General Terms and Conditions of Sale
(last amended: 19.01.2023)
§ 1 Scope
(1) These General Terms and Conditions of Sale (hereinafter: GTC) shall apply to all contracts concluded for goods presented in our sales catalogue between us,
Klaus Schuler GmbH, Medical Technology, Berggasse 29, 79108 Freiburg, Germany, firstname.lastname@example.org
Managing Director: Ralf Schuler
AG Freiburg HRB 3715
and you as our customer (also referred to as purchaser or buyer).
These Terms and Conditions of Sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of section 310 (1) of the German Civil Code (BGB). We will only recognise terms and conditions of the purchaser that conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing.
These Terms and Conditions of Sale are also applicable to all future transactions with the purchaser, insofar as legal transactions of a similar nature are involved.
Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive as regards the content of such agreements.
(2) All agreements made between you and us in connection with the purchase agreement shall be based in particular on these Terms and Conditions of Sale, our written order confirmation and our declaration of acceptance.
(3) The version of the GTC valid at the time of conclusion of the agreement shall apply.
(4) We shall not accept any deviating terms and conditions of the customer. This also applies if we do not expressly object to their inclusion.
§ 2 Conclusion of contract
1. Binding offer
(1) The subject matter of the contract is the sale of goods.
(2) The placement of a product on our website signifies a binding offer on our part to conclude a contract via the online shopping cart system under the terms and conditions stated in the description of the article.
(3) The contract is concluded via the online shopping cart system as follows:
The goods you intend to purchase are placed in the "shopping cart". Using the corresponding button in the navigation bar, you can call up the "shopping cart" and make changes to the cart at any time.
After clicking the button "Checkout" or "Proceed to order" (or a similar wording) and entering your personal details and the payment and shipping conditions, the order data will finally be displayed as an order summary.
If you decide to use our instant payment system PayPal as the payment method, you will either be directed to the order summary page in our online store or to the website of the instant payment system provider.
If you are redirected to the instant payment system, make the appropriate selection or enter your data there. Finally, on the website of the provider of the instant payment system or after you have been redirected back to our online store, the order data will be displayed as an order summary.
Before sending the order, you have the opportunity to check the information in the order summary once again, change the order (also using the "back" function of the internet browser) or cancel the order.
Upon sending the order by pressing the corresponding button ("order with obligation to pay", "buy" / "buy now", "order with obligation to pay", "pay" / "pay now" or a similar wording), you declare your legally binding acceptance of the offer, whereby the contract takes effect.
(4) Your requests for the preparation of an offer are non-binding from your point of view. When you submit an enquiry, we will submit a binding offer to you in writing (e.g. by email), which you may accept within six days (unless a different period is specified in the offer).
(5) The processing of the order and transmission of all information required in connection with the conclusion of the contract takes place via email, in part automatically. You must therefore ensure that the email address you provide to us is correct, that the receipt of emails is technically assured and, in particular, that it is not prevented by SPAM filters.
§ 3 No right of withdrawal
(1) As an entrepreneur, you do not have a right of withdrawal when engaging in distance selling. Reference is made to § 1 para. 1 of these GTC.
(2) The right of withdrawal does not exist likewise in distance sales contracts
(a) for the delivery of goods manufactured according to customer specifications or which are clearly tailored to personal needs or are not suitable for return due to their nature or which can spoil quickly or whose expiration date would be exceeded;
(b) for the delivery of audio or video recordings or software, in the event that you have unsealed the data carriers delivered.
§ 4 Terms of payment and delivery
(1) Payment must be made either in advance or via the instant payment system PayPal .
We reserve the right to exclude individual payment methods.
(2) If you choose payment in advance, we will deliver the goods ordered immediately upon receipt of payment in our account.
(3) In the case of payment using a payment method offered by PayPal the payment will be processed via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: "PayPal"), subject to the PayPal terms and conditions of use, which can be viewed at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full or – if the customer does not have a PayPal account – subject to the terms and conditions for payments without a PayPal account, which can be viewed at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full.
(4) We retain title to the item purchased until the invoice amount has been paid in full.
(5) The purchase price will bear interest at the rate of 5 percentage points above the base interest rate in the event of default in payment during the default period.
(1) We are entitled to make partial deliveries provided this is reasonable from your point of view.
(2) The delivery period is approximately three working days, unless otherwise stipulated. It commences – subject to the provision in para. 3 – upon receipt of payment by us.
(3) In the case of orders from customers with their place of residence or business abroad or in the event that there are reasonable indications of a risk of non-payment, we reserve the right to deliver only after receipt of the purchase price plus shipping costs (advance payment reservation). If we exercise our right to require advance payment, we will inform you immediately. In such cases, the delivery period commences upon payment of the purchase price and shipping costs.
§ 5 Prices and shipping costs
(1) Unless otherwise stipulated in writing, our prices are ex works excluding packaging and plus value-added tax at the applicable rate. Packaging costs will be invoiced separately.
(2) The payment of the purchase price must be made exclusively to the account indicated.
(3) We are bound by our published prices. However, if there is a price change due to technical changes, this will be announced in good time in our online store.
We have to charge you additionally for shipping costs (standard shipping by mail or courier, express, express freight, air freight). These charges are shown separately in the invoice, as is the applicable rate of statutory value-added tax.
(5) All price quotations in our online store are net prices excluding statutory value-added tax and do not include shipping costs.
(6) The shipping costs for deliveries abroad are different.
(7) If we fulfil your order according to § 4 para. 1 in the form of partial deliveries, you will only incur shipping costs for the first partial delivery. If partial deliveries are made at your request, we will charge shipping costs for each partial delivery.
§ 6 Delivery time
Delivery dates stated by us in writing will be deemed to have been met if the goods have been handed over to the first carrier by the date stated or, if you are responsible for their transportation, we have notified you that the goods are ready for shipment. You are entitled to withdraw from the contract after setting a reasonable grace period and its expiry if we have not delivered within the grace period. Insofar as there are permanent obstacles to performance for which we are not responsible and which were not known to us at the time the contract was concluded through no fault of our own, we will be released from performance. If you have already paid a consideration, we will refund the payment immediately. In the event of an impediment to performance in the aforementioned sense which only occurs temporarily, our mutual performance obligations will be suspended for the duration of the impediment, but for no longer than four months. You, as well as we, are only entitled to withdraw after the expiry of this four-month period if it has not proven possible to remove the impediment to performance by then.
Following receipt of the goods, you must immediately inspect them to determine whether there are any defects, short deliveries or transport damage. In the event of damage in transit, a damage report must be prepared for backup.
The commencement of the delivery period stated by us is subject to the timely and proper fulfilment of the customer's obligations. We reserve the right to invoke the defence of non-performance of the contract.
If the customer is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of the accidental loss or deterioration of the purchased goods will pass to the purchaser at the point in time when the purchaser is in default of acceptance or in default of payment.
Other legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
§ 7 Transfer of risk during shipment
If the goods are shipped to the purchaser at the purchaser's request, the risk of accidental loss or deterioration of the goods will pass to the purchaser upon dispatch to the purchaser, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.
If you as the purchaser are responsible for shipment, the transfer of risk ends when the goods are available for shipment in the delivery warehouse and notification of their readiness for shipment. Even if you are not responsible for any damage to the goods after this moment, you are obliged to pay the purchase price. If a contract has already been concluded between us, you are liable even if you have not accepted the goods.
§ 8 Terms of payment and set-off
(1) The purchase price and shipping costs shown in the invoice shall be settled by payment in advance or via PayPal.
(2) You are not entitled to offset any claims against our claims unless your counterclaims have been legally established or are undisputed. You are entitled to offset claims against our claims if you assert notices of defects or counterclaims under the same purchase contract.
(3) As the purchaser, you may only exercise a right of retention if your counterclaim arises from the same purchase contract.
§ 9 Documents provided
We retain ownership and copyrights in respect of all documents provided to the customer in connection with the placement of the order – including those in electronic form – such as for example calculations, drawings, etc. These documents may not be made accessible to third parties unless we give our express written consent to this effect to the customer. If we do not accept the customer’s offer within the period stipulated in § 2, these documents must be returned to us without delay.
§ 10 Retention of title
(1) You may only exercise a right of retention insofar as it concerns claims arising from the same contractual relationship.
(2) The goods remain our property until the purchase price has been paid in full.
(3) Since we only conclude purchase contracts with entrepreneurs, the following is applicable:
a) We retain title to the goods until all claims arising from the ongoing business relationship have been settled in full. Prior to the transfer of ownership of the goods subject to retention of title, a pledge or transfer of ownership by way of security is not permitted.
b) You may resell the goods in the ordinary course of business. If this is the case, you hereby assign all claims to us in the amount of the invoice amount accruing to you from the resale, and we accept the assignment. You are further authorised to collect the claim. However, if you do not properly meet your payment obligations, we reserve the right to collect the claim ourselves.
c) If the reserved goods are combined and mixed, we will acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing.
d) We undertake to release the securities to which we are entitled at your request to the extent that the realisable value of our securities exceeds the claim secured by more than 10%. We are responsible for selecting the securities to be released.
§ 11 Warranty
(1) The exercise of warranty rights by the purchaser is subject to the requirement that the purchaser has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to § 377 of the German Commercial Code (HGB).
(2) The limitation period for defects is 12 months following delivery of the goods supplied by us to the customer. The statutory limitation period is applicable to claims for compensation in the event of intent and gross negligence and in the event of death, injury and damage to health arising from an intentional or negligent breach of duty by the user.
(3) The shortening of the period is also not applicable:
- insofar as we have fraudulently concealed the defect or have furnished a guarantee for the quality of the item;
- in the case of items that have been used for a building in accordance with their customary use and have caused its defectiveness;
- in the case of statutory rights of recourse that you have against us in connection with rights based on defects.
(4) Insofar as longer periods are prescribed by law in accordance with section 438 (1), no. 2 of the German Civil Code (buildings and items for buildings), section 445 b of the German Civil Code (right of recourse) and section 634a (1) of the German Civil Code (construction defects), these periods shall apply. Our consent must be obtained before any goods are returned.
(5) If, despite all due care, the goods delivered display a defect which was already present at the time of the transfer of risk, we shall, as we see fit, either repair the goods or deliver replacement goods, subject to the timely notification of the defects. We must always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse remain unaffected by the above provision without restriction.
If the supplementary performance fails, the customer may – without prejudice to any claims for compensation – withdraw from the contract or reduce the remuneration.
(6) Claims for defects shall not be deemed to exist in the case of merely insignificant deviations from the agreed quality, in the case of a merely insignificant impairment of usability, in the case of natural wear and tear and in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress to which the item is subject, unsuitable operating materials, defective construction work, unsuitable building ground or relating to specific external factors not contemplated in the contract. If the customer or third parties carry out improper repair work or modifications, there shall also be no right to assert claims for defects for such repair work or modifications and the ensuing consequences.
(7) Claims by the purchaser for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labour and material costs, including any dismantling and installation costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a location other than the purchaser’s branch office, unless the transfer is in accordance with their intended use.
(8) Rights of recourse by the purchaser against us shall exist only to the extent that the purchaser has not entered into any agreements with its customer exceeding the statutory mandatory claims for defects. Furthermore, paragraph 6 shall apply mutatis mutandis to the scope of the purchaser's right of recourse against the supplier.
(9) Any seller's warranties furnished by us for certain items or manufacturer's warranties granted by the manufacturers of certain items shall be in addition to any claims based on material defects or defects of title. Details of the scope of such warranties are set out in the terms and conditions of the warranty, which may accompany the articles.
(10) If a characteristic of the goods deviates from the objective requirements, the deviation shall only be deemed to be agreed if you were informed of same by us before submitting the contractual declaration and the deviation was expressly and separately agreed between the contracting parties.
(11) Only our own specifications and the manufacturer's product description shall be deemed agreed as the quality of the goods, not, however, other advertising, public promotions and statements by the manufacturer.
(12) In the event of defects, we shall, as we see fit, implement warranty rights by rectification of the defect or subsequent delivery. If the rectification of the defects fails, you may, as you see fit, demand a reduction in the price or withdraw from the contract. The rectification of defects shall be deemed to have failed after a second unsuccessful attempt, unless the nature of the goods or the defect or other circumstances indicate otherwise. In the event of rectification of defects, we will not be required to bear the increased costs incurred by transporting the goods to a place other than the place of performance if transportation to such a place does not correspond to the intended use of the goods.
§ 12 Liability
(1) We are liable to you in all cases of contractual and non-contractual liability in the event of intent and gross negligence in accordance with the statutory provisions for damages or reimbursement of futile expenses.
(2) In other cases, we shall only be liable – unless otherwise stipulated in para. 3 – in the event of a breach of a contractual obligation, the fulfilment of which is a prerequisite for the proper execution of the contract and whose observance you as the customer were regularly entitled to expect (”cardinal obligation”), limited to compensation for the foreseeable and typical damage in such cases. In all other cases, our liability is excluded subject to the provision in paragraph 3.
(3) Our liability for compensation arising from death, injury or damage to health and under the Product Liability Act shall remain unaffected by the above limitations and exclusions of liability.
§ 13 Information
You will receive from us a high-quality, complex MedTech product and the accompanying accessories. Despite all the care taken in the production of our goods, we can only provide general data and information about the medical effects of the goods on patients. This also applies to the product information provided by us in the form of catalogues, internet sites, etc. The selection of the device and its use in individual cases must be based on medical advice alone.
§ 14 Copyrights
We have copyrights to all images, films and texts published in our catalogue. Use of the images, films and texts is not permitted without our express agreement.
§ 15 Data protection notice
§ 16 Applicable law and place of jurisdiction
(1) The laws of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If you have placed the order as a consumer and have your habitual residence in another country at the time you place your order, the application of mandatory legal provisions of said country are unaffected by the choice of law made in sentence 1.
(2) If you are a merchant and have your registered office in Germany at the time the order is placed, the exclusive place of jurisdiction is the seller's registered office in Freiburg. In all other respects, local and international jurisdiction shall be governed by the applicable statutory provisions.