General Terms and Conditions (GTC)
General terms and conditions of MLW intermed Handels- und Consultinggesellschaft für Erzeugnisse und Ausrüstungen des Gesundheits- und Bildungswesens mbH (hereafter referred to as: “MLW” for contracts concluded exclusively using telecommunication means
The following definitions shall apply throughout these General Terms and Conditions (GTC):
The contract between the MLW and the customer for the delivery of goods from the online shop.
A natural person or legal entity or partnership having legal capacity who concludes a purchase contract with MLW.
Distance contracts are contracts whereby the entrepreneur or a person acting in his name or on his behalf and the consumer use exclusively means of telecommunication for negotiating and concluding the contract, unless the contract is not concluded under a sales or service scheme organised for distance contracts.
An entrepreneur is a natural person or legal entity or a partnership having legal capacity, who acts in exercising his commercial or independent professional activity when concluding the purchase contract.
A consumer is any natural person who concludes a legal transaction for purposes that can predominantly be attributed neither to his commercial nor his independent professional activity.
Telecommunication means are all means of communication which can be used for initiating or concluding a contract without the physical presence of the parties to the contract, such as letters, catalogues, telephone calls, telefaxes, e-mails, messages sent by mobile phone service (SMS), radio and telemedia.
These GTC apply exclusively to purchase contracts between MLW and the customer. General terms and conditions of the customer which conflict with or deviate from these GTC shall not be recognised, unless MLW has agreed to them in writing in the particular case.
3. Conclusion of the contract
a) Offer of a purchase contract to be concluded by the customer
The presentation of the products in MLW's online shop does not represent a binding offer to conclude a purchase contract by MLW, but is merely an invitation to the customer to submit a purchase offer to MLW himself (so-called invitatio ad offerendum).
As a visitor to the MLW online shop, each customer automatically receives a "shopping basket". The selected products can be collected in that basket. As soon as the customer leaves the online shop without having submitted a binding offer, the contents of the shopping basket expires. No legal transaction has been concluded in that case. Each customer has the opportunity to register as a "customer" and to set up a personal customer account. In that case the Customer's selection is stored until the next visit (login). A registered customer can comfortably shop in the MLW online shop, check the status of his order at any time and always have an up-to-date overview of his previous orders. After initial registration, the customer can log in to the online shop with his e-mail address and his personal password.
The ordering of products in MLW's online shop is designed in such a way that the customer selects the desired article(s) from the product range displayed in the online shop and clicks on it. There he receives information about the product.
Once the customer has decided on an item and, if necessary, selected further options associated with the product, he can place the item in the personal shopping basket by clicking on the "add to shopping basket” button.
The customer has not yet submitted an offer by placing the product in the shopping basket. The number of products placed in the shopping basket can be edited by clicking on the button with the "pen” symbol. The products can then be removed from the shopping basket by clicking on the button with the wastepaper basket symbol.
In the order masks, the customer must fill in the required information.
In the next step the customer must confirm the data he entered. Subsequently, the order is completed by clicking the "Buy” button.
Only by clicking the "Buy" button does the Customer submit a binding offer for the products contained in his shopping basket at that time. Up to that point, the Customer may check and, if necessary, correct his details again at any time in the order forms of the online shop before sending them off.
After MLW has received the order, the Customer receives an e-mail automatically generated by the MLW order system confirming receipt of the offer by MLW. There, the customer can check the information contained in it again in order to correct any errors in the order in good time, if necessary.
b) Acceptance by MLW of the application to conclude the purchase contract
The products and prices in MLW's online shop are subject to change and non-binding until MLW accepts the customer's purchase offer. MLW undertakes to inform the customer without delay about any non-availability of the goods and to refund any payments already received in due course.
MLW accepts the customer’s offer to conclude a purchase contract through the e-mail automatically generated by the MLW order system, at the latest however by handing over the ordered products to the customer.
4. Due date, payment method and default
The purchase price for the product is due immediately. Payment of the purchase price shall be made by bank transfer for consumers and entrepreneurs. Consumers may also pay by PayPal. The payment methods offered by MLW in a particular case depend, among other things, on the value of the goods, the type of product, the amount of the total order, the duration of the business relationship etc. and are determined exclusively by MLW without giving reasons.
If the customer is in default, MLW is entitled to charge the statutory default interest (currently for a consumer in the amount of 5 percentage points above the respective base interest rate and, in the case of an entrepreneur 9 percentage points above the respective base interest rate). The right of MLW to claim higher interest or further damages for another legal reason remains unaffected thereby.
In addition, in the event of default of payment by a customer other than a consumer, MLW is entitled to claim flat-rate reminder fees in the amount of EUR40.00, which shall, however, be offset against any compensation owed by the customer, insofar as the damage is justified in costs of legal prosecution. This shall also apply in case of payment on account or any other payment by instalments.
5.Right of withdrawal and consequences of revocation; exclusion of the right of revocation; model revocation form
If you are a consumer (§ 13 BGB), you are entitled to revocation by law:
Right of revocation
You are entitled to revoke this contract within fourteen days without giving reasons.
The revocation period is fourteen days from the day on which you or a third party designated by you, other than the carrier, took or has taken possession of the last goods.
To exercise your right of withdrawal, you must
MLW intermed Handels- und Consultinggesellschaft
für Erzeugnisse und Ausrüstungen des
Gesundheits- und Bildungswesens mbH
August- Borsig-Ring 1
15566 Schöneiche bei Berlin
Tel.: +49 - (0)30 - 421 58 622
Fax: +49 - (0)30 - 421 58 603
inform us by means of a clear statement (e.g. a letter sent by conventional mail, fax or e-mail) of your decision to revoke this contract. You may use the attached model revocation form, which is not mandatory.
In order to comply with the revocation period, it is sufficient to send the notification of the exercise of the right of revocation before the end of the revocation period.
Consequences of revocation
If you revoke this Agreement, we shall reimburse you for all payments we have received from you, including delivery charges (other than any additional charges arising from your choosing a method of delivery different from the cheapest standard delivery offered by us), without delay and no later than fourteen days from the date on which we receive notice of your revocation of this Agreement. We will use the same means of payment for this refund as you used for the original transaction, unless expressly agreed otherwise with you; in no event will you be charged for this refund. We may refuse to refund until we have received the goods or until you have provided proof that you have returned the goods, whichever is earlier.
You must return or hand over the goods to us without delay and in any case within fourteen days at the latest from the day on which you inform us of the cancellation of this contract. This period will be deemed observed, if you send the goods before the expiry of the fourteen-day period.
You will bear the direct costs of returning the goods, which can normally be returned by post. We will bear the costs of returning those goods which cannot be returned normally by post due to their nature.
You will only have to pay for any loss of value of the goods if such loss of value is due to handling of the goods in a way which is not necessary for checking their nature, properties and functioning.
Exclusion of the right of revocation
The right to revoke your declaration to MLW regarding the conclusion of a purchase contract for the goods does not apply to distance contracts
- for the supply of goods which are not prefabricated and for the production of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer,
- for the delivery of goods that can spoil quickly or whose expiry date would be quickly exceeded,
- for the delivery of sealed goods which are not suitable for return for reasons of health protection or hygiene if their seal was removed after delivery or if the packaging was broken,
- for the delivery of goods if they have been inseparably mixed with other goods after delivery due to their nature.
Model revocation form
If you wish to revoke the contract, please fill in and return this Form.
Handels- und Consultinggesellschaft für
Erzeugnisse und Ausrüstungen des
Gesundheits- und Bildungswesens mbH
15566 Schöneiche bei Berlin
I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)
Ordered on (*) ____________ / received on (*) __________________
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only in the case of communication on paper)
(*) Delete as appropriate
6. Offsetting, right of retention
The customer only has the right to offsetting if his counterclaims have been finally adjudicated or are undisputed or recognised by MLW. The customer is authorised to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
These restrictions do not apply to consumers.
7. Transfer of risk
When deliveries are made to consumers (§ 13 BGB), the risk of accidental loss and accidental deterioration of the products shall pass to the consumer as soon as the forwarding agent, the carrier or any other person or institution designated to carry out the shipment has handed over the products to the consumer or his authorised representative or at the delivery address specified by the consumer. Notwithstanding sentence 1, the risk of accidental loss and accidental deterioration of the products shall be transferred to the consumer as soon as the products are handed over to the forwarding agent, the freight carrier or the person or institution otherwise designated to carry out the shipment, if the consumer commissioned the forwarding agent, the freight carrier or the person or institution otherwise designated to carry out the shipment and unless MLW has previously named that person or institution to the consumer.
When deliveries are made to entrepreneurs (§ 14 BGB), the risk of accidental loss and accidental deterioration of the products shall pass to the entrepreneur as soon as the products are handed over to the forwarding agent, carrier or other person or institution designated to carry out the shipment.
8. Retention of title
a) For contracts with consumers
The products delivered by MLW remain the property of MLW until all claims arising from the purchase contract between the customer and MLW have been fulfilled. Until that moment, the customer is obliged to handle the product with care.
Until transfer of ownership the customer undertakes not to dispose of the product, unless with the prior written consent of MLW. In the event of access by third parties, in particular in the event of seizure of the product, the customer must inform MLW immediately in writing and inform the third party of MLW's reserved property without delay.
b) For contracts with entrepreneurs
The products delivered by MLW remain the property of MLW, until all claims arising from the purchase contract between the customer and MLW have been fulfilled. This also applies to all future deliveries, even if MLW does not always expressly refer to it. MLW is entitled to take back the purchased goods, if the customer behaves in a manner contrary to the contract.
The customer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. If maintenance and inspection work is required, the customer must carry it out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform MLW in writing without delay, if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not able to reimburse MLW the court fees and out-of-court costs of a lawsuit in accordance with § 771 ZPO, the customer is liable for the loss incurred by MLW.
The customer is entitled to resell the goods subject to retention of title in the normal course of business. The customer hereby assigns the claims of the purchaser from the resale of the goods subject to retention of title to MLW in the amount of the final invoice amount agreed with MLW (including VAT). This assignment applies regardless of whether the purchased item has been resold without or after processing. The customer remains authorised to collect the claim even after assignment. This shall not affect MLW's right to collect the claim itself after disclosure of the assignment. However, MLW 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 on his assets has been made or payments have been suspended.
9. Warranty and notification of defects
MLW warrants that the products do not contain material defects as defined by the German Civil Code. In case of defectiveness, the customer is entitled to the statutory warranty rights, unless otherwise provided for in the following provisions:
a) The customer is a consumer
The customer initially has the choice of whether subsequent performance shall take place by repair or replacement. However, MLW is entitled to refuse the type of subsequent performance chosen by the purchaser if it is only possible at disproportionate costs and the other type of subsequent performance does not cause significant disadvantages to the customer. During subsequent performance, the reduction of the purchase price or the withdrawal from the contract by the buyer is excluded. A rectification of defects shall be deemed to have failed after the second unsuccessful attempt, unless resulting otherwise from the nature of the item or the defect or other circumstances. If subsequent performance has failed or if MLW has refused subsequent performance altogether, the purchaser can choose to demand a reduction in the purchase price (abatement) or declare withdrawal from the contract.
The customer cannot assert claims for damages under the conditions stated under point 10 due to the defect, until subsequent performance has failed or MLW has refused subsequent performance. The right of the customer to assert further claims for damages under the following conditions remains unaffected.
The warranty period is 2 years for the purchase of new products, 1 year for the purchase of used products, in each case starting upon transfer of risk. This period shall also apply to claims for compensation for consequential damage caused by a defect, provided that no claims in tort are asserted.
b) The customer is an entrepreneur
The customer, if he is a merchant, must have fulfilled his obligations to examine the goods and make a complaint in accordance with § 377 HGB (German Commercial Code) in order to be able to assert warranty rights. Obvious defects must be reported to MLW in writing without delay, but no later than 7 days after receipt of the goods. Hidden defects must also be reported to MLW in writing without delay, at the latest within 7 days after discovery of the defect. If no such notification is made, the delivery shall be deemed approved.
The customer shall not be entitled to raise claims for defects in case of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, the use of accessories not produced or approved by the manufacturer of the product or as a result of special external influences that are not provided for under the contract. If the customer or third parties carry out improper repair work or modifications to the product, no claims for defects can be made for these and the resulting consequences.
If the customer reports a defect in good time, which was already present at the time of the transfer of risk, he has the right, at MLW's discretion, to have the defect rectified free of charge or to receive a defect-free item (subsequent performance). MLW must always be given the opportunity for subsequent performance within a reasonable period. MLW can refuse a type of subsequent performance or the entire subsequent performance if it is only possible at disproportionate costs.
Returns of defective goods to MLW for the purpose of supplementary performance may only be made with MLW’s written consent. The risk of accidental loss and accidental deterioration of the returned goods is only transferred to MLW upon handover at MLW's business location. If MLW delivers a replacement item for the purpose of subsequent performance, the customer must return the originally delivered item without delay. Replaced parts become the property of MLW.
If subsequent performance fails or is refused, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce payment.
Claims by the customer due to the expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs are excluded insofar as the expenses increase because the product delivered by MLW was subsequently taken to a location other than the customer's branch office, unless the transfer corresponds to its intended use.
Warranty claims for the delivery of new products are subject to a limitation period of 12 months from transfer of risk, unless the defect was fraudulently concealed. Warranty is excluded for the delivery of used products.
MLW is only liable for compensation for damages for defects in accordance with the provisions of clause 10.
Regardless of the legal grounds, MLW shall only pay damages to the following extent:
MLW is liable without restriction for damage to life, body and health which is based on a negligent or intentional breach of duty by its legal representatives or vicarious agents, as well as for damage covered by liability under the product liability act and for all damage based on intentional or grossly negligent breaches of contract as well as fraudulent intent by its legal representatives or vicarious agents. Insofar as MLW has issued a quality and/or durability guarantee for the goods or parts thereof, MLW is also liable within the scope of that guarantee. For damage which is based on the lack of the guaranteed quality or durability, but does not occur directly on the goods, MLW shall assume liability only, if the risk of such damage is clearly covered by the quality and durability guarantee.
MLW also assumes liability for damages caused by simple negligence, insofar as such negligence concerns the violation of such contractual obligations, the observance of which is of particular importance for achieving the purpose of the contract (cardinal obligations). However, MLW is only liable insofar as the damage is typically associated with the contract and is foreseeable. MLW shall not be otherwise liable for simple negligent breaches of secondary obligations which are not essential to the contract. The limitations of liability contained in sentences 1 - 3 also apply insofar as they affect the liability for legal representatives, executive employees and other vicarious agents.
Any further liability is excluded regardless of the legal nature of the claim asserted. Insofar as liability is excluded or limited, this also applies to the personal liability of MLW's employees, workers, staff, representatives and vicarious agents.
11. Settlement of disputes in consumer matters under Art. 14 (1) ODR-VO and § 36 VSBG
Online dispute resolution according to Art. 14 para. 1 ODR-VO: The European Commission provides a platform for online dispute resolution (OS), which you can find at http://ec.europa.eu/consumers/odr/
MLW is not obliged and in principle not willing to participate in dispute settlement proceedings before a consumer arbitration board.
12. Place of jurisdiction, choice of law
If the customer is a businessman, legal entity under public law or special fund under public law, the place of business of MLW shall be the place of jurisdiction for all disputes arising from the contractual relationship. However, MLW is also entitled to sue the customer at the court at his place of residence.
If the customer is not a merchant, the statutory regulation applies.
This contractual relationship and its interpretation are subject to the law of the Federal Republic of Germany. This choice of law shall not affect mandatory provisions for the protection of the consumer under the law applicable at his habitual residence, if the law of the Federal Republic of Germany is less stringent in a particular case.
The terms of the UN Convention on Contracts for the International Sale of Goods shall not apply.
13. Text form, severability clause
Unless otherwise specified in these General Terms and Conditions,any changes, additions and side agreements require the text form to be effective. The text form requirement also applies to the waiver of this requirement of form.
Should any of the preceding provisions be invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. In place of the invalid or unenforceable provision, a suitable legally effective replacement provision that comes as close as possible to the economic success of the invalid or unenforceable provision shall be agreed by mutual consent.
Status of these GTC: July 2020