1.1 These terms of delivery and payment are valid for all our deliveries based on orders from our on-line shop made by natural or legal persons or business partnerships vested with legal capacity which order products while exercising their commercial or independent activity (hereinafter referred to as: “Customer”). The range of goods of our on-line shop is solely aimed at customers in the above-mentioned sense.
1.2 Conflicting terms of purchase or other business conditions of the customer shall not apply even if we have not expressly objected to them. Divergent rules and regulations shall only be valid, if agreed on in writing.
2. Conclusion of and amendments to the agreement
2.1 In the promotion of products in our on-line shop, there shall be no binding offer aimed at conclusion of a contract.
2.2 Customer orders via our on-line shop shall be placed by means of the input mask to be found there. The customer shall be bound to his or her order for the duration of two (2) weeks as of the order being submitted.
2.3 An effective contract shall only be executed with our acceptance of a customer’s order; the order can be accepted in writing (also by facsimile or e-mail) or by the ordered goods being delivered or the service agreed upon executed. Acceptance of the order shall not lie in confirmation of the receipt of a customer’s order.
2.4 Our declaration of acceptance shall be solely decisive for the terms of the contract. Should the customer have objections to said terms, then he or she shall immediately object to the declaration of acceptance.
2.5 Any additions or amendments to a contract concluded through the on-line shop shall require confirmation from us in writing to become effective.
3. Access authorisation
3.1 Prior to the first order through our on-line shop, the customer must register. Registration presupposes that the customer truthfully gives the particulars marked as mandatory in the input mask provided for registration, confirming in particular truthfully only to order products in exercising his or her commercial or independent activity. For registration, we shall assign to the customer access authorisation (password), enabling him or her to access to the on-line shop and to release orders through our on-line shop.
3.2 The customer shall undertake only to inform those persons of the password, who are authorised to conclude contracts in his or her name, and apart from that to secure it against unauthorised access by third parties. He or she shall be aware that any person with this password has access to the on-line shop and can give orders in his or her name without our checking the authorisation to make such orders.
3.3 The customer is committed to immediate disclosure, should there be any indications of unauthorised usage of the password by third parties; after due notification, we shall not execute any more orders made under the password.
3.4 We shall not be responsible for cases of password misuse not caused by us. The customer shall provide compensation to us for any loss and damage incurred by any abusive behaviour in terms of the previous paragraphs and the concomitant expenditure.
3.5 It is incumbent upon the customer to take the necessary and appropriate precautionary measures, on his or her own authority, against the technical risks existent in connection with the usage of the on-line shop. Liability for any loss or damage of the customer by reason of any abusive utilisation or disturbance of the interchange in communications shall only exist in the restrictions of Paragraph 11 and insofar as said loss or damage is caused by us.
4. Prices and costs
4.1 Subject to a special written agreement, the prices stated within the framework of the online order are valid.
4.2 All the prices stated are in euro, insofar as no other currency is stated in the input mask during the order process. Prices do not include statutory value added tax. In the absence of a written agreement deviating from this, we shall deliver in accordance with the conditions EXW (Ex Works – ex Ispringen works) Incoterms® 2010.
4.3 A shipping rate will be invoiced to the customer for every order via the Online Shop. The amount of the shipping rate will depend on the amount ordered. For purchase orders with a value up to EUR 149.99, the shipping rate shall be EUR 7.00. If the order value equals or exceeds EUR 150.00, the shipping rate will not be charged. This is, however, not valid for distributors or resellers.
Further costs will always be charged to the customer. This concerns costs for COD (cash on delivery), express delivery and hazardous cargo charges in particular.
4.4 We shall be authorized to invoice a processing fee for the delivery of an order to a delivery address deviating from the invoice address, if so required by the customer.
5. Availability and delivery period
5.1 Should an agreed delivery or service not be available for us for reasons not caused by us, we shall be able to disengage ourselves from the obligation to fulfil the contract concluded for the delivery or service, if we immediately inform the customer of the unavailability, and undertake to reimburse any counter-performance already rendered by the customer in this respect.
5.2 Delivery periods shall be tentative (approx. dates) in the absence of an expressly alternative agreement and shall state the approximate delivery period to be anticipated on the contract being concluded. A bindingly arranged delivery period is adhered to, if the goods are ready for shipment up to their expiration in our Ispringen works, and we have informed the customer of the readiness for shipment.
5.3 The delivery period shall be automatically prolonged by an adequate time in cases of force majeure, strikes and lock-outs, delivery delays with upstream suppliers, official measures and other extraordinary circumstances through no fault of our own, inasmuch as they influence the delivery period. Should these circumstances last longer than four (4) months, both parties shall be entitled to withdraw from the contract. At the customer’s request, we have to declare whether we shall withdraw or deliver within a period to be determined by us. Claims for damages by the customer shall be precluded in this respect.
5.4 We shall be authorised to retain our service or performance, as long as the customer does not fulfil his or her obligations arising from this or any other contract, or for any other legal reason.
6. Delivery in partial quantities
We shall be authorised to fulfil our delivery obligation in partial quantities, insofar as this is reasonable for the customer. Such subservices shall be paid separately in accordance with Paragraph 8. Should payment of a subservice not be initiated in due time, we shall be authorised to refuse fulfilment of the outstanding subservices.
7. Transport and transfer of risk
7.1 Dispatch shall be executed – inasmuch as nothing else is agreed upon – at the customer’s costs and risk. The customer shall also bear the risk of transport, even if we have undertaken dispatch costs as an exception.
7.2 Subject to an alternative agreement, we shall be authorised to make provision for transportation; no liability shall be undertaken for favourable freight or for transport duration.
7.3 Risk shall transfer to the customer at the moment the goods are made available in Ispringen for transport and the customer is notified of same.
7.4 In those cases, in which, for reasons that the customer is solely responsible for, there is a delay of acceptance, delivery or dispatch of the goods and said goods are stored, the customer shall be obligated to make payment of a storage charge that is usually incurred in such instances, inasmuch as he does not verify that no or low storage costs are incurred; should said goods be stored with third parties, the customer shall then bear the thereby actually incurred costs.
7.5 In the case of damage to or loss of the goods during transport, the customer shall undertake for the facts to be immediately recorded at the freight forwarder/carrier.
8. Terms of payment
8.1 On the occasion of his or her registration in the on-line shop, the customer shall be notified of the terms of payment available to him or her. These available terms of payment shall depend on which country the customer has his or her headquarters in. Should several terms be available, the customer shall select the mode of payment he or she wishes with the registration.
8.2 The customer shall bear all and any expenses incurred in connection with payment (such as, in particular, collection charges).
8.3 The purchase price shall be due – provided there is no other arrangement – purely net on receipt of the goods ordered. In case of purchase by credit card or direct debit, the purchase price shall be due immediately on conclusion of the contract (delivery against advance payment). Time for payment as per sentences 1 and 2 shall commence regardless of the receipt of the invoice. We prepare the invoice with delivery of the goods; in case of partial services only for the particular partial service concerned.
8.4 The customer shall fall behind with the due date arranged being exceeded, unless he does not cause said violation of limit. In the event of default, we shall be entitled to invoice interest for default at the statutory rate; any claim for compensation of a further loss or damage shall not be affected thereby. In case of default in payment, we shall be entitled, subject to the customer’s alternative redemption provision, to settle the payments made by the customer for already existing arrears of payment.
8.5 Should the customer be in default or should we become aware, subsequent to conclusion of the contract, of circumstances, which are based on considerable doubt in his or her financial solvency or credit status (e.g. financial collapse, stoppage of payments, over-indebtedness, bill and cheque protests, customer’s application for the opening of insolvency proceedings concerning his or her assets, or opening or rejection of opening insolvency proceedings), we shall be entitled, up until all due claims for payment are fulfilled, to withdraw from the contract; further legal claims shall not be affected thereby. Should such circumstances occur at the customer’s, all demands arising from the ongoing business relationship – even with deferment of payment or any other payment deferral – shall immediately become due as well. Moreover, we shall be entitled to deny further deliveries of merchandise or other services, or to demand prepayments, or assignment of adequate security for our counterclaim.
8.6 The customer shall settle against us only with undisputed or legally valid demands, and support a right of retention against us only with undisputed or legally valid demands. The customer’s right to retain an appropriate part of the service in return in case of a deficiency of the goods supplied by us or service provided by us shall, however, not be affected thereby.
9. Retention of title
9.1 We reserve ourselves the right to ownership of all goods supplied by us up until the sales price has been paid for completely, as well as all and any other demands aimed at the customer have been fulfilled.
Should, in connection with the customer’s duty to pay, a liability for us be substantiated in terms of the bills of exchange, the retention of title shall not expire until all the bills of exchange have been completely discharged.
9.2 During retention of title, the customer shall be entitled to ownership of the merchandise. Furthermore, he or she shall be entitled to dispose of the goods within the framework of a proper business transaction; exceptions to this shall be extraordinary regulations, such as, in particular, assignment as security, pledging and any form of assignment.
9.3 In case of resale, the customer shall convey to us the arising payment demands with conclusion of the contract with us amounting to the value of the goods (final invoiced amount including the statutory VAT), as well as all and any other demands and ancillary rights. The customer shall be entitled to collect the claim; our power to collect this claim ourselves shall not be thereby affected.
9.4 In case of substantiated withdrawal from the contract, we shall be entitled to reclaim the goods and to revoke the empowerment to collect the claims arising in case of resale; in case of the customer’s default of payment, the right to revoke the collection authorisation shall persist even without withdrawal from the contract. In such a case, the customer shall provide us, on request, with all information necessary to enforce the assigned claim and announce the assignment of claims to the debtors.
9.5 The customer shall undertake to immediately inform us, in writing, of distraints, dispositions or any other interventions by third parties, as well as of official measures. He or she shall bear all the costs that have to be spent in connection with the revocation of access and replacement of the goods delivered, inasmuch as they cannot be collected by a third party.
9.6 Working and processing of the goods subject to retention of title by the customer is always carried out for us; we are regarded as manufacturers in terms of § 950 BGB (German Civil Code). Should the goods subject to retention of title be inseparably mingled or blended or bonded with other items not belonging to us, so that they become an essential constituent of a homogeneous item, then we shall acquire ownership of the new item proportionate to the final invoiced amount of the goods supplied (including the statutory VAT) proportionate to the cost or basic price of the new item at the time of processing. Should such processing occur in such a manner that the item of the customer is to be considered as the principal item, then we shall acquire co-ownership in its value to the above-mentioned proportion.
9.7 Inasmuch as the value of securities exceeds the claims to be secured by more than 10 %, we shall release, on request, security according to our choice.
10. Rights of the customer in material defects and defects of title (warranty)
10.1 The customer shall inspect the goods immediately on receipt, and complain of discernible defects forthwith in writing. Should a deficiency not be discernible on delivery, the customer shall undertake to immediately make good the notification, as soon as he has discovered the defect. The customer shall lose the right to invoke a deficiency, if he does not announce and precisely describe in writing immediately after the moment in time, when he noticed it or should have noticed it.
10.2 Should the goods be deficient with the transfer of risk, we shall initially be entitled, in accordance with our choice, to supplementary performance in the form of removing the deficiency or the delivery of flawless goods against restitution of the deficient goods delivered.
In those cases, in which supplementary performance has failed, the customer shall be able, in accordance with his choice, to reduce the return service or to withdraw from the contract; inasmuch as only an inconsiderable deficiency exists, the customer shall only be entitled to reduce compensation. The customer shall only be able to demand recovery of damages under the statutory prerequisites and in accordance with the restrictions and exclusions as per Paragraph 11. Assumption of the costs for a subsequent improvement by the customer or third party shall presuppose our express prior approval; unauthorised subsequent improvement will lead to the loss of all warranty claims.
10.3 The rights of the customer for deficiencies shall come under the statute of limitations 24 months subsequent to the goods being delivered or the performance being provided. In those cases, in which acceptance of the goods is delayed without our fault, the announcement of readiness for shipment shall be decisive.
10.4 Warranty shall be further precluded, if a deficit is to be attributed to unsuitable or inappropriate use, faulty or negligent treatment, faulty assembly or putting into operation by the customer or a third party, natural wear and tear, improper maintenance, improper subsequent improvement or alterations as well as non-observance of operating instructions and instruction manuals or any other product information. A caveat emptor shall exist for material supplied by the customer or provided by virtue of specifications prescribed by him or her as well as for constructions prescribed by him or her.
10.5 In those cases, in which we fraudulently suppressed a deficit or expressly undertook a guarantee for the quality of the goods, the statutory rules and regulations shall pertain in each instance.
10.6 The limitation of liability contained in Paragraph 11 shall be valid for claims for damages due to a material defect or a defect of title.
11.1 The following liability regulations shall be valid for all and any claims of the customer aimed at compensation for damages, no matter for what legal reason.
11.2 Our liability – subject to Paragraph 11.5 – shall be restricted to intent and gross negligence; for slight negligence, we shall only be liable for violation of a contractual commitment, fulfilment of which only makes proper execution of the contact really possible and for the observance of which the contracting partner may trust on a regular basis (the so-called cardinal obligation).
11.3 In all other cases, our liability – subject to Paragraph 11.5 – shall be precluded.
11.4 The extent of the liability - with the exception of intent or gross negligence – shall be limited to compensation of the loss and damage typical of the contract that is reasonably predictable based on the usual sequence of events and verified in detail. In the case of loss or damage arising from delays, liability shall be restricted to 0.5 % of the invoiced net amount of the part of the performance affected by the delay per completed week of the delay in accordance with sentence 1 in addition to the amount, at the most, however, limited to 5 % of the stated invoiced net amount; claims for compensation instead of performance shall not be affected by the provision in the above-mentioned half sentence 1.
11.5 The liability restrictions and exceptions shall not be valid with a special, expressly undertaken guarantee, with fraudulent intent as well as in those cases, in which there is necessarily liability in accordance with the product liability law for personal or property damage; the same shall not apply to a claim for compensation, based on an intentional or negligent injury to life, body or health.
12. Intellectual property rights and any other rights
12.1 All sales documents (catalogues, price lists), drawings, samples, models and any other documents made available to the customer, shall remain our property; all rights here, such as, in particular, copyrights, patent rights, and any other industrial property rights as well as the ownership of inventions shall be due solely to us. The customer shall not provide third parties with access to them; he shall restitute same on request.
12.2 The customer shall utilise any brand and any other trademark rights we are entitled to only for marking and promoting our goods, and, moreover, only subsequent to prior approval in writing.
13. Choice of law, place of fulfilment and jurisdiction
13.1 The contractual relationship shall be solely subject to the law of the Federal Republic of Germany; UN sales law (CISG - UN Convention on Contracts for the International Sale of Goods) shall not be applicable.
13.2 The place of execution for deliveries and payments shall be Pforzheim-Ispringen.
13.3 Inasmuch as the customer is a merchant, of a corporate body under public law or a special fund under public law, or the customer does not have a general place of jurisdiction in the Federal Republic, Pforzheim shall be the sole place of jurisdiction for all disputes arising from this contractual relationship including such civil disputes resulting from its origin and efficacy including complaints in terms of bills of exchange and cheques. We are also entitled to file suit at the customer’s seat.
DENTAURUM GmbH & KG