§ 1 Scope / Other provisions

  1. The deliveries, services and offers of Diaprax GmbH (hereinafter referred to as "we") shall be made exclusively on the basis of the following terms and conditions. These terms and conditions shall also apply to all future transactions between the parties, even if this is not expressly agreed again.
  2. The validity of deviating provisions or provisions going beyond these provisions is excluded. This applies in particular to the customer's general terms and conditions, even if we accept an order from the customer in which the customer refers to his general terms and conditions and/or to which the customer's general terms and conditions are attached and we do not object to this.
  3. § 312i para. 1 sentence 1 nos. 1, 2 and 3 as well as § 312i para. 1 sentence 2 of the German Civil Code (BGB), which provide for certain obligations of the entrepreneur in the case of contracts in electronic business transactions, are waived.

§ 2 Conclusion of contract / procurement risk

  1. Our offers are subject to change. The contract shall only be concluded when the customer places an order and we confirm this order in writing or commence with its execution.
  2. The customer shall be bound to his purchase offer for a fortnight - unless otherwise specified in his order.
  3. With the conclusion of the contract we do not assume any procurement risk.

§ 3 Delivery

  1. Unless otherwise agreed, delivery shall be EXW warehouse Wesel in accordance with Incoterms 2010.
  2. Partial deliveries are permissible insofar as they do not involve disproportionate effort for the customer. Partial deliveries can be invoiced by us individually.

§ 4 Prices and terms of payment

  1. If the order value is less than € 25,- net, we charge a handling fee of € 12,-. If the customer wishes direct shipment to his customers, we charge a handling fee of € 5,- per shipping address.
  2. For an order value of less than € 50,- as well as for domestic shipment, shipping costs will be charged according to the respective current freight rate sheets. The same applies to goods that are specially marked in our sales lists or are not included there or whose prices are agreed separately. For resellers, the freight limit is € 250.
  3. If we agree to take back goods as a gesture of goodwill, we may charge a handling fee of 15% of the value of the goods, at least € 20, for checking and re-storing the goods. For sterile items and diagnostics, return is excluded.
  4. All prices are net prices plus the applicable statutory VAT.
  5. Unless otherwise agreed, payments are to be settled by bank transfer 14 days after delivery and invoicing with a 2% discount or at the latest after 30 days without deduction.
  6. In the case of an agreed SEPA direct debit procedure, the 14-day period for information prior to collection of a due payment can be shortened to a maximum of one day prior to debiting in order to facilitate payment transactions. If chargebacks are made for which the buyer is responsible, the buyer shall reimburse us for the costs incurred.

§ 5 Default in payment / set-off and retention

  1. In the event of default in payment as well as reasonable doubts about the customer's ability to pay, we shall be entitled - without prejudice to our other rights - to demand advance payment for deliveries not yet carried out, to revoke payment periods granted and to make all claims arising from the business relationship due immediately. Our obligation to deliver shall be suspended as long as the customer is in default with a due payment. The customer in default shall be obliged to reimburse us for all reasonable reminder, collection and information costs.
  2. The customer may only offset claims other than his contractual counterclaims arising from the respective legal transaction concerned or assert a right of retention if this claim is undisputed by us or has been legally established.

§ 6 Delivery disruptions / fixed date transaction / consequences of default

  1. Business disruptions, insofar as they were not foreseeable, as well as strikes, lockouts, official decrees and other cases of force majeure shall release us from the obligation to deliver for the duration of the disruption and to the extent of its effect. If delivery is delayed by more than 2 weeks as a result, each of the parties shall be entitled, to the exclusion of all further claims, to withdraw from the contract with regard to the quantity affected by the disruption in delivery.
  2. If the delivery date has not been expressly agreed in writing as "fixed", a delivery shall be made in accordance with the contract if it reaches the customer within one week of the non-binding delivery date.
  3. The customer may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the delay in delivery. This provision does not imply any change in the burden of proof to the detriment of the customer. The customer is obliged to declare at our request within two weeks whether he withdraws from the contract due to a delay in delivery or insists on delivery and/or demands compensation.

§ 7 Notification of defects / claims in the event of defects

  1. The customer must immediately check whether the delivered goods correspond to the contractually agreed quantity and quality. Recognisable defects are to be reported immediately, non-recognisable defects immediately after discovery, stating the order data and invoice number. The customer may not refuse to accept the delivery items due to insignificant defects.
  2. We guarantee that the delivery items have the agreed quality at the time of transfer of risk. The quality of the goods results from the offer and the product description referred to in the offer.
  3. We can remedy defects in the delivery items at our discretion by supplying a new delivery item free of defects or by remedying the defect.
  4. If the new delivery or rectification of the defect fails, is impossible, is refused by us, is unreasonable for the customer or is not carried out by us within the reasonable period set by the customer, the customer may withdraw from the contract or demand a reduction. The customer may also withdraw from the contract immediately if special circumstances exist which justify this after weighing the interests of both parties.
  5. The customer's claims for defects shall become statute-barred 12 months after delivery of the delivery items to the customer. This does not apply to fraudulently concealed defects.

§ 8 Limitation of liability

  1. We shall be liable for damages insofar as these; a) were caused intentionally or by gross negligence on our part, or; b) were caused by slight negligence on our part and are attributable to material breaches of duty which jeopardise the achievement of the purpose of the contract, or to the breach of duties the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer may rely.
  2. In all other respects, our liability is excluded, irrespective of its legal basis, unless our liability is mandatory by law, in particular due to injury to life, limb or health of a person, assumption of a guarantee, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by us shall only be made in writing and shall be designated as such.
    In the case of paragraph (1) b) as well as in the case of gross negligence by simple vicarious agents of ours (i.e. not organs or executive employees), we shall only be liable to a limited extent for the damage typically foreseeable for a contract of this type.
  3. In the cases of paragraph (2), liability for indirect damage, consequential damage and loss of profit shall be excluded. The parties assume for the cases of paragraph (2) that the "typically foreseeable damage" for all cases of damage occurring within the scope of an order corresponds at most to the agreed net remuneration for the order concerned.
  4. The limitations of liability of paragraphs (1) to (3) also apply to claims against employees and agents of ours.

§ 9 Retention of title

  1. We retain title to the delivery items ("reserved goods") until all claims to which we are entitled against the customer arising from the business relationship have been fulfilled. The taking back of goods subject to retention of title shall only constitute a withdrawal from the contract if we have expressly declared this in writing.
  2. All claims from the resale of goods subject to retention of title, including bills of exchange and cheques, shall be assigned to us by the customer here and now as security for our payment claims from deliveries. We accept the assignment. In the event of the sale of delivery items in which we have co-ownership, the assignment shall be limited to the share of the claim corresponding to our co-ownership share.
  3. As long as the customer is willing and able to properly fulfil his obligations towards us, he may dispose of the delivery items owned or co-owned by us in the ordinary course of business and collect the claims assigned to us himself. The customer may only transfer ownership by way of security, pledge and assign claims, including by way of sale of claims, with our prior written consent.
  4. If the value of the goods subject to retention of title exceeds the claim to be secured by more than 20 %, we shall release the securities exceeding this amount on request.

§ 10 Applicable law / place of performance / place of jurisdiction

  1. The legal relationship between the customer and us shall be governed exclusively by German law (excluding any references to other legal systems and the UN Convention on Contracts for the International Sale of Goods).
  2. The place of performance for the mutual obligations is Wesel.
  3. If the customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes between the parties arising from or on the occasion of the business relationship shall be the courts with jurisdiction for Wesel. The same shall apply if the customer does not have a general place of jurisdiction in Germany, moves its place of residence or habitual abode out of Germany after conclusion of the contract or its place of residence or habitual abode is not known at the time the action is brought. The statutory place of jurisdiction for dunning proceedings and other statutory places of jurisdiction which cannot be deviated from by agreement between the parties shall remain unaffected. We are also entitled to sue the customer at his general place of jurisdiction.