General Terms and Conditions of Nova MD GmbH
§ 1 Scope of application
The following General Terms and Conditions shall apply to all contracts between Nova MD GmbH (hereinafter "Nova MD") and the customers of Nova MD (hereinafter "Purchaser").
These Terms and Conditions of Sale apply exclusively. Nova MD does not recognize any terms and conditions of the purchaser that conflict with or deviate from these Terms and Conditions of Sale unless the purchaser has expressly agreed to their validity in writing. These Terms and Conditions of Sale shall also apply if Nova MD carries out the delivery to the purchaser without reservation in the knowledge that the purchaser's terms and conditions conflict with or deviate from these Terms and Conditions of Sale.
All agreements made between Nova MD and the purchaser for the purpose of executing a purchase contract are set out in writing in these General Terms and Conditions.
§ 2 Formation of the contract
As it may happen that articles and goods sold by Nova MD are already out of stock, Nova MD's offers are subject to change.
Orders of the purchaser are placed in text form (e.g. e-mails) or in writing (e.g. fax).
Acceptance by Nova MD is effected by sending the goods to the purchaser
If an ordered item is not or no longer available at the time of ordering, Nova MD will inform the purchaser promptly (usually within 5 working days). A contract for this article is then not concluded.
§ 3 Prices
All prices are net prices plus the legally applicable value added tax.
§ 4 Place of fulfillment, delivery, partial delivery and acceptance of goods
The place of fulfillment for all aspects and obligations arising from this contract is the registered office of Nova MD in 83377 Vachendorf, Germany
The goods shall be delivered from Nova MD's registered office (Vachendorf, Germany). Deliveries are made by a forwarding agent, parcel deliverer or similar company (hereinafter "carrier"). The purchaser may appoint a different carrier or parcel delivery company if he declares this in writing prior to delivery. The goods shall be delivered without insurance. A delivery notice may be agreed.
Partial deliveries can be agreed. If the purchaser is in default of acceptance or culpably violates other obligations to cooperate, Nova MD is entitled, after a reasonable grace period (one week), to invoice the respective amount due, to withdraw from the contract or to demand compensation for the damage incurred in this respect, including any additional expenses.
§ 5 Delivery time, content of the contract
The goods shall be delivered within the usual delivery times following the order by the buyer.
All purchase contracts are only concluded for certain specified quantities, articles and prices to which the parties are bound.
§ 6 Transfer of risk, transport costs, packaging costs, transport insurance, responsibility for compliance with import regulations
Unless the parties have expressly agreed otherwise, delivery shall be made from Nova MD's registered office. This means that the risk is transferred to the purchaser when the goods are handed over to the transport company, even if the loss and/or deterioration of the goods is due to accident or force majeure. Nova MD will not provide compensation for lost or damaged goods. The purchaser is free to assert his claims against the transportation company.
The costs of transportation including the packaging costs charged by Nova MD shall be borne by the purchaser.
The goods are not insured. If the purchaser so wishes, the delivery will be covered by transport insurance; the costs incurred in this respect shall be borne by the purchaser.
The buyer is responsible for the use of the items in the area to which they are being shipped (customs regulations, compliance with technical regulations and guidelines as well as common import practice). This applies in particular to the payment of import fees, customs duties and other fees and charges.
§ 7 Delays in delivery/ exclusion of claims for damages
Nova MD does not agree to fixed delivery dates.
In the event of force majeure, labor disputes or other delays in delivery which are not attributable to Nova MD and which last longer than one week or are expected to last longer than one week, the delivery time and the acceptance time shall be extended for the duration of the delay, but by no longer than six weeks. The extension shall take effect if the other party to the contract is notified immediately of the reason for the delay. The Buyer shall not be entitled to claim damages.
In the event of a delay in delivery for which Nova MD GmbH is responsible, the purchaser shall set a reasonable grace period. If this grace period expires without result, the purchaser is entitled to withdraw from the contract. The purchaser shall not be entitled to claim damages, neither for non-performance nor for delay, unless Nova MD has acted with intent or gross negligence.
If the purchaser does not accept the goods in time, Nova MD may withdraw from the contract.
§ 8 Liability for defects, notice of defects
Nova MD must be notified of defects immediately - see § 377 HGB - after acceptance of the goods in writing, by fax or e-mail.
Minor, technically unavoidable deviations in quality, color, size, weight, equipment and design cannot be declared as defects. This also applies to customary deviations if Nova MD has not guaranteed delivery according to an agreed sample in writing.
If there is a justified defect of the purchased item for which Nova MD is responsible, Nova MD is entitled to choose whether to remedy the defect or to deliver a defect-free replacement product. In this case Nova MD shall bear the transportation costs. If Nova MD is unable or unwilling to deliver a defect-free replacement product or to remedy the defect, the purchaser is entitled to reduce the purchase price or to withdraw from the contract.
§ 9 Reported infringements
Should the purchaser become aware that an article ordered from Nova MD infringes the rights of a third party or should a third party assert claims against the purchaser due to an infringement of rights (e.g. copyright infringement), the purchaser undertakes to inform Nova MD immediately of such knowledge. Following this notification, Nova MD shall assume the defense on the basis of the asserted infringement and shall endeavor to provide an appropriate legal defense.
§ 10 Limitation of liability
Nova MD shall only be liable for intentional or grossly negligent breaches of duty - irrespective of the legal grounds. In the event of simple negligence, Nova shall only be liable
for damages resulting from injury to life, body or health and
for damages resulting from the breach of an essential 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, liability is limited to compensation for foreseeable, typically occurring damages.
The above limitations of liability shall not apply to your statutory claims under the Product Liability Act.
§ 11 Invoicing, terms of payment, default
Invoices are generally issued with or after delivery. Deferment of payment is generally excluded. If advance payment is agreed, payment must be made before the order is processed or the goods are delivered.
Invoices with fixed payment terms are due for payment immediately, at the latest two weeks after the invoice date.
§ 12 Payment after the due date, consequences of default
If the purchaser pays after the due date or after the deadlines mentioned in § 11, Nova MD shall charge default interest in the amount of eight percentage points above the base interest rate of the European Central Bank.
Until full payment of the invoiced amounts due, including the default interest due and any other costs due, Nova MD shall not be obliged to deliver further goods to the purchaser, including goods from other current contracts. Nova MD reserves the right to assert further claims for damages due to the purchaser's default of payment.
In the event of default of payment, imminent insolvency or other significant deterioration of the purchaser's liquidity, Nova MD may demand cash payment prior to the delivery of outstanding deliveries, also from other current contracts, or withdrawal from the contract and/or compensation for damages after setting a period of ten calendar days in writing.
§ 13 Prohibition of offsetting
The purchaser is not entitled to set off his own claims against Nova MD's purchase price claims unless the amount to be set off is undisputed by Nova MD or has been decided by a court of law.
§ 14 Retention of title, insurance of the goods
Nova MD retains title to the goods until receipt of all payments from the entire business relationship (i.e. from previous and future deliveries) - including ancillary claims, claims for damages and the costs of cashing checks etc.. The retention of title shall continue to exist until receipt of all payments from the existing business relationship with the buyer. The reservation refers to the recognized balance and the last delivered goods corresponding to the value of the balance.
The buyer is only entitled to resell the delivered goods under the following conditions:
a) The purchaser is entitled to sell the goods delivered under retention of title to third parties in the ordinary and proper course of business in his own name.
However, the purchaser hereby assigns to Nova MD all claims - with all associated rights and claims - in the amount of the final invoice amount (including VAT), which accrue to him from the resale against his buyers and customers and/ or third parties. This assignment is made to secure all existing and future claims of Nova MD arising from the purchaser's business relationship with Nova MD. Nova MD hereby declares its acceptance of the assignment. If there is a prohibition of assignment between the purchaser and his customers, the purchaser is only entitled to resell the goods after prior written approval by Nova MD.b) If the purchaser sells the claim against his customer to the factor by way of real factoring, he assigns his claim against the factor to Nova MD and transfers his sales proceeds to Nova MD in proportion to the value of Nova MD's co-ownership share. The purchaser is obliged to disclose the assignment to the factor if the payment of an invoice is ten days overdue or if his financial situation deteriorates significantly. Nova MD accepts this assignment.
The purchaser is entitled to collect the assigned claims as long as this is done in compliance with his payment obligations towards Nova MD. The direct debit authorization shall end upon default of payment or in the event of a significant deterioration of the purchaser's financial situation. In these cases the purchaser authorizes Nova MD to inform its customers about the assignment and to collect the claims on the part of the seller.
The purchaser shall provide Nova MD with the information necessary for the collection of the assigned claims as well as for the verification of such information. Upon request, the purchaser shall in particular provide Nova MD with an exact list of its claims including the names and addresses of its customers, the amounts and contractual bases of the individual claims, the invoice data, etc.
It is not permitted to use the goods subject to retention of title as a pledge or security vis-à-vis third parties. The purchaser must inform Nova MD immediately of any seizure and its pledgee.
The purchaser is obliged to treat the purchased goods with care; in particular, he is obliged to insure them sufficiently at his own expense against fire, water and theft at replacement value. The purchaser assigns to Nova MD all claims for damages for the aforementioned reasons against insurance companies and third parties in the amount of the invoiced value of the goods. Nova MD accepts this assignment.
All claims and rights arising from the retention of title regulated herein shall continue to exist until all liabilities assumed by Nova MD in the interest of the purchaser have been satisfied in full.
§ 15 Place of jurisdiction, choice of law, written form, severability clause
If the purchaser is a merchant or has his registered office outside the Federal Republic of Germany, the place of jurisdiction shall be the registered office of Nova MD: 83377 Vachendorf, Germany. Nova MD is also entitled to sue the purchaser at his place of business.
The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods as well as the conflict of laws under international private law is excluded.
Collateral agreements and other agreements claimed to take precedence over these Terms and Conditions of Sale are not entered into and are null and void. Any amendments and additions to these Terms and Conditions of Sale must be agreed in writing (or by confirmed fax correspondence) in order to be legally binding. This also applies to the waiver of the written form requirement.
Should individual provisions of this contract be or become void or ineffective or contain formal errors, gaps or contradictions, the validity of the contract shall not be affected. Rather, the contracting parties undertake to replace or supplement any void or unenforceable contractual provisions or existing loopholes with provisions that come as close as possible to the economic content of the provisions.