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General Terms and Conditions of Delivery (ALB) of devemed GmbH


For use in business transactions with companies and, as far as legally permissible, with all other contractual partners (as of March 2006)

I. General

Our deliveries are subject exclusively to the individually negotiated contractual agreements and our General Terms and Conditions of Delivery. We do not recognize any other general terms and conditions, even if the delivery is carried out without reservation. In the case of permanent business relationships or framework agreements, these GTC shall also apply to all future delivery relationships until the validity of our new terms of delivery. The customer expresses his agreement with our terms and conditions at the latest by accepting our goods. All agreements must be made in writing. If it is established after conclusion of the contract or after delivery of the goods that the customer is not or no longer creditworthy, we shall be entitled to withdraw from the contract or to demand immediate payment for delivered goods. The assignment of claims requires our consent.

II Advice

We provide all forms of verbal and written advice to the best of our knowledge based on our experience. Details and information on the suitability and application of our goods are non-binding and do not release the customer from the obligation to carry out his own tests and trials. The customer is responsible for compliance with statutory and official regulations when using our goods.

III Offer, call-off, offer documents

We can accept orders within 6 weeks. Our offers are subject to change unless otherwise stated in the order confirmation. Call-off orders are concluded for a maximum period of 12 months, whereby call-off dates and quantities must be specified when the order is placed. We reserve ownership rights and copyrights to all documents provided by us. Disclosure or forwarding to third parties requires our written consent. If the order is not placed, all documents must be returned immediately upon request. The customer's documents may be made accessible to third parties to whom we wish to transfer deliveries or services. Orders should always be placed in writing; orders placed by telephone shall be executed at the risk of the customer.

IV. Price, price changes 

1. our prices are always "ex works" plus VAT, customs, freight, packaging and insurance costs applicable on the day of delivery. Value added tax shall be shown separately on the invoice. The prices apply to the individual order, not retroactively or for future orders. Repeat orders are new orders. 2. we reserve the right to increase our prices appropriately if cost increases occur after conclusion of the contract, in particular due to collective wage agreements, market cost prices or material price increases. Proof of such increases shall be provided to the customer upon request.

V. Scope of delivery, measuring methods, property rights, data protection

Our order confirmation is decisive for the content and scope of the contract. Partial deliveries are permissible, provided this does not result in disadvantages for use. They are deemed to be the fulfillment of independent contracts and are to be paid for separately. If payment for a partial delivery is delayed, we are entitled to refuse further execution of the order. For production-related reasons, we reserve the right to make excess or short deliveries to the extent customary in the industry, up to a maximum of 10% of the agreed order quantity. Technical changes that prove necessary for production reasons, for reasons of product maintenance, for legal requirements or for other reasons are permissible. If the customer becomes aware of changes, he must inform us immediately if he considers them to be unacceptable. For tests for which certain temperatures, times and other measurement or control values are to apply, the corresponding measurement methods must be specified and recognized by both parties before delivery begins. If no specification is made, our measuring methods shall apply. Orders based on drawings, sketches or other information provided to us shall be executed at the risk of the customer. If we interfere with third-party property rights as a result of the execution of such orders, the customer shall indemnify us against claims by third-party rights holders. Any further damages shall be borne by the customer. We are entitled to process data in accordance with the Federal Data Protection Act.

VI Delivery period 

1. the delivery period begins at the earliest with the dispatch of the order confirmation. The start of the delivery period stated by us presupposes the complete clarification of all technical questions. Compliance with the deadline requires the timely receipt of all documents to be supplied by the customer, necessary approvals, releases, the timely clarification and approval of plans, compliance with the agreed terms of payment and other obligations as well as the timely delivery of the items provided by the customer. Otherwise the deadline shall be extended appropriately. The delivery deadlines stated by us are approximate deadlines. With due diligence to conclude congruent covering transactions, the delivery period shall be determined subject to correct and timely delivery to us. Compliance with our delivery obligations is subject to the timely and proper fulfillment of the customer's obligations to cooperate. 

2. the delivery deadline shall be deemed to have been met if the consignment has been dispatched within the delivery deadline or notification has been given that the delivery is ready. If delivery is delayed for reasons for which the customer is responsible, the deadline shall be deemed to have been met upon notification of readiness for dispatch within the agreed deadline. In the case of call-off orders, the last delivery shall be made no later than one year after receipt of the order by us. 

3. war, civil war, export restrictions or trade restrictions due to a change in political circumstances as well as strikes, lockouts, operational disruptions, operational restrictions, delivery restrictions by authorities or organizations similar to authorities, such as the FDA, and similar events that make it impossible or unreasonable for us to fulfil the contract shall be deemed force majeure and shall release us from the obligation to deliver on time. In such cases, we are entitled to either extend the delivery period by the duration of the force majeure or to withdraw from the contract in whole or in part. The customer shall not be entitled to claim compensation for the resulting damages.

VII Deliveries to the USA/Canada

If our deliveries are made to customers outside the USA/Canada, the customer shall be obliged to take out and maintain product liability insurance with a minimum cover of EUR 5 million for its own exports of the delivered products to the USA/Canada.

VIII. Cancellation costs, returns 

1. if the customer cancels an order placed, we may demand 10% of the sales price for the costs incurred in processing the order and for loss of profit, without prejudice to the possibility of claiming higher actual damages. The customer reserves the right to provide evidence of lower damages. 

 2. the purchaser's withdrawal from the contract is excluded in the case of custom-made products, sterile products and implants.

IX. Packaging

Unless otherwise agreed, we shall determine the type and scope of packaging. The choice of packaging shall be made to the best of our judgment with due care. Disposable packaging shall become the property of the customer.

X. Transfer of risk and transportation 

1. delivery "ex works" is generally agreed. The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the transportation or has left our warehouse for the purpose of dispatch. Delivery shall be at the risk of the customer even if carriage paid delivery has been agreed. If shipment is delayed at the customer's request, the risk shall pass to the customer upon notification of readiness for shipment. Unless otherwise agreed in writing, we shall determine the means and route of transportation. In the event of damage to or loss of the goods during transportation, an inventory should be arranged immediately and we should be informed of this. 

 2. if dispatch or delivery is delayed at the instigation of the customer, we shall claim storage charges amounting to 1% of the invoice amount for each month or part thereof, up to a maximum of 5% of the net amount, subject to proof of higher damages. The customer reserves the right to provide evidence of lower damages.

XI. Breach of duty

In the event of damages for breach of duty, our liability for simple negligence shall be limited to the damages caused by us that are foreseeable and typically associated with the specific transaction at hand. Otherwise, we shall only be liable for intent and gross negligence. Our liability for culpable injury to a person, health or body, including death, remains unaffected.

XII. Terms of payment and default of payment 

1. invoices for deliveries of goods are payable net (without deduction) 30 days after the invoice date. All payments are to be made free of charges. In the case of checks and bills of exchange, the customer shall bear the discount, collection and other bank charges even without express agreement. Payments shall first be offset against costs, then against interest and then against the older principal claim. 

2. in the event of default in payment, we may demand default interest in the amount of 8% p.a. above the respective base interest rate in accordance with § 247 BGB. A higher damage caused by default can be proven. The customer shall only be entitled to set-off and retention rights against our claims if the counterclaim is undisputed or has been legally established. 

3. if we become aware that the customer's bill of exchange is protested, enforcement measures are initiated against him or another deterioration of assets occurs, we can also immediately assert claims that are not yet due and claims for which a bill of exchange or check has been given. In these cases and if due invoices are not paid despite reminders, we may demand advance payment or the provision of security for future deliveries.

XIII Liability for defects 

1. a notice of defects pursuant to § 377 HGB (German Commercial Code) shall only be deemed timely if it is received by us immediately, at the latest within a period of 5 working days, calculated from receipt of delivery. In the case of hidden defects, this period shall apply from the time of discovery of the defect. The notification of defects does not release the buyer from his payment obligations. If the item is defective, we shall be entitled, at our discretion, to rectify the defect or supply a replacement within a reasonable period of grace to be set by the purchaser. In the event of rectification of the defect, we shall only bear the expenses up to the amount of the remuneration agreed for the delivery. Without our prior written consent, the customer shall not be entitled to rectify the delivery item himself, even in urgent cases. If the rectification of defects or replacement delivery fails, the customer shall be entitled to withdraw from the contract or reduce the price at his discretion. Further claims of the customer are excluded, with the exception of intentional or grossly negligent causation by us as well as in cases of injury to life, body or health and in the case of fraudulent concealment of the defect. We shall therefore not be liable in particular for consequential damage caused by a defect other than to the delivery item itself or for loss of profit or other financial losses suffered by the customer.In the event of gross negligence, the obligation to pay compensation shall be limited to the typical, foreseeable damage. 

2. only the manufacturer's product description shall be deemed agreed as the quality of the goods. Claims for defects shall not exist in the event of only insignificant deviations from the agreed quality. Public statements, promotions or advertising by the manufacturer do not constitute a contractual statement of quality. The customer shall only receive guarantees in the legal sense from us by separate agreement. Information in product descriptions and product specifications, subject to their being recorded as quality information within the meaning of § 434 BGB, shall in any case not constitute a guarantee for the quality of the item or that the item will retain a certain quality for a certain period of time. Possible claims for damages in accordance with §§ 437 No. 3 BGB are limited to the scope of our product liability insurance up to a maximum of 1 million euros and to the scope of our product recall cost insurance up to a maximum of 100,000 euros. This does not apply if liability is mandatory due to injury to life, limb or health. Our liability to pay compensation for damage to property in the event of damage caused by negligence is limited to the maximum compensation payment of EUR 1 million under our product liability insurance.

3. the customer's right of recourse against us pursuant to § 478 BGB shall only exist insofar as the customer has not made any agreement with his customer that goes beyond the statutory claims for defects. 

4. the limitation period for claims for defects shall be 6 months, calculated from the handover of the item. This limitation period also applies in principle to claims for compensation for consequential harm caused by a defect, provided that no claims in tort are asserted and the claim is not based on injury to life, limb or health.

XIV Repair services 

Our liability for damage to the items provided to us for repair is limited to intent and gross negligence. In the event of slight negligence, we shall only be liable for breach of material contractual obligations. Our liability is limited to the typically foreseeable damage. Our liability for culpable injury to a person, health or body, including death, remains unaffected.

XV Adjustment of contract, liability, indemnification, waiver of recourse 

1. if unforeseen events considerably change the economic significance or the content of the delivery or service or have a considerable effect on our business, the contract shall be adapted. If this is not economically justifiable, we shall be entitled to withdraw from the contract. 

2. insofar as our liability for damages is excluded or limited, this shall also apply to all claims of the customer due to culpa in contrahendo, breach of secondary obligations or claims of the customer arising from manufacturer's liability pursuant to § 823 BGB. The same shall apply in the event of impossibility. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives, vicarious agents and assistants. 

3. the customer shall indemnify us against third-party claims unless it can be proven that the damage was caused by medical malpractice or other errors. 

4. the customer shall agree with his insurance company a waiver of recourse in favor of the supplier in accordance with §§ 67 VVG, 4 I 1 AHB.

XVI Retention of title

1. we reserve title to the delivered item until all claims arising from the business relationship with the customer at the time of conclusion of the contract have been settled, including all claims arising at this time from follow-up orders, repeat orders or orders for spare parts. If the value of all security interests to which we are entitled exceeds the amount of all secured claims by more than 20%, we shall release a corresponding part of the security interests at the request of the customer. 

2. in the event of breach of contract by the customer, in particular default of payment, we shall be entitled to take back the delivery. Our taking back or seizure of the delivery does not constitute a withdrawal from the contract unless we expressly confirm this in writing. We shall be entitled to realize the goods; the proceeds of such realization shall be set off against the customer's liabilities, less reasonable realization costs. The customer is obliged to treat the delivery with care. In particular, he is obliged to insure them adequately at replacement value at his own expense against damage caused by fire, water, storm, burglary and theft. Any security claims arising in the event of damage shall be assigned to us. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

3. the customer may neither pledge the delivery items nor assign them as security. In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO) and provide us with all information and documents necessary to safeguard our rights. Enforcement officers or third parties must be informed of our ownership. Insofar as a third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us, subject to the assertion of further claims due to damage, alteration or destruction of the item itself. 

4. the customer may resell or process the purchased item in the ordinary course of business. He hereby assigns to us all claims in the amount of the final invoice amount, including VAT, which accrue to him from the resale against his customers or third parties, irrespective of whether the item has been resold without or after processing. We accept the assignment. In the event of a current account relationship between the customer and his customer, the claim assigned to us by the customer in advance shall also refer to the recognized balance and, in the event of the customer's bankruptcy, to the "causal" balance then existing. The customer may also collect the claims after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. We shall not collect the claim ourselves as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and no application for the opening of insolvency proceedings has been filed. 

5. the processing or transformation of the delivery item by the customer shall always be carried out for us. If the item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the item delivered under reservation of title. If the processing, mixing or blending is carried out in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the resulting sole ownership or co-ownership for us.

XVII Place of jurisdiction, place of performance, miscellaneous 

1. the place of jurisdiction shall be Tuttlingen. We may also sue the customer at the court responsible for its registered office. 

2. unless otherwise stated in the contract or order confirmation, our place of business shall also be the place of performance. 

3. the law of the Federal Republic of Germany shall apply exclusively to all legal issues between the customer, even if the customer has its registered office abroad, and us, to the exclusion of the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG). 

4 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the remaining provisions. Invalid provisions are to be reinterpreted in such a way that the economic purpose intended with this provision is achieved. 

General terms of delivery of the company devemed GmbH, as of March 2006

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