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Terms and Conditions – VITA Zahnfabrik H. Rauter GmbH & Co. KG

1. General Information

1.1 Our sales and deliveries shall be made exclusively in accordance with the following terms and conditions (“Terms”). The Buyer shall agree to the validity of these Terms - also for any future transactions - upon placing an order, yet no later than upon receipt of our goods or other services.

1.2 Verbal side agreements, the exclusion, amendments or additions to these Terms shall require our express written confirmation to become valid. The same shall apply to the waiver of the requirement of the written form.

1.3 We hereby also object to the application of any divergent or additional terms and conditions of the Buyer’s in the event that they are communicated to us in a confirmation letter or in any other way.

2. Order Acceptance

2.1 Our offers shall be subject to change. All orders shall only become binding once we have dispatched the goods or confirmed the order in writing.

2.2 We do not check the correctness of the Buyer’s information or specifications on which the offer and order confirmation are based.

2.3 If we are not notified in writing that the Buyer only wishes to order a certain version of a product, we shall supply a version which has been modified in the course of technical development.

2.4 Verbal side agreements or promises by our representatives or other sales employees shall require our express written confirmation to become valid.

3. Prices

3.1 Insofar as not expressly indicated otherwise, all prices shall be quoted in Euro plus VAT at the respective statutory rate. Unless agreed otherwise in writing, packaging, shipping and insurance costs plus statutory VAT shall be charged separately.

3.2 The respective prices specified in the purchase price list valid at the time the contract is concluded shall apply.

3.3 Should unforeseeable cost increases arise after contract conclusion for reasons beyond our control, we shall be entitled, at our reasonable discretion, to pass on the increased cost of the goods by proportionately increasing the agreed price.

4. Delivery and Shipment

4.1 Our deliveries shall generally be made from Bad Säckingen. However, we reserve the right to deliver individual types of goods from other delivery points without the need for special confirmation.

4.2 We are entitled to choose the route and means of transport, provided no other arrangement has been agreed in advance in writing.

4.3 The Buyer shall bear the transport costs pursuant to Section 3.1. The same shall apply to any additional costs which may arise from special requests (express delivery, special packaging etc.).

5. Risk of Loss, Insurance

5.1 Insofar as it has not been agreed otherwise in writing, the shipment shall always be insured by us. The Buyer shall be charged for this pursuant to Section 3.1. We may refrain from this upon written request and proof of the Buyer’s own transport insurance.

5.2 The risk shall transfer to the Buyer once the goods have been passed on to the carrier.

6. Delivery Times, Delays, Non-Delivery, Partial Deliveries

6.1 Delivery dates and periods shall only be binding if they have been agreed in the contract as binding and the Buyer has informed us of or provided us with all the information and documents necessary for delivery and has made all advance payments as agreed. Delivery periods begin on the date of the order confirmation. Any additions or extension order placed at a later date shall result in the delivery periods and dates being extended or postponed accordingly.

6.2 In all events, confirmed orders and delivery dates shall be subject to correct, timely and complete delivery on the part of our suppliers, unless we are responsible for the non-delivery or delay.

6.3 In the event that we are responsible for a delay or non-delivery, the Buyer is entitled to rescind the contract, after first setting a reasonable grace period in writing stating that the Buyer will not accept delivery after expiry of this period.

6.4 Partial deliveries are permissible, provided this is reasonable for the Buyer.

6.5 Events of force majeure entitle us to postpone delivery for the duration of the disruption. We shall be obligated to inform the Buyer of the occurrence of the disruption in an appropriate manner. Should the end of the disruption be unforeseeable or last longer than two months, each party is entitled to rescind the contract. Events of force majeure are any circumstances beyond our control which are unforeseeable and unpreventable and which make it impossible or unreasonably impede provision of services, in particular strikes, lockouts, warlike conditions, import and export bans, traffic blocks, governmental measures.

7. Notification of Defects and Warranty

7.1 The goods shall be of the agreed quality upon transfer of risk; the quality shall exclusively be determined according to the respective product group’s relevant description in the manufacturer’s processing instructions / instruction manual / technical documentation in its current version. The Buyer shall also be provided a separate copy of the documents on request. General promotions in any way shall not constitute a contractual indication of the quality of the goods.

7.2 The Buyer shall be obligated to inspect the delivered goods within two weeks of receipt and notify us of any defects in writing, stating the order data and the delivery note and/or invoice numbers. Hidden defects must be reported to us as soon as they are discovered. If the Buyer fails to notify us in due form and time, the goods shall be deemed free of defects. The timeliness of the notification depends on the time of its receipt by us.

7.3 Objected goods are to be returned at our expense on our request. If a notification of defect by the Buyer proves to be unjustified and provided the Buyer has realised or negligently not realised this prior to the notification of the defect, the Buyer shall be obligated to reimburse us for all damages incurred in this respect, e.g. travel, examination and shipping expenses.

7.4 If the notification of defect is justified, we shall, at our choice, repair or replace the defective goods. We are entitled to this right twice. If subsequent performance fails after the second time, if subsequent performance is unreasonable for the Buyer or if we have refused it pursuant to Section 439 subsection 4 of the German Civil Code (Bürgerliches Gesetzbuch, "BGB"), the Buyer can, at its choice, rescind the contract according to the statutory provisions or reduce the purchase price and/or claim damages pursuant to Section 8 or claim reimbursement for its futile expenses.

7.5 The Buyer’s rights in case of defects shall be excluded if (i) the Buyer fails to comply with the technical regulations and/or instructions of use specified by us, (ii) changes of any kind or repairs have been made to the delivered goods by persons not authorised by us or (iii) the delivered goods have otherwise been treated improperly.

7.6 The Buyer’s payment obligation shall remain unaffected by any notification of defect.

7.7 The limitation period for the Buyer’s claims for defects shall be twelve months from handover of the goods. The limitations provisions of Section 445b BGB shall remain unaffected, insofar as the final buyer in the supply chain is a consumer as defined in Section 13 BGB. The statutory limitation periods shall apply
(a) to the Buyer’s rights in the case of fraudulently concealed or wilfully caused defects;
(b) if and to the extent we have assumed a guarantee;
(c) to the Buyer’s damage claims due to culpably caused injury to life, limb or health;
(d) to the Buyer’s damage claims for damages caused intentionally or as the result of gross negligence on our part;
(e) to the Buyer’s damage claims for reasons other than defects to the goods and
(f) to claims pursuant to the German Product Liability Act or any other mandatory statutory liability.

8. Limitation of Liability , Damage Compensation 

8.1 Our obligation to pay damages shall be limited as follows:
(a) For damages caused by a breach of a material contractual obligation, we shall only be liable up to the amount of the typically foreseeable damage at the time of entering into the contract. We shall not be liable for damages caused by a breach of non-material contractual obligation.
(b) The afore-mentioned limitation of liability shall not apply to damage caused intentionally or by gross negligence, culpably caused personal injuries nor to any liability under the German Product Liability Act or other mandatory statutory liability. In addition, it shall not apply if and to the extent we have assumed a guarantee.

8.2 The Buyer is obligated to take all reasonable measures to prevent and reduce damage. 

9. Liability for Product Information and Instructions of Use, Product Liability

9.1 All information on our goods and processes is correct to the best of our knowledge based on our long-standing experience. However, it shall be the Buyer’s responsibility to examine the suitability of our goods and processes for its own use, including with respect to protecting third party property rights. This shall apply in particular to using our products in ways which differ from the uses and processes expressly stated by us, insofar as they are not medical devices. In the case of medical devices, deviating use is prohibited by law (Section 4 German Medical Devices Operator Regulation (Medizinprodukte-Betreiberverordnung)). 

9.2 Information in brochures and catalogues shall not be binding, unless expressly agreed otherwise. 

9.3 We shall be liable for the correctness of the product information published by us in technical documents in accordance with Section 8. Any further claims for damages on the part of the Buyer shall be excluded. 

9.4 The Buyer shall indemnify us from third party product liability claims if and to the extent the Buyer is responsible for the defects leading to the liability within the parties’ internal relationship if the Buyer sells the goods, whether changed or unchanged, whether after processing, altering, joining, mixing or combining with other goods.

10. Payment Terms and Offsetting 

10.1 Unless otherwise agreed in writing, our invoices shall be due without deductions within 30 days from receipt of the invoice. The Buyer shall be in default if this period for payment lapses unsuccessfully. 

10.2 If the Buyer is in default of payment, we shall be entitled to charge interest at the rate of 9 percentage points above the base interest rate. The payment day shall be deemed to have been made at the date on which we receive the money or on which it is credited to our account. We reserve the right to assert further claims for damage caused by default. 

10.3 If after contract conclusion we become aware of any risk of the Buyer being unable to pay, we shall be entitled to demand advance payment or the provision of security for pending deliveries, irrespective of further legal rights. We shall furthermore be entitled to rescind from individual or all affected contracts wholly or partially and/or claim damages in the event that a reasonable grace period for providing these securities lapses without success. 

10.4 Payments shall only have a debt-discharging effect if made directly to us. If several claims are still outstanding, the payments shall first be offset against the oldest claims along with any additional charges unless otherwise determined by us, even if the Buyer has expressly paid for a specific claim. Offsetting shall always cover first the charges, then the interest and finally the principal claim. 

10.5 The Buyer shall only be entitled to set-off if its counterclaims are finally adjudicated, ready for judgement or undisputed. The Buyer shall also have no right of retention in cases of counterclaims which are disputed, not ready for judgement or not finally adjudicated. 

11. Returns 

11.1 Goods delivered to the Buyer cannot be taken back without our prior written consent. Customer returns authorised by us shall be credited with a deduction of 15% of the purchase price. 

11.2 Goods in opened packaging cannot be taken back as a matter of principle. Plastic materials, fluids and products with limited shelf life (expiry date) shall also be excluded from returns. 

11.3 All returns shall take place at the expense and risk of the Buyer. 

12. Retention of Title 

12.1 All goods delivered by us shall remain our property until all outstanding claims against the Buyer arising from the business relationship have been fulfilled. If the account is still outstanding, retention of title shall be regarded as security for the respective balance claim. This shall also apply if payments are made by the Buyer for specific claims. 

12.2 The processing or altering of the goods subject to retention of title (“Products subject to Retention of Title”) shall always be performed for us. We shall be entitled to ownership of the new item resulting from processing or altering the goods. In the event of processing with other goods not owned by us, we shall be entitled to co-ownership of the new good in proportion to the value of the Products subject to Retention of Title to the other processed goods at the time of processing. In the event that the Products subject to Retention of Title are mixed or combined with other goods and the Buyer’s goods is to be regarded as the main good, the Buyer hereby assigns to us proportional joint ownership of the mixed stock or new good and shall store it for us free of charge. 

12.3 The Buyer may only resell the Products subject to Retention of Title in the ordinary course of business at the usual business terms. The Buyer is obligated to resell Products subject to Retention of Title only subject to retention of title and to ensure that the claims from any such resale transactions are transferable to us. 

12.4 The Buyer’s receivables from a resale of the Products subject to Retention of Title are hereby assigned to us and we hereby accept this assignment. The receivables shall serve as our security to the same extent as the Products subject to Retention of Title. 

12.5 If the Buyer sells the Products subject to Retention of Title together with other goods subject to retention of title not supplied by us, the assignment of the receivable shall only apply to the amount of the invoice resulting from the resale of our Products subject to Retention of Title plus a security margin of 10% of this invoice amount. 

12.6 If the Buyer sells the Products subject to Retention of Title through third parties within the scope of a commission transaction, the Buyer’s receivables from the commission transaction are hereby assigned to us and serve as a security to the same extent as the Products subject to Retention of Titles; we hereby accept the assignment. The provisions of these Terms regarding the Buyer’s receivables arising from the resale of the Products subject to Retention of Title apply accordingly to the Buyer’s receivables from the commission transaction. 

12.7 If the Buyer includes claims from the resale of reserved goods in an existing open account relationship with its customers, the Buyer hereby already assigns to us an acknowledged or final balance in its favour to the total amount of the receivables for the resale of our Products subject to Retention of Title included in the open account relationship; we hereby accept the assignment. 

12.8 The Buyer is revocably authorised to collect the receivables assigned to us from the resale of the Products subject to Retention of Title in trust for us in their own name, as long as they duly fulfil their financial obligations to us. We may revoke this authorisation and the right to resell the Products subject to Retention of Title if the Buyer is in arrears with material obligations, such as payment to us, or if the Buyer’s business operations have been transferred to third parties, if creditworthiness or trustworthiness have been impaired, or if the Buyer’s company has been dissolved, or if the Buyer has breached its contractual obligations pursuant to Section 12.3. In the case of revocation, we shall be entitled to collect the receivables ourselves.

12.9 In the event of revocation of the collection authorisation, the Buyer shall be obligated to immediately inform its customers of the assignment of the receivable to us and provide us with all information and documents required for collection. In this case, the Buyer shall furthermore be obligated to surrender or assign to us any securities to which the Buyer is entitled for customer receivables. 

12.10 If the realisable value of the securities held by us exceeds our secured claims by more than 10%, we are prepared to release securities of our choosing at the Buyer’s request. 

12.11 The Buyer is obligated to inform us immediately of any seizure or other legal or actual impairment or hazard to the Products subject to Retention of Title or to the other securities held by us. The Buyer shall bear the costs of defending against such impairments.

12.12 The Buyer shall commit to adequately insuring the Products subject to Retention of Title against fire, water and theft. The Buyer already assigns its claims from the insurance contracts to us; we hereby accept the assignment. 

12.13 Should the Buyer be in default of material obligations, such as payment to us, and should we rescind from the contract, we ma, notwithstanding any other rights, request surrender of the Products subject to Retention of Title and may make use of them otherwise for the purpose of satisfying matured claims against the Buyer. In this case, the Buyer shall immediately grant us, or our agents access to the Products subject to Retention of Title and surrender the same. 

13. Trade Mark Rights

The Buyer may not promote or sell third party products under a VITA brand name or as a VITA product, including VITA colour identification devices. The Buyer is also not permitted to connect VITA brands with the word “replacement”, “approximate value” or similar in catalogues, price lists, offers and the like, nor contrast and/or compare VITA brands and colour codes with substitute products or approximated colour identification devices.

14. Export Restrictions 

Exports shall require our prior agreement in writing, with the exception of trade within the European Economic Area (EEA) and Switzerland. 

15. Place of Fulfilment, Place of Jurisdiction, Governing Law and Invalid Provisions

15.1 The place of fulfilment for delivery and payment shall be Bad Säckingen. 

15.2 The exclusive place of jurisdiction for all disputes from or in connection with the parties’ contractual relationship shall be Bad Säckingen. However, we shall be entitled to sue the Buyer at any other court having statutory jurisdiction. 

15.3 The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). 

15.4 Any changes to or possible ineffectiveness of individual terms shall not affect the validity of the remaining terms. If a term becomes ineffective, the Buyer shall be obligated to reach an agreement with us on an effective provision which comes as close as possible to the economic intent of the ineffective term in a legally permissible way. 

Note: Customer and buyer data will be stored and processed by means of EDP systems and programs in so far as this is necessary to ensure proper handling of contractual relationships.

VITA Zahnfabrik H. Rauter GmbH & Co. KG, Bad Säckingen
As of January 2020.

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