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of Forestadent Bernhard Förster GmbH, Pforzheim; Germany (last updated February 1st, 2022)
1.) Scope of application, deviating conditions, future transactions, priority transactions
1.1) These General Terms and Conditions of Sale, Delivery and Payment (hereinafter referred to as "T&Cs") shall apply to all contracts concluded by us with our customers (hereinafter referred to as "Buyer") for our goods and services, including the underlying quotations and declarations of acceptance as well as any ancillary agreements.
1.2) The T&Cs apply only to entrepreneurs within the meaning of Section 14 of the BGB (German Civil Code). They shall apply exclusively. We do not recognize any conflicting or deviating terms and conditions of the Buyer unless we have expressly agreed to them in writing upon conclusion of the contract.
1.3) In the event of ongoing business relations, the T&Cs shall also apply to all future business transactions, even if they are not expressly agreed again.
1.4) Individual agreements (including individual ancillary agreements, supplements and amendments) with the Buyer and differing information in quotations/declarations of acceptance have precedence over the T&Cs.
2.) Written/text form, offers, conclusion of contract
2.1) All quotations and declarations of acceptance, amendments and other ancillary arrangements and agreements made prior to or at the time of conclusion of a contract will only be effective if laid down in written form or text form (both jointly referred to as “in writing” hereinafter).
2.2) Unless expressly designated or agreed as binding, our quotations, in particular with regard to price, quantity, delivery periods and delivery capacities, are subject to change. The Buyer's quotation is binding for four weeks or, in the case of goods in stock, two weeks. An effective contract shall only be concluded upon written confirmation of an order received by us, however no later than – if deviating from Clause 2.1 – upon acceptance of the delivery by the Buyer.
3.) Prices, ancillary costs, price adjustments, pricing
3.1) Unless otherwise agreed, our prices are ex works Pforzheim and are subject to packaging fees and statutory value-added tax.
3.2) If delivery is made more than four weeks after conclusion of the contract and no fixed price agreement has been made, we may adjust the prices in the event of cost changes in accordance with the changes in wages, salaries, taxes, freight costs, material and production costs that have occurred in the meantime. Any price increase shall not be for the purpose of making additional profit. In the event of a price increase of more than 5%, the Buyer shall be entitled to withdraw from the contract.
3.3) Unless otherwise agreed, the pricing is in euros. If payment has been agreed in another currency, then in the event of a subsequent change in the exchange rate of that currency against the euro, payment shall be based on the price that results in euros on the basis of the exchange rate on the day of dispatch ex works Pforzheim.
4.) Terms of payment, payment, electronic invoicing, default of payment, offsetting/retention, deterioration in financial position
4.1) Unless otherwise stated or agreed, payments shall be made within 30 days of invoicing without any deduction. If payment is not made within 30 days, the Buyer is in default.
4.2) The Buyer agrees that invoices may be sent to them electronically (Section 14(1) UStG, German Turnover Tax Act).
4.3) In the event of default of payment, we shall be entitled to demand interest amounting to 9 percentage points above the respective base interest rate. We reserve the right to assert the statutory lump-sum default fee as well as higher default damages.
4.4) The Buyer shall only be entitled to offset rights if their counterclaims have been legally established, are ready for decision or are undisputed. The Buyer shall only be entitled to exercise a right of retention if their counterclaim has been legally established, is ready for decision or is undisputed and is based on the same contractual relationship.
4.5) For international orders, we may require payment against irrevocable letter of credit at our bank account or “cash against documents” payment.
4.6) If, after a contract is concluded, it becomes apparent that our claim for payment is at risk due to the Buyer’s inability to pay, we may refuse performance of the service we are obliged to render until the Buyer has provided payment or a security for it. We may set a reasonable period of time within which the Buyer shall, at their own discretion, either effect payment or provide security concurrently. Upon expiry of said period, we shall be entitled to withdraw from the contract and/or, if the legal requirements are met, to demand compensation for damages or expenses.
5.) Delivery, delivery dates/delivery periods, partial deliveries, force majeure, delay in delivery, delivery to us
5.1) Unless otherwise stated or agreed by us, all delivery dates and delivery periods are non-binding. Delivery periods shall commence from conclusion of the contract, unless the Buyer is obliged to render advance payment. In this case, the delivery period shall commence upon receipt of the Buyer's payment by us. Furthermore, delivery periods shall not commence until all prerequisites for the execution of the contract have been met, in particular all details of the execution have been clarified. Punctual delivery requires compliance with the agreed terms of payment by the Buyer.
5.2) Early deliveries and partial deliveries are permissible to an extent reasonable to the Buyer.
5.3) In the event of force majeure or other unforeseen events affecting us or our suppliers, e.g. operational disruptions, lawful strikes or lockouts, import and export bans, epidemics and pandemics, official measures, failures or restrictions of electronic data exchange caused by third parties as well as cyber-attacks on our IT systems or the IT systems of our suppliers by third parties, etc., which temporarily prevent us, through no fault of our own or attributable to us, from delivering the goods on the binding or non-binding agreed date or by the agreed deadline, these deadlines/dates shall be extended – even during the delay – by the duration of the disruption to performance caused by these circumstances. If such disruption leads to a delay in performance of more than four months, both parties may withdraw from the contract. If, as a result of the aforementioned circumstances, delivery becomes wholly or partially impossible or unreasonable, we shall in this respect be released from our obligation to deliver or entitled to withdraw from the contract. Any statutory rights of withdrawal shall remain unaffected.
5.4) In the event of delay in delivery, the Buyer may only withdraw from the contract after setting us a respite for delivery of at least four weeks.
5.5) In the event of a delay in delivery, we shall be liable for claims for damages in accordance with the provisions of Clause 9. In the event of slight negligence, our liability shall be limited to foreseeable damage typical for the contract, but not more than 5% of the agreed price for that part of the goods whose delivery we are delayed in performing.
5.6) In the event of non-delivery or late delivery to us, we shall not be considered delayed by the Buyer unless we are responsible for the non-delivery or late delivery to us. If it becomes apparent that we are not supplied with the ordered goods, despite the conclusion of a congruent covering transaction, for reasons for which we are not responsible, we shall be entitled to withdraw from the contract.
6.) Transfer of risk
Unless otherwise agreed, the goods shall travel at the expense and risk of the Buyer; the risk shall transfer to the Buyer as soon as the consignment has been handed over to the person performing the transportation. If the shipment of the goods is delayed for reasons for which we are not responsible or if the Buyer does not accept the goods in time although they were offered to them, the risk shall transfer to the Buyer upon receipt of the written notice of readiness. Storage costs after transfer of risk shall be borne by the Buyer.
7.) Retention of title
7.1) Until full payment of all claims arising from the contract and other claims which we subsequently acquire against the Buyer in direct connection with the delivered goods – irrespective of the legal grounds – the delivered goods shall remain our property.
7.2) Furthermore, the goods shall remain our property as retained goods until the fulfillment of all other claims which we acquire against the Buyer – irrespective of the legal grounds – now or in the future (including all balance claims from current account). In the case of open invoices, the retained goods shall serve as security for our balance claims.
7.3) If the validity of this retention of title is linked to special prerequisites or formal requirements in the Buyer's country, the Buyer shall be obliged to ensure that these are fulfilled at their own expense.
7.4) The Buyer shall be entitled to process and resell the goods in the ordinary course of business. The right to process and resell does not exist if the Buyer is in default of payment or if they have not only temporarily suspended their payments. As long as we are the owner of the retained goods, we shall be entitled to revoke the authorization for processing and resale if there is an objectively justified reason. The Buyer hereby assigns to us all claims to which they are entitled from processing and resale of the goods, including all ancillary rights; we accept this assignment.
7.5) Until revoked, the Buyer is authorized to collect the assigned claims. We may revoke the collection authorization if there is an objectively justified reason. We are authorized to collect the claims ourselves, but will not collect the claims as long as the Buyer meets their payment obligations.
7.6) If the Buyer fails to meet their payment obligations and we are therefore authorized to collect the claims ourselves, the Buyer shall, upon request, provide us with a list of all goods subject to our retention of title, the assigned claims and the names and addresses of the debtors with the amount of the claims. Upon request, the Buyer shall be obliged and we shall be entitled to notify the debtors of the assignment of claims.
7.7) Any processing or transformation of the reserved goods shall be carried out on our behalf and in such a way that we shall be deemed to be the manufacturer pursuant to Section 950 BGB. In the event of processing, combining or mixing of the retained goods with other goods not belonging to us by the Buyer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the retained goods to the invoice value of the other goods at the time of processing, combining or mixing. At this point, we offer the Buyer the granting of an expectant right to the co-ownership share coming into existence. The Buyer accepts this offer. If the retained goods are sold together with other goods after processing, combining or mixing, the assignment of the claim from the resale shall only apply up to the amount of the invoice value of the goods delivered by us.
7.8) In the event of access by third parties, e.g. enforcement measures, the Buyer shall inform us immediately in writing, provide us with all information and documents required to protect our rights and inform the third party of our retention of title.
7.9) If the Buyer suspends payments not only temporarily, files for insolvency proceedings or if insolvency proceedings are instituted against their assets, they shall be obliged to surrender the retained goods which are still our property upon our request. Furthermore, we shall be entitled to demand the return of the retained goods in the event of any breach of contract on the part of the Buyer, in particular in the event of default in payment.
7.10) At the request of the Buyer, we shall be obliged to waive the retention of title or to release securities at our discretion, if the Buyer has fulfilled all claims in connection with the retained goods or if the realizable value from the total securities granted by us from retention of title, transfer of ownership by way of security and assignment in advance exceeds the total sum of the claims against the Buyer by more than 10%.
8.) Notification of defects and liability for defects
8.1) If the Buyer is a merchant within the meaning of the German Commercial Code, they are required to inspect the goods immediately after delivery of the goods. Obvious defects shall be notified to us without undue delay, however, within eight days after delivery at the latest. Hidden defects must also be reported to us immediately, but no later than eight days after discovery of the defect. If this notification is not made, the delivery shall be deemed to be faultless and approved.
8.2) If the Buyer is not a merchant within the meaning of the German Commercial Code, they are required to notify us of obvious defects no later than two weeks after delivery of the goods. In the event of failure to meet this deadline, any liability for such defects shall be excluded.
8.3) Any notifications of defects shall be made in writing, enclosing one sample for each of the defects and stating the delivery note number and lot number.
8.4) The Buyer must insure the return of goods themselves, as we do not provide any insurance cover. In the event of justified complaints, we will reimburse the costs incurred. Rejected items are to be returned to us immediately upon request.
8.5) If the Buyer notifies us of a defect in accordance with Clauses 8.1 and 8.2 in due time, they shall be entitled, at our discretion, to have the defect remedied free of charge or to have a defect-free item delivered (subsequent performance).
8.6) The Buyer undertakes to indemnify us against any claims of third parties if and to the extent that such claims are based on the Buyer's improper processing of the goods delivered by us.
8.7) If and to the extent that defects are caused by normal wear and tear, excessive use or improper operation or due to instructions given by the Buyer, liability for defects shall not be considered.
8.8) With the exception of claims for damages due to defects, claims for defects shall become invalid twelve months after delivery of the goods to the Buyer.
8.9) The Buyer shall only be entitled to claims for damages due to defects insofar as our liability is not excluded or limited in accordance with Clause 9 of these T&Cs. Further claims or claims due to a defect other than those regulated in this Clause 8 are excluded.
8.10) The provisions of this Clause 8 shall not affect any claims based on defects which we have fraudulently concealed or which are covered by a warranty as to quality or durability.
9.1) We shall be liable without limitation for malicious intent and gross negligence. In the event of a slightly negligent breach of a principal obligation or an accessory obligation, the breach of which jeopardizes the achievement of the purpose of the contract or the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the Buyer could rely (hereinafter "essential accessory obligation"), our liability shall be limited to damages typical for the contract and foreseeable at the time of conclusion of the contract.
9.2) We shall not be liable for the slightly negligent breach of accessory obligations that do not belong to the essential accessory obligations described in Clause 9.1.
9.3) The above exclusions of liability in Clauses 9.1 and 9.2 shall not apply to damages resulting from loss of life, injury to body or health, to tortious acts, to liability for claims based on the Product Liability Act, in the event of the assumption of a guarantee for the quality or durability of the goods and in the event of fraudulent concealment of a defect in the goods.
9.4) Insofar as our liability is excluded or limited, this shall also apply to any personal liability of our employees, workers and other staff and vicarious agents.
9.5) With the exception of claims in tort, claims for damages by the Buyer for which liability is limited under this clause shall become invalid after one year calculated from the commencement of the statutory limitation period.
10.) Infringement of property rights, indemnification
10.1) If a third party asserts justified claims against the Buyer due to the infringement of property rights by the goods delivered by us, Clause 8 shall apply with the relevant changes. In this case, we shall, at our discretion and at our expense, either modify or replace the goods so that they no longer infringe the property right but still essentially comply with the agreed functional and performance characteristics in a manner that is reasonable for the Buyer, or indemnify the Buyer against license fees for the use of the goods towards the property right holders, insofar as this is reasonable for the Buyer.
10.2) We shall defend, indemnify and hold the Buyer harmless against all justified claims brought by third parties, provided that (I) the Buyer notifies us promptly thereof in writing, (II) we can assume sole control of the defense of any such claim and any related settlement negotiations, and (III) the Buyer provides us with the necessary information and powers of attorney. Clause 9 remains unaffected.
The return of defect-free goods is voluntary and therefore requires our prior consent. Such a return can only be considered within one month from the date of invoice and against a handling fee of 5% of the value of the goods.
12.) Plans, technical documents
12.1) Where samples or other pieces are manufactured by us according to plans or technical documents handed over to us by the Buyer, we shall not be liable for defects or errors attributable to errors in the Buyer's plans or technical documents, unless we are responsible for the defect or error. Changes made by the Buyer by telephone require confirmation by the Buyer.
12.2) The samples and drawings and the like that form part of the tender and to be prepared by us shall serve for production purposes only. They shall remain our property and shall not be delivered. Unless otherwise agreed, tools for which the Buyer bears a share of the tool costs shall remain our property without compensation.
14.) Place of performance, applicable law, place of jurisdiction, arbitration, partial invalidity
14.1) Unless otherwise agreed, the place of performance for delivery and payment (also for claims arising from bills of exchange and checks) shall be our place of business.
14.2) German law shall apply with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
14.3) Unless we exercise our right to initiate arbitration proceedings as set forth in Clause 14.4 and unless the Buyer is a merchant, a legal entity under public law or a special fund under public law or unless the Buyer has no general place of jurisdiction in Germany, the place of jurisdiction for all disputes arising from the contractual relationship between us and the Buyer shall be the court of our registered office. However, we shall also be entitled to initiate proceedings against the Buyer at any other statutory place of jurisdiction.
14.4) Instead of proceedings before an ordinary court pursuant to Clause 14.3, we shall alternatively be entitled to initiate arbitration proceedings to the exclusion of ordinary legal proceedings in accordance with the provisions in the following paragraph.
If the Buyer asserts claims against us and intends to take legal action, we shall be entitled to choose between ordinary court proceedings and arbitration proceedings within a period of 21 days after receipt of a written request to that effect from the Buyer. If we do not exercise the right of choice or do not do so within the time limit, the Buyer shall be entitled to choose between the conduct of ordinary court proceedings and arbitration proceedings.
In the event that arbitration proceedings are conducted, all disputes shall be settled in accordance with the arbitration code of the German Arbitration Institute (DIS) to the exclusion of the ordinary legal process. The place of arbitration shall be at our registered office. The arbitration tribunal shall consist of three arbitrators if the amount in dispute exceeds EUR 50,000.00, otherwise the arbitration tribunal shall consist of one arbitrator. The language of the arbitration proceedings shall be German.
14.5) Should any provision of these T&Cs be or become invalid, the remaining provisions shall remain unaffected.
Bernhard Foerster GmbH
Westliche Karl-Friedrich-Straße 151 · 75172 Pforzheim · Germany
Tel. + 49 7231 459-0 · Fax + 49 7231 459-102 · firstname.lastname@example.org · www.forestadent.com
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