B2B - General Terms and Conditions of Sale
§ 1 Scope, Form
(1) These General Terms and
Conditions of Sale (GTCS) apply to all business relations of Beurer GmbH,
Söflinger Str. 218, 89077 Ulm (hereinafter: “Seller”) with our customers
(hereinafter: “Buyer”). The GTCS apply only if the Buyer is an
entrepreneur (Section 14 BGB – German Civil Code), a legal entity under public
law or a special fund under public law.
(2) The GTCS apply in
particular to contracts for the sale and/or delivery of movable goods
(hereinafter: “Goods”), irrespective of whether we manufacture the Goods
ourselves or purchase them from suppliers (Sections 433, 650 BGB).
(3) Unless otherwise agreed,
the GTCS shall apply in the version valid at the time of the Buyer’s order or,
in any case, in the version last communicated to the Buyer in text form as a
framework agreement for similar future contracts, without the need for us to
refer to them again in each individual case.
(4) Our GTCS apply
exclusively. Deviating, conflicting or supplementary general terms and
conditions of the Buyer shall only become part of the contract if and to the
extent that we have expressly agreed to their applicability. This requirement
of consent shall apply in any case, for example even if the Buyer refers to its
own general terms and conditions in the context of an order and we do not
expressly object to this.
(5) Individual agreements
(e.g. framework supply agreements, quality assurance agreements) and
information in an offer, our order confirmation or our price list shall take
precedence over the GTCS. In case of doubt, trade clauses shall be interpreted
in accordance with the Incoterms® issued by the International Chamber of
Commerce in Paris (ICC) in the version valid at the time of conclusion of the
contract.
(6) Legally relevant
declarations and notifications by the Buyer in relation to the contract (e.g.
setting of deadlines, notice of defects, withdrawal or reduction) must be made
in writing. “In writing” within the meaning of these GTCS includes written and
text form (e.g. letter, e-mail, fax). Statutory formal requirements and further
evidence, in particular in case of doubt regarding the legitimacy of the
declarant, remain unaffected.
(7) References to the
applicability of statutory provisions are for clarification purposes only. Even
without such clarification, the statutory provisions shall apply unless they
are directly amended or expressly excluded in these GTCS.
§ 2 Conclusion of Contract
(1) Our offers are subject to
change and non-binding. This also applies if we have provided the Buyer with
catalogues, technical documentation (e.g. drawings, plans, calculations,
costings, references to DIN standards), other product descriptions or documents
– also in electronic form – to which we reserve title and copyright.
(2) Our offers may only be
made accessible to third parties with our prior written consent.
(3) The Buyer’s order of the
Goods shall be deemed a binding offer to conclude a contract. Unless otherwise
stated in the order, we are entitled to accept this contractual offer within
two weeks of its receipt by us.
(4) Acceptance may be declared
either in writing (e.g. by order confirmation) or by delivery of the Goods to
the Buyer. The Buyer has no claim to acceptance of its contractual offer.
§ 3 Delivery Period and Delay in Delivery
(1) The delivery period shall
be agreed individually or indicated by us upon acceptance of the order.
(2) If we are unable to meet
binding delivery periods for reasons for which we are not responsible
(non-availability of performance), we shall inform the Buyer thereof without
undue delay and at the same time specify the expected new delivery period. If the
performance is also not available within the new delivery period, we shall be
entitled to withdraw from the contract in whole or in part; we shall refund
without undue delay any consideration already provided by the Buyer.
Non-availability of performance shall exist, for example, in the event of
delayed self-supply by our supplier, provided that we have concluded a
congruent covering transaction, neither we nor our supplier are at fault, or we
are not obliged to procure in the individual case.
(3) The occurrence of our
delay in delivery shall be determined in accordance with the statutory
provisions. In any case, however, a reminder from the Buyer is required. If we
are in delay with delivery, the Buyer may claim liquidated damages for the delay.
The liquidated damages shall amount to 0.5% of the net price (delivery value)
for each completed calendar week of delay, but not more than 5% of the delivery
value of the delayed Goods in total. We reserve the right to prove that the
Buyer has suffered no damage at all or only significantly less damage than the
aforementioned lump sum.
(4) The Buyer’s rights
pursuant to § 8 of these GTCS and our statutory rights, in particular in the
event of exclusion of the obligation to perform (e.g. due to impossibility or
unreasonableness of performance and/or after performance has been rendered),
shall remain unaffected.
§ 4 Delivery, Transfer of
Risk, Acceptance, Default of Acceptance
(1) The place of performance
for the delivery of the Goods and any subsequent performance shall be the
Seller’s registered office. On the basis of a corresponding agreement – in
particular by an agreed Incoterm® – the Goods shall be shipped to another destination.
Insofar as no Incoterm® is expressly agreed in the individual case, the
following shall apply: (a) for deliveries within Germany: EXW – Seller’s
registered office/warehouse, (b) for cross-border deliveries: FCA – Seller’s
registered office/warehouse. Unless otherwise agreed, we are entitled to
determine the type of shipment ourselves (in particular the transport company,
shipping route, packaging).
(2) The risk of accidental
loss and accidental deterioration of the Goods shall be governed by the
Incoterm® agreed in each case. Insofar as no Incoterm® is expressly agreed, the
transfer of risk shall be governed by the Incoterm® additionally applicable in
accordance with § 4 paragraph 1 lit. (a) or lit. (b). It shall be deemed
equivalent to handover if the Buyer is in default of acceptance.
(3) If the Buyer is in default
of acceptance, fails to cooperate or if our delivery is delayed for other
reasons for which the Buyer is responsible, we shall be entitled to claim
compensation for the resulting damage including additional expenses (e.g. storage
costs).
§ 5 Prices and Terms of Payment
(1) Unless otherwise agreed in
the individual case, our prices valid at the time of conclusion of the contract
shall apply plus statutory value-added tax. The prices shall be understood in
accordance with the Incoterm® individually agreed in each case. Insofar as no
Incoterm® is expressly agreed in the individual case, the following shall
apply: (a) for deliveries within Germany: EXW – Seller’s registered
office/warehouse, (b) for cross-border deliveries: FCA – Seller’s registered
office/warehouse.
(2) Unless otherwise agreed in
the individual case, the Buyer shall bear all costs allocated to it under the
Incoterm® agreed in each case. This includes in particular transport,
insurance, customs, fees, taxes and other public charges. §5 paragraph (1) sentence
3 shall apply accordingly.
(3) Unless otherwise agreed in
the individual case, the purchase price shall be due and payable without
deduction in euros within 30 days from the invoice date. Even within an ongoing
business relationship, we shall be entitled at any time to carry out a delivery
in whole or in part only against advance payment. We shall declare a
corresponding reservation no later than with the order confirmation.
(4) Upon expiry of the above
payment period, the Buyer shall be in default. During the period of default,
the purchase price shall bear interest at the statutory default interest rate
applicable from time to time. We reserve the right to assert further damage
caused by default. Our claim to commercial default interest (Section 353 HGB –
German Commercial Code) against merchants shall remain unaffected.
(5) The Buyer shall only be
entitled to rights of set-off or retention to the extent that its claim has
been legally established or is undisputed. In the event of defects in the
delivery, the Buyer’s counter-rights, in particular pursuant to § 7 paragraph 6
sentence 2 of these GTCS, shall remain unaffected.
(6) If, after conclusion of
the contract, it becomes apparent (e.g. through an application to open
insolvency proceedings) that our claim to the purchase price is jeopardised by
the Buyer’s lack of ability to perform, we shall be entitled under the statutory
provisions to refuse performance and – if applicable after setting a deadline –
to withdraw from the contract (Section 321 BGB).
§ 6 Retention of Title
(1) We retain title to the
Goods sold until full payment of all our present and future claims arising from
the purchase contract and an ongoing business relationship (secured claims).
(2) The Goods subject to
retention of title may neither be pledged to third parties nor assigned as
security before full payment of the secured claims. The Buyer must notify us in
writing without undue delay if an application is made to open insolvency proceedings
or if third parties (e.g. attachments) seize the Goods belonging to us.
(3) In the event of conduct by
the Buyer in breach of the contract, in particular in case of non-payment of
the due purchase price, we shall be entitled to withdraw from the contract
and/or demand return of the Goods on the basis of the retention of title in
accordance with the statutory provisions. The request for return does not at
the same time contain a declaration of withdrawal; we are rather entitled
merely to demand the return of the Goods and reserve the right to withdraw from
the contract. If the Buyer does not pay the due purchase price, we may assert
these rights only if we have previously unsuccessfully set the Buyer a
reasonable deadline for payment or if such a deadline is dispensable under the
statutory provisions.
(4) Until revoked in
accordance with lit. (c) below, the Buyer is authorised to resell and/or
process the Goods subject to retention of title in the ordinary course of
business. In this case, the following provisions shall also apply.
(a) The retention of title
shall extend to the products resulting from the processing, mixing or combining
of our Goods at their full value, with us being deemed the manufacturer. If, in
the event of processing, mixing or combining with Goods of third parties, their
ownership rights remain, we shall acquire co-ownership in the ratio of the
invoice values of the processed, mixed or combined Goods. In all other
respects, the same shall apply to the resulting product as to the Goods
delivered under retention of title.
(b) The Buyer hereby assigns
to us by way of security any claims against third parties arising from the
resale of the Goods or the product in total or in the amount of our
co-ownership share in accordance with the above paragraph. We accept the
assignment. The Buyer’s obligations set out in paragraph 2 shall also apply in
respect of the assigned claims.
(c) The Buyer remains
authorised to collect the claim alongside us. We undertake not to collect the
claim as long as the Buyer meets its payment obligations towards us, there is
no lack of its ability to perform and we do not assert the retention of title
by exercising a right pursuant to paragraph 3. However, if this is the case, we
may demand that the Buyer discloses to us the assigned claims and their
debtors, provides all information necessary for collection, hands over the
relevant documents and notifies the debtors (third parties) of the assignment.
In this case we shall also be entitled to revoke the Buyer’s authority to
resell and process the Goods subject to retention of title.
(d) If the realisable value of
the securities exceeds our claims by more than 10%, we shall, at the Buyer’s
request, release securities of our choice.
§ 7 Buyer’s Claims for Defects
(1) The Buyer’s rights in the
event of material defects and defects of title (including incorrect and short
delivery as well as improper assembly/installation or defective instructions)
shall be governed by the statutory provisions unless otherwise stipulated
below. In all cases, the statutory provisions on consumer sales (Sections 474
et seq. BGB) and the Buyer’s rights under separately granted guarantees, in
particular those of the manufacturer, remain unaffected.
(2) The basis of our liability
for defects is above all the agreement reached on the quality and the intended
use of the Goods (including accessories and instructions). All product
descriptions and manufacturer’s details which are the subject of the individual
contract or which were made publicly known by us (in particular in catalogues
or on our website) at the time of conclusion of the contract shall be deemed to
be an agreement on the quality within this meaning. Insofar as the quality has
not been agreed, it shall be determined in accordance with the statutory
provisions whether a defect exists or not (Section 434 paragraph 3 BGB).
(3) In the case of Goods with
digital elements or other digital content, we owe provision and, if applicable,
updating of the digital content only insofar as this is expressly stated in a
quality agreement pursuant to paragraph 2.
(4) As a general rule, we
shall not be liable for defects of which the Buyer is aware at the time of
conclusion of the contract or which it is unaware due to gross negligence
(Section 442 BGB). Furthermore, the Buyer’s claims for defects presuppose that the
Buyer has complied with its statutory duties to examine the Goods and notify
defects (Sections 377, 381 HGB). If a defect becomes apparent upon delivery,
inspection or at any later time, we must be notified thereof in writing without
undue delay. In any case, obvious defects must be notified in writing within
two weeks of delivery and defects which are not detectable during the
inspection within the same period from discovery. If the Buyer fails to duly
inspect the Goods and/or notify defects, our liability for the defect not
notified, not notified in time or not notified properly shall be excluded in
accordance with the statutory provisions.
(5) If the delivered item is
defective, we may initially choose whether to provide subsequent performance by
remedying the defect (repair) or by delivering an item free of defects
(replacement). If the type of subsequent performance chosen by us is unreasonable
for the Buyer in the individual case, the Buyer may refuse it. Our right to
refuse subsequent performance under the statutory conditions remains
unaffected.
(6) We are entitled to make
the owed subsequent performance conditional on the Buyer paying the due
purchase price. However, the Buyer is entitled to retain a portion of the
purchase price that is reasonable in relation to the defect.
(7) The Buyer shall give us
the time and opportunity required for the owed subsequent performance, in
particular to hand over the Goods complained of for inspection purposes. In the
event of replacement, the Buyer shall return the defective item to us at our
request in accordance with the statutory provisions; however, the Buyer shall
not have a right of return.
(8) We shall bear or reimburse
the expenses necessary for the purpose of inspection and subsequent
performance, in particular transport, travel, labour and material costs as well
as, if applicable, removal and installation costs in accordance with the statutory
provisions and these GTCS if a defect actually exists. Otherwise, we may demand
reimbursement from the Buyer of the costs arising from the unjustified request
to remedy a defect if the Buyer knew or could have known that no defect
actually existed.
(9) If a reasonable deadline
to be set by the Buyer for subsequent performance has expired unsuccessfully or
is dispensable under the statutory provisions, the Buyer may withdraw from the
purchase contract or reduce the purchase price in accordance with the statutory
provisions. However, there is no right of withdrawal in the case of an
insignificant defect.
(10) The Buyer’s claims for
reimbursement of expenses pursuant to Section 445a paragraph 1 BGB are excluded
unless the last contract in the supply chain is a consumer sale (Sections 478,
474 BGB) or a consumer contract for the supply of digital products (Sections
445c sentence 2, 327 paragraph 5, 327u BGB). The Buyer’s claims for damages or
reimbursement of futile expenses (Section 284 BGB) shall also exist in the case
of defects in the Goods only in accordance with §§ 8 and 9 below.
§ 8 Other Liability
(1) Unless otherwise provided
in these GTCS including the provisions below, we shall be liable for breach of
contractual and non-contractual obligations in accordance with the statutory
provisions.
(2) We shall be liable for
damages – irrespective of the legal basis – under the law of fault in cases of
intent and gross negligence. In cases of simple negligence, we shall be liable,
subject to statutory limitations of liability (e.g. care in own affairs;
insignificant breach of duty), only
a) for damages resulting from
injury to life, body or health,
b) for damages resulting from
breach of an essential contractual obligation (obligation the fulfilment of
which is a prerequisite for proper performance of the contract and on the
observance of which the contractual partner regularly relies and may rely); in
this case, however, our liability shall be limited to compensation for the
foreseeable, typically occurring damage.
(3) The limitations of
liability set out in paragraph 2 shall also apply in favour of third parties as
well as in the event of breaches of duty by persons (including for their
benefit) whose fault we are responsible for under statutory provisions. They shall
not apply if a defect has been fraudulently concealed or a guarantee for the
quality of the Goods has been assumed and for the Buyer’s claims under the
German Product Liability Act.
(4) The Buyer may only
withdraw from or terminate the contract due to a breach of duty other than a
defect if we are responsible for the breach of duty. Any free right of
termination of the Buyer (in particular pursuant to Sections 650, 648 BGB) is
excluded. In all other respects, the statutory requirements and legal
consequences shall apply.
§ 9 Limitation Period
(1) Deviating from Section 438
paragraph 1 no. 3 BGB, the general limitation period for claims arising from
material and legal defects is one year from the time of delivery of the Goods
in accordance with the Incoterm® agreed in each case, i.e. upon occurrence of
the delivery or transfer of risk defined therein.
(2) The above limitation
periods under sales law shall also apply to contractual and non-contractual
claims for damages of the Buyer which are based on a defect in the Goods,
unless the application of the regular statutory limitation period (Sections 195,
199 BGB) would lead to a shorter limitation period in the individual case. The
Buyer’s claims for damages pursuant to § 8 paragraph 2 sentence 1 and sentence
2(a) as well as under the German Product Liability Act shall be subject
exclusively to the statutory limitation periods.
§ 10 Medical Devices and In Vitro Diagnostics
1) Insofar as we deliver Goods
which are placed on the market as medical devices within the meaning of
Regulation (EU) 2017/745 (“MDR”) or Directive 93/42/EEC (“MDD”) or in vitro
diagnostics within the meaning of Regulation (EU) 2017/746 (“IVDR”) or Directive
98/79/EC (“IVDD”), the following provisions shall apply.
(2) The Buyer is obliged to
comply with the obligations applicable to it as a distributor under the
respective applicable Union law provisions and the respective applicable
national provisions for medical devices or in vitro diagnostics. The following
provisions serve solely to specify these statutory obligations and do not
establish any obligations independent of or exceeding these.
(3) Before making a medical
device or in vitro diagnostic available on the market, the Buyer shall verify
that all of the following requirements are fulfilled:
a) the
product bears the CE marking and an EU declaration of conformity has been
issued for the product,
b) the
product has the prescribed labelling,
c) the
product is accompanied by the required instructions for use and other
information required by law in the applicable language version,
d) in
the case of imported products, the name, registered trade name or registered
trade mark, registered place of business and address of the importer are
indicated on the product or its packaging or on a document accompanying the
product,
e) where
applicable, a UDI has been assigned by the manufacturer.
(4) The Buyer shall make the
Goods available on the market only in the condition intended by us (and, if
different, by the manufacturer). Changes to the product, packaging, labelling,
instructions for use, intended purpose or other information provided are not
permitted unless they have been approved in advance in writing by us (and, if
different, by the manufacturer) or are required by mandatory law. Changes
within the meaning of Article 16 MDR and the corresponding provisions of the
IVDR remain unaffected.
(5) The Buyer shall ensure
that during the period in which the Goods are under its responsibility, the
storage and transport conditions comply with the requirements specified by us
(and, if different, by the manufacturer), in particular the requirements indicated
on the product, its packaging, the instructions for use or communicated
otherwise.
(6) If the Buyer becomes aware
of complaints, suspected cases, incidents or potential safety risks in
connection with a medical device or in vitro diagnostic, it shall inform us
without undue delay, but no later than within 48 hours of becoming aware, in
text form. The notification shall be addressed to the contact person at our
company responsible for the Buyer and additionally to the e-mail address vigilanz@beurer.de.
Mandatory statutory obligations to report directly to authorities remain
unaffected.
(7) The Buyer shall keep the
information required for traceability of medical devices and in vitro
diagnostics in accordance with the respective applicable provisions and shall
retain it for the statutory retention period. The Buyer shall provide us, upon
request, with the information on purchasers required for the fulfilment of our
statutory obligations and shall cooperate appropriately in corrective and
safety measures, including recalls. Independent measures by the Buyer in
connection with recalls or other safety-related measures are only permissible
if mandatory statutory reasons require them or if we (and, if different, the
manufacturer) have given prior consent.
§ 11 Choice of Law and Place of Jurisdiction
(1) These GTCS and the
contractual relationship between us and the Buyer shall be governed by the law
of the Federal Republic of Germany to the exclusion of international uniform
law, in particular the UN Convention on Contracts for the International Sale of
Goods (CISG).
(2) If the Buyer is a merchant
within the meaning of the German Commercial Code, a legal entity under public
law or a special fund under public law, the exclusive – also international –
place of jurisdiction for all disputes arising directly or indirectly from the
contractual relationship shall be our registered office in Ulm. The same shall
apply if the Buyer is an entrepreneur within the meaning of Section 14 BGB.
However, in all cases we shall also be entitled to bring an action at the place
of performance of the delivery obligation in accordance with these GTCS or a
prior individual agreement or at the Buyer’s general place of jurisdiction.
Mandatory statutory provisions, in particular regarding exclusive
jurisdictions, remain unaffected.
Ulm, 2026