GENERAL TERMS AND CONDITIONS OF BUSINESS OF PHYSIOMED ELEKTROMEDIZIN AG
§ 1. Scope of application
1. Our deliveries, services and offers are made exclusively on the basis of these terms and conditions of sale and delivery; we do not accept any terms of the customer that deviate from or conflict with our sales and delivery conditions, unless expressly agreed in writing.
2. All agreements made between ourselves and the customer for the purpose of the execution of this contract are made in writing in this contract.
3. Our conditions of sale and delivery only apply to contractors as stipulated in Section 310, Paragraph 1 of the BGB (German Civil Code).
4. Our conditions of sale and delivery also apply to all future business relations, even if not expressly agreed upon again.
§ 2. Offer – offer documents
1. Our offers are non-binding and subject to change.
2. If the order can be classified as an offer in accordance with Section 145 of the BGB, we can accept this within 2 weeks.
3. Drawings, illustrations, dimensions, weights and other performance data are only binding when expressly agreed in writing. We reserve all rights of ownership and copyright.
4. Our employees are not authorised to make verbal supplementary agreements or give verbal assurances that go beyond the content of the written contract.
§ 3. Price – terms of payment
1. Unless otherwise agreed, we are bound to the prices contained within our offers for 30 days from the date of offer. Otherwise, the prices stated in our order confirmation are decisive, excluding the applicable statutory value-added tax. Notwithstanding the above, we reserve the right to modify our prices after contract conclusion if cost reductions or increases occur, in particular due to wage agreements or material price changes. Proof of these shall be provided to the customer upon request.
2. Unless otherwise agreed, our prices are "ex works" or "warehouse net" and do not include insurance, packaging, freight, delivery to installation site, unloading or any reloading or installation.
3. Deduction of discount requires special written agreement.
4. Payments shall be made thirds, one upon order, one upon dispatch readiness and one after handover. They are deemed to be paid from the date on which the amount is cleared and available to us.
5. Unless otherwise agreed, our invoices are payable without deductions 10 days after issue. We are entitled to charge payments on the customer’s older debts, despite any differing provisions they may have. We will then inform the customer of the nature of the settlement. If costs and interest have already occurred, we are entitled to charge the payment initially on the costs, then on the interest and lastly on the main service.
6. Payment will only be considered to have been made when the corresponding sum is available to us. In the case of cheques, payment shall only be deemed to have been made when the cheque is cleared.
7. Should the customer fall into arrears, we are entitled to demand interest at a rate of 8 percentage points above the base interest rate as lump compensation from the relevant date. These will be fixed at a lower rate if the customer proves a lower debit; proof of a higher loss by us is permissible.
8. Should we become aware of circumstances that question the creditworthiness of the customer, in particular if a cheque is not paid or payments are suspended, or any other circumstances that question the creditworthiness of the customer, we are entitled to demand payment of the entire residual debt, even if we have accepted cheques. In this case, we are also entitled to demand advance payments or security payments.
9. The customer shall only be entitled to setoffs, retention or reduction, even if notices of defects or counterclaims are asserted, if said counterclaims have been legally established or are undisputed. Notwithstanding the above, the customer is also entitled to retain goods from the same contractual relationship due to counterclaims.
10. If the customer defaults on a payment, all other payment requests shall immediately become due, without requiring a separate notice of default.
11. For deliveries and services to customers abroad, it is explicitly agreed that all judicial and extrajudicial legal expenses incurred by the supplier in the event of the customer’s default in payment shall be met by the customer.
§ 4. Delivery and service provision times
1. Delivery dates or deadlines, which can be agreed as binding or non-binding, must be made in writing. Binding delivery dates or deadlines require express written agreement.
2. The start of the indicated delivery time requires the prior clarification of all technical matters.
3. The observance of our delivery obligation also presupposes the timely and proper fulfilment of the duties of the customer. Defence of non-performance of the contract remains reserved.
4. We are not responsible for any delivery and service delays, even in the event of binding dates and deadlines, due to force majeure or events that not only temporarily make it difficult or impossible – including, in particular, strike, lock-out, official orders, etc., even if they occur with our suppliers or their subcontractors. They entitle us to suspend the delivery or service for the duration of the hindrance, plus a reasonable start-up time, or to withdraw from the contract in full or in part in relation to the unfulfilled duties.
5. Should the hindrance last more than 3 months, the customer is entitled to withdraw from the unfulfilled part of the contract after a reasonable extension period. If the delivery time is extended or we are released from our obligation, the customer cannot derive any claims for damage from this. We shall only be entitled to the aforementioned circumstances if we notify the customer immediately.
6. If the customer is in default of acceptance or if he culpably infringes upon any other obligations to cooperate, we are entitled to demand compensation for any resulting damages, including any additional expenses. We reserve the right to make further claims.
7. If we are responsible for failing to meet binding deadlines and dates, or we are in default, the customer is entitled to a default payment of 0.5% for each completed week of the delay, up to a total of 5% of the invoice value of the deliveries and services affected by said delay. Any claims that exceed this are excluded, unless the delay is due at least to gross negligence on our part.
8. We are entitled to make partial deliveries or service provisions at any time, unless said partial deliveries or services are of no interest to the customer.
9. Should the customer be in default of acceptance, we are entitled to demand compensation for the damage incurred to us; with the occurrence of the default of acceptance, the risk of accidental deterioration and accidental loss is transferred to the customer.
§ 5. Transfer of risk
1. The risk is transferred to the customer as soon as the consignment has been handed over to the person performing the transport or has left our warehouse for dispatch, even if we have accepted the delivery.
2. Goods that have been reported as ready for dispatch are to be accepted immediately by the customer. Otherwise, we are entitled to send them at our own discretion or store them at the cost and risk of the customer.
3. In the absence of a special agreement, we shall choose the means of transport and route.
4. If the customer so desires, we shall cover the delivery with transport insurance; the costs incurred herein are to be met by the customer.
§ 6. Defects
1. In the event of defects, the customer shall first meet the legal obligation to inspect and report complaints in accordance with Section 377 of the HGB. Identifiable defects must be reported in writing within 7 days. Otherwise, the entire delivery is deemed approved.
The goods must not be accepted by the purchaser in the case of damage in transit, or rather only after written documentation and proof of the transport damage by the forwarder.
2. The customer cannot derive rights from defects that do not or only marginally impair the value and suitability of the goods for the use known to us.
3. If the goods are defective upon risk transfer, we are entitled and obliged to supplement said defect. Supplementary performance shall, at our discretion, constitute repair or replacement delivery, insofar as this is reasonable for the purchaser. The costs of supplementary performance, in particular transport, work and material costs, shall be incurred by us. Section 439, Para. 3 of the BGB applies.
4. Insofar as the supplementary performance fails, is deemed unreasonable for the customer, is not carried out within an appropriate period set by the customer or is refused, the customer is entitled to choose to withdraw from the contract, demand a reduction of the purchase price in accordance with the value of the defect (decrease) or claim damages within the limits of the following paragraphs.
5. Should a defect lead to a loss, we are liable within the framework of statutory provisions, providing it is a personal injury, said damage falls under the Product Liability Act (ProdHaftG) or is based on intent or gross negligence.
6. Insofar as the damage is based on a culpable violation of a major or material contractual obligation, we are only liable for the damage typical of the contract.
7. Any further contractual and tortious claims by the customer are excluded. In particular, we are not liable for damages that are not caused to the delivery item itself: likewise for loss of profit or other property damages incurred by the customer.
8. The above provisions do not apply to used goods. In this case, we shall only be liable for material defects in the event of express guarantee acceptance, intent or gross negligence.
9. Section 478 of the BGB remains unaffected by Paragraphs 2-4.
10. Claims pursuant to the preceding Paragraphs 2-8 shall be subject to a limitation period of one year from the delivery of goods, subject to Sections 438 No. 2, 634a Para. 1 No. 2, 479 of the BGB. Accordingly, the right to rescission and reduction as stipulated by statutory provisions is excluded.
11. We shall not be liable for any defects that arise from the failure to follow our operating and maintenance instructions, the replacement of parts or the use of materials that do not correspond to the original specifications, or the actions of unauthorised personnel. Should a defect occur and one of the above cases is present, the customer must prove that said defect was not caused by one of the above conditions.
§ 7. Retention of title
1. The ownership of the delivered goods shall remain in effect until all of our claims against the customer arising from the business relationship, including any future claims from simultaneous or later contracts, have been settled. This also applies if receivables are incorporated into a current invoice and the balance is drawn and acknowledged.
2. The customer is entitled to sell or process the goods within the ordinary course of business. They may only resell the goods under retention of title and if not fully paid for immediately by the third party. They shall further assume any processing for us without any resulting obligations being incurred by us. In the case of processing, combining or mixing of the retained goods with other products, a co-ownership share in the new item will arise for us – for processing, in the same ratio as the value (= invoice gross value including ancillary costs and tax) of the retained goods to the value of the new product; for combinations or mixes, in the ratio of the value of the retained goods to the value of the other item.
3. The customer hereby transfers to us all claims that arise from the resale to their own customers or third parties. Authorisation to collect said claims shall remain even after cession. Our entitlement to collect claims ourselves shall remain unaffected, but we shall not make use of this right as long as the customer duly meets their payment obligations and other duties. Upon request, the customer shall notify us of the transferred claims and their debtors, provide all necessary information for collection, submit all related documentation and inform the debtors of said transfer.
4. In the event of a breach of contract by the customer, in particular in the event of a delay in payment, we are entitled to withdraw from the contract and redeem the goods. For the purpose of redeeming the goods, the customer herewith irrevocably authorises us to enter their business and storage premises without hindrance and take our goods.
5. As far as and for as long as the retention of title exists, the customer may neither transfer nor pledge goods or products made from them without our agreement. Financing agreements (for instance leasing) which include the transfer of our pre-emption rights require our prior written agreement, unless the contract obliges the financing institution to pay the proportion of the purchase price to which we are entitled directly to us.
6. In the case of pledging or other interventions by third parties, the customer must notify us immediately in writing. They are prohibited from entering into any agreements with their customers which may affect our rights. They are obliged to insure the retained goods immediately against theft, machines, fire and water damage.
7. We undertake to release the securities to which we are entitled at the request of the customer and at our discretion insofar as the realisable value of the securities exceeds the claims to be secured by more than 20% or their nominal amount by more than 50%.
§ 8. Liability
1. Claims for damages are excluded, regardless of the nature of the breach of duty, including unauthorised acts, unless intentional or grossly negligent conduct is present.
2. In case of violation of basic contractual obligations, we shall be liable for negligence, but only up to the amount of foreseeable damage. Claims for loss of profit, savings, third party damage and other indirect and consequential damages cannot be demanded, unless a guaranteed version of the work provided by us is aimed at safeguarding the customer against such damages.
3. The limitations and exclusions of liability in the preceding Paragraphs 1 and 2 do not apply to claims arising out of malicious conduct on our part, or to liability for guaranteed characteristics, for claims pursuant to the Product Liability Act or to damages resulting from injury to life, limb or health.
4. Insofar as our liability is excluded or limited, this also applies to our employees, workers, representative and vicarious agents.
5. The limitation period for claims for defects is 12 months, calculated from risk transfer.
6. The statutory limitation period in the event of a supply regress as stipulated in Sections 478 and 479 of the BGB remains unaffected; this is 5 years, calculated from delivery of the defective item.
7. Any further liability for damages, as stipulated in Section 8, is excluded – regardless of the legal nature of the asserted claim. This particularly applies to claims for damages resulting from negligence at the time of contract conclusion, due to other breaches or tortious claims for the replacement of material damage in acc. with Section 823 of the BGB.
8. Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 9. Applicable law, jurisdiction, partial nullity
1. The law of the Federal Republic of Germany applies; the application of the UN Sales Convention is excluded.
2. If the customer is a merchant, a legal entity under public law or a special fund under public law, Hagen is the exclusive court for all disputes arising directly or indirectly from this contract.
3. Should a provision of these terms and conditions of sale and delivery be or become invalid, the validity of all other stipulations shall remain unaffected.
§ 10. Severance clause
Should one of the above provisions be legally invalid, the validity of the remaining stipulations and of the contract shall remain unaffected. Any invalid provisions shall be replaced by new regulations which have the same economic effect as their aim. Insofar as provisions have not become a contractual component, the content of the contract is governed by legal regulations.