GTC

General terms and conditions of sale and delivery

I General

  1. Our terms and conditions of sale and delivery are exclusive conditions. We do not recognise any terms and conditions defined by our contract partners that deviate from our terms and conditions unless we have expressly acknowledged them in writing. Our terms and conditions of sale and delivery shall apply even if we execute delivery to our contract partner without reservation despite knowing that our contract partner’s conditions deviate from or conflict with our terms and conditions of sale and delivery.
  2. These general terms and conditions of sale and delivery are also valid, subject to other agreements, for all future business transactions.
  3. All agreements that are concluded between the contract party and ourselves for the purpose of fulfilling this contract are stipulated in writing in this agreement. Other agreements, supplements to agreements or changes require express written agreement between the parties hereto.
  4. These general terms and conditions of sale and delivery shall apply only to business enterprises as defined under para. 310, section 1 of the German Civil Code (BGB).

 

II Quotation, order, confirmation

  1. Our offers are non-binding. We only accept orders from specialist retailers recognised by us. We will charge a surcharge of 5.90 Euros for the delivery of orders with a net order value below 30.00 Euros. Unless otherwise agreed in advance, sample parts will be invoiced irrespective of whether an order is placed or not. A surcharge of 10.00 Euros will be charged for custom-made products under the 24-hour-service. This surcharge is 10.00 Euros for the finishing of goods. An order for the 24-hour-service must be placed before 10:00 am. Quantity discounts apply only to the purchase of the quantity specified for the specific article number or where the overall order is for a quantity exceeding the specified quantity (invoice). Initial deliveries are always cash on delivery. An aggregation of several orders is not possible. We reserve the right to make an intermediate sale unless expressly otherwise agreed upon in writing.
  2. We reserve all proprietary rights and copyrights to illustrations, drawings, calculations and other documents. The same applies to documents which are marked as “confidential”. The contract partner must obtain our explicit written consent before revealing them to third parties.

 

III  Prices

  1. Prices stated in our sales documentation apply ex our warehouse. Our products are exclusively sold on the basis of the price list valid on the date of delivery. Prices for all deliverables and services are plus VAT (value-added tax) at the statutory rate. The statutory regulations on payment defaults shall apply.
  2. We reserve the right to modify our prices accordingly in the event of cost reductions or cost increases after conclusion of the contract, including but not limited to changes due to collective wage agreements or changes in material prices. We will provide proof of such reductions or increases if so requested by our contract partner.

 

IV  Terms of payment, set-offs, retentions

  1. We reserve the right to invoice the agreed service by letter post or electronically by e-mail. For invoices delivered by letter post we charge a fee of 1.50 Euros. Our invoices become due with immediate effect unless the contract partner is granted different terms of payment in the invoice.
  2. Deduction of discount requires a separate written agreement.
  3. Cheques or bills of exchange shall only be accepted upon our explicit agreement and only as a conditional payment. Our contract partner shall bear all associated costs, i.e. including but not limited to expenses and other fees.
  4. Our contract partner shall have the right to offset costs against our claims only in the event that our partner’s counterclaims are confirmed in a legally binding manner, are uncontested or are accepted by us. Our contract partner shall be entitled to exercise a right of retention only if any counterclaim arises from the same contractual relationship.

 

V  Delivery, delivery time

  1. Our deliveries are always ex warehouse or ex factory. Packaging and carriage costs shall always be borne by the purchaser. When the order value exceeds 250.00 Euros, the order will be delivered “free to the door” within Germany. In the event of delivery “free to the door” packaging costs will not be charged unless the customer requested special packaging.
  2. Shipping of the purchased goods is always at the risk of the purchaser, even if our own means of transport are used. Transport insurance is only provided at the customer’s request and expense.
  3. No orders with fixed delivery dates are accepted. Dates of delivery are binding only if they have been confirmed by us explicitly and in writing.
  4. Should our contractual partner be in default in taking delivery or be in breach of any other reciprocal duties, we shall be entitled to demand compensation for any resulting damage, including possible additional expenditures. We reserve the right to assert further claims or rights. In addition, the risk of the accidental decay or deterioration of the purchase shall be transferred to our contract partner from the date of the commencement of arrears of acceptance or payment.
  5. Sample packages or sample offers must be returned to us free of charge within 10 days after the date of receipt by our contract partner, unless a longer period has expressly been agreed upon. If not returned within this period, the goods are considered to be accepted completely, and the respective charges will be invoiced.
    Our contract partner shall bear the transport risk.

 

VI  Reservation of ownership

  1. Delivered goods remain our property until complete fulfilment of all our claims resulting from our business relations with the buyer.
  2. The buyer is entitled to resell or process the reserved property within the framework of ordinary business operations. At the time of the delivery of the reserved property, it shall be replaced by the claim of our buyer’s claim against the buyer’s customer. The claims from the resale of the products are hereby assigned to us up to the amount of our complete claims resulting from the business relations with the buyer. We hereby accept this assignment.
    In the event that the reserved property is processed together with other materials, we shall acquire co-ownership in the new merchandise pro-rated by the value of our goods relative to the total value of the other processed materials. The buyer is authorised to collect claims from sales until authorisation is cancelled by us, which we are entitled to do at any time. The buyer must hold the revenues from the sale of our goods in trust on our behalf, separately from other sales revenues, and pay them to us when our purchase price claims are due.
  3. If the buyer posts the receivables from the resale of goods to a current account that was set up for the buyer’s customer, the full amount of the current account claim shall be assigned to our company. Once balancing has been completed, the current account claim shall be replaced by the acknowledged balance to the amount constituting our original current account claims.
  4. If the reserved goods are sold with other items that do not belong to us, the customer shall assign all claims resulting from the resale to us up to the amount of the goods delivered by us and included in the sale to the third party.
  5. If current account agreement is used, retention of title and assignment are deemed to be a security for our current account claim. An acknowledgement of the balance by buyer is not regarded as fulfilment of the obligation to pay; our retention of title will not thereby become void.
  6. Insofar as the value of the securities to which we are entitled exceed our total claim against the buyer by more than 20% in any individual case, we will release the excess amount of securities at the request of the buyer.
  7. If after conclusion of the contract with the buyer we become aware of circumstances which reduce the credit-worthiness of the buyer or the buyer is in arrears in meeting obligations to us, then we are entitled to demand the surrender of all goods delivered by us until payment has been made in full.
    We are entitled to demand this without prior rescission of the contract.
  8. The buyer is obliged to inform us of any resale of our goods and their purchasers, and to disclose the assignments to the purchasers upon our request.
  9. Should the reserved goods delivered by us be impounded by a third party, the buyer must firstly inform us immediately about this, and secondly clearly notify the foreclosure officials and the attachment creditors of our reservation of title. The buyer has the same obligations in the event of any attachment of claims from the resale of reserved goods.
  10. Transfer of ownership and/or pledges of our goods to third parties are prohibited and impose on the buyer the obligation to pay damages to us.

 

VII  Serial and made-to-measure production

  1. In addition to mass-produced models, the full product range of Werkmeister also includes made-to-measure and individual products manufactured according to customer requirements (see dimension sheets). Most of these items are delivered to our customers as primary products (without CE marking) for custom-made devices, ready for fitting, i.e. with open seams for individual adjustment (completion as a ready-to-use medical product).
    1.1 We use our own medical aid item numbers for various (ready for fitting) articles and make them available to our customers for invoicing purposes. We are just manufacturer of these primary products for custom-made devices according to Medizinprodukte-Durchführungsgesetz (MPDG) resp. Regulation (EC) 2017/745 (MDR).
    1.2 The same applies to ready-to-use products (with closed seams) which we send directly to our customers and which require no further adjustment. These products are not primary products for custom-made devices, but standard medical products (serial production) incl. CE marking from Werkmeister.
    Werkmeister GmbH + Co. KG provides the necessary technical documentation for all these (primary) products.
    1.3 As an “extended workbench” we also manufacture ready-for-fitting products to suit customer requirements for which we do not maintain dedicated medical aid item numbers. Manufacturer or initial distributor of these primary products for custom-made devices (and of the finished custom-made devices) are registered service providers according to the catalogue of therapeutic appliances of the national association of health insurance funds (GKV-Spitzenverband) and/or contract partners according to para. 127 social insurance code V (SGB V), i.e. our contracting authorities.
  2. The same applies to products which are not part of our full portfolio and are manufactured according to specific customer requirements/specifications. We also manufacture such customer-specific items for individual customers as an “extended workbench”. In these cases Werkmeister GmbH + Co. KG does not act as the initial distributor for these products. Buyers (contracting authorities) of such articles are expressly informed of their role as initial distributors and that in accordance of the MPDG (medical products directive) or the applicable national law, they must therefore create the required documents (including operating instructions and CE marking) on their own responsibility according to the applicable national law. We will attach sewn-in labels to these products if so requested by a customer; in any other cases we will use neutral labels.
  3. As we manufacture goods on the basis of samples, models, drawings or other buyer specifications, the buyer therefore guarantees that the manufacture and sale of these goods do not infringe any rights of third parties, in particular that they do not infringe industrial property rights. The buyer must indemnify us for all damages resulting from the exercise of such rights.
  4. We do not, of course, accept any liability for incorrectly specified dimensions, for products completed by the customer or changes to the product made by the customer.

 

VIII Complaints, liability for defects

  1. Claims for defect can be made by the customer provided that the customer has fully performed his duties of examination and given notice of defect under para. 377 Commercial Code (HGB, “Handelsgesetzbuch”).
  2. The customary tolerances of +/-5% apply to all dimensional specifications, both standard sizes and special sizes. Customary or slight deviations in quality, colour, dimensions, weights, equipment or design that technically cannot be avoided or avoided only with disproportionate effort, do not represent defects and cannot be subjected to complaint. Likewise excess or short deliveries up to 10% of the volume to be delivered may not be the object of complaints, irrespective of whether the products are special products or from the standard product range.
  3. Neither the wear and tear occurring during normal use, such as that particularly occurs with products made from fabric or leather, nor the resulting surface abrasion or staining are cause for complaint.
  4. In all cases, the buyer is obliged to initially accept the rejected goods and wait for our written acknowledgement of complaint. Rejected goods cannot be returned to us unless the buyer has previously obtained our written consent and a confirmation of the means of return at our expense. Goods returned with postage-due without our consent will not be taken back.
  5. “Seconds” goods and out-of-date goods are supplied excluding any liability for defects unless we fraudulently failed to disclose defects.
  6. The return of conforming goods will not be accepted.
  7. In exceptional cases conforming goods may be returned to us subject to our prior written consent. In such cases the conforming goods will be credited as follows: Up to 3 months after date of purchase: 10% discount off the list price. Between 3 and 6 months after the date of purchase: 30% discount off the list price. More than 6 months after date of purchase: 50% discount off the list price. More than 12 months after date of purchase: 70% discount off the list price, but at least EUR 5.00 per article. A credit will not be issued for goods older than 24 months.
  8. We will always subject visibly soiled goods returned to us – for example worn bandages, support corsets, orthoses, etc. – to hygienic cleaning and charge the customer a lump sum for this. We categorically decline treatment of extremely soiled goods. In this case we will create appropriate records, inform the customer and return the goods to the sender.

 

IX Liability disclaimer

  1. We exclude liability for claims for damage notwithstanding the legal nature of the asserted claim, provided there is no intent or gross negligence on our part. This limitation of liability does not come into effect for damages due to culpable injury to life, body or health. Likewise this limitation of liability does not apply to mandatory liability as provided for in the product liability law.
  2. The limitation of liability as laid down in section 1 shall also not apply insofar as we have culpably violated an essential contractual duty. Essential contractual duties are obligations whose fulfilment is a prerequisite for enabling proper execution of the contract in the first place.
  3. Insofar as the damage compensation claims towards us are excluded or restricted, this is also applicable regarding the personal damage compensation of our employees, workers, staff, representatives and vicarious agents.

 

X Place of performance, jurisdiction

  1. If our customer is a merchant, the place of jurisdiction is our registered office. However, we are also authorised to sue the customer in the court of his registered office.
  2. Unless otherwise stated in the confirmation of order, the place of performance is at our registered office.

 

XI Applicable law

The laws of the Federal Republic of Germany shall apply. The Convention on the International Sale of Goods is excluded.

 

XII Severability clause

If one or several provisions of these standard terms of sale and delivery are or become legally invalid, the other provisions shall remain in force. An invalid provision will be replaced with a provision which corresponds as far as possible to the meaning and purpose of the ineffective provision.

37281 Wanfried, November 2017