Conditions of Use
Our General Terms and Conditions of Business are part of our offer at the conclusion of a sales contract. The present General Terms and Conditions shall also apply to all future business between us and you. On the principle of legal certainty we are unable to accept any contrary General Terms and Conditions of Business. In the event that you set your own conditions prior to stating your declaration of intent, before the goods are dispatched or handed over to you, no contract shall be concluded with us. Should the goods be accepted by you in this case, our General Terms and Conditions of Business shall solely apply, unless we have specifically declared our agreement to other terms and conditions in writing.
As a consequence of the rapid pace of technical progress and the continuous improvement of our products, variations between the product sold to you following your decision to purchase and the products supplied by us as samples or products supplied from a previous sales contract cannot be ruled out. We must therefore reserve the right to make offers subject to change without notice, that is subject to technical alterations.
Our prices are binding. However, in the event of a change in price due to technical changes, there may be a change in the price of offers subject to change without notice. We will inform you immediately of any such change in price. Postage costs (simple dispatch by post or courier, express, express freight, air freight), shall be invoiced to you separately. These costs as well as the statutory value added tax shall be listed separately on the invoice. A surcharge of EUR 7.50 is charged for goods up to an order value of EUR 100.00. For goods with an order value of EUR 500.00, delivery inland (on the mainland) is free of postage and packing costs.
4. Risk assumption
We deliver ex works, so that our liability ends when the goods are handed to the first transport agent or, in the event that you are responsible for transport, when the goods are made available for collection at our dispatch warehouse and notice is issued that the goods are ready for dispatch. Even if you are not responsible for any subsequent damage to the goods after this point in time, you are bound to pay the purchase price to us. In the event that a contract has already been made between us, you also assume risk even if you have not collected the goods (default in acceptance).
5. Delivery dates, force majeure
The delivery dates stated by us in writing shall be adhered to, when the goods are handed over to the first transport agent at the time stated or, in the event that you are responsible for transport, when we have notified you of readiness for transport. In so far as permanent obstacles to fulfilment arise for which we are not responsible and of which we were not aware when the contract was concluded, we shall be free of the obligation to execute the order. In the event that you have already made a consideration, we shall refund this immediately. In the event that the obstacles to fulfilment as above are of a temporary nature, our mutual obligation to execute the order shall be rescinded for the duration of the obstacle, for a maximum period of four months. You, or we, may withdraw after expiry of this four-month deadline, if it has not been possible to eliminate the obstacles to fulfilment by that time.
In the event that payment is not made from your account within a period of 30 days starting from the dispatch of the invoice, you shall be automatically in arrears, without a reminder being sent by us. In this case we shall be obliged to charge any damages incurred to you. We are unable to accept payment by cheque or bill of exchange. In the event that you are in arrears with us from another transaction or if doubt exists of your ability to pay, we may demand security from you for all accounts receivable. We shall be entitled to hold back any outstanding deliveries until receipt of the security. In the event that no security is received, we shall have the right to withdraw from the contract. Settlement may only be made with undisputed or legally determined accounts receivable. The same shall apply to the enforcement of the right to retention of goods.
7. Reservation of proprietary rights in the event of sale
The goods delivered shall remain our property until full payment of our accounts receivable. Please understand that we cannot permit mortgaging or transfer by way of security of the goods to third parties. Within the framework of the reservation of proprietary rights, you shall be bound to immediately inform us of any intervention by any third party in our rights. Should this duty be infringed, we reserve the right to reclaim the goods. In such case you may not claim any right to retention or other proprietary rights.Should you acquire goods from us for resale, resale is permitted even before payment of our account within the normal course of business in so far as, at the same time, you assign to us all outstanding accounts receivable as well as ancillary rights against your purchaser as security and transfer proprietary rights. We hereby now accept such assignment. We are permitted to disclose this assignment and to collect outstanding debts in the event of you being in arrears in payment. In this case you shall be bound to inform us of the state of your accounts receivable relating to third party purchasers and their person. In the event that we receive a security of over 120% of all accounts receivable from you through the assignment of a security, we shall return the lower-ranking amount of accounts receivable above this limit on demand. Reservation of proprietary rights serves as security of all our accounts receivable from this business transaction with you. This shall also apply if accounts receivable are included in a current invoice and the balance is drawn and accepted.
You receive from us a high quality, complex medical engineering product and related accessories. Despite every care in the production of our goods, we are only able to give general information on the medical effect of the goods on patients. This also applies to the product information prepared by us in the form of catalogues, Internet entries etc. The selection of the instrument and its application in individual cases remains solely subject to medical advice.
9. Warranty on purchase
The period of warranty for new goods shall commence with receipt of the invoice or the goods, depending on which event occurs last. Warranty claims are limited to supplementary performance in the first instance. If supplementary performance fails, you have the choice of the right to withdrawal from the sales contract or a reduction in price. Wear and tear due to usage for the intended purpose shall be exempt from the warranty. Within the framework of supplementary performance we have the right to decide whether we rectify the fault or deliver goods free of fault. In all cases of delivery you are bound to examine the goods in accordance with § 377 HGB (German Commercial Code), in so far as you operate a commercial business. Any faults identified are to be reported to us immediately, at the latest within 3 working days after identification. The warranty on defects is 1 year after transfer of risk.
We shall be liable to the full extent for damage arising from injury to life, the body or health due to wilful or negligible breaches of duty by us, our legal representatives or auxiliary persons or for other damage arising from at least grossly negligent breaches of duty or fraudulent intent on our part, our legal representatives or auxiliary persons. We shall furthermore be liable to the full extent for damage included under the warranty in accordance with mandatory statutory provisions. We accept liability for damage caused by simple negligence in so far as the negligence concerns the infringement of those contractual duties with which compliance is particularly important in order to fulfil the purpose of the contract (cardinal duties); warranty is however limited to foreseeable, immediate average damage typical for the contract. Further liability is not excluded, in so far as directed by mandatory statutory provisions, including for example the Medical Product Law. In so far as liability is excluded or limited as aforesaid, this shall also apply to the personal liability of employees, colleagues and other auxiliary persons.
11. Final provision
In so far as the aforementioned provisions of this contract are or become unenforceable, the contract shall remain in full force and effect. The assignment of claims receivable by us requires our consent. All contractual relations to be concluded with us or these General Terms and Conditions of Business are subject solely to German law with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).For contracts with business persons and legal entities, the place of jurisdiction shall be Freiburg. This shall not apply to courts for dunning procedures.In the event of the conclusion of a contract, data relating to persons shall be stored by us. Under the definition of the German Law on Data Protection (BDSG), data relating to persons comprises information on the personal and factual situation of a certain or definable person. Depending on the type of contract, this may be name, address, email address, date of birth, job and bank details as well as other sensitive data, such as financial standing. This data is protected by us in accordance with § 11 BDSG by carefully selected partner companies observing the provisions of the BDSG and the TDDSG using technical and organizational means. We do not pass your data stored by us to any external third party. Your data will only be used for marketing purposes with your express consent. In accordance with § 34 BDSG you have the right at any time and free of charge to information on your data stored by us as well as the right to correction, deletion and locking of the person-related data as per § 35 BDSG.
Freiburg, May 2011
Schuler Medizintechnik GmbH