§ 1 General, scope of application
These General Terms and Conditions of Sale of Geratherm Medical AG, Geratal (GTC) shall apply to all our business relations with our customers (hereinafter: "Customer"). Our GTC shall only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
Our deliveries and services are exclusively subject to our GTC. The validity of deviating general terms and conditions of sale of the customer is hereby expressly rejected unless these are accepted by us in writing. Our General Terms and Conditions shall also apply if we carry out the delivery without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our General Terms and Conditions.
Individual agreements made with the customer in individual cases (including subsidiary agreements, supplements and amendments) shall take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements.
Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
§ 2 Contents of the contract
Our offers are subject to change and non-binding. This also applies if we provide the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve property rights and copyrights; they may only be made accessible to third parties with our prior written consent.
The order of the goods by the customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks of its receipt by us.
Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
§ 3 Prices and terms of payment
Unless otherwise stated in the order confirmation, our current prices according to INCOTERMS 2020 "FCA, GERATAL" at the time of conclusion of the contract shall apply. These prices do not include transport costs, insurances or other additional costs.
The minimum order value is 500 euros.
We reserve the right to increase our prices appropriately one month after conclusion of the contract if cost increases occur after conclusion of the contract, in particular due to collective wage agreements or material price increases.
Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due 30 days after receipt of the invoice. If the terms of payment are not complied with or if there are justified doubts about the creditworthiness of the customer, we may demand advance payment of all outstanding invoices, including those not yet due. If the payment deadline is exceeded, we shall be entitled to charge interest on arrears from the date of receipt of the first reminder.
However, we are also entitled to make a delivery in whole or in part only against advance payment. This reservation shall be declared with the order confirmation at the latest.
Insofar as it becomes apparent after conclusion of the contract that our claim to payment of the purchase price is or becomes endangered by the buyer's lack of ability to pay (e.g. due to an application for insolvency), we shall be entitled to refuse performance in accordance with the statutory provisions and - under certain circumstances after setting a deadline - to withdraw from the contract concluded, § 321 BGB (German Civil Code). Insofar as a contract has been concluded for the manufacture of an unjustifiable item, we may declare withdrawal immediately. The statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 4 Delivery period and delay in delivery
The delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period is generally approx. twelve (12) weeks from the conclusion of the contract.
If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non- availability of the service), we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A case of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our suppliers to deliver on time if we have concluded a congruent hedging transaction, neither we nor our suppliers are at fault or we are not obliged to procure in the individual case.
The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required.
The rights of the customer pursuant to § 5, 6 of these GTC and our statutory rights in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
§ 5 Delivery, transfer of risk, acceptance, default of acceptance
Delivery is made ex warehouse, which is also the place of performance. At the customer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
The customer may not refuse to accept the goods due to insignificant defects.
If the customer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses.
§ 6 Warranty
The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery), unless otherwise stipulated below.
The basis of our liability for defects is above all the agreement reached on the quality of the goods. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory regulations whether a defect exists or not. We do not accept any liability for public statements. Defects do not include natural wear and tear or damage occurring after the transfer of risk as a result of faulty or negligent operation, excessive use or as a result of special external influences which are not assumed under the contract.
The customer's claims for defects presuppose that he has fulfilled his statutory obligations to examine the goods and give notice of defects. If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. The notification shall be deemed to have been made without delay if it is made within 10 days, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer shall notify us in writing of obvious defects (including incorrect and short deliveries) within 10 days of delivery, whereby timely dispatch of the notification shall also suffice to meet the deadline. If the customer fails to duly inspect the goods and/or notify us of defects, our liability for the non-notified defect and the assertion of claims for defects shall be excluded. Section 377 of the German Commercial Code (HGB) shall apply.
If the delivered item is defective, the customer may first demand elimination of the defect (rectification) as subsequent performance, unless the delivery of a defect-free item (subsequent delivery) is absolutely necessary for the customer and can be provided by us at reasonable cost. We shall be granted a reasonable time and opportunity for subsequent performance. If this opportunity is refused, we shall be released from subsequent performance and further claims for defects to this extent.
We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
The customer shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs). However, if a customer's request to remedy the defect proves to be justified, we can partially reimburse the resulting costs.
If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, there is no right of withdrawal.
Claims of the customer for damages exist only in accordance with § 7 and are otherwise excluded.
§ 7 Liability
Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
We shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable a) for damages arising from injury to life, limb or health, b) for damages arising from the breach of a material contractual obligation (an obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
The limitations of liability resulting from para. 2 do not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the customer under the Product Liability Act.
The customer may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we are responsible for the breach of duty. A free right of termination on the part of the customer is excluded.
§ 8 Misuse
If goods are manufactured by us for he customer or delivered to the customer, these goods shall be based on the technical specifications stated by the customer, taking into account the conditions of use stated by the customer. The customer is aware that use of the goods outside the technical series specification or outside the specification agreed in the individual case is questionable and can lead to personal injury and damage to property. We accept no liability whatsoever for personal injury, property damage or financial loss caused by goods supplied by us and not used for the purpose designated by us.
§ 9 Retention of title
We retain title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if and to the extent that third parties seize the goods belonging to us.
In the event of conduct by the customer in breach of contract, in particular in the event of non- payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and withdrawal. If the customer does not pay the due purchase price, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
The customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
- (a) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
- (b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
- (c) The customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
- (d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer's request.
§ 10 Limitation
Notwithstanding § 438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
This shall be without prejudice to special statutory provisions for claims in rem for the surrender of goods by third parties (§ 438 para. 1 no. 1 BGB), in the event of fraudulent intent (§ 438 para. 3 BGB) and for claims in supplier's recourse in the event of final delivery to a consumer (§ 479 BGB).
The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases.
The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the customer's claims for damages.
§ 11 Data protection
We will comply with the relevant statutory provisions with regard to your personal data, in particular the German Data Protection Regulation (DS-GVO) and the German Federal Data Protection Act (BDSG-neu), in particular within the scope of processing pursuant to Art. 6 para. 1 lit. b) and/or f) DSGVO (hereinafter "Processing").
Your personal data will be processed by us if, to the extent and for as long as this is necessary for the establishment, performance and termination of our contract. Further processing of your personal data will only take place if required or permitted by law or if you have consented to it.
You are aware that in order to carry out pre- contractual measures and to fulfil our contract, the processing of, among other things, your name, company name, address, date of birth and bank details is necessary.
We are entitled - within the scope of what is legally permissible - to check the risk of non-payment on your part for the purpose of deciding on the establishment, execution and termination of the contract.
We are further entitled to pass on your data to third parties if and insofar as this is necessary for the implementation of pre-contractual measures and the fulfilment of a contract (e.g. for shipping, invoicing or customer care) or a legal obligation within the meaning of Art. 6 Para. 1 lit. c) DS-GVO. We may also pass this data on to third parties (e.g. debt collection companies) for processing for the purpose of enforcing claims - within the scope of what is legally permissible.
Subject to the legal requirements, we will provide you with information about the stored personal data relating to you free of charge upon request (Art. 15 DSGVO). You have the right, under the legal conditions, to demand the correction (Art. 16 DSGVO), deletion (Art. 17 DSGVO), restriction of processing (Art. 18 DSGVO) or transfer of your data to a third party (Art. 20 DSGVO). You also have the right to lodge a complaint with a supervisory authority (Art. 77 DSGVO).
§ 12 Applicable law, place of jurisdiction and language
The business relationship between us and the customer and these General Terms and Conditions shall be governed exclusively by the law of the Federal Republic of Germany to the express exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
The exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship is our registered office in Geratal, Germany.
In the event of any discrepancies between the German and English versions of these GTC, the German version shall prevail exclusively.
The General Terms and Conditions of Geratherm Medical AG can also be downloaded here.
Geratherm Medical AG, Geratal – Allgemeine Geschäftsbedingungen Version 03/2023