General Terms and Conditions of NIVONA Apparate GmbH

 

1.       Scope of application

 

1.1.    The deliveries, performances and offers of NIVONA Apparate GmbH (hereinafter “NIVONA") to companies within the meaning of sects. 14 and 310 of the Bürgerliches Gesetzbuch (German Civil Code, “BGB”), legal entities under public law, and special funds under public law (hereinafter “customer”) are made exclusively on the basis of these terms and conditions and the supplementary agreements made in individual cases.

 

1.2.    Terms and conditions of the customer which deviate from these terms and conditions shall not apply, even if NIVONA does not separately object to their validity in individual cases. Even if NIVONA refers to a letter that contains or refers to the terms and conditions of the customer or a third party, this does not constitute agreement with their validity.

 

 

2.       Conclusion of contract

 

2.1.    Offers by NIVONA are subject to change and non-binding unless they are expressly designated as binding or are given a specific acceptance period.

 

2.2.    An offer made by the customer is binding. NIVONA is entitled to accept this offer within 2 weeks of its submission. Acceptance shall become binding for the customer through order confirmation in text form (sec. 126b BGB), issuing of an invoice or delivery of the ordered goods.

 

2.3.    The contractual relationship between NIVONA and the customer shall be governed by the contract concluded in text form, including these terms and conditions. This contract reflects all agreements between the parties in full. Verbal promises made by NIVONA prior to the conclusion of the contract are not legally binding and verbal agreements between the contracting parties are replaced by the contract in text form, unless it is expressly stated in each case that they continue to be binding.

 

2.4.    Additions and amendments to the agreements made, including to these terms and conditions, must be made in text form in order to be effective. With the exception of managing directors or authorised representatives or officers, the employees of NIVONA are neither empowered nor authorised to make verbal agreements deviating from these terms and conditions. Our written confirmation shall be authoritative for the content of oral agreements made with persons authorised to represent NIVONA, subject to proof to the contrary.

 

 

3.       Delivery and transfer of risk

 

3.1.    The risk shall be transferred to the customer at the time goods have been handed over to the person carrying out the transport or have left NIVONA's warehouse for the purpose of dispatch or, in the case of collection by the customer, notification has been given that the goods are ready for collection. This shall also apply if NIVONA assumes the shipping costs.

 

If dispatch or handover is delayed as a result of circumstance caused by the customer, the risk shall be transferred to the customer from the time which the products are ready for dispatch and NIVONA has notified the customer of this.

 

3.2.    The delivery deadlines stated by NIVONA are only binding if they have been expressly promised or agreed as a fixed deadline.

 

3.3.    The delivery deadline has been met if NIVONA has handed over the products to the person carrying out the transport by the delivery deadline or if the products are ready for collection by the customer by the delivery deadline.

 

3.4.    Partial deliveries are permissible if

 

-        the partial delivery is usable for the customer within the scope of the contractual intended purpose,

 

-        the delivery of the remaining ordered goods is ensured and

 

-        the customer does not incur any significant additional expense or costs as a result (unless NIVONA agrees to bear these costs).

 

3.5.    NIVONA shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. business disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, industrial actions (strikes), lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the non-delivery, incorrect delivery or late delivery by suppliers) for which NIVONA is not responsible.

 

If such events make it significantly more difficult or impossible for NIVONA to deliver or perform and the hindrance is not just temporary, NIVONA is entitled to withdraw from the contract. In the event of temporary hindrances, the delivery or performance deadlines or dates shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. NIVONA shall inform the customer without delay of the expected delivery period as soon as this becomes known.

 

If the customer cannot reasonably be expected to accept the delivery or performance as a result of the delay, he may withdraw from the contract by immediately notifying NIVONA in writing (text form).

 

3.6.    Without prejudice to the above provisions, a default by NIVONA shall require a prior reminder by the customer and the expiry of a reasonable grace period.

 

3.7.    If NIVONA is in default, the customer may, insofar as he is not in default of acceptance and makes credible that he has suffered damage as a result, demand compensation for default for each completed week of default of 0.5% of the value of the goods delivered late, but not more than 5%, without prejudice to proof of greater damage; in all other respects claims for damages caused by default are excluded. The exclusion of damages shall not apply in the event of death or personal injury (injuries of body or health). The customer may only withdraw from the contract within the framework of the statutory regulations if NIVONA is responsible (sect. 276 BGB) for the delay in delivery. This provision does not change the burden of proof to the disadvantage of the customer.

 

3.8.    NIVONA fulfils the take-back obligation in accordance with the Verpackungsgesetz (German Packaging Act) by participating in nationwide disposal systems.

 

 

4.       Price of the goods

 

4.1.    Prices are quoted in euros “ex works” NIVONA warehouse, including packaging, plus the applicable statutory VAT.

 

4.2.    Insofar as the agreed prices are based on NIVONA's price list and delivery is not to take place until more than four months after conclusion of the contract, NIVONA's list prices valid at the time of delivery shall apply (less any agreed discount). The same applies if delivery was to take place at an earlier point in time than four months after conclusion of the contract but could only take place at a later point in time than four months after conclusion of the contract due to a circumstance for which the customer is responsible. The above shall not apply if the price has been agreed as a fixed price.

 

 

5.       Terms of payment

 

5.1.    Payments shall be made in accordance with the agreed terms of payment within the payment periods stated on the invoice and shall be due upon their expiry. Payments shall be made without any deductions and free of transaction charges to NIVONA’s designated account(s).

 

In the absence of such an agreed payment period, payments shall be due 14 days (net) from the date of invoice. Spare parts are to be paid net immediately. Agreed payment deadlines are met if NIVONA can dispose of the amounts within these deadlines.

 

5.2.    If the submission of cheques or bills of exchange has been agreed, payment shall always be made on account of performance (and not in lieu of performance). Expenses and interest shall be reimbursed to NIVONA without delay.

 

5.3.    The customer may only offset (sect. 387 et seqq. BGB) against claims of NIVONA if the customer’s claims are undisputed or have been legally established or if they concern counterclaims from the same contractual relationship. The customer shall not have a possessory lien (right of retention) against NIVONA unless the customer’s claim is undisputed or has been legally established or concerns a counterclaim from the same contractual relationship.

 

5.4.    If the customer is in default of payment, NIVONA shall be entitled to charge the statutory default interests (currently 9 percentage points above the base interest rate of the ECB) as well as a lump sum of € 40. This lump sum shall be credited against any damages owed, insofar as the damage is justified in the costs of legal action.

 

5.5.    If the customer fails to meet payment obligations, if cheques or bills of exchange are not honoured, if the customer suspends payments or if the customer files for insolvency, NIVONA shall be entitled to make or provide outstanding deliveries or services only against advance payment or the provision of security. This shall also apply in the event of any other significant deterioration in the customer's financial circumstances after the conclusion of the contract (defence of insecurity).

 

 

6.       Retention of title

 

6.1.    The products shall remain the property of NIVONA until all existing or future claims to which NIVONA is entitled against the customer have been fulfilled ("reserved goods"), irrespective of the legal grounds, even if the individual goods have been paid for. Pledging as collateral or transfer by way of security of the goods subject to retention of title by the customer is not permitted.

 

6.2.    The customer is only entitled to resell the reserved goods in the ordinary course of business. In the event that the reserved goods are resold, the customer shall assign (cession) the future claims arising from the resale to NIVONA in advance by way of security, and NIVONA shall accept this assignment without the need for any special declarations at a later date. The assignment shall also extend to balance claims arising within the framework of existing current account relationships or upon termination of such relationships of the customer with his buyers. If the reserved goods are sold or rented together with other items or become an integral part of a property by being installed, the customer shall assign to NIVONA that part of the total price claim which corresponds to the value of the goods subject to retention of title invoiced by NIVONA.

 

6.3.    Until revoked, the customer is authorised to collect the assigned claims from the resale in his own name for his own account; however, he is not entitled to dispose of these claims in any other way, e.g. by assignment. Without prejudice to NIVONA's right of revocation, the above authorisation shall become invalid if the customer culpably defaults on payment after a claim has become due. At the request of NIVONA, the customer must inform his buyer of the assignment of the claim and hand over to NIVONA the documents required to assert its rights against the buyer, e.g. invoices, and provide the necessary information. All costs of collection and any interventions shall be borne by the customer.

 

6.4.    In the case of payments by cheque or bill of exchange, ownership of the goods shall not pass until the cheque/bill of exchange has been honoured in full.

 

6.5.    The customer must notify NIVONA immediately in the event of seizures, confiscations, distraints or other dispositions or interventions by third parties.

 

6.6.    If the value of the security provided by the reserved goods exceeds NIVONA's claims against the customer arising from the current business relationship by more than 20%, NIVONA shall be obliged, at the customer's request, to release security at NIVONA’s discretion to the extent that there is overcollateralization (excess security).

 

6.7.    In the event of default in payment by the customer, NIVONA shall be entitled to withdraw from the contract and take back the reserved goods after the unsuccessful expiry of a reasonable deadline for performance set by NIVONA. The statutory regulations on the dispensability of setting a deadline remain unaffected. The customer is obliged to surrender the goods. If NIVONA has withdrawn from the contract, NIVONA shall be entitled to enter the premises where the reserved goods are stored for the purpose of taking them back. NIVONA shall further be entitled to demand the assignment of the customer's claims for return (actio in rem) against third parties.

 

 

7.       Warranty

 

7.1.    Warranty claims expire after twelve (12) months. The limitation period begins with the delivery of the goods. The above provision shall not apply insofar as the law prescribes longer limitation periods in accordance with sects. 438 BGB (items for buildings), 445b BGB (right of recourse), 327u (right of recourse for digital products) and 634a BGB (construction defects). The statutory regulations on suspension and recommencement of the limitation period remains unaffected.

 

7.2.    Owed are goods of average type and quality, whereby the scale is NIVONA's conditions and the average type and quality of its goods. Quality specifications and agreements do not constitute a contractual guarantee pursuant to sect. 443 BGB unless this is expressly agreed.

 

7.3.    Should the delivered goods or any other performance of NIVONA be defective, NIVONA shall - without prejudice to any rights of recourse of the customer pursuant to sects. 478, 445a, 445b, 445c and 327u BGB - at its discretion provide a warranty by means of free supplementary performance (rectification or replacement, sect. 439 BGB). Any further warranty claims for supplementary performance, reduction (sect. 437 no. 2, second alternative BGB), rescission (sect. 437 no. 2, first alternative BGB) or damages (sect. 439 no. 3 BGB) are excluded without prejudice to clause 7.5. The right to withdraw from the contract (rescission) is not excluded if the supplementary performance has failed. The right to compensation for damages is not excluded insofar as the supplementary performance was culpably defaulted; in all other respects, section 8 of these provisions applies to claims for damages.

 

7.4.    NIVONA is not liable for natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, improper modification or repair work, excessive stress, unsuitable operating materials or due to special external influences.

 

7.5.    NIVONA shall bear the expenses necessary for the purpose of supplementary performance, in particular transport, travel, labour, and material costs (sect. 439 (2) BGB). This shall not apply if the costs are disproportionate (sect. 439 (4) BGB).

 

7.6.    The delivered goods must be carefully inspected promptly (i.e. without undue delay) after delivery to the customer or to a third party designated by the customer. The goods shall be deemed to have been approved by the customer with regard to obvious defects or other defects that would have been identifiable in the course of a prompt, careful inspection if NIVONA does not receive a notification of defects in text form within fourteen (14) working days of delivery. The customer must notify NIVONA of other defects in text form as soon as they become apparent, at the latest within fourteen (14) working days from knowledge.

 

7.7.    Insofar as NIVONA directly fulfils the warranty claims of the consumer-buyer (sects. 13, 312 BGB) who previously purchased the goods from the customer, the customer's recourse claims against NIVONA are excluded. In all other respects, the customer shall only have recourse claims against NIVONA insofar as the customer has not reached any agreements with the consumer-buyer that go beyond the statutory claims or has not made any voluntary concessions. The claim to be made credible by the customer pursuant to sect. 445a BGB or sect. 327u BGB is, notwithstanding the above, limited to the amount which was necessary for successful supplementary performance taking into account economic efficiency. The burden of proof for the necessity of higher costs shall be borne by the customer. In order to substantiate the claim for recourse, the customer shall furnish a copy of the purchase receipt, proof of fulfilment signed by the consumer-buyer with a complete description of the replaced original spare part or a spare part authorised by the manufacturer and a calculation of the transport, travel, labour and other material costs incurred. Instead of the aforementioned individual invoicing, NIVONA may, at its discretion, also fulfil the customer's statutory claim for recourse pursuant to sect. 445a BGB by means of an appropriate lump sum, if such has been agreed. NIVONA reserves the right to offset claims for damages which it incurs within the scope of its manufacturer's warranty as a result of improperly performed supplementary performance by the customer.

 

7.8.    The above provisions shall apply accordingly to defects of title (sect. 435 BGB).

 

7.9.    The provisions of the Produkthaftungsgesetz (German Product Liability Act “ProdHaftG”) shall remain unaffected by the above provisions.

 

 

8.       Liability

 

Insofar as no divergent liability provision has been made elsewhere in these terms and conditions, NIVONA shall only be liable as follows for damages incurred by the customer directly or indirectly as a result of a default on the part of NIVONA, a defective delivery or for any other legal reasons attributable to NIVONA.

 

8.1.    Liability for damages is generally only given if NIVONA has acted culpably. Liability by chance and liability for force majeure are excluded.

 

8.2.    Liability for damage caused by improper use of the goods is excluded.

 

8.3.    Without prejudice to Clause 8.4., NIVONA shall only be liable for intent and gross negligence as well as for the negligent injury to life, body and health.

 

8.4.    NIVONA shall further be liable for the negligent breach of obligations, the fulfilment of which is essential for the proper performance of the contract, the breach of which jeopardises the achievement of the purpose of the contract and the observance of which the customer may regularly rely on (cardinal duties), in particular the obligation to deliver the goods on time and to keep them free from defects of title (sect. 435 BGB) and such material defects (sect. 434 BGB) that impair their functionality or usability more than insignificantly. In these cases, NIVONA shall only be liable for the foreseeable damage typical for the contract, unless there is also intent or gross negligence or negligent injury to life, body, or health.

 

8.5.    Claims by the customer are excluded to the extent that the damage is attributable to breaches of duty attributable to the customer. NIVONA shall be liable for measures taken by the customer to avert damage insofar as it is legally obliged to do so.

 

8.6.    The customer shall inform and consult NIVONA comprehensively and without undue delay if he wishes to make a claim under the above provisions. He shall give NIVONA the opportunity to investigate the claim. The contractual partners shall agree on the measures to be taken, in particular in the case of settlement negotiations with third parties.

 

8.7.    In determining the amount of damages, the economic circumstances of NIVONA, the type, scope and duration of the business relationship and the value of the goods delivered shall be taken into account in good faith.

 

8.8.    Insofar as the liability of NIVONA is excluded or limited, this shall also apply to the liability of its vicarious agents and legal representatives.

 

8.9.    The above provisions do not change the burden of proof to the disadvantage of the customer. Furthermore, NIVONA's liability under mandatory law, in particular under the ProdHaftG, shall remain unaffected.

 

 

9.       Jurisdiction, place of fulfilment and governing law

 

9.1.    The place of jurisdiction for all disputes arising from the contractual relationship is Nuremberg (Germany), insofar as the customer is a merchant pursuant to sect. 1 Handelsgesetzbuch (German Commercial Code “HGB”), a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany. However, NIVONA shall also be entitled to bring a claim before a court at the customer’s principal place of business or at its discretion before any other court being competent according to any national or international law.

 

9.2.    The place of performance and fulfilment is Nuremberg.

 

9.3.    This contract and any dispute or claim arising out of it are subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

 

9.4.    Should individual provisions of this contract or the terms and conditions be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision the effects of which come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.

 

 

 

NIVONA Apparate GmbH, Nuremberg                     (Status: November 2022)