TERMS AND CONDITIONS OF DELIVERY AND PAYMENT
Terms and Conditions of Delivery and Payment of Xenios AG and Medos Medizintechnik AG, Heilbronn
1. VALIDITY
1.1 These Terms and Conditions of Delivery and Payment (“Terms and Conditions”) apply to our deliveries and services to undertakings, in particular also doctors, legal entities under public law or a special
public fund (“Purchaser”).
1.2 These Terms and Conditions also apply to all future business relationships with the Purchaser even if this has not been expressly agreed upon.
1.3 Any deviating terms and conditions of the Purchaser which we do not expressly acknowledge in writing are not binding on us, even if we do not expressly object to them.
2. OFFER AND CONCLUSION OF CONTRACT
2.1 Our offers are non-binding and subject to change.
2.2 A contract is only concluded if we confirm the order in writing within 14 calendar days of receiving it, or if we carry out the delivery or services.
2.3 If the Purchaser’s financial situation and/or liquidity situation deteriorates significantly after conclusion of the contract, or if such circumstances already exist at the time the contract is concluded but only become known subsequently, we may withdraw from the contract if the Purchaser is not prepared to provide concurrent performance, security or advance payment despite being requested to do so.
3. PRICES, DELIVERY TERMS AND PAYMENT
3.1 Unless otherwise agreed, all prices indicated by us are net prices Ex Works (EXW Incoterms 2020); place of delivery as specified in the order or order confirmation. VAT at the currently applicable rate will be added to the prices.
3.2 Unless otherwise agreed, payment must be made, at our choice, cash against documents or against irrevocable documentary credit confirmed by a German bank.
3.3 Even if there are complaints on the grounds of defects, the Purchaser may only set-off or exercise a right of retention against our due payment claims if its counterclaims are undisputed or final and absolute.
3.4 If the Purchaser is in default with payment and payment is requested from the Purchaser again, we are entitled to demand a flat-fee for the reminder in the amount of EUR 5.00 for the first reminder, EUR 10.00 for the second reminder and EUR 25.00 for the third reminder unless the Purchaser proves that the actual costs incurred for the reminders were lower or that no such costs were incurred. This does not affect any further-reaching statutory claims or rights.
4. PACKAGING
4.1 Unless otherwise agreed, seaworthy packaging or other packaging will only be provided at the express request of the Purchaser and at the Purchaser’s cost.
4.2 Packaging can be returned to our supply sites during normal business hours. Packaging must be returned empty, free of foreign matter and contamination, and sorted according to type of packaging. If the aforementioned duties are not fulfilled, we may charge the Purchaser for any additional costs incurred by us for cleaning and sorting.
4.3 Packaging materials from contract work (Lohnarbeit) may not be returned.
5. SHIPPING
5.1 Unless otherwise agreed, our deliveries are ex Works (EXW Incoterms 2020); place of delivery as specified in the order or order confirmation.
5.2 If possible, special requests by the Purchaser concerning the shipping method will be taken into account in return for reimbursement of the additional costs.
6. DELIVERY; DELAY IN DELIVERY
6.1 We reserve the right to make partial deliveries, deliveries in other sizes or packaging or replacement deliveries, to the extent the Purchaser can be reasonably expected to accept them.
6.2 Compliance with delivery dates and performance deadlines is subject to the condition that we are supplied correctly and promptly by our suppliers, insofar as we are not responsible for the delay in delivery by our suppliers. We will notify the Purchaser as soon as possible if it becomes apparent that delays are likely.
6.3 In the event of a delay in delivery, in addition to performance the Purchaser may also demand compensation for any loss incurred from the delay. However, provided we have not acted with intent or gross negligence and there is no injury to life, limb or health, the claim to compensation in addition to performance is limited to 0.5 % of the net invoice amount of the delivery concerned per full week of default, but no more than 5 % of the net invoice amount of the delivery concerned. This has no effect on the Purchaser’s right to withdraw from the contract after a reasonable period has elapsed and/or to compensation for non-fulfilment pursuant to clause 10.
7. RESERVATION OF TITLE
7.1 We reserve title in the delivered goods (“Reserved Goods”) until all claims arising from the business relationship, including any outstanding balances receivable from current accounts, are settled in full.
7.2 If the Purchaser intends to move the Reserved Goods to a location outside Germany, or if we deliver to such a location, the Purchaser is required to take whatever measures are necessary under the laws applicable there without undue delay at its cost to ensure that our reservation of title is safeguarded and to inform us hereof without undue delay.
7.3 Any processing or treatment by the Purchaser will be deemed to have been carried out for and will not result in any obligations for us. If in processing the Reserved Goods are combined with other items which do not belong to us, we will acquire pro-rata co-ownership in the new item commensurate with the ratio of the value of the Reserved Goods (invoiced amount) supplied to that of the other processed items at the time of processing. If the Reserved Goods are irreversibly combined or mixed using other items which do not belong to us, we will acquire co-ownership in the new item in the ratio of the value of the Reserved Goods (invoice end amount including VAT) to the other combined or mixed constituents at the time of such combining or mixing. If the combining or mixing process takes place in such a way that the Purchaser’s item must then be regarded as the principal item, then it is deemed agreed that the Purchaser will transfer co-title therein to us in the ratio of the value of the Reserved Goods (invoiced amount) to the other combined or mixed constituents at the time of such combining or mixing. We hereby accept such transfer.
7.4 The Purchaser is revocably entitled to resell the Reserved Goods in the ordinary course of business. We will not revoke the authorisation to resell as long as the Purchaser duly meets its payment obligations and does not fall into default with payment. The Purchaser is however prohibited from making other dispositions outside the normal course of business, in particular transferring ownership or pledging, until payment has been made in full. The Purchaser assigns to us here and now any claims to which the Purchaser may be entitled from the resale of Reserved Goods, in the invoiced amount for the Reserved Goods, irrespective of whether they have been further processed, combined or mixed. We accept such assignment.
7.5 The Purchaser has a revocable right to collect the assigned claims. This does not affect our right to collect the claims. We will not collect the claims ourselves and will not revoke the Purchaser’s authorisation to collect the claims as long as the Purchaser duly meets its payment obligations and does not fall into default with payment. For legitimate reason, the Purchaser must notify its debtors of the assignment and provide us with any information and documents which we need to assert our rights.
7.6 We must also be notified without undue delay of any seizure or other confiscation by third parties. If the third party is unable to reimburse us for costs incurred in court or out of court in legal action to protect our property, the Purchaser is liable for our loss.
7.7 If the realisable value of the securities exceeds the claims secured by more than 10 % we will release securities at our discretion on request by the Purchaser.
8. RETURNS OF SPARE PARTS, CONSUMABLES AND DEFECTIVE GOODS
8.1 It is only possible to return spare parts, consumables and defective goods in return for a credit note with our prior written consent. Goods that are not purchased from us directly must be returned where they were purchased.
8.2 The Purchaser must register returns of spare parts, consumables and defective goods with the sales representative responsible for it or one of our customer service employees, noting the grounds, customer number and the delivery note number. If the form “Registering a Return” is provided by the seller, it can be used for this purpose; the sales representative in charge or a member of the customer service staff will provide such form to the Purchaser on request and will also explain the further procedure regarding the return to the Purchaser on this occasion. With its signature the Purchaser confirms the return and proper storage of the goods, and will receive a copy of the return slip on request.
8.3 It is not permitted to returns spare parts or consumables in return for a credit note in the following cases:
8.3.1 goods which are not in marketable condition under the German Medical Products Act (Medizinproduktegesetz).
8.3.2 goods which are not in the original packaging, not intact or which are labelled or affixed.
8.3.3 goods which can no longer be kept for at least four months.
8.3.4 goods which were not stored as specified on the label.
8.3.5 goods which are medicinal products.
8.4 The Purchaser is responsible for ensuring that goods which are returned are not contaminated by infectious agents and that they do not pose a health hazard.
8.5 Goods which may not be returned pursuant to clause 8.3 and which the Purchaser has sent back to us unbidden will not be returned to the Purchaser. We reserve the right to destroy such goods received unbidden at the cost of the party returning the goods.
8.6 Returns may only be made using the return slip issued by us. The Purchaser must pack and ship the goods at its own expense in a sturdy cardboard box, e.g. the original box, and use a transportation aid, if necessary.
8.7 The provision on returns in this clause 8 does not limit the Purchaser’s claims to subsequent fulfilment pursuant to clause 9.
9. CLAIMS FOR MATERIAL DEFECTS:
9.1 The Purchaser will inspect the goods without undue delay after receipt and notify us in writing of any defects without undue delay, at the latest five working days after delivery or performance. The Purchaser must notify us in writing and without undue delay of any defects which were not recognisable in the context of its due incoming goods inspection, at the latest three working days after discovering the defects. If complaints or notification of defects are not made on time, deliveries and services are deemed approved unless the defect was maliciously concealed.
9.2 We only assume guarantees to the extent that we have assumed a guarantee in writing for the respective product group and only in accordance with our general guarantee conditions for the respective product group; the Purchaser does not receive any further guarantees in the legal sense from us. This does not affect any manufacturer’s guarantees.
9.3 We are entitled to choose between remedying the defects or supplying a replacement. If the defect cannot be remedied even by a second repair or replacement delivery, if such remedy of the defect is unjustifiably refused, unduly delayed, if it is impossible for other reasons or if it is unreasonable for the Purchaser, the Purchaser may, if the other conditions are met, withdraw from the contract or demand a reduction of the purchase price or remuneration and compensation for damages in accordance with clause 10.
9.4 Subsequent fulfilment does not include removal of the defective goods or reinstallation of the defect-free or repaired item or reimbursement of the associated costs if our original obligations did not include installation.
9.5 The maintenance and the prescribed technical safety checks (TSC) on our equipment must be carried out or commissioned at the Purchaser’s cost at the time intervals specified by us. If we inquire in this respect and the Purchaser cannot prove that it has had the maintenance and the TSC carried out properly, all warranty claims (Gewährleistungsansprüche) against us expire if the defect was caused by failure to perform maintenance or failure to perform the TSC.
9.6 The warranty period (Gewährleistungsfrist) is 12 months from delivery of the goods. This period does not apply to claims asserted by the Purchaser for compensation arising from injury to life, limb or health or from wilful or grossly negligent breaches of duty which become statute-barred in each case under statutory provisions. The warranty period (Gewährleistungsfrist) for spare parts is 12 months.
9.7 The provisions on warranty (Gewährleistung) do not apply to the provision of services within the meaning of section 611 German Civil Code (Bürgerliches Gesetzbuch); the statutory provisions remain unaffected in this respect.
10. LIABILITY
10.1 We are liable without restriction in the event of negligent injury to life, limb or health. We are also liable in the event of intent or gross negligence. However, if we have not acted with intent and there is no culpable damage to life, limb or health, our liability is limited to foreseeable damage typical of this type of contract.
10.2 We are also liable in the event of culpable breaches of such duties which are material for fulfilling the contract and which the Purchaser relies or is entitled to rely on being fulfilled. However, if we have not acted with intent and there is no culpable damage to life, limb or health, our liability is limited to foreseeable damage typical of this type of contract.
10.3 We are also liable for malicious failure to disclose a defect or where a guarantee has been assumed. In the latter case, the extent of liability depends on the wording of the guarantee. We are also liable in instances of mandatory statutory liability, for example under the German Product Liability Act (Produkthaftungsgesetz) or the German Medicinal Products Act (Arzneimittelgesetz).
10.4 With regard to the rest, liability is excluded irrespective of the legal ground, unless set out otherwise in these Terms and Conditions.
10.5 Where our liability is excluded or limited under the above provisions, this also applies to the personal liability of our directors and officers, legal representatives, employees, staff and vicarious agents.
11. EXPORT CONTROL CLAUSE
11.1 The Purchaser will fully comply with all applicable trade laws and regulations, such as economic sanctions laws and regulations (“Sanctions”), laws and regulations governing the import, export and re-export of goods and services (“Export Controls”) and any laws applicable to the import and/or export of goods and services as they relate to customs duties, charges and other taxes (“Customs Regulations”).
11.2 The Purchaser agrees to comply with our Trade Governance Standards which can be accessed via the following link: https://www.freseniusmedicalcare.com/en/trade-governance/.
11.3 The Purchaser hereby confirms that it is not targeted by any applicable Sanctions and/or Export Controls. If the Purchaser is a legal entity, it also confirms that (i) it is not owned or controlled, directly or indirectly, by an individual or entity targeted by applicable Sanctions and/or Export Controls, and (ii) none of its board members is targeted by applicable Sanctions and/or Export Controls.
11.4 The Purchaser will inform us immediately without delay if the Purchaser and/or any of the persons referred to above become targeted by any applicable Sanctions and/or Export Controls.
11.5 We have the right, at our sole discretion, to immediately terminate, cancel or suspend any delivery, transaction or the performance of any obligation towards the Purchaser without incurring any penalties (i) in case of any violation of this trade laws and regulations compliance clause by the Purchaser, (ii) if the Purchaser or any of the persons referred to in this clause become the target of applicable Sanctions and/or Export Controls, and/or (iii) if the performance of our obligations thereunder would violate applicable Sanctions and/or Export Controls.
11.6 The Purchaser will hold harmless us in full for any loss arising out of Purchaser’s violation of Sanctions, Export Controls and/or customs regulations.
11.7 At our request, the Purchaser will provide valid end-use and end-user certificates prior to the delivery of products. The Purchaser undertakes to immediately inform us if provided end-use and end-user certificates are no longer accurate.
12. SHARED VALUES
12.1 As stated in the FRESENIUS MEDICAL CARE Code of Ethics and Business Conduct, we uphold the values of integrity and lawful conduct, especially with regard to anti-bribery and anti-corruption. FRESENIUS MEDICAL CARE upholds these values in its own operations, as well as in its relationships with business partners. Our continued success and reputation depends on a common commitment to act accordingly. Together with us, the Purchaser is committed to uphold these fundamental values by adherence to applicable laws and regulations.
13. APPLICABLE LAW
13.1 All legal relationships between the Purchaser and us are subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for International Sale of Goods (CISG).
14. PLACE OF PERFORMANCE AND PLACE OF JURISDICTION
14.1 Place of performance and jurisdiction is our registered office in Heilbronn. However, we are entitled to assert a claim against the Purchaser at its general place of jurisdiction.
15. MISCELLANEOUS
15.1 Should any provision of these Terms and Conditions or a provision in connection with other agreements be or become invalid, this will have no effect on the validity of the remaining provisions or agreements.
ADDITIONAL PROVISIONS FOR WORK PRO-VIDED UNDER A CONTRACT OF WORKS AND SERVICE (WERKLEISTUNGEN)
16. SCOPE OF APPLICATION
16.1 The following additional provisions apply if we provide services which are to be qualified as work services within the meaning of section 631 German Civil Code.
17. TERMS OF PAYMENT
17.1 In addition to clause 3, we are also entitled to demand partial payment for services already rendered pursuant to the contract insofar as such services can be considered individually as part performance, and the Purchaser is enriched by such part performance. This applies in particular where there are separate stages in the provision of services, which can be regarded separately and as independent functional units.
18. PERIOD OF PERFORMANCE
18.1 In conjunction with clause 6 all periods and dates for performance will be postponed and extended in the Purchaser does not promptly provide support services which are owed or requests changes to performance.
19. SUPPORT OBLIGATIONS OF PURCHASER
19.1 The Purchaser is required to provide us with all information necessary for performance and to support us to the extent necessary. If performance is to be carried out at the Purchaser’s premises, the Purchaser must in particular ensure access to the object of performance and take all necessary safety measures with regard to our employees.
19.2 If the Purchaser does not satisfy its support obligations within a reasonable deadline set by us, we are entitled to rescind the contract. If the Purchaser is asked and does not provide support, then it is in default in accepting performance and must pay appropriate compensation. Further compensation claims remain unaffected hereby.
20. ACCEPTANCE
20.1 The Purchaser is obliged to accept performance rendered in accordance with the contract unless the obligation to accept was excluded in writing. The Purchaser is only entitled to refuse acceptance if there are material defects. At our request the Purchaser must declare acceptance in writing.
20.2 Performance is deemed accepted even if the Purchaser does not declare acceptance within a reasonable period set by us, unless it is not obliged to do so. If the Purchaser uses our services, acceptance is deemed to have been granted five working days after commencement of use.
21. LIABILITY OF THE PURCHASER
21.1 In the event of destruction of or damage to the object of performance due to a defect in the material provided by the Purchaser or due to instructions given by the Purchaser or due to other acts or omissions by the Purchaser, its legal representatives or its vicarious agents, we are entitled to demand remuneration for the respective performance already rendered and compensation for expenses not already included in the remuneration and loss of profit.
21.2 The above applies accordingly in the event of destruction or damage to the object of performance or it if is otherwise impossible to provide performance on the business premises of the Purchaser.
21.3 In the event that it is not possible to provide performance pursuant to clauses 21.1 and 21.2. above, we may demand the agreed remuneration. However, we are obliged to compensate for the expenses saved due to the impossibility of performance as well as for what we acquire or maliciously fail to acquire by using our working capacity elsewhere.
22. WARRANTY PERIOD (GEWÄHRLEISTUNGSFRIST)
22.1 Departing from clause 9.6, the warranty period (Gewährleistungsfrist) commences on acceptance.
Terms and Conditions of Delivery
1. General – Scope
(1) The Terms and Conditions of Delivery of Xenios AG shall apply exclusively. Xenios AG does not acknowledge terms and conditions of the customer which conflict with or differ from the Terms and Conditions of Delivery, unless it expressly consents that they are to apply. The Terms and Conditions of Delivery of Xenios AG shall apply even if it accepts orders by the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or differ from its Terms and Conditions of Delivery.
(2) The customer also acknowledges the Terms and Conditions of Delivery as binding on all future business transactions with Xenios AG – if they can be expected in future – and waives the right to insist on its own terms and conditions of purchase, which shall not become a subject of the agreement as a result of acceptance of an order without reservation.
(3) Any exclusion, modification and/or amendment of these Terms and Conditions of Delivery in conclusion of an agreement shall not be valid unless given in writing. There are no verbal collateral agreements.
(4) The Terms and Conditions of Delivery shall only apply to entrepreneurs within the meaning of Section 310 (1) BGB (German Civil Code).
2. Offers, impermissible advertising
(1) The offers of Xenios AG shall be without commitment (freibleibend) and will only become binding when an order has been confirmed in writing. Supplements, amendments and secondary instructions will also not be effective unless confirmed in writing.
(2) Drawings, figures, dimensions, net and gross weight and other data become obligatory when the offer is accepted and no different declaration is made on such document.
(3) Any information relating to qualities or service life shall constitute guarantees only if they have been expressly indicated as such. The same shall apply to assumption of a procurement risk.
(4) The prior written consent of Xenios AG shall be required if the customer wishes to use the cooperation between the parties for reference and/or promotional purposes.
3. Delivery, passing of risk
(1) The written order confirmation of Xenios AG shall be authoritative as regards the delivery’s nature and scope. Xenios AG shall be authorised to make part deliveries if and insofar as the customer can be reasonably expected to accept them.
(2) The delivery period shall commence when the written order confirmation is sent, but not before clarification of all the questions that are essential to execution of the agreement and connected to the actions to be undertaken by the customer. In particular, the delivery period shall not commence before Xenios AG has received all the information required for the delivery from the customer or its representative or before the customer proves that it, if necessary, has opened a documentary credit, made a payment on account or furnished security in accordance with the agreement. In the event of deliveries to non-EU countries, the supply is the second working day after ordering, if the orders are made before 14:30 and the aforementioned conditions are met.
(3) The delivery period shall have been adhered to if, by the time it expires, the goods to be supplied have left the works of Xenios AG or Xenios AG has notified the customer that the goods are ready for shipment and they cannot be dispatched in time through no fault of its own.
(4) All cases of force majeure, strike, lockout, inadequate supply of materials, commodities or energy, a lack of means of transport and other similar events or causes outside the sphere of influence of Xenios AG shall exempt it from its obligation to fulfil the agreement for the duration and to the extent of such hindrances. This shall also apply if such circumstances occur at suppliers of Xenios AG. Xenios AG shall inform the customer of the start and end of such reasons for a hindrance as soon as possible. Xenios AG shall be authorised to postpone deliveries and services by the duration of the hindrance plus a reasonable ramp-up time.
(5) In case the unforeseen circumstances according to Section 4 of this Clause 3 occur while Xenios AG is in delay, Xenios AG shall not be liable for damages that arise from the unforeseen circumstances.
(6) In case the unforeseen circumstances take longer than 3 months, the customer, after keeping a reasonable extension of the delivery time, is entitled to cancel the contract with respect to the part of the contract not performed.
(7) In compliance with the terms of delivery as agreed, the risk shall pass on to the customer as soon as the merchandise is turned over to the first carrier or has left the store of Xenios AG for shipment. In case the shipment is not possible through no fault of Xenios AG, the risk passes on to the customer with the announcement of the readiness of shipment.
4. Prices
(1) Unless otherwise agreed, prices quoted in the offer are binding for 30 days as of the date of the offer. Prices stated in the confirmation of order are decisive. All the stated prices are net, i.e. do not include statutory value-added tax at the applicable rate and freight charges.
(2) Each Letter of Credit will be charged with an appropriate fee. In case Xenios AG has to witness a document legally by a consulate, the appropriate fee will be charged.
(3) The prices shall be valid for 12 months – even if they have not been issued in the form of price lists – and must be confirmed in writing by Xenios AG thereafter. Prices stated on orders of the customer are binding only if they have been confirmed by Xenios AG in writing.
5. Terms of payment
(1) Invoices of Xenios AG shall be paid within 30 days of the date of the invoice. Payment day shall be the day Xenios AG can dispose of the money. Despite contrary regulations of the customer, Xenios AG shall be entitled to determine against which outstanding accounts the payment is credited.
(2) Xenios AG shall be authorised to demand interest on arrears of 8 % pro rata on the 3- month reference of the EURIBOR rate in the case of delays in payment. It reserves the right to prove and claim further damage due to the delay.
(3) The customer shall only have the right of retention with respect to claims of Xenios AG in case Customers claims are undisputed or have been ruled on finally and conclusively by a court of law. The customer can offset claims only if they are permissible, not in dispute and have been ruled on finally and conclusively by a court of law.
(4) Checks and bills of exchange shall only be accepted following prior arrangement and only on account of performance, but not in lieu of performance, with all collection and discount charges being billed to the customer. Rediscounting and renewal of bills shall not constitute performance. Discounting shall also not constitute performance as long as Xenios AG is subject to recourse as the party liable on the bill.
(5) After Xenios AG has set a reasonable period of grace and this has expired without remedy, it shall be authorised to perform outstanding deliveries only in exchange for cash in advance or make them contingent on provision of security if the customer fails to meet agreed periods for payment or there are circumstances that, by customary banking standards, raise justifiable doubts as to the customer’s ability to pay. Xenios AG shall also be authorised to declare that its claims must be paid immediately, regardless of the term of any bills of exchange, and to demand security.
6. Warranty / liability
(1) In order to assert warranty claims, the customer must have properly complied with its statutory obligations to inspect delivered goods and report defects in them. If the goods obviously have defects or the delivery is obviously not complete, the customer shall submit a written complaint to Xenios AG immediately, usually within two weeks of the delivery’s arrival at the place of destination, giving a more detailed description of the fault and stating the invoice number. At the request of Xenios AG, documents, samples, packing slips and/or the defective goods shall be returned to it. The customer shall not have a right to claim that the goods are defective or the delivery is incomplete if it does not meet this obligation.
(2) If the goods have defects, Xenios AG can rectify the goods or provide a substitute free of defects (subsequent remedy), at its discretion. The customer shall be authorised to rescind the agreement or reduce the price in accordance with the statutory provisions only if subsequent remedy repeatedly fails or is unreasonable and the defects are not merely insignificant. Section 478 BGB (German Civil Code) shall remain unaffected.
(3) Xenios AG shall be liable without restriction pursuant to the German Product Liability Act (Produkthaftungsgesetz). Xenios AG shall be liable without restriction pursuant tothe General Equal Treatment Act (AGG) in cases where it has expressly assumed a guarantee or procurement risk and if it breaches its duties through intent or gross negligence. It shall also be liable without restriction for intent and gross negligence on the part of its executive employees and for intent and gross negligence on the part of its simple vicarious agents.
(4) It shall also be liable without restriction in the case of injury to life, body or health . It shall be liable for damage to property or economic loss caused through slight negligence only if it violates substantial contractual obligations, i.e. obligations which are vital to proper fulfilment of the agreement and the proper fulfilment of which the customer regularly relies and may rely on, but restricted to damage which is typical of the agreement and was foreseeable at the time the agreement was concluded.
(5) Claims for reimbursement for damage of any type resulting from normal wear and tear through use, incorrect handling, modification, assembly and/or operation of the objects supplied or incorrect advice or instruction by the customer shall be excluded, unless Xenios AG is to blame.
(6) If the purchaser is authorised to demand damages in lieu of performance or rescind the agreement, it must declare within a reasonable period of time at the request of Xenios AG whether and how it intends to exercise these rights. If it does not give this declaration on time or insists on performance, it shall be authorised to exercise these rights only after a further reasonable period of grace has expired without remedy.
(7) The period of limitation for warranty claims shall be 12 months as of the passage of risk. The same shall apply analogously to legal imperfections in title. The statutory periods of limitation shall apply to intentional breaches of obligations, claims due to tortuous acts, the lack of warranted qualities, assumption of procurement risks and injury to persons. Sections 438 (3), 479 and 634 a (3) BGB (German Civil Code) shall remain unaffected.
(8) Any liability for damages above and beyond that specified in the above Subsections of this Section 6 shall be excluded, regardless of the legal nature of the claim.
(9) The above limitations to liability shall also apply with respect to grounds and amount in favour of our statutory representatives, employees and other vicarious agents.
7. Returns
(1) Without prejudice to the warranty claims to which the customer is entitled, Xenios AG shall only take back products in an undamaged and sellable condition and in their unopened original packaging. Products whose sell-by date has expired shall not be accepted.
(2) Contaminated products must not be returned.
8. Reservation of ownership
(1) Xenios AG reserves ownership to all supplied goods until the customer has settled all its current and future obligations from the business relationship with it in full. This shall also apply if payments on specially designated claims are made. If a current account exists, the goods subject to reservation of ownership (retained goods) shall be regarded as security for the claim for the account balance.
(2) The retained goods shall be reworked or processed for Xenios AG as the manufacturer within the meaning of Section 950 BGB (German Civil Code), without this entailing any obligation on it. The reworked/processed goods shall be regarded as retained goods within the meaning of these terms and conditions. If the retained goods are processed or inseparably mixed/combined with other objects that do not belong to Xenios AG, Xenios AG shall acquire co-ownership of the new object in the ratio of the invoice value of the retained goods to the invoice value of the other objects used at the time of processing or mixing/combination. If the retained goods are combined or inseparably mixed with other objects that do not belong to Xenios AG to create a single object and this object can be regarded as the main object, the customer hereby assigns pro-rata co-ownership of it to Xenios AG, provided the main object belongs to the customer. The customer shall hold the property created in this way in safekeeping for Xenios AG free of charge.
The co-ownership rights of Xenios AG shall be regarded as a reservation of ownership within the meaning of these Terms and Conditions of Delivery.
(3) Subject to revocation by Xenios AG, which can be issued at any time and for no special reason, the customer shall be authorised to resell, further process or reform the retained goods in the ordinary course of business.
If the retained goods are resold, the customer hereby assigns its purchase price claims from such a sale to Xenios AG. If the retained goods are sold by the customer along with other objects not supplied by Xenios AG, said assignment shall apply only to the value of the sold retained goods as stated on the invoice of Xenios AG. If objects in which Xenios AG has co-ownership shares in accordance with Subsection (2) are resold, the assignment shall apply to the amount of said co-ownership shares. The assigned claims shall serve as security to the same extent as the retained goods.
If the assigned claim is included in a current account, the customer hereby assigns a balance from the current account equal to the amount of the said claim to Xenios AG.
Subject to revocation by Xenios AG, which can be issued at any time and for no special reason, the customer shall be authorised to collect the claim assigned to Xenios AG. Upon request of Xenios AG, the customer shall be obliged to inform its purchasers of the advance assignment to Xenios AG – unless Xenios AG does so itself – and provide Xenios AG with the information and documents it requires to assert the claim.
(4) If the value of the existing security for Xenios AG exceeds its claims by a total of more than 10%, it shall release commensurate security at the request of the customer and at its discretion.
(5) The customer shall not be authorised to otherwise dispose of the retained goods (by pledging them or assigning them as security) or otherwise assign the claims stated in Subsection (3). If the retained goods are pledged or seized, the customer shall point out that Xenios AG owns them and inform it immediately.
(6) The customer shall be obliged to insure the retained goods adequately against all customary risks, in particular against the risk of fire, burglary and water damage, at its own cost, to treat them with care and to store them properly.
(7) If the customer is in delay in payment , Xenios AG shall be authorised to take back the retained goods after setting a period of grace and expiry of it without remedy, even if it has not rescinded the agreement.
9. Right of rescission
Xenios AG shall be authorised to rescind the agreement if the customer is in delay in meeting its payment obligation and it does not meet this obligation – notwithstanding Section 323 (2) and (3) BGB (German Civil Code) – within a reasonable period of grace, its financial position deteriorates, insolvency proceedings or court composition proceedings to avert insolvency are instigated against it or out-of-court composition
proceedings are conducted or objects which are supplied to customers and which are the property of Xenios AG are pledged or otherwise claimed by third parties. The customer shall report any pledges of objects supplied subject to reservation of ownership to Xenios AG immediately. If it fails to do so, it shall be obliged to reimburse the damage incurred by Xenios AG as a result.
10. Aids / confidentiality
All tools, software, samples, drawings, calculations, documents and other aids provided to the customer for the purpose of executing orders shall remain the property of Xenios AG. They shall be kept confidential, must not be reproduced, copied or used for other purposes and shall be returned to Xenios AG immediately upon request.
11. Place of performance, place of jurisdiction and applicable law
(1) If the customer is a merchant, a juristic person under public law or a special public-law fund, the courts at the place of Xenios AG’s headquarters in Heilbronn shall have legal venue and jurisdiction for all disputes on rights and obligations under this agreement, including its validity. Xenios AG can also file legal action against the customer at the latter’s place of general jurisdiction. In the cases specified in Sentence 1, the headquarters of Xenios AG shall be the place of performance.
(2) The law of the Federal Republic of Germany applicable to the legal relationships between domestic contractual partners shall apply without exception; the provisions of the United Nations Convention on the International Sale of Goods (CISG) are hereby excluded.
12. Final provision
If one or more provisions of these Terms and Conditions of Delivery are or become void or invalid in full or in part, this shall not affect the remaining provisions. The parties undertake to replace the void or invalid provision with a valid and effective stipulation that corresponds to it as closely as possible in legal and economic intent.
Xenios AG
Im Zukunftspark 1
74076 Heilbronn
Germany
Tel.: +49 7131 2706 400
Fax: +49 7131 2706 499
www.xenios-ag.com