1.1: These General Terms and Conditions as well as Terms and Conditions of Sale shall apply to Condor® MedTec’s (hereinafter referred to as “Condor”) shipments and services unless an alternate agreement has been entered into by the Customer and Condor. If the Customer’s General Terms and Conditions and/or Terms and Conditions of Sale contradict Condor’s Terms and Conditions of Sale, the Customer’s Terms and Conditions shall only apply if Condor has expressly agreed to them.
1.2: Condor’s General Terms and Conditions as well as Terms and Conditions of Sale shall also apply to all future transactions with the Customer. However, the version valid at the time of contract execution shall apply.
1.3: Any further contract terms that are agreed upon between Condor and the Customer that differ from these General Terms and Conditions shall prevail.
1.4: There are no ancillary agreements. Any divergent agreements, even those executed after the signing of the contract, shall only be binding for Condor if Condor has confirmed them in writing.
2.1: Condor’s quotations are non-binding.
2.2: For the interpretation of trade terms, the INCOTERMS in the version valid at the time of the contract execution shall apply.
3.1: Unless otherwise agreed, Condor’s prices are delivery ex-works, with the packaging, shipping, insurance, customs duties, and any public dues excluded. If Condor makes shipments and provides services more than three months after the contract execution, and Condor’s costs have increased during that time (for example, as a result of increased wages, raw material cost, or exchange rates), Condor shall reserve the right to make appropriate price adjustments. Condor shall provide evidence of the increased cost upon the Customer’s request.
3.2: Condor’s prices are net prices in EUR. The applicable value added tax shall also be invoiced.
4. Payment, Offset, Withholding
4.1: The payment terms specified in Condor’s order confirmation shall be binding upon the Purchaser. In general, payments shall be made net cash without any deductions upon receipt of the goods, unless other arrangements have been agreed on a case-by-case basis.
4.2: Condor’s invoices shall be considered acknowledged if the Customer does not object to them in writing within two weeks of the invoice date.
4.3: If the Customer does not adhere to the payment terms, or if Condor becomes aware of any circumstances that might lower the Purchaser’s creditworthiness, all of Condor’s receivables become due immediately, independent of any other agreements. In this case, Condor shall have the right, if Condor so chooses, notwithstanding any other provision of law, to make any pending deliveries upon advance payments only, demand collateral, withdraw from the contract after an appropriate extension, or claim damages due to nonperformance.
4.4: Condor shall have the right to offset its claims against those of the Purchaser, regardless of the legal basis, even if the mutual claims are due on different dates. The withholding of payments or the offset due to any potential counterclaims by the Purchaser that are disputed by Condor shall not be permissible. Condor shall have the right to assign any claims arising from its business relationships.
4.5: If the Customer is in default of payment, Condor has the right to demand past-due interest from the Customer. The past-due interest amounts to 8 percent p.a. above the respective basic interest rate. If Condor is able to prove that a greater amount of damage was caused by the delay, the Company shall have the right to assert this claim. If the Customer is in default of payment, Condor shall also have the right to return any bills of exchange prior to their expiration and demand an immediate cash payment.
4.6: The Customer shall only be permitted to exercise an offset or withholding if the Customer’s counterclaims are either found to be uncontested or legally binding. The Customer shall have the right to assign its claims under this Contract only if Condor has agreed to this previously. The agreement to an assignment to an affiliated company (§ 15, AktG [Aktiengesetz; Stock Corporation Act]) may only be refused by Condor for a substantial reason.
5. Shipment / Transfer of Risk
5.1: All the delivery and performance deadlines shall be non-binding unless they are expressly defined as binding.
5.2: The fulfillment of Condor’s delivery and performance obligations assumes the Customer’s correct and timely execution of any cooperative act required for the delivery under the Contract. Furthermore, it assumes that the Customer is not in default of payment.
5.3: Unless otherwise agreed, Condor’s prices are net ex-works (“EXW” according to the Incoterms valid at the time of the contract execution). Use and risk are transferred to the Customer upon the departure of the shipment ex-works.
5.4: In the case of a delivery delay, Condor shall receive an extension of a minimum of four weeks.
5.5: Condor shall have the right to render and invoice for partial deliveries or partial services as long as this is reasonable for the Customer. Complaints about partial deliveries or partial services rendered do not release the Customer from the obligation to accept the remaining quantities of the ordered goods or the remaining services in accordance with the Contract.
5.6: Labor disputes, unrest, governmental measures, and other unforeseeable and serious events of force majeure shall release Condor from its performance obligation for as long as the obstacle to performance exists. In this case, the delivery or service period is extended by the period of time throughout which the obstacle exists. If an obstacle to performance is in place for more than three months, Condor has the right to withdraw from the Contract.
5.7: If the delivery of the shipment is delayed due to reasons that the Customer is responsible for, the risk of accidental deterioration and the risk of accidental loss shall transfer to the Customer upon the indication of readiness to ship. Any storage cost incurred after the transfer of the risk to the Customer is borne by the customer. Further claims remain unaffected by this.
6. Retention of Title
6.1: Condor® MedTec reserves the right of ownership of the delivered goods until all of the payments (reserved delivery) arising from the business transaction are made. This shall also apply to the goods sold by the Purchaser (extended ownership reservation). If there is a balance on the current account, Condor reserves the right of ownership until the balance has been settled.
6.2: Any treatment and processing of the reserved goods shall be carried out by Condor as their manufacturer in accordance with § 950 BGB [Bundesgesetzbuch; German Civil Code] without any obligation on Condor’s part. The processed goods are considered reserved goods for the purposes of these terms. If the reserved goods are processed or inseparably blended with other goods not belonging to Condor, Condor shall acquire the co-ownership of the new goods at the ratio of the invoice value of the reserved goods to the invoice value of the other goods used at the time the processing or blending takes place. This shall also apply if the reserved goods are installed into a different item, and the other item should be considered the main item.
6.3: Moreover, the Seller may sell the reserved goods only in the normal course of business at the Seller’s normal terms and conditions.
6.4: The Purchaser’s claims from the further sale of reserved goods shall transfer to Condor at this time. The Customer shall only be entitled and authorized to further sell the goods once it has been ensured that the claims arising from this sale – that the Customer is entitled to – are transferred to Condor. When Condor’s goods are installed or processed, the value share of Condor’s goods listed in Section 6.2 hereinabove of the total claim from the sale of the product by the Purchaser is considered transferred to us once it arises. If the reserved goods are sold by the Customer together with other goods not delivered by Condor at a total price, the assignment of the claim from the sale occurs in the amount of the invoice value of Condor’s sold reserved goods.
6.5: The Purchaser shall have the right to collect claims from the further sale until Condor’s revocation that is permissible at any time. The Purchaser shall not be entitled to any other assignment of these claims.
Upon Condor’s request, the Purchaser shall be obligated to disclose the assignment to Condor to the Purchaser’s customers and to transfer to Condor the information and documentation required to assert the claim.
6.6: The Purchaser shall lose the right to own the reserved goods when the contractual obligations are not fulfilled by the Purchaser. Condor shall then have the right, without providing an extension or declaration of rescission, to enter the Purchaser’s company premises and to take possession of the reserved goods and to utilize them as well as possible by way of a voluntary sale or an auction, regardless of the payment of any other obligations of the Purchaser toward Condor. The proceeds of the sale shall be credited to the Customer’s accounts payable less any appropriate utilization cost.
6.7: In case of behavior on the part of the Customer that is contrary to the Contract, particularly regarding a default in payment, Condor shall have the right to reclaim the goods. A reclaiming of the goods by Condor does not represent a withdrawal from the Contract, unless Condor has declared this expressly in writing.
6.8: If, when goods are delivered abroad, certain measures regarding the effectiveness of the reservation of ownership are required in the importing country, the Customer shall indicate that and carry out such measures at the Customer’s cost. If the laws of the importing country do not permit a reservation of ownership, but they do allow Condor to reserve other rights to the goods, Condor shall be entitled to exercise all rights of this kind. If this does not lead to an equivalent securing of the claims, the Customer shall be obligated to provide Condor with other collateral for the delivered goods or other guarantees at the Customer’s cost.
6.9: The customer shall not be permitted to assign as a precaution or pawn the goods under the reservation of ownership. Seizures performed by third parties must be indicated promptly.
6.10: Condor undertakes to release any collateral it is entitled to upon the Customer’s request inasmuch as the viable value of Condor’s guarantees does not exceed the claims to be secured by more than 30 percent. The selection of the guarantees to be released shall be incumbent upon Condor.
7. Notices of Defect
7.1: Claims due to incomplete or incorrect deliveries or complaints on the basis of apparent defects shall be communicated in writing promptly after the receipt of the goods. Other complaints shall be communicated in writing promptly after their discovery. In case of a justified and timely notice of defect, Condor shall remedy the defects by way of a supplementary performance of Condor’s choice by removing the defects or delivering a defect-free item; in this case, Condor shall bear only the cost incurred for the purpose of the supplementary performance.
7.2: If notices of claims or defect are not communicated in a timely manner, warranty claims shall be excluded. If they are communicated in a timely manner, Condor shall be obligated to make an additional delivery or a guarantee in accordance with Section 8 below.
7.3: The subsequent fulfillment may be refused by Condor in accordance with the statutory regulations. If the Customer does not return the disputed goods to Condor despite a request, Condor shall have the right to refuse the subsequent fulfillment.
8.1: Condor warrants the promised characteristics and absence of defects of the delivered item.
8.2: The warranty period is 24 months and begins upon the risk transfer to the Purchaser.
8.3: If the delivered item is defective, Condor agrees to repair (rework) or exchange (subsequent delivery) the defective item at Condor’s own discretion. There is no right of conversion or reduction, unless Condor is not able to remedy the defect.
8.4: The Purchaser has the right to perform such necessary work only with Condor’s express consent.
8.5: A warranty for the defects of the delivered goods caused by normal wear and tear is excluded. If the goods were sold as declassified or used material, the Purchaser shall not be entitled to any claims regarding any potential defects.
If Condor’s operating or maintenance instructions are not followed, changes are made to shipments or services, parts are exchanged, and materials are used that do not conform with the original specifications, any warranty will be void, unless the Customer can provide evidence that the defect was not caused by such actions.
8.6: Condor strives to consider property rights (such as patents or registered designs) in its product sectors. However, it is not possible to identify all property rights for products as well as for their use in the many areas of processing.
If a third party makes a claim against the Customer due to the violation of industrial property rights or copyrights, and if the shipment and service were used in a contractually stipulated manner, the Customer must inform Condor promptly and in writing of the detailed claims.
8.7: Insofar as Condor did not violate any substantial contractual obligations and a violation of other contractual obligations occurred neither intentionally nor grossly negligently, the Customer shall not be entitled to any further claims against Condor due to the violation of protective rights or copyrights.
9.1: The Purchaser’s claims are conclusively governed by the GTCs at hand. Therefore, Condor shall not be liable for any damage not caused to the delivery item itself. The Company shall not accept liability for any consequential damage, cost savings that did not materialize and any other pecuniary loss incurred by the Customer.
9.2: The disclaimer shall not apply to cases of intentional or grossly negligent action, claims in the case of a missing characteristic that was promised, claims pursuant to §§ 1, 4 Product Liability Law [Produkthaftungsgesetz] as well as the slightly negligent violation of any substantial contractual obligations. In cases of a slightly negligent violation of substantial contractual obligations, the liability is limited, however, to the replacement of the typical damage predictable upon contract execution but does not apply to personal injury. The same shall apply in cases of grossly negligent actions performed by ordinary agents.
9.3: With the exception of personal injury, the Customer’s claims for damages shall be limited to 10% of the net shipment value of the respective shipment of the contractual object.
10. Order Cancellation by the Customer
10.1: Unless otherwise specified, Condor’s contracts shall not be ordinarily terminated.
10.2: The Customer’s statutory termination rights shall remain unaffected.
11. Intellectual Property
11.1: By purchasing the delivered goods, the Customer does not acquire any patent rights, copyrights, trademark rights, or any other intellectual property rights related to the delivered goods, drawings, or blueprints.
11.2: All information and documentation that the Customer receives from Condor shall be treated confidentially unless this information and documentation is in the public domain.
12. Replacement Parts
After the sale of goods to the Customer, Condor shall guarantee the availability of replacement parts for ten years. The means of production required to produce the replacement parts shall be retained for this period of time as well. After the end of this time period, the retention obligation shall cease.
13. Disposal of Goods
When disposing of the goods, the Customer shall ensure that the goods are disposed of properly and in accordance with the statutory regulations. The disposal shall be carried out at the Customer’s own expense. If the goods or their components are resold, the Customer shall transfer this obligation to the next Purchaser.
14. Place of Jurisdiction
14.1: The place of jurisdiction shall be Condor’s principal offices.
14.2: In addition, Condor shall be entitled to go to a different court that is competent under ZPO [Zivilprozessordnung; Code of Civil Procedure].
14.3: German laws shall apply to all legal relationships. The Convention on Contracts for the International Sale of Goods (CISG) [Übereinkommen über den internationalen Warenverkehr] and the referral provisions of the German Private International Law shall not apply.
15. Final Provisions
15.1: If any individual provisions of these General Terms and Conditions of Sale are invalid either completely or
partially, the validity of the remaining provisions shall remain unaffected.
15.2: A completely or partially invalid provision shall be replaced with a provision whose economic success is closest to that of the invalid provision.