GENERAL TERMS AND CONDITIONS
1 Scope of application
The following general terms and conditions for sale and delivery constitute an integral part of a purchase agreement. Conflicting or deviating terms of purchase or other reservations made by the buyer shall not be effective unless individually and expressly agreed upon in writing by the seller.
2 Offers and conclusion of agreement
2.1 In terms of price, quantity, delivery period, availability and delivery options, our offers are subject to change and non-binding.
2.2 Orders placed by the buyer shall be binding upon the seller following written confirmation or fulfilment of the order.
3.1 All our prices are ex-works and are stated in euros (EUR) excluding the currently applicable VAT at the time of delivery.
3.2 Packaging, postage, insurance and other shipping costs will be subject to additional charges.
3.3 We reserve the right to increase our prices to a reasonable extent in cases where, following the conclusion of the agreement, cost increases are incurred by us as a result of an increase in wages due to renegotiated collective bargaining terms or due to an increase in raw material or auxiliary material prices
3.4 Small orders below a minimum net amount of €30 (outside the EU: €100) shall be subject to a processing surcharge of €11.
4 Delivery/delivery period
4.1 Acts of God and other unforeseeable extraordinary circumstances beyond our control – such as strikes, lockouts, shutdowns/power outages, industrial/labour disputes, disruption of operations, or manufacturing and supply chain issues – shall release us from our delivery obligations for the duration of such disruption and to the extent of their repercussions. If delivery delays and hindrances to delivery due to an act of God or due to reasons for which neither contracting party can be held responsible cannot be overcome by reasonable endeavours, then the buyer may withdraw from the agreement in whole or in part after informing CA DIGITAL of this decision in writing. In any case, the buyer is entitled to withdraw from the agreement if the delivery delay exceeds a period of six (6) months.
4.2 A written confirmation and agreement is required for a delivery period or a specific delivery date/deadline to be effective. This delivery period/deadline shall only be effective following clarification of all technical and commercial details. Insofar as the participation and collaboration of the buyer is required for manufacturing the product in question, the delivery period shall only commence upon fulfilment of this obligation by the buyer. Delivery dates are binding only if said delivery dates have been confirmed in writing and declared as binding by CA DIGITAL to the buyer.
4.3 Upon exceeding a binding delivery period/deadline, the buyer undertakes to grant CA DIGITAL a reasonable period of grace. Generally, the minimum period of grace granted in such cases is four (4) weeks.
4.4 If the buyer is in default with the payment of an earlier delivery or partial delivery, CA DIGITAL is entitled to withhold a delivery or partial deliveries or, after a grace period for payment has been granted and elapsed, to withdraw from the agreement without any obligation to compensate the buyer for any damages incurred.
4.5 If following the conclusion of an agreement, CA DIGTAL becomes aware of facts which, at CA DIGITAL'S due discretion, allow it conclude that CA DIGITAL'S payment claim will be endangered by a lack of solvency on the part of the buyer, CA DIGITAL shall, at a later date and at CA DIGTAL'S discretion, be entitled to withhold a delivery in full or in part and, upon granting a reasonable period of grace, demand concurrent payment, proportionate securities, a deposit or advance payment from the buyer.
4.6 Partial deliveries are permissible. Agreements including successive or multiple deliveries shall specify the quantities, sub-quantities and delivery deadlines upon conclusion of the agreement. Failure to do so or in the event of a violation of a corresponding agreement by the seller, CA DIGITAL is, at its discretion, entitled to set the buyer a deadline for recalling and accepting the entire or remaining consignment. Failure on the part of the buyer to recall or accept the entire or remaining consignment by the end of this deadline shall imply that the buyer is in default of acceptance. In such an event, CA DIGITAL is entitled to notify the buyer in writing and to grant said buyer a grace period of eight (8) days in writing. The notification shall also state that CA DIGITAL shall refuse delivery after expiry of this grace period. In the event of failure of the buyer to fulfil their obligations upon expiry of this grace period, CA DIGITAL is entitled to withdraw from the agreement or seek compensation from the buyer for non-fulfilment A grace period need not be granted if the buyer seriously and ultimately refuses acceptance or is evidently not able to fulfil their payment obligations even within the grace period.
4.7 CA DIGITAL's claim for compensation – regardless of the legal basis thereof – shall amount to 20% of the purchase price (excluding VAT) plus the applicable statutory VAT. CA DIGITAL is entitled to produce evidence of greater damages and accordingly assert these claims. Likewise, the buyer too is entitled to produce evidence that CA DIGITAL has, if at all, incurred a significantly lower loss.
5 Scope of performance (acceptance)
5.1 The delivery of CA DIGITAL products and services shall only be carried out in compliance with our internal quality specifications and regulations.
6 Limitation of liability
6.1 CA DIGITAL shall not be liable for any claims of the buyer – whether of a contractual or non-contractual nature – for loss or damage that results from the breach of duties owing to simple negligence, other than essential duties and material contractual obligations, on the part of CA DIGITAL, CA DIGITAL's officers, executives, legal representatives or vicarious agents. Irrespective thereof, CA DIGITAL's liability shall, however, be limited to 50% of the damage incurred.
6.2 CA DIGITAL shall be liable for consequential damage or damage deemed unforeseeable at the time of conclusion of the agreement only in the event of gross negligence on the part of CA DIGITAL or its officers/executives.
6.3 The foregoing limitations do not apply to damages resulting from injury to life, limb or health. Mandatory statutory liability provisions, for instance liability for the assumption of a guarantee or the Product Liability Act, remain unaffected.
6.4 The practitioner is considered as the user of the product. In his capacity as a dental practitioner, the user shall himself be responsible for any and all treatment mistakes. Furthermore, the practitioner shall also be responsible for using a faulty product if under certain circumstances his conduct exhibits the characteristics of a treatment mistake. Such circumstances may include an incorrect choice of product (incorrect exercise of a practitioner's freedom to select the appropriate therapy) and/or, in particular, providing inadequate information to the patient and/or failure to obtain the patient's consent and/or not adhering to the manufacturer's instructions and specifications.
6.5 The practitioner shall not be entitled to any claims for damages or compensation for damages or replacement in the form of loss of fees and/or new costs that may be incurred as a result of dental or other relevant services that may be necessary. This applies in particular in the event of relapses and complaints. In the event of material breakage, the practitioner undertakes to assist the manufacturer of the medical devices in identifying the causes. In such cases, the incident is to be thoroughly documented in compliance with the obligations pursuant to the Medical Devices Act and the data or images are to be anonymised and made available to the manufacturer.
6.6 In the event of material breakage too, the practitioner shall not be entitled to any claims for damages or compensation for damages or replacement in the form of loss of fees and/or new costs that may be incurred as a result of dental or other relevant services that may be necessary. In such cases, the manufacturer undertakes to provide a replacement. §2.1 of the present agreement shall apply mutatis mutandis for the provision of replacements.
7 Notification of defects
7.1 The buyer shall inspect the goods immediately upon receipt and shall notify CA DIGITAL of any defects, incorrect deliveries or quantities in writing within eight (8) days of receipt of the said goods. Within the next eight (8) days, the buyer must ensure that CA DIGITAL receives appropriate supporting evidence and/or samples for inspection. The buyer shall notify CA DIGITAL of hidden defects in writing immediately upon discovery and shall immediately send CA DIGITAL appropriate supporting evidence and/or samples for inspection. If the goods are no longer in the condition they were originally in at the time of delivery, the burden of providing evidence to prove that the defect was already present at the time of delivery shall rest with the buyer. The buyer shall not be entitled to claims for compensation due to defects in the event of any modification or alteration of the delivered goods. Furthermore, claims for compensation due to defects are also ruled out if an inspection of the relevant goods was explicitly or implicitly omitted.
7.2 Negotiations concerning a notice of defect shall not constitute a waiver of CA DIGITAL's entitlement to objection or defence that the notice of defects was not submitted in good time, was factually unfounded or was otherwise inadequate.
7.3 In the event that the delivered quantity is lower than the quantity specified in the relevant order, CA DIGITAL shall rectify this deficit upon notification and deliver the remaining quantity within good time.
7.4 If any notification of defect made by the buyer proves unjustified, the buyer shall indemnify CA DIGITAL for all resulting costs and expenses including but not limited to costs and expenses for inspection, travelling, labour, shipping and packaging.
8 Periods of limitation
8.1 Pursuant to § 438, section 1 (3) of the German Civil Code (BGB), warranty claims shall expire with effect from two (2) years from the beginning of the statutory period of limitation and within a period of two (2) years, pursuant to § 438, section 1 (2) of the German Civil Code (BGB). Mandatory statutory periods of limitation and liability provisions shall remain unaffected.
8.2 CA DIGITAL is entitled, at its own discretion, to remedy, repair or replace any defective product under warranty. In other words, CA DIGITAL shall decide whether recourse shall be in the form of repair/corrective action or whether the faulty product shall be replaced or an entirely new product be delivered. Failure on the part of CA DIGITAL to successfully repair or replace the product and remedy the matter shall entitle the buyer to demand a reduction in the purchase price or, at their choice, to terminate the agreement. Claims for damages and the limitation of liability as specified under the provisions of section 6 of these terms and conditions shall remain unaffected.
9 Return delivery
9.1 CA DIGITAL reserves the right to refuse acceptance of a delivery returned by the buyer if no notification to this effect – either in writing or by telephone – was given by the buyer to CA DIGITAL. In addition, our general terms and conditions for return delivery shall apply. A copy of these terms and conditions can be sent to the buyer upon request.
10.1 The buyer agrees to bear the shipping charges.
10.2 Shipping to foreign countries shall be subject to Incoterms.
10.3 In the absence of specific instructions, CA DIGITAL reserves the right to choose the route and the mode of transport at its own discretion and without assuming any liability for the cheapest and fastest mode of transport.
11 Transfer of risk
11.1 All risks regarding loss and/or damage of the relevant products shall pass to the buyer upon transfer of the said products to the shipping company staff or upon leaving the CA DIGITAL premises, lab or warehouse. This provision shall also apply in exceptional cases when CA DIGITAL has agreed to bear the shipping charges.
11.2 If a shipment is delayed at the buyer's request or due to circumstances for which the buyer is responsible, then the risk shall pass to the buyer as soon as the relevant products have been made ready for delivery by CA DIGITAL and placed at the buyer's disposal. In such cases, CA DIGITAL is entitled to charge the buyer for the storage of the delivery that is ready for shipping. In this regard, CA DIGITAL shall only be responsible for the careful selection of the warehousing and storage service provider.
12 Payment terms
12.1 CA DIGITAL's payment terms are as follows: Payment due immediately and without deduction upon issue of invoice.
12.2 Insofar as CA DIGITAL does not issue invoices in foreign currencies, cash payment in foreign currencies shall be converted into euros (EUR) at the exchange rate prevailing in Düsseldorf on the date of payment of the relevant transaction
12.3 The buyer is entitled to exercise their right of retention or withhold payment only in the event of gross breach of contract and in case of inadequate or defective delivery on the part of CA DIGITAL up to the amount of the part of the purchase price corresponding to the value of deterioration. Furthermore, the buyer shall only be entitled to exercise their right of retention or withhold payment to the extent that their counterclaim is based on the same contractual relationship. The buyer may only offset claims which are res judicata, undisputed or acknowledged by CA DIGITAL.
12.4 Failure to settle payment by the due date shall imply that payment is immediately due for all outstanding invoices for delivered goods and shall entitle CA DIGITAL to revoke payment terms. Furthermore, CA DIGITAL shall be entitled to demand advance payment or a deposit for services not yet rendered.
12.5 In the event of payment default, CA DIGITAL is entitled to charge interest on arrears in accordance with § 288 (2) of the German Civil Code (BGB) amounting to 8 percentage points above the base rate of interest.
13 Retention of title
13.1 All goods delivered shall remain the property of CA DIGITAL and title to all goods and products shall remain with CA DIGITAL until all claims relating to present and future business relationships with the buyer are completely satisfied. The buyer may process and sell the goods in the course of ordinary business operations. In the case of sales on credit, however, this may only be done with reservation of title.
13.2 If the goods are processed into new products by the buyer, CA DIGITAL shall be deemed to be the manufacturer of the new product. If CA DIGITAL'S goods constitute the principal component/s of a combination or mix with the buyer's goods, CA DIGITAL shall proportionately acquire co-ownership of this new product.
13.3 If the buyer defaults on a payment or any other obligation, the buyer may dispose of or process the goods subject to retention of title only with the written consent of CA DIGITAL. Furthermore, the buyer is obliged to grant CA DIGITAL unlimited access to the goods delivered and to surrender the goods to CA DIGITAL on demand without exercising the right of withdrawal from the contractual agreement.
13.4 By accepting these conditions, the buyer hereby agrees to assign in advance to CA DIGITAL all claims which may arise from the disposal or resale of goods to which CA DIGITAL retains title. The buyer shall be authorised to collect any amounts owed on a fiduciary basis in the buyer's own name but for the account of CA DIGITAL until such authorisation is revoked by CA DIGITAL. CA DIGITAL may revoke such authorisation if the buyer is in breach of material obligations such as their payment obligations towards CA DIGITAL. At CA DIGITAL'S request, the buyer shall inform their customers about the products to which CA DIGITAL retains title or regarding claims which have been assigned to CA DIGITAL hereunder.
13.5 The buyer agrees to immediately notify CA DIGITAL of any claims of third parties or attempts to seize the products of CA DIGITAL. This shall also apply in the event of attempts of third parties to appropriate claims assigned by CA DIGITAL. The buyer shall bear all costs and expenses incurred in the defence against such claims and attempts.
13.6 If the value of CA DIGITAL'S securities exceeds CA DIGITAL'S claims by more than 20%, CA DIGITAL shall, at their own discretion, approve further securities if so requested by the buyer.
14 Copyright provisions
14.1 CA DIGITAL GmbH is the owner of all rights (copyright, design rights, trademark rights, etc.) pertaining to all material made available on its websites for purposes of copying and/or downloading as well as all images, illustrations, literature, promotional and textual material provided by the company in print (works).
14.2 CA DIGITAL GmbH grants its contractual partners the non-exclusive, temporarily limited, non-sublicensable and non-transferable right to publish and/or distribute the works provided by CA DIGITAL GmbH solely for the purpose of promoting and marketing the products of CA DIGITAL GmbH. The contractual partner is expressly prohibited from making any changes, modifications or creating derivative works to the works provided by CA DIGITAL GmbH.
14.3 The contractual partner is not permitted to use the works for purposes other than promoting and marketing the products of CA DIGITAL GmbH.
14.4 In order to ensure the proper use of the works by the contractual partner, the contractual partner undertakes to provide CA DIGITAL GmbH samples of all intended promotional and advertising materials that include the relevant works (for instance, website/s of the contractual partner) for CA DIGITAL GmbH's approval prior to their publication.
14.5 The contractual partner is required to make an appropriate reference indicating the copyright in publications that include the works provided by CA DIGITAL GmbH.
14.6 CA DIGITAL GmbH is entitled, at any time, to unilaterally revoke the right granted to the contractual partner to use the works provided by CA DIGITAL GmbH with immediate effect. In the event of a revocation, all physical works (for instance, printed materials) are to be returned to CA DIGITAL GmbH without undue delay. Immaterial works, for instance digital brochures and/or photographs/images/illustrations or textual content are to be deleted immediately by the contractual partner.
14.7 Without requiring an express notification by CA DIGITAL GmbH, all rights of use of the contractual partner shall automatically expire with immediate effect upon termination of the business relationship between the contractual partner and CA DIGITAL.
15 Supplementary agreements
No supplementary agreements exist. In order to be valid and binding, all amendments to these general terms and conditions for sale and delivery are to be made in writing. This provision shall also apply for a waiver of the written form requirement.
16 Applicable law
The provisions of these general terms and conditions and all legal relationships between CA DIGITAL and the buyer are subject to the laws of the Federal Republic of Germany. Note that the provisions of the United Nations Convention on Contracts for the International Sale of Goods (adopted on 11 April 1980) shall not apply.
17 Place of performance
Place of performance for both contracting parties with regard to all rights and obligations arising out of this contractual relationship between CA DIGITAL and the buyer shall be Hilden, Germany.
The venue of jurisdiction for all disputes arising from or in connection with this contractual relationship between CA DIGITAL and the buyer shall be the competent court of Düsseldorf, Germany. Furthermore, CA DIGITAL also reserves the right to sue the buyer at the buyer's place of registered office and/or venue of jurisdiction.