General Terms and Conditions of Sale

§ 1 Scope of Application

  1. Our (Ossenberg GmbH) terms and conditions of sale apply exclusively. Terms that contradict or differ from our conditions, even if accepted by representatives or employees, require our express written confirmation to be valid. Our general terms and conditions of sale also apply if we carry out a delivery to the customer without reservation, despite being aware of conflicting or differing terms, unless we have explicitly agreed in writing to their validity.
  2. Our general terms and conditions of sale apply only to entrepreneurs as defined by § 310 of the German Civil Code (BGB).
  3. Our general terms and conditions of sale, in their respective versions, serve as a framework agreement for all future transactions of the same kind with the customer, without the need for us to reference them again in each individual case; any changes will be communicated to the customer at the latest when the respective contract is concluded.
  4. References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions apply insofar as they are not directly amended or explicitly excluded in these general terms and conditions of sale.

§ 2 Offer and conclusion of contract

  1. Our offers are always subject to change and non-binding, unless the offer expressly indicates a legally binding intention in exceptional cases. They represent an invitation to the customer to submit an offer to conclude a contract. Samples and specimens are only approximate illustrative pieces for quality, dimensions and color.
  2. A contract is only concluded through our order confirmation and exclusively under the terms and conditions confirmed by us in writing, or by delivery.
  3. The order must generally be placed in writing (including by fax or email). In case of a verbal order, any transmission errors or misunderstandings are at the customer's expense. If a written order confirmation is provided, the scope and content of the order are derived from this confirmation.
  4. Subsequent changes or additions to the order or essential order results must be recorded in writing and confirmed by both parties. In cases where we provide services for which no fixed price has been agreed, the price will be determined by us using our standard billing rates valid at the time of providing the services. Furthermore, we may charge all incurred costs, including a reasonable additional charge. Upon request, we will document the additional charge.
  5. We retain ownership and copyright of any documents provided to the customer. They must not be made accessible to third parties without our prior written consent.

§ 3 Prices

  1. The prices valid at the time of the conclusion of the contract, as per the applicable price lists, apply. We are bound by price agreements for four months after the conclusion of the contract if delivery is to take place within this period (otherwise see below, § 3, item 3). All prices are exclusive of the applicable German statutory VAT and any additional services.
  2. Unless otherwise agreed in writing, shipping and packaging costs within Germany are charged to the customer. Our prices generally apply for delivery ex works ("ex works", Incoterm 2020), Kanalstraße 79, 48432 Rheine, Germany.
  3. We reserve the right to charge an additional fee on the agreed prices if more than four months pass between the order and the delivery. To maintain the contractual equivalence, we are entitled in this case to proportionately increase the agreed price if, between the order and delivery, the costs for raw materials, energy, wages and salaries, customs, duties, transport, etc. have increased without our fault (in particular due to the COVID-19 pandemic and/or the effects of the Ukraine war), thus making the production and delivery of the goods more expensive. The increase in one or more cost items will not result in a price increase if the prices of other cost factors simultaneously decrease and the equivalence interest can be maintained. A price adjustment for the purpose of increasing profit is excluded. We will notify the customer in advance of any price increase. The customer can object to the price increase within 10 days after receiving the notification. In the event of an objection, we have the choice between withdrawing from the contract or delivering at the originally agreed price. If we declare the withdrawal from the contract due to the objection to the price increase, any further claims from the customer are excluded.

§ 4 Delivery and Performance

  1. In principle, all delivery dates that we may specify are non-binding unless we explicitly declare the dates as binding.
  2. Compliance with all our delivery and performance obligations presupposes the timely and proper fulfilment of the customer's obligations and the clarification of all technical questions.
  3. That we are in default always presupposes - except in the case of an agreement of specific delivery dates - that the customer has previously warned us.
  4. In the case of dispatch, the risk, including the risk of confiscation, shall pass to the customer when the goods are handed over to the forwarding agent or carrier, but at the latest when they leave the factory premises. This shall also apply if partial deliveries are made or if we have assumed other services such as shipping costs or transport. If despatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day on which the goods are ready for despatch; however, we shall be obliged to take out the insurance requested by the customer at the customer's request and expense.
  5. The goods are delivered in the specified versions and packaging units. We reserve the right to make partial deliveries.

Partial deliveries are permissible if:

  • the partial delivery can be used by the customer for the contractually intended purpose,
  • the delivery of the remaining ordered delivery item is ensured and
  • the customer does not incur any significant additional work or additional costs as a result (unless we agree to bear the costs). If partial deliveries are made, the customer shall only pay the shipping costs for the first partial delivery. If partial deliveries are made at the customer's request, the shipping costs for all individual deliveries shall be borne by the customer.
  1. Customary deviations of the delivery item from order confirmations, offers, samples, brochures, data sheets, sample and pre-deliveries are permissible in accordance with the applicable DIN/EN standards or other relevant technical standards.
  2. Insofar as our delivered product is a medical device within the meaning of Article 2 of Regulation (EU) 2017/745 on medical devices (MDR), the customer's attention is drawn to his obligations under Article 14 MDR or the MP-BetreibV. The customer may not make any statements, assurances or service descriptions that contradict or go beyond the intended purpose or pass them on to its customers.
  3. Events of force majeure release us from the obligation to deliver and fulfil the contract for the duration of the effects, provided that we have informed the customer of the extension of performance. We are entitled to withdraw from the contract if we can no longer reasonably be expected to fulfil the contract for the reasons stated above. Unreasonableness does not exist if the impediment to performance, which exists for the aforementioned reasons, is foreseeably only of a temporary nature. Claims for damages against us are excluded in these cases.
  4. Force majeure shall include official requirements and other circumstances for which we are not responsible, in particular strikes, traffic and operational disruptions, material shortages, transport bottlenecks through no fault of our own, fire damage, war or a state of emergency, pandemics, lockouts, labour disputes, energy and raw material shortages lasting more than 14 days, which make it impossible for us to deliver on time despite reasonable efforts.

We are liable in accordance with the statutory provisions in the event of impossibility or delay in performance, insofar as this is due to intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents.

In the event of slight negligence, our liability for impossibility shall be limited to the foreseeable damage typical of the contract. Further claims of the customer due to impossibility of performance in the case of slight negligence are excluded. However, the customer's right to withdraw from the contract remains unaffected in these cases.

In the event of slight negligence, our liability for delay in performance shall be limited to a total of 10% of the average value customary in the industry of the performance with which we are in default for damages in addition to performance and for damages in lieu of performance. However, the customer is expressly entitled to provide counter-evidence in these cases. Further claims of the customer due to delay in performance are excluded in the event of slight negligence - even after expiry of a deadline set for us to perform. These provisions shall also apply to the reimbursement of futile expenses in the event of slight negligence. However, these provisions on limitation shall not apply if we had agreed a binding delivery date with the customer.

The limitations of this Section 9 do not apply if we are liable due to an intentional or grossly negligent breach of duty, injury to life, body or health, in the event of the assumption of a guarantee for the quality or the existence of a performance success or in the event of the assumption of the procurement risk or in the event of mandatory statutory liability (e.g. Product Liability Act) or due to the breach of essential contractual obligations. Material contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

§ 5 Self-delivery reservation

If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the customer. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of our supplier to deliver to us in good time if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, neither we nor our supplier are at fault or we are not obliged to procure in individual cases.

§ 6 Payment terms (Germany)

  1. Insofar as nothing to the contrary has been agreed, payments must be made strictly net cash within 30 days of the date of the invoice without any deductions to one of the bank accounts specified by us. In the event that payment is received in one of the bank accounts specified by us within 10 days of the date of the invoice, the business partner shall be entitled to deduct a 2% discount. However, this discount deduction on new invoices is not permitted if older due invoices have not yet been paid. The day of payment shall be the day on which we can dispose of the value of the money received.
  2. For payments by SEPA direct debit, the customer must issue us with a SEPA company mandate. The direct debit will be collected 10 days after the invoice date. The period for pre-notification is reduced to 1 day. The customer guarantees to ensure that the account is covered. Costs incurred due to non-payment or reversal of the direct debit shall be borne by the customer, provided that the non-payment or reversal was not caused by us. We grant a 2% discount for participation in the SEPA business-to-business direct debit mandate. However, this discount on new invoices is not permitted if older due invoices have not yet been paid.
  3. The customer shall only be entitled to withhold payments or offset them against counterclaims if these are recognised by us, have been legally established or are undisputed or if a counterperformance resulting from the contractual relationship is affected, in particular in the case of a counterclaim that has arisen from a claim in kind entitled to refuse performance. The customer is only authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

§ 7 Payment terms (abroad)

Insofar as not otherwise agreed in writing, payments must be made in advance.

§ 8 Maturity, interest and consequences of default

  1. In the event of payment after expiry of the agreed term of payment, interest on arrears shall be payable to us in the amount stipulated by law.
  2. As long as the customer is in default of payment, we are not obliged to make further deliveries, irrespective of the legal grounds on which our delivery obligation is based.
  3. If there is a significant deterioration in the customer's financial circumstances, in particular if an application is made to open insolvency proceedings, we may demand cash payment or other security for outstanding deliveries before delivery of the delivery item, with cancellation of the payment term.
  4. If we have agreed instalment payments and/or payments on account with the customer, the following shall also apply: If the customer is more than three days in arrears with the payment of an instalment or instalment payment in whole or in part, the outstanding balance shall become due immediately and in full at once.
  5. In case the dispatch is delayed through the fault or at the request of the customer, or if the customer is in default of acceptance on the due date, he must still pay the purchase price. In such cases, we shall store the delivery item at the customer's risk and expense starting 14 days after notification of readiness for dispatch.
  6. If security for payment of the purchase price has been provided by a bank or other third party and delivery of the delivery item cannot take place due to the customer's default of acceptance, we shall also be entitled to demand the total outstanding purchase price from the bank or other third party on presentation of proof that the delivery item has been stored. Such storage shall be at the expense and risk of the customer. The date on which the delivery item is stored by us shall be deemed the delivery date. All delivery documents and other documents which must be handed over by us in order to receive payment from a bank or other third party must be handed over to us immediately by the issuer of these documents.

§ 9 Reservation of ownership

  1. The delivery item shall remain our property until all our claims arising from the business relationship with the customer have been paid in full. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to withdraw from the contract after the unsuccessful expiry of a reasonable grace period. After any cancellation of the contract, we have the right to demand the return of the delivery item, to sell it elsewhere or to dispose of it in any other way.
  2. The delivery item shall remain our property until all our claims arising from the business relationship with the customer have been paid in full. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to withdraw from the contract after the unsuccessful expiry of a reasonable grace period. After any cancellation of the contract, we have the right to demand the return of the delivery item, to sell it elsewhere or to dispose of it in any other way.
  3. The customer is entitled to resell the delivery item in the ordinary course of business despite the retention of title. In the event of resale, the customer hereby assigns to us all resulting payment claims in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply irrespective of whether the delivery item has been resold without or after agreement. The customer shall remain authorised to collect the claim even after the assignment. Our authorisation to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the customer fulfils his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended. Should one of these cases occur, we can demand that the customer informs us of the assigned claims and the respective debtors, informs the respective debtors of the assignment and hands over to us all documents and provides all information that we require to assert the claims.
  4. The processing or transformation of the delivery item by the customer is always carried out on our behalf. If the delivery 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 (final invoice amount including VAT) 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 delivery item delivered under reservation of title.
  5. If the delivery item is inseparably mixed 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 (invoice) to the other mixed items at the time of mixing. If the mixing takes place 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 keep the resulting sole ownership or co-ownership for us.
  6. The delivery items subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. In the event of seizure of the delivery items by third parties, in particular bailiffs, the customer shall draw attention to our ownership and inform us immediately by registered letter or fax so that we can bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the action pursuant to § 771 ZPO is successful and if enforcement proceedings against the third party to cover the judicial and extrajudicial costs of such an action are unsuccessful, the customer shall be liable for the loss incurred by us.
  7. If the value of the securities exceeds the value of the claims to be secured by more than 10%, we are obliged, upon request, to release securities of our choice in the amount of the excess value. The selection of the securities to be released is at our discretion.

§ 10 Guarantee and liability

  1. Claims for defects on the part of the customer presuppose that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
  2. Weights, dimensions, performance specifications, yields and other data stated in sales brochures, advertisements and comparable documents are to be regarded as merely indicative. The same applies to the performance and characteristics of sample products or demonstration products presented or made available.
  3. The limitation period for claims for material defects is one year from delivery of the goods.
  4. In cases of defective delivery, we shall have the right, at our discretion, to repair the defective item or replace it with a defect-free subsequent delivery. The customer is obliged to make the defective item available to us for inspection and rectification. In the event of rectification, we are obliged to bear all expenses necessary for the purpose of rectification, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the delivery item has been taken to a place other than the place of performance. If the rectification/replacement delivery fails, which is to be assumed at the earliest after the 2nd attempt at rectification or replacement delivery, if the subsequent fulfilment is refused or is unreasonable, the customer shall be entitled, at his discretion, to demand withdrawal or a reduction in price. Unless otherwise stated below (Sections 4 and 5), any further claims by the customer - regardless of the legal grounds - are excluded. We are therefore not liable for damage that has not occurred to the delivery item itself; in particular, we are not liable for loss of production, business interruption, the costs of any recall action, loss of profit or other financial losses of the customer.

The following also applies to foreign transactions: In the event of disproportionate effort and disproportionate costs that would entail us carrying out the repairs ourselves, we may in such cases require the customer to carry out the necessary repairs himself or have them carried out. We shall then reimburse the customer for the costs incurred by the customer for carrying out the necessary repair work.

  1. Notwithstanding the foregoing, however, we shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents.
  2. We are also liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; material contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. In the event of slight negligence, however, liability for damages shall be limited to the foreseeable, typically occurring damage.Liability in the event of the assumption of a guarantee for the quality or the existence of a performance success or in the event of the assumption of a procurement risk in accordance with § 276 BGB also remains unaffected. The same applies to liability for culpable injury to life, limb or health and mandatory liability, in particular under the Product Liability Act.
  3. It should be noted that stricter legal regulations apply to our products, especially customised products. We cannot accept any liability for damage caused by modifications to our products. Design modifications to Ossenberg articles by the customer or a third party authorised by the customer are only permitted if they comply with safety requirements and our management has given its prior written consent. For this purpose, a modified model together with a design drawing must be made available to us on request. If design changes are made without the written consent of our management and if third parties incur damage as a result of the changes for which we are responsible, the customer shall be obliged to indemnify us internally against all claims of the third party.
  4. We can only provide a warranty for the safe and faultless functioning of our products if original spare parts are used or if such parts are at least equivalent in quality to the original spare parts according to a certificate to be obtained from us in advance, provided that they have been professionally installed or converted. We can also only recognise claims arising from the Product Liability Act if original spare parts or parts that are at least equivalent in quality to the original spare parts according to a certificate to be obtained from us in advance have been used. Therefore, as a specialist dealer and user, please ensure that you only use original spare parts or spare parts which, according to a certificate to be obtained from us in advance, are at least equivalent in quality to the original spare parts, not only for warranty and liability reasons, but also to ensure the proper functioning of the products.
  5. Defects caused by wear and tear or improper handling are not covered by the warranty.
  6. We only accept liability under the Product Liability Act for the initial marketing of our products. We only agree to the reuse of the product if it has been tested by us beforehand.

§ 11 Disclaimer for the USA and Canada

For insurance reasons, we are only liable for damage in the USA and Canada if the goods were delivered to these countries with our express authorisation.

§ 12 Exclusion of further liability

  1. Liability for damages beyond that provided for in the above terms and conditions is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage in accordance with § 823 BGB. In the event of a claim for damages arising from culpa in contrahendo, the aforementioned exclusion of liability shall be equivalent to a subsequent waiver of liability due to the claim having already arisen upon conclusion of the contract.
  2. The limitation under No. 1 shall also apply if the customer demands compensation for useless expenses instead of a claim for damages in lieu of performance.
  3. Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees and workers, employee representatives and vicarious agents.
  4. However, the limitations of this § 12 shall not apply if we are liable due to an intentional or grossly negligent breach of duty, injury to life, body or health, in the event of the assumption of a guarantee for the quality or the existence of a performance success or in the event of the assumption of the procurement risk or in the event of mandatory statutory liability (e.g. Product Liability Act) or due to the breach of essential contractual obligations. Material contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

§ 13 Statute of limitations

The customer's claims against us - irrespective of the legal grounds - shall become time-barred one year after they arise. This shall not apply in the cases of §§ 438 Para. 1 No. 2, 634a Para. 1 No. 2 and §§ 478, 445a BGB. This shall also not apply in the case of intent or fraudulent concealment of a defect or if we have assumed a guarantee or the assumption of a procurement risk. Furthermore, this limitation period shall not apply to claims for damages in cases of injury to life, limb or health, in the case of claims in particular under the Product Liability Act and in the case of a grossly negligent breach of duty or breach of material contractual obligations. Essential contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

§ 14 Market observation in the delivery of medical devices

  1. In the delivery of medical devices as defined in Article 2 of the MDR, the customer must ensure a quality-assured distribution in accordance with Article 14 of the MDR.
  2. Part of the system according to paragraph 1 is the registration and processing of all received complaints and reports from healthcare facilities, patients, or users regarding potential incidents related to our products that have had or could have had a negative impact on a person’s health. The customer must collect, document, and immediately forward this type of information to us in writing as soon as the customer becomes aware of it. The customer must maintain a register of all complaints, deviations from the conformity of the contracted products, recalls, and restrictions on marketability, and inform us immediately about such market observations. The customer is required to provide us with all relevant information and data.
  3. Part of the customer’s required quality assurance system is enabling traceability of all delivered contractual products. This includes listing the item number and batch number, as applicable to the respective contractual product, and, upon the mandatory implementation of UDI, documenting the UDI of the respective product in the delivery documents and transferring the data into the customer’s system upon receipt of the products. The customer must ensure that the distribution channels are known to them down to the end user so that appropriate corrective actions in the market (Field Safety Corrective Action; FSCA), as initiated by us, can be communicated to the end user. If traceability to the end user is not possible despite the application of due diligence or contradicts the legitimate business secrets of the customer or their contractual partners, the customer must ensure, through appropriate contractual arrangements with their distribution partners, that each FSCA reaches the end user without delay.
  4. Should we decide to conduct a recall or another FSCA, the customer is required to actively support such a measure at their own cost. The receipt of the FSCA and its successful implementation in the market must be documented by the customer. This documentation must be provided to us upon request. The customer is not permitted to independently recall our products from the market unless there is a non-conformity of the products or an immediate significant safety risk that requires immediate action in the market, or the corresponding recall has been previously authorized by us.

§ 15 Use of personal data

We are entitled to store and process the customer’s personal data internally within the company, in accordance with legal regulations, particularly the Federal Data Protection Act.

§ 16 Place of performance and jurisdiction.

  1. The place of performance for all obligations arising from the contractual relationship is 48432 Rheine, Federal Republic of Germany.
  2. The exclusive jurisdiction is also 48432 Rheine, Federal Republic of Germany. We have the right to file a lawsuit at the court responsible for the customer or at any other court that may have jurisdiction under national or international law.
  3. For all legal relationships between the customer and us and in connection with this contract, exclusively German law shall apply, excluding the conflict of laws provisions of German international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).

Ossenberg GmbH
Production and distribution of orthopedic aids
Oderstraße 73
24539 Neumünster

Tel.:         +49 59 71 – 9 80 46 0
Fax:          +49  59 71 – 9 80 46 16
E-Mail:     info@ossenberg.com
Website:  www.ossenberg.com  

Tax ID No.: 311/5811/0581      
VAT ID No.: DE813848720
District Court of Steinfurt
HRB 6073

Managing Director:
Jörg Buschbell

General Terms and Conditions of Sale of Ossenberg GmbH 

(As of: 12.09.2024)

Technical changes and printing errors reserved.