the part of the customer, insofar as it is not based on the same contractual relationship, as well as offsetting with disputed or not legally established claims is excluded.
- If the Buyer defaults on his payment obligation in whole or in part, Mediagnost is entitled to revoke any agreements on payment terms and/or deferrals - without prejudice to accrued interest. The same applies if the Buyer stops his payments or if any other significant deterioration of his economic situation occurs (e.g. insolvency or composition proceedings, enforcement measures). The total claim of Mediagnost then becomes immediately due for payment. In case of default, Mediagnost is entitled to claim damages according to § 4 clause 6 and/or to withdraw from the contract.
§ 4 Delivery
- The delivery time stated in the order confirmation or in Mediagnost's offer shall be understood as delivery at the earliest possible time in the individual case, unless a binding delivery date has been agreed in writing between the parties.
- Mediagnost is entitled to partial deliveries or partial services at any time.
- If non-compliance with dates or deadlines is demonstrably due to mobilization, war, strike, incorrect or untimely delivery by subcontractors or the occurrence of unforeseen obstacles beyond Mediagnost's control, they shall be reasonably extended. Both parties may withdraw from the contract if one of the aforementioned events causes such a long delay that the delivery is or becomes economically or practically unreasonable. In this respect, both parties shall be released from performance.
- If the delivery time is extended or if Mediagnost is released from its obligation to perform, the Buyer may not derive any claims for damages therefrom, provided that Mediagnost has immediately notified the Buyer of the reason for the delay or withdrawal.
- If Mediagnost is responsible for the non-observance of a binding delivery date, the Buyer can only derive rights from this if he has set a grace period of 4 weeks after the expiry of the binding delivery date and has fulfilled all current obligations from the business relationship on his part. After unsuccessful expiry of this period, the customer may withdraw from the entire contract.
- If the Buyer is in default of acceptance or if Mediagnost is entitled to withdraw from the contract for reasons for which the Buyer is responsible, and if Mediagnost exercises this right, damages in the amount of 25% of the value of the delivery may be claimed. The damages shall be set higher or lower if Mediagnost proves a higher damage or the Buyer proves a lower damage.
§ 5 Shipping and transfer of risk
- The risk shall pass to the Customer as soon as the product is made available to the Customer at Mediagnost's premises or has left Mediagnost's premises for shipment. If shipment is delayed at the request of the customer, the risk shall pass to the customer upon notification of readiness for shipment.
- At the request of the Purchaser, deliveries shall be insured at the Purchaser's expense.
- The costs for shipment, transport or special insurance shall be borne by the Customer. Unless a special written agreement is made, the type of packaging and transport is left to the discretion of Mediagnost.
- Shipment and transport of radioactive materials shall be carried out under special labeling and packaging in compliance with relevant regulations. Mediagnost shall not be liable for any damage caused by improper handling or storage during transport or after arrival at the customer's premises.
- Upon the occurrence of default in acceptance, the risk of accidental deterioration or accidental loss shall pass to the Purchaser.
§ 6 Retention of title
- All deliveries by Mediagnost are subject to retention of title.
- In the case of a current account, the retained title shall also serve as security for Mediagnost's balance claims which had already arisen at the time of the conclusion of the contract. Ownership of the delivered products shall not pass to the Buyer until all payments from the current business relationship have been received.
- Processing of the products subject to retention of title shall be carried out for Mediagnost as manufacturer within the meaning of § 950 BGB (German Civil Code), without obligating Mediagnost. The processed product shall be deemed to be a Retained Product in this sense. If the product subject to retention of title is processed or inseparably mixed with other products not supplied by Mediagnost, Mediagnost shall acquire co-ownership of the new product in the ratio of the invoice value to the invoice value of the other products used at the time of processing or mixing. The co-ownership rights thus created are deemed to be a product subject to retention of title within the meaning of these terms and conditions. If the products of Mediagnost are combined with other movable objects and if the other object is to be regarded as the main object, it shall be deemed agreed that the customer transfers co-ownership to Mediagnost on a pro rata basis, insofar as the main object belongs to him.
- The Purchaser may dispose of Retained Products only in the ordinary course of its business.
- The Customer's claims arising from the resale of products subject to retention of title are hereby assigned to Mediagnost. Mediagnost accepts the assignment. If the products subject to retention of title are sold by the Buyer together with other items not delivered by Mediagnost, Mediagnost shall be entitled to a fraction of the respective purchase price claims in proportion to the invoice value of the resale in accordance with the above provisions. In the event of resale of items in which Mediagnost has a co-ownership share pursuant to clause 3 above, the assignment of the claim shall apply in the amount of its co-ownership share. The assigned claims serve as security to the same extent as the products subject to retention of title.
§ 7 Orderer data
A storage of the orderer-related data is considered as agreed. The data protection measures guaranteed by Mediagnost can be found in the data protection declaration, which is available on the homepage at https://mediagnost.de/datenschutz/ can be viewed.
§ 8 Warranty, Statute of Limitations
- In the event of a defect, Mediagnost shall, at its discretion, either remedy the defect or provide a replacement delivery. Mediagnost is entitled to multiple rectification or replacement delivery as long as this is reasonable for the customer.
- If the subsequent performance fails, the Purchaser may reduce the purchase price or withdraw from the contract. The right to claim damages shall remain unaffected; § 4 No. 6 of these Terms and Conditions shall apply accordingly. However, before objecting to the unreasonableness, the Purchaser shall grant in writing a reasonable period of time for subsequent performance.
- In the event of a warranty claim, the delivered products shall be kept ready for inspection by Mediagnost in the condition they were in at the time the defect was discovered. Claims of the customer for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the subject matter of the delivery was subsequently moved to a location other than the customer's place of business, unless the transfer is in accordance with its intended use.
- In the event of subsequent performance, the Customer shall return the defective products to Mediagnost upon request.
- Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of the usability and/or in the case of impairments which arise after the transfer of risk as a result of incorrect or improper handling, use, storage or due to external influences which are not assumed under the contract. If improper modifications are made by the purchaser or third parties, there shall also be no claims for defects for these modifications and the resulting consequences.
- The purchaser's claims for material defects shall become statute-barred after two years. The period begins with the delivery of the products.
§ 9 Notice of defects
Complaints about the products must be reported in writing immediately after receipt of the delivery in commercial transactions. Complaints occurring later must be reported in writing immediately after discovery.
§ 10 Warranty
Insofar as a guarantee of durability and/or quality is given for delivered products, the purchaser shall be entitled to the rights arising from the conditions stated in the guarantee declaration in the event of a guarantee claim, irrespective of these terms and conditions.
§ 11 Approvals, application
- The procurement of any official permits for the transport, import and/or acquisition as well as the transfer or use of the products shall be the responsibility of the Purchaser.
- Mediagnost shall not be liable for any damage or consequential damage resulting from improper handling, storage or use of the product.
§ 12 Damages
Claims for damages on the part of the customer, irrespective of the legal grounds, in particular for breach of obligations arising from the contractual obligation and from tort, are excluded. This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent and gross negligence, for damage to life, body and health, due to the assumption of a guarantee for the existence of a characteristic or the breach of essential contractual obligations. Compensation for damages due to breach of material contractual obligations shall, however, be limited to the damage typical for the contract, unless there is intent or gross negligence or liability for bodily injury or due to the assumption of a guarantee for the existence of a property. This provision does not imply a change in the burden of proof to the detriment of the purchaser. In the event of force majeure, any obligation of Mediagnost to pay damages shall lapse.
§ 13 Place of performance, place of jurisdiction, choice of law
- The place of performance for all contractual and legal claims is the registered office of Mediagnost.
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Tübingen.
- Subject to individual agreements to the contrary, the entire contractual relationship between Mediagnost and the Customer shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
§ 14 Reservation of right of modification
The GTC can be changed by Mediagnost due to new jurisdiction, changed legal situation or changed market conditions. The customer will be notified of the change in the GTC in text form. If the changed GTC are not objected to in writing within 4 weeks after notification, they are considered as agreed upon. This consequence will be pointed out to the customer again at the time of notification. If the change is objected to, Mediagnost has the right to terminate the contractual relationship with the Customer with immediate effect.
§ 15 Conflict of laws
Mediagnost objects to general terms and conditions of the customer, which exclude the validity of the general terms and conditions of Mediagnost.
§ 16 Final provision
The above terms and conditions shall remain binding in their remaining parts even if individual provisions are invalid. Should any provision be invalid in whole or in part, the contracting parties shall immediately endeavor to achieve the economic purpose intended by the invalid provision in another legally permissible manner.