General Terms and Conditions

for transactions between

BOWA-electronic GmbH & Co. KG, – hereinafter referred to as “BOWA” –

and

the customer designated in § 2 of these GTC – hereinafter referred to as the “Buyer”

§ 1 Scope of application, definitions

(1) The business relationship between BOWA and the purchaser shall be governed exclusively by the following General Terms and Conditions in the version valid at the time of the order. Deviating general terms and conditions of the buyer shall not be recognized unless BOWA expressly agrees to their validity in writing.

(2) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation from BOWA.

(3) Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.

(4) These GTC shall only apply to entrepreneurs within the meaning of § 310 para. 1 BGB, § 14 BGB.

§ 2 Conclusion of contract

(1) The presentation and advertising of products in BOWA’s online store does not constitute a binding offer to conclude a purchase contract.

(2) All images, films, drawings and texts published in the online store are subject to copyright in favor of BOWA. Use of the images, films, drawings and texts is not permitted without the express consent of BOWA.

(3) The buyer can select products from the displayed range and collect them in a so-called shopping cart using the “Add to cart” button. By clicking on the “Order with obligation to pay” button, the customer submits a binding request to purchase the goods in the shopping cart. The buyer can change and view the data at any time before submitting the order. However, the application can only be submitted and transmitted if the buyer has accepted these contractual terms and conditions by clicking on the button “Yes, I agree to both the GTC and the data protection provisions” and has thereby included them in his application.

(4) BOWA shall then send the purchaser an automatic order receipt confirmation by e-mail, in which the purchaser’s order is listed again. The automatic confirmation of receipt merely documents that the buyer’s order has been received by BOWA and does not constitute acceptance of the application. The contract is only concluded when BOWA issues a declaration of acceptance. The declaration of acceptance takes place either with a separate e-mail (order confirmation) or by delivery of the ordered products

§ 3 Delivery, availability of goods

(1) If no copies of the product selected by the purchaser are available at the time of the purchaser’s order, BOWA shall inform the purchaser of this immediately. If the product is permanently unavailable, BOWA shall refrain from issuing a declaration of acceptance. A contract is not concluded in this case. If the product designated by the purchaser in the order is only temporarily unavailable, BOWA shall inform the purchaser of this in the order confirmation.

(2) The delivery period shall be agreed individually or specified upon acceptance of the order (order confirmation).

(3) If BOWA is unable to meet a binding delivery deadline for reasons for which BOWA is not responsible (non-availability of the service), BOWA shall inform the purchaser of this immediately and at the same time notify the purchaser of the expected new delivery deadline. If the service is also not available within the new delivery period, BOWA shall be entitled to withdraw from the contract in whole or in part; any consideration already provided by the purchaser shall be reimbursed immediately. A case of non-availability of performance in this sense shall be deemed to be in particular the failure of BOWA’s suppliers to deliver to BOWA on time, provided that BOWA has concluded a congruent hedging transaction, neither BOWA nor its supplier is at fault or BOWA is not obliged to procure in the individual case.

(4) If BOWA fails to meet bindingly agreed delivery deadlines and if BOWA is responsible for this, BOWA shall be liable for compensation for damages proven by the purchaser, unless the delay is due to force majeure.

(5) The rights of the buyer acc. § Section 9 of these GTC and the statutory rights of BOWA, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

§ 4 Delivery, transfer of risk, acceptance, default of acceptance, return shipment

(1) Delivery of the ordered goods shall be made as a sales shipment ex warehouse (Gomaringen), which is also the place of performance for the delivery and any subsequent performance. Unless otherwise agreed, BOWA shall be entitled to freely determine the type of shipment (in particular transport company, shipping route, packaging).

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(3) The goods delivered by BOWA cannot be exchanged or returned. In any case, sterile packaged goods cannot be exchanged or returned. This does not apply if the goods are defective. If a return is accepted by BOWA as an exception, this is only possible within two weeks after the goods have been handed over to the buyer in their original condition or original packaging. The buyer bears the risk and costs for the transportation of returned goods.

§ 5 Obligation to report in accordance with the Medical Devices Safety Plan Ordinance (MPSV)

(1) Those responsible for placing medical devices on the market for the first time (manufacturers, authorized representatives or importers) are obliged under the provisions of the Medical Devices Safety Plan Ordinance (MPSV) to report incidents that have occurred in Germany (under certain conditions also incidents that have occurred in third countries) and recalls carried out in Germany to the Federal Institute for Drugs and Medical Devices (BfArM) or, in accordance with its responsibilities, to the Paul Ehrlich Institute (PEI). The reporting obligation also applies to professional operators and users (e.g. doctors and dentists) and persons who supply medical devices to end users for their own use on a professional or commercial basis or in fulfillment of legal duties or obligations.

(2) Incidents are, for example, malfunctions, failures or changes in the characteristics of a medical device that have led, may have led or may lead directly or indirectly to the death or serious deterioration in the state of health of a patient, user or other person, see § 2 No. 1 MPSV.

(3) To enable BOWA to comply with its statutory reporting obligation, every purchaser is obliged to inform BOWA immediately in writing of incidents and/or recalls within the meaning of § 2 MPSV, insofar as incidents or recalls are or may be connected with a product supplied by BOWA. In addition, the purchaser is obliged to inform BOWA in full and completely upon request where the medical device supplied by BOWA is located; traceability of the medical device must be ensured.

§ 6 Prices, transportation costs and terms of payment

(1) All prices quoted on the BOWA website are subject to value added tax at the applicable rate, currently 19%. VAT is shown separately on the invoice.

(2) The buyer bears the shipping costs. From an order value of EUR 99, BOWA delivers to the buyer free of shipping costs.

(3) Unless otherwise stated in the order confirmation, the purchase price is due and payable within 30 days of invoicing and delivery or acceptance of the goods. However, BOWA shall be entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. BOWA shall declare a corresponding reservation with the order confirmation at the latest.

(4) The Buyer shall be in default upon expiry of the payment deadline. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. BOWA reserves the right to assert further claims for damages caused by delay. For merchants, the claim to commercial maturity interest (§ 353 HGB) remains unaffected.

(5) The Buyer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected, in particular in accordance with these GTC.

(6) If it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that BOWA’s claim to the purchase price is jeopardized by the buyer’s inability to pay, BOWA shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), BOWA may declare its withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

§ 7 Retention of title

(1) BOWA shall retain title to the goods sold until full payment of all current and future claims of BOWA 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 by the Buyer before full payment of the secured claims. The purchaser must inform BOWA immediately in writing if an application is made to open insolvency proceedings or if third parties seize the goods belonging to BOWA (e.g. attachments).

(3) In the event of breach of contract by the purchaser, in particular non-payment of the purchase price due, BOWA shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not at the same time include a declaration of withdrawal; BOWA is rather entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the purchaser does not pay the purchase price due, BOWA may only assert these rights if the purchaser has previously been set a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.

(4) Until revoked in accordance with (c) below, the Buyer is authorized 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 apply in addition.

(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of the goods delivered by BOWA, whereby BOWA shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, BOWA shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.

(b) The purchaser hereby assigns to BOWA as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. BOWA accepts the assignment. The information in para. 2 shall also apply with regard to the assigned claims.

(c) The purchaser shall remain authorized to collect the claim in addition to BOWA. BOWA undertakes not to collect the claim as long as the purchaser fulfills his payment obligations to BOWA, there is no deficiency in his ability to pay and BOWA does not assert the retention of title by exercising a right pursuant to Section 6.1. Abs. 3 asserts. If this is the case, however, BOWA may demand that the purchaser informs BOWA of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, BOWA shall also be entitled to revoke the buyer’s authorization to resell and process the goods subject to retention of title.

(d) If the realizable value of the securities exceeds BOWA’s claims by more than 10%, BOWA shall release securities of our choice at the buyer’s request.

§ 8 Claims for defects of the buyer

(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of unprocessed goods to a consumer remain unaffected, even if the consumer has further processed them (supplier recourse pursuant to §§ 478 BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by installation in another product.

(2) The basis of BOWA’s liability for defects is primarily the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications that are the subject of the individual contract or were made public by BOWA (in particular in catalogs or on our Internet homepage) at the time the contract was concluded shall be deemed to be an agreement on the quality of the goods.

(3) If the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB).

(4) The Buyer’s claims for defects presuppose that he has complied with his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). If a defect is discovered during delivery, inspection or at any later time, BOWA must be notified immediately in writing. In any case, obvious defects must be reported in writing immediately upon delivery (receipt by the buyer) and defects not recognizable during the inspection must also be reported in writing immediately upon discovery. If the purchaser fails to properly inspect the goods and/or report defects, BOWA shall not be liable for the defect not reported or not reported on time or not reported properly in accordance with the statutory provisions.

(5) If the delivered item is defective, BOWA may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). BOWA’s right to refuse subsequent performance under the statutory conditions remains unaffected.

(6) BOWA is entitled to make the subsequent performance owed dependent on the purchaser paying the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in proportion to the defect.

(7) The purchaser must give BOWA the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the purchaser must return the defective item to BOWA in accordance with the statutory provisions. Subsequent performance shall not include the removal of the defective item or its reinstallation if BOWA was not originally obliged to install it.

(8) The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, shall be borne or reimbursed by BOWA in accordance with the statutory provisions if a defect actually exists. Otherwise, BOWA may demand compensation from the purchaser for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the purchaser.

(9) In urgent cases, e.g. if operational safety is jeopardized or to prevent disproportionate damage, the purchaser shall have the right to remedy the defect himself and to demand compensation from BOWA for the expenses objectively necessary for this purpose. BOWA must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if BOWA would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

(10) If the supplementary performance has failed or if a reasonable deadline to be set by the buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the event of an insignificant defect.

(11) Claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with § 9, even in the case of defects, and are otherwise excluded.

§ 9 Other liability

(1) Unless otherwise provided for in these GTC, including the following provisions, BOWA shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) BOWA shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, BOWA shall only be liable, subject to statutory limitations of liability (e.g. care in its own affairs; insignificant breach of duty), for

a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, BOWA’s liability shall be limited to compensation for foreseeable, typically occurring damages.
(3) The obligations arising from para. 2 shall also apply in the event of breaches of duty by or in favor of persons for whose fault BOWA is responsible under statutory provisions. They shall not apply if BOWA has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods and for claims of the purchaser under the Product Liability Act.

(4) The purchaser may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if BOWA is responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

§ 10 Statute of limitations

(1) Notwithstanding § 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) The above limitation periods of the sales law shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer acc. § 9 para. 2 sentence 1 and sentence 2(a) as well as under the Product Liability Act shall, however, become time-barred exclusively in accordance with the statutory limitation periods.

§ 11 Choice of law and place of jurisdiction

(1) These GTC and the contractual relationship between BOWA and the purchaser shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(2) If the purchaser 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 the registered office of BOWA in Gomaringen. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. In all cases, however, BOWA shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or an overriding individual agreement or at the buyer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive responsibilities, remain unaffected.

§ 12 Information about the identity of BOWA

BOWA-electronic GmbH & Co. KG
Heinrich-Hertz-Straße 4-10, D – 72810 Gomaringen
Phone: +49 (0) 7072 / 6002-965
Fax: +49 (0) 7072 / 6002-3965
Email: info@bowa.de
Homepage: www.bowa.de
Form of business: Limited partnership
Register court: Stuttgart
Commercial register number: HRA 381478
Sales tax ID number: DE 240259728

Status: 23.01.2020
Previous terms and conditions of sale, delivery and payment hereby lose their validity.