of Ador Dental GmbH, Hilden

1. Scope of application
1.1. Our General Business Terms and Conditions are exclusively valid. In case there is no regulation in our General Terms and Conditions, the law shall apply. We do not recognise any terms and conditions of the contractual party which are contrary to our General Terms and Conditions or the law which are to our disadvantage, unless we have explicitly agreed to their validity in written form.
1.2. Our General Terms and Conditions shall also apply to business affair with the contractual party.
1.3. Our General Terms and Conditions shall be also applied even if they have not been reported to the Buyer in case of subsequent contract conclusions.
1.4. Our General Terms and Conditions shall only apply to the companies, legal entities under public law or special funds under public law within the meaning of § 310 para. 1 BGB (German Civil Code).

2. Offers and quotations
Our offers and quotations are subject to change and non-binding unless the opposite is estimated expressively.
We reserve the right for all quotations, contract documents, in particular for drafts, drawings, illustrations etc. as well as for samples, models and prototypes, to the extent that they have not within the spirit and purpose of the contract or due to an explicit agreement been otherwise conceded to the contractual party. All contract documents as well as samples, models and prototypes must be returned to us promptly on our request if the order is not placed with us. The contractual party has no right to claim a right of retention in this respect.

3. Prices, terms of payment, right of subsequent performance
3.1. We reserve the right to increase our prices by an appropriate amount after conclusion of the contract should the price rises occur beyond our control in particular due to wage agreements or material price changes. In this respect we will provide supporting evidence on the request of the contractual party.
3.2. Unless otherwise explicitly agreed our prices are understood to be ex-works excluding postage, dispatch, freight, packaging and insurance. VAT will be listed in the invoice according to the respective amount prescribed by law.
3.3. Unless otherwise explicitly agreed payments for precious metals as well as for goods delivery are due strictly net within 14 days. Deductions for discounts for early payment require prior agreement in the written form. The contractual party will be considered in arrears without any further explanation on our part if the payment is not made within 10 days after the due date. In the case of delayed payment, the provisions of public law shall apply.
3.4. We are entitled to demand reasonable partial payments plus the amount of VAT which is due by law.
3.5. In case of disregarding of payment terms or in case of occurrence of the circumstances which disparage the creditworthiness of the contractual party, we shall execute the outstanding deliveries only against the advance payment. If the payment is not effected in the amount due to us or at least in amount of 30% of the outstanding invoice even after a reasonable grace period has expired, we reserve the right to withdraw from the contract.
3.6. Bills of exchange and cheques will only be accepted in lieu of payment, whereby bills of exchange are only accepted after the prior agreement in the written form. Any discount charges, fees as well as any costs relating to the collection of the amount payable by either cheque or bill of exchange shall be borne be the contractual party and are due immediately. Cheques or bills of exchange shall only be regarded as received after the funds have been credited to our account and we have been released from any liability regarding the bill of exchange.
3.7. The contractual party may only set off counter claims if these counter claims are declared to be legally valid, are undisputed or are recognised by us. The contractual party is only entitled to exercise a right of retention to the extent that his counter claim is based on the same contractual relation.

4. Delivery or performance period, delays in delays or performance beyond our control, delays in delivery and performance, impossibility, delay in acceptance, breach of obligation to co-operate
4.1. The indicated times of delivery and performance are only fixed deadlines if they have been expressly defined as such.
4.2. The adherence to delivery and performance obligations and in particular delivery dates firstly requires:
– the timely and proper fulfilment of any obligations of the contractual party to co-operate, in particular the receipt of documents and information which the contractual party is obliged to submit;
– the clarification of all technical details with the contractual party;
– the receipt of the agreed partial payments in advance or the opening of an agreed letter of credit;
– the existence of any required regulatory approvals or licenses.
The defence of non-performance is reserved.
4.3. Unless, as an exception, a procurement risk or guarantee has been accepted in particular with regard to adherence to deadlines, we are not liable for delays in delivery or performance due to the following obstructions of delivery and performance, whereby the same is true when these obstructions occur at our suppliers or their suppliers:
Circumstances caused by force majeure and obstructions to delivery performance,
– which occur after conclusion of the contract or which due to circumstances beyond our control only become known to us after the conclusion of the contract and
– which we can prove could not be foreseen and prevented by us even by due diligence and that we are not at fault as regards acceptance, precautionary or averting measures.
The aforementioned preconditions, i.e. the occurrence of circumstances or gaining of knowledge beyond our control after conclusion of the contract where the unforeseeability or inevitableness is verifiable by us, include in particular:
justified industrial action (strike and lockouts); disruption of operations; scarcity of resources; lack of availability of auxiliary materials. Claims for compensation made by the contractual party in connection with delays in delivery and performance in the aforementioned cases are excluded. Where in the aforementioned sense there is an irrevocable impediment to performance each contract party is entitled to immediately withdraw from the contract according to the legal regulations.
Where in the aforementioned sense there is a temporary impediment to performance we are entitled to delay the delivery and performance for the duration of the obstruction plus an adequate preliminary starting time.
4.4. We accept liability for delays in delivery and performance for which we are responsible according to the legal regulations with liability limited to the following amount:
Our liability is limited by the foreseeable, typically occurring damage, unless the delay in delivery or performance is due to an intentional or grossly negligent breach of contract for which we, our legal representatives or vicarious agents are responsible.

5. Transfer of risk, grounds for uncertainty
5.1. If sales law is applicable to our deliveries, the risk of accidental loss or deterioration transfers to the contractual party as soon as the consignment is passed on to the person or authority designated to pick up or effect the delivery, at the latest, however, when the consignment has left our company.
5.2. If according to the terms of a mutual contract we are obliged to deliver in advance, we can refuse the performance which is incumbent on us when after the conclusion of the contract it becomes apparent that our claim to payment is endangered by the lack of performance of the contractual party. We are entitled to set the contractual party a reasonable period in which the contractual party can pay in instalments in proportion to our performance according to his discretion or through the provision of securities. After the unsuccessful expiry of the deadline we are entitled to withdraw from the contract. As far as we have already executed our performance, claims shall become immediately due for any resulting claims not yet due including receivables for which a bill of exchange or cheque has been presented. Instead we are also entitled to withdraw from the contract. We are furthermore entitled to assert the right to make all our claims from the same legal relationship payable immediately when the contractual party is in default of at least 25% of his total liabilities to us (undisputed main demands) for longer than 6 weeks. The same applies if we become aware that a bill of exchange protest or enforcement measures against the contractual party are on-going or if a different deterioration in the assets of the contractual party occurs. We shall also be entitled to withdraw from the contract if the contractual party has culpably disclosed incorrect or incomplete information concerning his creditworthiness.

6. Retention of title
6.1 We reserve title to the delivery items ("Reserved Delivery") until receipt of all payments arising from the business relationship with the contractual partner. The retention of title shall also extend to the recognized balance insofar as we book claims against the contractual partner to current account (current account retention). If, in order to effect the payments to be made to us for the reserved delivery, a liability under a bill of exchange is established on our part, the reservation of title shall not expire before our liability under a bill of exchange expires; if the check/bill of exchange procedure is agreed with the contractual partner, the reservation shall also extend to the redemption by the contractual partner of the bill of exchange accepted by us and shall not expire when the check received is credited to us.
6.2 The contracting party shall be entitled to resell the conditional delivery in the ordinary course of business; however, it hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claims accruing to it against its customers or third parties from the resale. If the contractual partner includes the claims from a resale of the reserved delivery in a current account relationship existing with his customer, the current account claim shall be assigned in the amount of the recognized balance; the same shall apply to the "causal" balance in the event of insolvency of the contractual partner. The contractual partner shall be authorized to collect the assigned claims even after their assignment. Our authority to collect the claims ourselves shall remain unaffected - subject to the provisions of insolvency law; however, we undertake not to collect the claims as long as the contractual partner does not violate its contractual obligations, in particular properly fulfills its payment obligations, is not in default of payment and no application for the opening of insolvency proceedings has been filed or no suspension of payments has occurred.
The authorisation for the contractual party to resell the goods does not authorise any transfer by way of security or pledging.
6.3. In case of invalidity of our commitment to not collect any claims on our own account according to point 6.2, we are entitled – subject to the regulations under insolvency law - to withdraw the right of resale, to demand the return of the delivered goods under retention of title and to demand transfer of third-party resale entitlements made by the contractual party to us.
In the event that we take back the delivered goods under retention of title, this shall constitute termination of the contract. If, due to the aforementioned reasons, after having threatened to do so and after setting a reasonable deadline we have taken back the delivered goods under retention of title, we are entitled, subject to the regulations under insolvency law, to resell the said goods whereby the proceeds of the sale must be offset against the liabilities of the contractual party less reasonable costs of disposal.
Subject to the preconditions which entitle us to revoke the right of resale of the contractual party, we may also revoke the collection authorisation and may require the contractual party to disclose the claims assigned to him as well as the debtors of such claims and furthermore we may require the contractual party to disclose to us all information necessary for collection, to submit the relevant documentation and to notify the debtors (third parties) of the assignment.
6.4. The contractual party shall notify us immediately in written form in the case of any damage or loss to the delivered goods under retention of title or also in the event of change in ownership or change of domicile. The same is applicable in the case of court seizures or other third-party claims, so as to permit us to take legal action pursuant to Article 771 ZPO (German Code of Civil Procedure). As far as the third party is not in a position to refund to us the judicial or extrajudicial expenses of initiating proceedings pursuant to section § 771 ZPO (German Code of Civil Procedure), the contractual party shall be liable for any losses we incur. If the release of the delivered goods under retention of title is achieved without court proceedings, the costs incurred due to this may also be charged to the contractual party, as well as the costs for the return of the distrained delivered goods under retention of title.
6.5. The processing or alteration of delivered goods under retention of title by the contractual party is always carried out for us. If the delivered goods under retention of title are processed together with other goods not owned by us, we shall acquire co-ownership of the new article in proportion to the ratio of the value of the delivered goods under retention of title (final invoice value including VAT) to the value of the other processed goods at the time of processing or alteration. Furthermore, the provisions applicable to the delivered goods under retention of title shall also apply to the article undergoing such processing or alteration.
With respect to the resulting article of such processing or alteration, the contractual party shall acquire expectant rights corresponding to the expectant rights of the delivered goods under retention of title.
6.6. If the delivered goods under retention of title are inseparably mixed or combined with other goods not owned by us, we shall acquire co-ownership of the new article in proportion to the ratio of the value of the delivered goods under retention of title (final invoice value including VAT) to the value of the other goods combined or mixed at the time of combination or mixing. If the mixing or combination of the goods has been done in such a way that the goods of the contractual party are considered to be the main item it is agreed that the contractual party shall assign co-ownership to us according to the respective proportion. The contractual party shall then store the resultant sole or partial property for us.
6.7. If the delivered goods under retention of title are sold after processing or alteration, the contractual party assigns to us already now by way of security all remuneration claims from the resale of such articles to the final invoice value (including value added tax).
If, as a result of the processing/alteration or mixing/combination of the delivered goods under retention of title with other goods which are not our property we have only acquired co-ownership pursuant to point 6.5. or 6.6., then the claim of the contractual party to the purchase price is only assigned to us in advance to the extent of the ratio of the total amount charged by us including VAT to the invoice totals for the other goods not belonging to us.
In all other respects, the numbers 6.2. to 6.4. above apply accordingly to all claims assigned to us in advance.
6.8. In the case that the retention of title or assignment is ineffective according to the foreign law applicable in the territory where the delivered goods under retention of title are located, the corresponding security agreed for the retention of title and assignment in this country shall be deemed agreed.
If the creation of this security requires actions on the part of the contractual party, the contractual party shall at our request take any and all measures required to create and maintain such rights.
6.9. The contractual party is obliged to treat the delivered goods under retention of title carefully and to maintain them at his own expense, whereby the contractual party is also obliged at his expense to insure the delivered goods under retention of title for our benefit with adequate cover against theft, robbery, burglary and damage caused by fire and water. The contractual party transfers all resulting insurance rights to us here and now and we accept the transfer herewith.
Furthermore, we reserve the right to assert claims for performance and claims for damages.
6.10. In order to secure our claims against the contractual party, the contractual party shall also assign to us the claims amounting to the goods under retention of title which accrue to the contractual party through combination of the goods under retention of title with real estate against a third party.
6.11. We undertake to release the securities due to us at the request of the contractual party to the extent the value of the securities exceeds the secured accounts receivable by more than 10%, whereby the securities released shall be at our discretion.

7. Rights, contractual penalty
Unless otherwise agreed upon, all rights (especially proprietary rights and copyrights or utilisation rights protected by copyright as well as industrial property rights) resulting from the contractual documents made available to the contractual party (especially drafts, drawings, brochures, catalogues, illustrations, calculations, product descriptions, etc.) as well as samples, models and prototypes shall be attributed exclusively to us. The contractual party may only use and exploit the aforementioned documents, samples, models and prototypes in connection with contracts concluded with us and only with our approval. They must be treated as confidential, whereby this obligation does not apply to documents and information that are generally known, or that were already known to the contractual party or were generally known or which became known to the public without the assistance or responsibility of the contractual party and may only be made available to a third party with our prior written consent. The aforementioned documents, samples, models and prototypes may not be used to copy or imitate our delivered goods in any way or to distribute copies or imitations of our goods or to exploit these goods in any way.
For every infringement of aforementioned obligations the contractual party agrees to pay a contractual penalty to the amount of € 5,000 to us to the extent that they are unable to provide verification of their non-culpability. The assertion of an additional claim for damages remains unaffected.

8. Description of performance, liability for defects
8.1. The qualities listed in the description of our performance comprehensively and conclusively define the characteristics of our deliveries and performance. In case of doubt, the descriptions of our deliveries and performance are a part of agreements on quality and do not represent guarantees or assurances with the effect of an increase of liability or acceptance of a specific obligation to meet claims. In case of doubt, only the explicit declarations made by us in writing relating to the granting of guarantees or assurances are definitive.
8.2. We accept no liability for damages for the following reasons: unsuitable or improper use or operation, incorrect installation by the contractual party or a third party, natural wear and tear, incorrect or negligent handling, unsuitable operating equipment, chemical, electrochemical or electrical influences (insofar as they are not caused by us), and improper modifications or repair work carried out by the contractual party or a third party without our prior written consent.
8.3. The contractual party may not claim for defects in case of insignificant deviations from the agreed quality or where the impairment of use of our deliveries or performance is insignificant.
8.4. Warranty claims made by the contractual party concerning defects require that the contractual party has duly fulfilled his obligations to inspect and report according to section § 377 of HGB (German Commercial Code).
8.5. As far as a defect is substantiated, we are obliged to provide supplementary performance according to our discretion by either the rectification of defects or the delivery of replacement goods which are free of defects. Should one of the two or both modes of supplementary performance be impossible or unfeasible, we are entitled to refuse them.
We may refuse supplementary performance as long as the contractual party fails to meet his payment obligations towards us in a ratio reflecting the flawless part of our performance.
We are obliged to bear any and all expenses necessary for the purpose of supplementary performance, in particular transportation costs, route-related transport costs, labour costs and the cost of materials to the extent that these are not increased due to the delivery being transported to a different location than the place of performance unless the delivery complies with the intended use of the product.
We are entitled to have defects remedied by third parties, whereby parts replaced become our property.
8.6. In case of impossibility or failure of the supplementary performance, culpable or unacceptable delay or serious or final refusal of supplementary performance by us or unacceptability of the supplementary performance for the contractual party, the contractual party is entitled at his discretion either to reduce the purchasing price correspondingly (reduction) or to withdraw from the contract (withdrawal).
8.7. Unless otherwise provided for in points 8.8. and 8.9. below, any other claims made by the contractual party in connection with defects of our deliveries or performance, regardless of the legal grounds (especially claims for damage due to breach of - 4 - obligations, claims of tort for material damages as well as claims for compensation of costs) shall be excluded, whereby this especially applies to claims for damage to items not connected to the delivered goods including claims for loss of profit.
8.8. The exemption from liability governed by point 8.7. is ineffective in the following cases:
8.8.1. damages arising from fatalities, physical injuries or damage to health which result from a culpable infringement of obligations by us, by our legal representatives or our vicarious agent;
8.8.2. compulsory liability in accordance with product liability law;
8.8.3. malicious concealment of defects, acceptance of guarantees or assurance of object characteristics, but only if the affected defect or deficiency makes us liable;
8.8.4. in the event of culpable breach of a material contractual obligation or a "cardinal obligation" by us, our legal representatives or our vicarious agents; however, in the absence of intentional or grossly negligent breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage;
8.8.5. any other claim concerning damage compensation instead of regular delivery made by the contractual party for which we, our legal or vicarious agent are responsible for, whereby liability is limited to the predictable and typically occurring damage, provided that there is no intent or gross violation of contract;
8.8.6. any other damage as a result of culpable violation of duties caused by us, our legal representative or vicarious agent, whereby liability is limited to the predictable and typically occurring damage provided that there is no intent or gross violation of contract.
8.9. In the event of reimbursement of expenses point 8.8. shall apply accordingly.
8.10. The legal regulations concerning onus of proof remain unaffected by stipulations under point 8, and also especially under 8.7, 8.8 and 8.9.
8.11. In case of damage caused by the transport company, the contractual party undertakes to notify us and the transport company immediately after becoming aware of the damage. In the same way the contractual party undertakes to keep all necessary documents, packaging materials and goods relating to the case of damage until there is no any instructions from us or the transport company.
8.12. If the health of humans, animals or the environment is in acute danger, than the provision of 8.11 is released for this part of the delivery from which the danger emanates. All the other materials are to be kept until the further notice and to be ready for the inspection.

9. Rights of know-how and inventions
All expertise in our company, or expertise gained by the execution of contracts concluded with us resulting in secret, high-quality or progressive knowledge (know-how), including inventions and any associated intellectual property, remain exclusively with us, subject to separate agreements concerning utilisation or use of the delivered goods according to the purpose and meaning of the contractual relationship.

10. Violation of third-party rights
We do not guarantee that the utilisation, installation or resale of delivery items does not violate third-party industrial property or trade-mark rights. However, we assure that the existence of such third-party rights to delivery items is not known to us.

11. Limitation period
The period of limitation in respect of a claim and rights arising from defects in our deliveries or performance, regardless of the legal grounds, is one year. However, this does not apply in cases according to sections §§ 438 par. 1 no. 1, 438 par. 1 no. 2, 479 par. 1 and 634 a) par. 1 no. 2 of the German Civil Code (BGB) where the period of limitation of three years is applicable. The aforementioned periods of limitation shall also apply for all claims for compensation against us which are in relation to defects.

12. Assignment of claim by the contractual party
Claims against us concerning our deliveries or performance may only be assigned to third parties with our prior written agreement.

13. Place of fulfilment, legal domicile, applicable law, intra-community acquisition, severability clause
13.1. The place of our business is the legal domicile as stated in the contract unless otherwise specifically agreed upon.
13.2. In the case the contractual party is a merchant in the sense of the German Commercial Code (HGB) or a corporate body or fund under public law, the legal domicile for all duties arising from the contractual relationship as well as from bill of exchange or cheque payments is our place of business as stated in the contract, or at our discretion the place of business of the contractual party. The aforementioned agreement about the legal domicile is also effective in cases where the contractual parties are based outside Germany.
13.3. The law of Germany is the legal basis of the general terms of trade, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG, dated April 11, 1980), and is unfailingly applicable without consideration of clashing stipulations to all rights and duties arising from or in combination with the contractual relationship.
13.4. If one of the provisions of these General Terms and Conditions between us and the contractual party has become or becomes invalid, this shall not affect the validity of the remaining provisions or agreements.
13.5. Contractual parties based within the European Union member countries are responsible for compensation of all damage which results from intra-community acquisition based on
– a financial or tax offence caused by the contractual party or
– incorrect or withheld information about circumstances important for taxation by the contract party.

14. Data protection
14.1. It should be noted that in connection with the business relationship we will electronically store and process supplier and quantity data for our own purposes (§26 Federal Data Protection Act). The customer's consent to this shall be deemed to have been declared when the order is placed.
14.2. For the purpose of simple and fast processing, we collect customer- and supplier-specific data which we use and pass on with reservation exclusively to participating contractual parties and only with the contractual party's consent. No data is collected by us and passed on to uninvolved third parties.
14.3. For research and development purposes, customer-specific data from surveys and contract conclusions are collected. The data are used exclusively for further processing by Ador-Edelmetalle GmbH and are not passed on to uninvolved third parties without the consent of the contractual party.
The security and protection of your personal data is particularly important to us. We inform you in detail about the handling of this data in our data protection declaration, which you can download at here can retrieve.