TERMS AND CONDITIONS
Mediagnost Gesellschaft für Forschung und Herstellung von Diagnostika GmbH (Mediagnost)
Last updated: April 2019
All contracts, deliveries and other services between Mediagnost and the customer are exclusively based on the following conditions and apply to business transactions with entrepreneurs as defined by article 14 BGB (German Civil Code). Deviating or supplementary conditions of the customer as well as collateral agreements are only binding if confirmed by Mediagnost in writing.
2 Quote and conclusion of the contract
Specifications of prices and performance in brochures, advertisements or other documents are only binding for Mediagnost if they have been stated or confirmed by Mediagnost in writing.
This also applies to amendments to the contract after the conclusion of the contract.
The acceptance of the customer’s quote is only legally effective after a written order confirmation by Mediagnost. If the customer is a merchant and if the order confirmation from Mediagnost contains deviations from the customer’s order, the deviations are deemed approved unless the customer objects in writing within 5 calendar days of the date of issue of the order confirmation.
3 Prices and payment terms
- The agreed prices result from the order confirmation or the quote in writing by Mediagnost. All prices are exclusive of value added tax. The VAT is invoiced separately at the respective applicable statutory rate. The prices apply ex warehouse including the product packaging customary in the trade.
- Unless otherwise agreed in writing, all payments are due within 30 calendar days of receipt of an invoice or partial invoice. Payments are to be made in cash, by cheque or bank transfer. Cheques are only accepted on account of performance. A cash discount is only granted upon written agreement.
- 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 against disputed claims or claims that have not legally been established, is excluded.
- If the customer is in default with their payment obligation in whole or in part, Mediagnost is entitled to revoke any payment term and/or extension agreements – notwithstanding any interest accrued. The same applies if the customer ceases their payments or if any other significant deterioration in their economic situation occurs (e.g. insolvency or composition proceedings, enforcement measures). The total claim of Mediagnost is then due for payment immediately. In the event of default, Mediagnost is entitled to claim damages in accordance with article 4 item 6 and/or to withdraw from the contract.
- The delivery period stated in the order confirmation or in the quote of Mediagnost is to 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 the non-compliance with appointed dates or deadlines is verifiably due to mobilisation, war, strike, incorrect or late delivery by subcontractors or the occurrence of unforeseen obstacles outside the sphere of Mediagnost, such dates or deadlines are extended accordingly. 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. To this extent, both parties are released from performance.
- If the delivery period is extended or if Mediagnost is released from their obligation to perform, the customer may not derive any claims for damages from this if Mediagnost has informed them immediately of the reason for the delay or of their withdrawal.
- If Mediagnost is responsible for the non-compliance with a bindingly agreed delivery date, the customer can only derive rights from this if the customer has set a grace period of 4 weeks after expiry of the binding delivery date and has in turn fulfilled all current obligations arising from the business relationship. After the unsuccessful expiry of this period, the customer may withdraw from the entire contract.
- If the customer is in default of acceptance or if Mediagnost is entitled to withdraw from the contract for reasons for which the customer is responsible, and Mediagnost makes use of this right, damages amounting to 25% of the value of the delivery may be claimed. Compensations for damages is to be set higher or lower if Mediagnost proves higher damages or if the customer proves lower damages.
5 Shipment and transfer of risks
- The risk passes to the customer as soon as the product is made available to the customer at the premises of Mediagnost or has left the premises of Mediagnost for the purpose of shipment. If the dispatch is delayed at the request of the customer, the risk passes to the customer upon notification of the readiness for dispatch.
- Deliveries are insured at the request of the customer at the cost of the customer.
- The costs for dispatch, transport or special insurance are borne by the customer. Unless otherwise agreed in writing, the type of packaging and transport is at the discretion of Mediagnost.
- The dispatch and transport of radioactive materials is carried out under special labelling and packaging in compliance with the relevant regulations. Mediagnost is not liable for damage caused by improper handling or storage during transport or after arrival at the customer’s premises.
- The risk of accidental deterioration or accidental loss passes to the customer upon default of acceptance.
6 Retention of title
- All deliveries by Mediagnost are subject to retention of title.
- In the case of an open invoice, the retained property is also considered as security for Mediagnost’s balance claims which had already arisen at the time the contract was concluded. The ownership of the delivered products only passes to the customer upon receipt of all payments arising from the current business relationship.
- The treatment and processing of the retained products are carried out for Mediagnost as manufacturer as defined in article 950 BGB (German Civil Code) without obligating Mediagnost. The processed product is deemed a retained product in this sense. If the retained product is processed or inseparably mixed with other products not supplied by Mediagnost, Mediagnost acquires co-ownership of the new item in the same proportion of the invoice value to the invoice value of the other items used at the time of processing or mixing. The co-ownership rights thus created are deemed to be a retained product as defined in these terms and conditions. If the products of Mediagnost are combined with other mobile objects and if the other object is to be regarded as the main object, it is deemed agreed that the customer transfers to Mediagnost proportional co-ownership insofar as the main object belongs to the customer.
- The customer may only dispose of retained products in the ordinary course of his business.
- The customer’s claims from the resale of retained products are at this juncture assigned to Mediagnost. Mediagnost accepts the assignment. If the retained products are sold by the customer together with other items not supplied by Mediagnost, Mediagnost is, according to the above provisions, entitled to a share of the respective purchasing price claim which is proportional to the invoice value of the resale. In the event of the resale of objects in which Mediagnost has a co-ownership share in accordance with the foregoing item 3, the assignment of the claim applies in the amount of its co-ownership share. The assigned claims serve as security to the same extent as the retained products.
7 Customer data
8 Guarantee, statute of limitations
- In the event of a defect, Mediagnost grants, at Mediagnost’s discretion, either subsequent improvement or replacement delivery. Mediagnost is entitled to multiple subsequent improvements or replacement delivery as long as this is reasonable for the customer.
- If the subsequent performance fails, the customer is entitled to reduce the purchase price or withdraw from the contract. The right to claim damages remains unaffected; article 4 item 6 of these terms and conditions applies accordingly. Before pleading unacceptability, however, the customer must grant a reasonable period for subsequent performance in writing.
- In the event of a warranty claim, the delivered products must be kept ready for inspection by Mediagnost in the condition in which they are at the time the defect is discovered. Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded to the extent that such expenses increase because the subject matter of the delivery has subsequently been moved to a location other than the customer’s premises, unless such transport corresponds to its intended use.
- In the event of subsequent performance, the customer must return the defective products to Mediagnost upon request.
- Only insignificant deviations from the agreed quality, only insignificant impairment of the usability and/or impairments arising after the transfer of risk as a result of faulty or improper handling, use, storage or due to external influences, which are not assumed under the contract, do not constitute warranty Claims. Furthermore, in case of improper modifications by the customer or by third parties, such modifications and the thus resulting consequences do not constitute claims for defects.
- Claims for material defects on the part of the customer are subject to a limitation period of two years. The limitation period starts with the delivery of the products.
9 Notice of defect
Complaints about the products in the transaction context must be made in writing immediately after receipt of the delivery. Complaints arising at a later point must be made in writing immediately after their discovery.
Insofar as a durability and/or quality guarantee is given for delivered products, in the event of a warranty claim the customer is entitled to the rights arising from the conditions stated in the guarantee declaration, irrespective of these terms and conditions.
11 Permits, application
- The customer is responsible for obtaining any official permits for the transport, import and/or acquisition as well as for the passing on or application of the products.
- Mediagnost is not liable for damages and consequential damages resulting from improper handling of the product or from its improper storage or use.
Claims for indemnity on the part of the customer, irrespective of their legal basis, in particular for the violation of duties arising from the contractual obligation and tort are excluded. This does 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, limb and health, due to the assumption of a guarantee for the existence of a characteristic or the breach of essential contractual obligations. However, damages for breach of essential contractual obligations is limited to typical contractual damage, unless in cases of intent or gross negligence or if liability is assumed for bodily harm or for the assumption of a guarantee for the existence of a characteristic. This provision does not imply a change in the burden of proof to the detriment of the customer. In the event of force majeure, any obligation on the part of Mediagnost to pay damages lapses.
13 Place of performance, place of jurisdiction, choice of law
- The place of performance for all contractual and statutory 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 is Tübingen.
- German law applies to the entire contractual relationship between Mediagnost and the customer, subject to other individual agreements. The UN Convention on Contracts for the International Sale of Goods is excluded.
14 Reservation of right to alternations
The general terms and conditions may be amended due to new jurisdiction, changed legal situation or different market conditions of Mediagnost. The customer is notified of any amendment to the general terms and conditions in text form. If the amended general terms and conditions are not objected to in writing within 4 weeks of notification, they are deemed agreed. The customer is informed of this consequence again upon notification. Should the amendment be objected to, Mediagnost is entitled to terminate the contractual relationship with the customer with immediate effect.
15 Conflict rule
Mediagnost contradicts any general terms and conditions of the customer which exclude the validity of the general terms and conditions of Mediagnost.
16 Final provisions
The above terms and conditions remain binding in their remaining parts even if individual provisions are invalid. If a provision is or becomes invalid in whole or in part, the contracting parties immediately strive to reach the economic purpose intended with the invalid provision in another, legally permissible way.