General Terms and Conditions Part A. and Part B.
- Scope of application
- Our general terms and conditions part A. and part B. (hereinafter: “T&Cs”) only apply to legal transactions with persons exercising their commercial or independent professional activity (entrepreneur within the meaning of Section 14 BGB (German Civil Code)). These also include legal persons under public law and special funds under public law.
- If a Distributor Contract has already been concluded as a framework agreement with our Contractual Partner, this shall take precedence. These “general terms and conditions Part A.” shall apply additionally.
If no Distributor Contract is in effect as a framework agreement between us and the Contractual Partner, these “general terms and conditions part A.” shall apply in addition to the following “special conditions part B.”.
- General terms and conditions of our Contractual Partner have no validity. The unconditional execution of a subsequent delivery by us in the knowledge of contrary or deviating conditions of the Contractual Partner shall not constitute consent by us regarding their validity unless their validity is expressly agreed in individual cases.
- Contract conclusion
- Our offers are non-binding unless otherwise explicitly stated in the offer.
- A Delivery Contract within the context of a Distributor Contract concluded between us and the Contractual Partner, or a Delivery Contract with a Contractual Partner with whom no Distributor Contract is in effect within the meaning of a framework agreement only comes into effect once the Contractual Partner receives our order confirmation, or once we commence deliveries and performance of services.
III. Scope of services, delivery deadlines
- We will perform our services as defined in accordance with the contractual agreements and the generally acknowledged state of the art upon contract conclusion.
- Our delivery deadlines are non-binding unless they are explicitly agreed as binding, regardless of the wording. If we cannot meet deadlines due to force majeure, e.g. mobilisation, war, rebellion or similar, as well as due to events for which we are not responsible, e.g. strike or lockout, the deadlines and the times during the aforementioned event or its effects shall be extended.
- Prices, due dates; payment default
- The purchase price for the Contractual Goods delivered by us shall be incurred upon delivery and shall be payable within a period of 30 days as of the receipt of a billing statement by the Contractual Partner in text form. If this billing statement does not yet conform to the form required under national law, the Contractual Partner will not be entitled to a right of retention, but will be entitled to receive a proper invoice from us which is suitable according to the national law applicable at its place of business.
- Our prices are without discount and include packaging and provision at the Manufacturer’s location to the freight forwarder. The costs of dispatch shall be borne by the Contractual Partner, which shall also commission the freight forwarder on its own account.
- If our Contractual Partner is still in default past the agreed payment deadline, we are entitled to demand overdue interest totalling 5% and compensation for payment default starting from the commencement of the default according to Section 288 BGB. This does not exclude the assertion of further damages. We are entitled to charge the Contractual Partner a flat rate of 15.00 euro for each reminder issued after the first reminder. The Contractual Partner shall reserve the right to prove lesser damages.
- If the Contractual Partner is in default for a payment totalling 50% of the amount owed, but no less than €3,000.00 in default, we are entitled at our own discretion to demand security or an advance payment for already agreed as well as still outstanding and fully or partially unpaid deliveries prior to their execution where such security or advance payment totals the service in return yet to be rendered for said delivery at the given point in time.
- Offsetting, retention
- Our Contractual Partner can only offset against our claims with undisputed or legally established counterclaims. This does not apply if the counterclaim originates from the contractual relationship which forms the basis of our claims.
- Our Contractual Partner is only entitled to assert a right of retention against us for claims arising from the contract from which the right of retention of our Contractual Party results. In all other cases, a right or retention or defence by reason of non-fulfilment of contract due to counterclaims applying against us is only possible if these counterclaims are undisputed or have been legally established.
- Liability exclusions
- Unless otherwise specified below, we shall only be liable for damage caused by us or our vicarious agents either intentionally or through gross negligence.
- The limitation of liability pursuant to VI. Item 1 shall not apply to liability for damages resulting from injury to life, limb or health.
- In cases of product liability, we are liable in accordance with the Product Liability Act.
- We shall be liable – including with respect to our vicarious agents – for damages caused by any breach of so-called cardinal obligations. Cardinal obligations are such essential contractual obligations that were decisive for the contractual party to conclude the contract and in the compliance of which said contractual party was able to trust.
- If cardinal obligations have been violated by us with slight negligence, the resulting liability for damages shall be limited to the compensation of the contract-typical foreseeable damage.
- In the event of delay in delivery, we are liable in cases of intentional acts or gross negligence by us or our vicarious agents, as well as in cases of culpably caused injury to life, limb or health in accordance with statutory provisions.
In other cases of delay in delivery, our liability is limited to 10% in the case of compensation for the damage along with performance of the service, and in the case of compensation in lieu of performance (including the reimbursement of expenses incurred in vain), to a total of 10% of the value of the delivery. Further claims of our Contractual Partner are excluded in such a case; this also includes following the expiration of a deadline for performance imposed upon us. These limitations do not apply to culpable violation of cardinal obligations by us and/or our vicarious agents (see VI. Item 4 above). The claim for damages for a culpable violation of cardinal obligations, however, is limited to contract-typical, foreseeable damages unless a further case according to P. 1 of the present paragraph (6) is simultaneously in existence. The right of the Contractual Partner to withdraw from the contract remains unaffected. No change of burden of proof to the disadvantage of the Contractual Partner is associated with the preceding regulations.
VII. Final provisions
- This contract shall be subject to the laws of the Federal Republic of Germany with the exception of the UN Sales Convention (CISG United Nations Convention on Contracts for International Sale of Goods of 11 April 1980).
- The place of payment is our main office in 73779 Deizisau, Germany. The sole place of jurisdiction is Deizisau if the Contractual Partner is a merchant within the meaning of the German Commercial Code, a legal person under public law, or a special fund under public law, or has no place of residence or common domicile in the Federal Republic of Germany at the time of commencing legal action.
- Should a provision of this contract be ineffective, or becomes so, all remaining provisions remain unaffected thereby. In such a case, the Parties are obliged to cooperate so as to create legally effective provisions that correspond as closely as possible to the ineffective provision in terms of economic intent.
The improper use of the Contractual Goods and/or their use by untrained personnel can lead to severe bodily injuries.
- Obligations of the Contractual Partner
The Contractual Party is obliged to only use the Contractual Goods in accordance with our contractual concept.
These include the following essential obligations in particular
- Obligations upon unpacking the Contractual Goods
The Contractual Partner may only have the Contractual Goods delivered by us unpacked by trained personnel, i.e.:
- Either by the Contractual Partner’s employees intended for use of the Contractual Goods who have been provided with the training prescribed by us
- Or under the personal supervision of an employee of the Contractual Partner who has been trained and certified by us as a “Noonee Certified Super User”.
- Documentation obligations
The unpacking of the Contractual Goods is to be documented by the Contractual Partner for evidentiary purposes. This documentation is to be transmitted to us without delay following unpacking of the Contractual Goods. This documentation must particularly contain information on when the Contractual Goods were unpacked and by whom.
If the Contractual Party entrusts performance of the contract on their side with a certified “Noonee Certified Super User” certified by us, the Contractual Party must maintain full documentation concerning which additional persons have been trained by the “Noonee Certified Super User” and instructed with respect to use of the contractual product.
- Duty of care obligations
The Contractual Party shall ensure that the persons intended for use of the contractual product:
- Do not suffer from any health-related impairments, particularly those restricting their mobility and/or sense of balance;
- Are not exposed to an increased risk of injury in the case of a fall (pregnant women!);
– If there is doubt as to whether the health condition of the persons intended for use of the Contractual Goods allows for use of the Contractual Goods, the Contractual Goods may only be used by such persons once it has been clarified by a physician that use of the Contractual Goods does not pose any health risks to said persons.
The Contractual Partner shall ensure that nobody on their premises uses the Contractual Goods if they have not received the training prescribed by us. The use of the Contractual Goods must always be performed in accordance with our written instructions and operating manuals.
The Contractual Partner shall ensure that the Contractual Goods do not leave their premises without it having been ensured that the Contractual Goods will reach persons who have been trained in their use.
- Product-related obligations
The Contractual Partner shall not be entitled to independently perform any repairs in the event of damage and/or functional impairment, nor to independently make any changes to the Contractual Goods, to use spare parts or tools which have not been authorised by us, nor to independently perform further developments of the Contractual Goods without authorisation.
The Contractual Partner is in particular also not entitled to unilaterally change the warning information or the training documents.
- Liability for defects
- The Contractual Goods shall be delivered in packaged form by us under the condition that the Contractual Goods may only be unpacked according to I. Item 1. of these Special conditions Part B.
- For defects identifiable upon unpacking, the obligations to provide notification of defects according to Section 377 HGB (German Commercial Code) in effect in the relationship between us and the Contractual Partner shall apply with the proviso that the receipt by us of a defect notification within a period of 5 working days (defined as the time between Monday and Friday) is still considered “immediate” and provided that the Contractual Partner is a merchant within the meaning of the German Commercial code.
- If the delivered Contractual Goods have unidentifiable defects, said defects shall be reported immediately by the Contractual Partner to us within the timeframe mentioned in II. Item 2) upon discovery of said defects.
- We provide the Contractual Partner with a statutory warranty for our Contractual Goods. We do not provide a special warranty pursuant to Section 443 BGB. Any claims pursuant to the Product Liability Act shall remain unaffected by these regulations.
- We shall rectify any justified defects that are reported promptly through either subsequent improvement or subsequent delivery at our discretion.
- Any packaging and shipping costs incurred for sending the defective Contractual Goods shall be borne by us. If it subsequently emerges that there had not been any warranty defect, the Contractual Partner shall reimburse us for the expenses incurred for the rectification that was not covered by the warranty.
- The Contractual Partner shall be obliged (as an essential contractual obligation) to have any of its employees certified by us as “Noonee Certified Super Users” provided with ongoing training in accordance with our stipulations. We are entitled to withdraw the certificate if this training is not performed at the time intervals prescribed by us.
III. Retention of title
The delivered Contractual Goods shall remain our property until final payment by the Contractual Partner, regardless of the transfer of risk upon delivery.
- Confidentiality, rights to trademarks and names
- The Contractual Partner shall maintain confidentiality regarding all business and operation secrets to which they become party within the context of this contract. This also applies to the time after the termination of the contract.
The duty to maintain secrecy shall not apply insofar as the Contractual Partner must comply with official, tax or judicial requirements when passing on the information to a professional who shall be obliged to observe professional secrecy, as well as in enforcing claims arising from this contract.
- The Contractual Partner acknowledges the right to the name concerning the Contractual Products as protected by the trademark worldwide as well as in those regions where the brand has not been registered and shall refrain from doing anything that interferes with this right to a name. In particular, the Contractual Partner agrees to refrain from attempting to obtain a proprietary right for the brand name either through the Contractual Partner itself or through a figurehead.
- The Contractual Partner acknowledges the scope of protection of the current and future patents of the Contractual Goods. The Authorised Dealer shall refrain from any further direct or indirect development of the technology by third parties.
Our General terms and conditions Part A. shall apply additionally.