Monday, 23. April. 2018

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Standard terms and conditions

of Wieland Dental + Technik GmbH & Co. KG  (Valid from: 02/2016)

I.      General terms and conditions
1.

Scope
Our terms and conditions only apply to companies (Article 14 of the German Civil Code [BGB]), corporate bodies under public law and special funds under public law. The supply of all goods and services by us, including any future transactions, shall be governed exclusively by these terms and conditions. No customer’s alternative or additional conditions are binding on us, even if we have not specifically objected to them, unless we expressly accept such terms and conditions. In such a case, they only apply to the individual contract concerned.

2.Conclusion of contract
2.1.Our offers and quotations are always without engagement. The customer shall be bound to the customer’s order for a period of two weeks after receipt of the order by us.
2.2.

Orders and amendments to orders are only accepted by us subject to our acknowledgement. The receipt of a delivery note or invoice by the customer and/or the delivery or the performance of service counts as an acknowledgement.

2.3.The onus is on the customer to check the customer’s order and all contract documents for completeness, correctness and suitability for the customer’s intended purpose.
2.4. Contracts are entered into on the proviso that goods are delivered to us. This shall not apply if we are responsible for the non-delivery, especially if we have not concluded a congruent covering transaction. We will inform the customer immediately of the unavailability of the goods and refund any payments received without delay.
2.5. To the extent deemed acceptable to the customer, we shall be entitled, even after conclusion of the contract, to make alterations to the goods in the course of continuous development and improvement and to effect minor and non-substantive deviations in respect of colour, shape, design, dimensions, weight or quantity.
3. Prices, terms of payment
3.1. Our prices are the list prices ruling on the day the contract was entered into plus value added tax at the statutory rate and are understood to be ex-works excluding packing and transport costs. Any attendant costs will be charged as per documentation. 
3.2. If the delivery is not to be made or, for reasons for which the customer is responsible, can not be made, any earlier than six weeks after conclusion of the contract, we shall be entitled to increase the price by an appropriate amount if our own costs, in particular material prices, energy costs, collectively agreed labour costs, statutory and collectively agreed fringe benefits and freight costs, should increase to an extent not offset by other cost reductions. Inasmuch as the agreed prices are based on our list prices and the delivery is not to be effected any earlier than four months after the contract is entered into, the list prices ruling on the day of delivery shall apply (minus any agreed percentage or fixed-sum discount. 
3.3. Payments become due upon supply of the goods to the customer and shall be payable in euros without deduction.
3.4. The customer shall only be entitled to offset amounts if the customer’s counterclaim is legally recognised or undisputed. This prohibition of set-off does not apply to any counterclaim arising from a defect based on the same contractual relationship as our claim. The customer shall only be entitled to exercise a right of retention to the extent that the customer’s counterclaim is based on the same contractual relationship.
4.

Deliveries of material for refining
If the customer delivers precious metal alloys to us with an order to refine the same, then the alloys become our property upon receipt by us. The customer’s precious metal account will be credit with the corresponding value based on the analysis of the alloys and in accordance with the precious metal price ruling on the date of settlement.

5. Delivery, transfer of risk, inspection, returns
5.1. Delivery periods and delivery dates stated are always without engagement, unless a delivery period or a binding delivery date has been expressly agreed to.
5.2.

Inasmuch as can be deemed acceptable to the customer, we are entitled to make part deliveries, each of which we may invoice separately. To the extent customary in the industry, the amount supplied may deviate by up to 10% above or below the amount ordered.

5.3.

If it is agreed that the goods be shipped, then the risk of accidental loss and accidental impairment of the goods 

  • even if we carry out the delivery, have borne the costs of shipping or carry out assembly or installation
  • passes to the customer upon despatch of the goods, at the latest when the goods leave our works or warehouse.

In the absence of written instructions from the customer, we shall be free to choose the method of despatch, route and packing at our discretion. We will only conclude transport insurance at the customer’s request and at the customer’s cost and on behalf of the customer. The customer must immediately report any visible damage that has occurred in transit to the transport personnel by making an entry on the bill of lading, waybill or delivery note and having it signed; if this is not possible, the customer must issue a damage report. The customer shall also inform us in writing without delay of any such damage in transit.

5.4. If no terms of delivery are agreed, we will deliver EX WORKS – EXW (Incoterms 2010).
5.5. The customer is obliged under commercial law to inspect the goods immediately and to lodge any claims in respect of shortcomings without delay, at the latest within seven working days (Article 377 German Commercial Code (HGB).
5.6. If despatch is delayed through circumstances for which the customer is responsible, then the risk shall pass to the customer as from the day on which the goods are ready for despatch. In this case, we shall be entitled at our discretion to store the goods at the customer’s cost and risk and to claim payment of the agreed price.
5.7. Returns must always be notified in advance and are only permissible subject to our prior consent and after we have sent an RMA number. If we agree to the return of goods, we may raise a handling charge of at least 20% of the value of goods. Goods subject to the Medical Devices Act and goods which are no longer in the product range and which have a documented minimum shelf life can not be taken back. We only accept saleable goods which are in perfect condition and packed in intact and clean original boxes. Returns resulting from a shortcoming or defect are governed exclusively by 7 below.
6. Retention of title, security rights
6.1.

We retain the rights to our goods (“goods subject to retention of title”) until all claims, including future claims arising from the entire business relationship, including all secondary claims, have been paid in full. In the case of current accounts, the reserved property serves as security for the outstanding balance.

6.2.

The customer is entitled to sell the goods subject to our retention of title during the course of the customer’s normal business operations. The customer herewith already assigns to us all claims due to the customer from the sale of the goods, including all secondary claims (“assigned claims”). We accept this assignment of debt.

6.3.

The customer may not pledge the goods subject to the retention of title or offer them as security. We must be informed in writing of any seizure by a third party of the goods subject to retention of title and of any assigned claims, in particular any made by way of pledge. The customer is obliged to immediately contest any attempts to seize the goods by referring to our rights.

6.4.

In the event of a default of payment, we shall be entitled to withdraw from the contract as provided for by law and to demand immediate return of the goods subject to retention of title.

6.5.

We undertake to release goods subject to retention of title and assigned claims if the realisable value of the items used as security exceeds 110% of the secured claim. This release shall be effected by way of transfer of ownership or reassignment. 

6.6.

The cost of taking back and disposing of the goods subject to retention of title shall be borne by the customer. The cost shall be a fixed amount of 5 % of the revenue from disposing of the goods, including value added tax. The cost may be higher or lower if we produce evidence of higher costs of if the customer proves that lower costs, or no costs, were incurred.

7. Claims in respect of defects
7.1.

We may at our discretion rectify defects or supply goods free of defects as replacement (supplementary performance). If attempts to rectify defects fail, are deemed to be unacceptable or in the event of a refusal to rectify defects, the customer may demand a reduction in price or – in the event of a substantial defect – withdraw from the contract and/or demand compensation in accordance with 8 below.

7.2.

Any notice of defects must be made in writing and must describe the fault in as specific terms as possible.

7.3.

We will only bear costs incurred in connection with supplementary performance as a result of shipping the sold goods to a place other than the agreed place of performance if we agree in writing to do so.

7.4.

Claims in respect of defects may not be assigned by the customer.

8. Liability for compensation and reimbursement of expenses
8.1.

Our liability for compensation and reimbursement of expenses in the event of minor negligence is excluded, especially as a result of a breach of contractual obligations or tort, unless we are in breach of a major debt of obligation, that is, an obligation which must be discharged in order for the contract to be fulfilled and which the customer can normally count on being discharged. In this case our liability shall be limited to the damages typical for this type of contract and which we would have been able to foresee on the basis of the circumstances known to us at the time the contract was entered into. Our liability in respect of injury to persons, wilful intent and gross negligence, for the absence of a guaranteed quality and pursuant to product liability law shall, however, not be subject to such limitation.

8.2.

Contractually typical, foreseeable damages are damages amounting to a total of EUR 25,000 for each damage event. A damage event may also refer to several instances of damage arising from the same cause or damages which are directly connected in terms of time and place and which are subject to a common effect.

8.3.

When determining the amount of the compensation claims to be met by us, our financial circumstances, the nature, scope and duration of the business relationship, any share of the customer in the cause or culpability as set out in Article 254 of the German Commercial Code [BGB] and in particular any unsuitable installation situations of the goods should be taken into account in our favour. In particular, the replacement performances, costs and expenses which we are to bear must be commensurate with the value of the goods.

9. Period of limitation for compensation claims and claims in respect of defects
9.1.

The period of limitation for claims by the customer in respect of defects is one year. This does not apply to claims for damages and reimbursement of expenses in respect of bodily injury, damage to health, wilful intent or gross negligence and does not apply in the instances set out in Article 438 section1:1, Article 438 section 1:2, Article 479 section 1 and Article 634 a) section 1 of the German Civil Code [BGB].

9.2.

The period of limitations for claims by the customer in respect of damages and reimbursement of expenses not based on material defects is one year. This does not affect the statutory period of limitation in respect of claims relating to wilful intent or gross negligence and in the event of bodily injury or harm to health and pursuant to product liability law.

10. Reservation of performance
10.1

The performance of the contract is subject to there being no obstacles to its fulfilment arising from German, American or other applicable national, EU or international regulations governing foreign trade law or from embargos or sanctions.

10.2.

The customer is under obligation to provide in good time all information and documents required for the purposes of export, shipment or import.

11. Final provisions

11.1.

If the customer is a trader, corporate body under public law or special fund under public law, the place of jurisdiction for all disputes arising from and in connection with the contractual relationship shall be our registered place of business or at our option the customer’s place of business.

11.2.

The contract is governed by German law; the UN Convention on Contracts for the International Sale of Goods (CISG) is, however, excluded.

11.3.

Should any provision of these terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions.

11.4.

We expressly point out that we adhere to the provisions of our Code of Business Conducts – www.wieland-dental.de – and also expect our customers to act in accordance with the law and to uphold ethical and moral principles.

II. Terms and conditions of maintenance
1. Maintenance contract
1.1.

If we have concluded a maintenance contract with the customer, we will carry out the maintenance in accordance with the respectively agreed “specification of maintenance services”. These terms and conditions of maintenance apply in addition to our standard terms and conditions.

1.2.

We may engage third parties to perform services. We may modify the maintenance work in the light of technical progress and the development of the equipment. In the event of any modifications which are contrary to the customer’s legitimate interest, the customer may terminate the maintenance contract prematurely within one month of receipt of the advance notification of the introduction of the modification.

1.3.

We reserve the right to carry out maintenance work remotely (Service Remote System), provided that a network line is available at the customer’s premises to which we can connect.

2. Performance of maintenance work
2.1.

The service interval is set out in the “specification of maintenance services”. As a rule, the service interval is between 10 and 14 months; depending on the amount of use, shorter service intervals are also possible. During maintenance work, we may also retrofit technical upgrades; however, there is no entitlement to upgrades.

2.2.

The date of the service call will be agreed with the customer and shall take place during the customer’s normal business hours. A surcharge will be levied on service calls made outside normal business hours.

2.3.

The purpose of maintenance work is to keep the equipment in good working order and comprises tasks which must be carried out regularly. This entails inspecting and checking the equipment. Maintenance work also includes the replacement of wear parts and exchangeable parts as set out in the “specification of maintenance services”.

2.4.

The maintenance tasks carried out are recorded in a service report which is issued in duplicate and signed by our service personnel and the customer. The customer receives one copy of the report. The customer shall notify us without delay in writing and within five working days at the latest of any shortcomings in the maintenance work.

2.5.

The following in particular are not included in the maintenance work:

  • Repairs
  • Major overhaul
  • Cleaning
  • Supply and installation of additional equipment and parts
  • Rectification of damage and defects caused by water, fire, external force, other causes, improper operation or maintenance carried out by the customer or third parties or use in a hardware and software environment not approved by us, third-party components, especially IT equipment connected to our devices. 

These services must be ordered separately; they will be charged according to our current price lists.

2.6.

Minor repairs and corrective maintenance included in the maintenance specification may be carried out by us during the course of the service call without the need for a separate order up to the cost threshold set out in the maintenance contract.

3. Preparation for service call; customer´s involvement
3.1.

The maintenance work can only be carried out if the customer has, in good time and in full, made the required provisions and taken the supporting measures, above all those set out  in the “specification of maintenance services”, the operating instructions and the equipment manual.

3.2.

The customer will support us in carrying out the maintenance work. The customer will ensure that accident prevention regulations are observed on the premises which must be entered during the course of the service call and that the necessary safety precautions have been taken. If a device is not accessible or if we can not begin maintenance work for other reasons for which the customer is responsible, we shall be entitled to charge for the waiting time.

3.3.

The customer shall use and maintain the equipment solely as set out in the operating instructions and the equipment manual.

3.4.

Before the service call, the customer must in particular have ensured the following: 

  • We have unrestricted access to the devices, including connections.
  • The devices have been cleaned and are ready for use.
  • Any data stored in the devices has been backed up on an external data storage medium.
  • Members of the customer’s staff are present who are familiar with the customer’s activities and the operation of the equipment.
  • Material is available that can be used for test purposes.
4. Maintenance fee, other remuneration
4.1.

The annual maintenance fee is to be paid on the dates laid down in the maintenance contract.

4.2.

Wear parts, exchangeable parts and other spare parts – unless listed in the “specification of maintenance services” – are not included in the maintenance fee and will be charged as extras in accordance with price list ruling at the time. Similarly, services which the customer has ordered from us and which are not included in the maintenance work, will be charged according to the relevant price list.

4.3.

We are entitled to increase the maintenance fee by up to 3% once per year by giving the customer two months’ advance notification of the increase. Furthermore, we are entitled to increase the maintenance fee by giving two months’ notice if we incur unforeseeable increases in costs which can not be offset by reducing our own costs. Upon receipt of the advance notification of an increase, the customer may terminate the maintenance contract within one month to the end of the following calendar month. We will expressly specify this in the notification.

5.

Term of contract, termination
The maintenance contract runs for two years. It will be renewed automatically by one year in each instance unless terminated by one of the parties giving three months’ notice to the end of the term of the contract. The right of termination for just cause remains unaffected thereby. Notice of termination is only valid if given in writing.

Contact Person

Fon: +49 72 31/37 05-0
Fax: +49 72 31/35 79 59
E-Mail:
infowieland-dental.SPAMPROTECTION.de

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