General Terms and Conditions of Business
Our general terms and conditions in the currently valid version, which apply to persons acting in conclusion of the contract in the course of their commercial or independent professional activity (entrepreneurs) or who are legal persons under public law or a special fund under public law, form part of our contract for the conclusion of a purchase contract. These present conditions also apply to all future business between you and us.
For reasons of legal certainty, we cannot accept any conflicting terms and conditions. So even if you provide your conditions before submitting your declaration of intent, or before we send or hand over the goods to you, no contract is concluded with us. If you accept the goods in such circumstances, our sales conditions apply exclusively, unless we have expressly given our written agreement to the validity of other conditions. And unless otherwise agreed, any such deviating conditions apply only to a specific contract and not to any subsequent contracts.
2. Conclusion of contract
Due to rapid technical progress and continuous product improvements, some deviation between our product samples or products provided under a previous purchase contract and the product sold to you after a purchase decision cannot be ruled out. We, therefore, reserve the right to make provisional offers which may be subject to technical changes.
Neither our sales catalogues nor the placement of goods on our homepage constitute an offer to enter into purchase agreements in the legal sense, but are merely intended to make it easier for you to make a binding offer to conclude a purchase agreement with us (product display). Once your offer has been put to us, you accept that the offer will remain binding for a period of two weeks. You alone are solely responsible for the accurate selection of goods and their quantities.
Our acceptance of your contract offer will result either in a written confirmation or delivery of the goods (see clause 5) within two weeks of our receipt of the offer.
3. Prices, shipping costs
We are bound by our published prices. However, if a price change is due to technical alterations, this may result in a consequent change in the price quoted in our provisional offer, which we will notify to you immediately. In such circumstances, you are no longer bound by your previous offer, but we will ask you to expressly agree the new price before a contract is concluded. Shipping costs (for basic shipping by post or courier, express, express freight and air freight) incur an additional charge. Both shipping charges and the respective VAT costs are itemised separately on the invoice. For order values up to EUR 100.00 we make a surcharge of EUR 7.50. For order values of EUR 500.00 and above, our national (mainland) delivery is free of all postage and packaging costs.
4. Assumption of risk
We deliver ex-works, so our liability ends with the delivery of goods to the first carrier or, if you are responsible for the transport, our liability then ends with the provision of goods in our warehouse and the notification they are ready for dispatch. Even if you are not responsible for any damage to the goods after this time has elapsed, you are nevertheless liable to pay us the full purchase price. If a contract has already been concluded between us, you are liable even if you have not accepted the goods (default of acceptance).
5. Delivery times, force majeure, inspection of goods
Delivery dates stated by us in writing are deemed to be met if the goods have been handed over to the first transporter by that date or, if you are responsible for the transport, when we have notified you that they are ready to collect. You are entitled to withdraw from the contract if, after setting a reasonable period of grace, that period of grace should then expire without us having made a delivery. If there are permanent impediments to contract performance for which we are not responsible, and which were not known to us at the time of concluding the contract, we are released from our obligation of service. If you have already made any payments or other consideration, we will refund them immediately. If performance is impeded in the aforementioned sense, but occurs only occasionally, our obligation to perform is suspended for the duration of the problem, but for four months at the latest. After the four-month deadline, either party has the right to withdraw if the problem has not been resolved by then.
Upon receipt of the goods, you must immediately inspect them for defects, shortages or damage in transit. In the event of damage in transit, a damage report must submitted to the transport company to support any claim for damages.
6. Payments, securities, offset, retention
If you do not send us payment (which must be made in Euros), during a 30-day period which starts from the date our invoice is sent, you will automatically be in default without the need for further reminder. In such circumstances, we are then entitled to make a claim against you for any losses we have incurred. We cannot accept payment by cheque or bill of exchange.
If you are in default of payment to others, or if we have any other doubts about your solvency, we may insist upon security against all your outstanding account balances. Pending deliveries may be withheld until we receive a security deposit. If no security deposit is provided, we have the right to withdraw from the contract.
Both you and we can only offset against undisputed or legally established accounts receivable. The same applies to the assertion of rights of retention.
7. Retention of title in a purchase context
We reserve ownership of the delivered goods until the full purchase price is paid. Please understand we cannot allow you to pledge or transfer ownership of the goods to third parties. As part of this reservation of title, you are obliged to notify us immediately of any third-party infringements of our rights. If this obligation is breached, we reserve the right to take back the goods, and in such circumstances, you cannot claim any rights of retention or ownership.
If you purchase goods from us for resale, you are entitled to do so in the ordinary course of business, even before you have made payment to us, provided you assign such payments to us along with all subsidiary rights vis-à-vis your customers at the same time for security purposes, and also pass on the reservation of title. We hereby accept such an assignment. We are entitled to disclose this assignment and to collect appropriate payment in the event of your own payment default. In such circumstances, you will be obliged to provide us with information about the respective portfolio of accounts receivable from third-party customers along with details of the individuals involved. Provided this assignment gives us security of more than 120% of all our outstanding claims against you, we will transfer the remainder of the amount back to you on request. The retention of title serves to secure all our claims arising from our business relationship with you. This also applies if claims are included in a current account and the account balance has been accepted and drawn upon.
You will receive high-quality, complex medical technology products and accessories from us. Even though we take all due care in the production of these products, we can only provide general information and details about their medical effects on patients. This also applies to the product information we provide in the form of catalogues, websites, etc. The choice of any particular device and its application in individual cases must always be informed by medical advice.
9. Purchase warranty
For material defects, we provide the following warranty, to the exclusion of further claims and subject to section 10:
The warranty period for new goods begins upon receipt of the goods. Warranty claims are initially limited to supplementary performance. If this supplementary performance fails, you then have the right to withdraw from the purchase contract or to receive a reduction in the purchase price. Further compensation is excluded. Any wear and tear which occurs during normal use is not covered by this warranty. As part of the supplementary performance, we have the right to choose whether to correct the defect or to deliver a defect-free replacement product. As regards delivery, if you act as a commercial operator, then under § 377 HGB you are obliged to inspect all deliveries of goods and to notify us of any defects. Hidden defects must be reported to us immediately, and at the latest within three working days of their detection. The warranty period is one year from the date of the transfer of risk.
It is agreed that the quality of the goods is only as shown in the product description. Public statements, advertising statements or other promises do not represent a contractual statement about the quality of the goods.
Warranty claims expire after 12 months.
We are liable for damages arising from injury to life, limb or health, which are based on a wilful or negligent breach of duty by us, our legal representatives or vicarious agents, as well as for other damages resulting from at least a malicious or grossly negligent breach of duty by us, our legal representatives or vicarious agents. In addition, we bear unlimited liability for damage covered by liability in accordance with mandatory legal provisions.
For damage caused by simple negligence, we are liable insofar as the negligence concerns the breach of contractual obligations, where such observation is of particular importance for the achievement of the purpose of the contract (cardinal obligations); however, our liability is limited to the predictable, direct, average damages which are typical for the type of contract. Further liability is not excluded if required by mandatory legal provisions, which may include, for example, the Medical Devices Act. Insofar as liability is excluded or limited by the above, this shall also apply to the personal liability of salaried staff, representatives, workers and other vicarious agents.
Regardless of the above provisions, liability for financial or consequential loss, in particular loss of profits or savings which did not materialise, is excluded unless we acted with wilful intent or through gross negligence.
All claims lapse 12 months after receipt of the goods – irrespective of their legal grounds. For wilful or fraudulent behaviour, for claims under the Product Liability Act/ Medical Devices Act, as well as for claims under the right of recourse of the entrepreneur according to § 479 Section 1 of the BGB, the statutory periods apply.
12. Final provisions
Even if one of the above provisions or a provision in the context of other agreements between you and us should be or becomes invalid, this does not affect the validity of all other provisions or agreements in this contract.
The assignment of accounts receivables to us requires our consent.
All contractual relationships concluded with us as well as these Terms and Conditions shall be governed exclusively by German law, excluding the conflict of law provisions and also excluding the UN Convention on the International Sale of Goods (CISG).
For contracts with merchants and legal entities under public law, the exclusive place of jurisdiction is Freiburg. This does not affect the jurisdiction of the courts for reminders and warnings.
We store personal data in relation to a contract. Personal data within the meaning of the General Data Protection Regulations (DS-GVO) is any information relating to an identified or identifiable person. Depending on the type of contract, as well as name, address, e-mail address, date of birth and occupation, this may also include other sensitive data, such as a financial credit rating. This data is protected by us and our partner companies, which are carefully selected according to Art. 28 of the DS-GVO, using technical and organisational measures to apply the provisions of the DS-GVO, the Federal Data Protection Act (BDSG) and the German Teleservices Act (TMG). We do not share your information with third parties unless this is required to fulfil our the contract with you. We only use your data for marketing purposes if you have given us your express consent.
Freiburg, May 2018
Schuler Medical Technology GmbH