General Terms and Conditions (GTC) of Esumedics GmbH, 09366 Niederdorf (Germany), as of July 01, 2023
I. Applicability
Our following terms and conditions apply to all our legal transactions with entrepreneurs, legal entities under public law and special funds under public law. They can be accessed on our homepage at esumedics.com. The scope of our general terms and conditions extends to the use of our online shop (shop.esumedics.com) as well. By using the shop, the customer accepts the GTC without any restriction.
II. Conclusion of Contract, Content of Contract
Our offers, deliveries and services are always based on these terms and conditions. Deviating terms and conditions of the customer shall not become part of a contract at all. Our GTC apply simultaneously to all future transactions, even if they are not expressly agreed upon again. Conflicting terms and conditions are expressly rejected. At the latest upon receipt of the delivery or service, our terms and conditions are deemed to have been accepted.
Our offers are valid for a maximum of thirty days. Contracts are concluded solely by our written order confirmation or by execution of the order.
We reserve the right to deviate from technical and design standards from descriptions and information on our homepage, in brochures, offers and written documents, as well as changes in performance, design and materials in the course of technical progress, without the customer being able to derive any rights from them. Information about our products (technical data, dimensions, etc.) are only approximate; they are not a guaranteed quality unless the warranty is expressly made in writing.
We reserve the right of ownership and copyright to samples, drawings, cost estimates, etc. – also in electronic form. They are not allowed to be forwarded to third parties without our written consent and must be returned immediately upon request.
III. Prices, Payments
Unless otherwise agreed, our prices are based ex-works including packaging. VAT, applicable custom duties and other fees are added at the respective statutory level.If, in the period between conclusion of the contract and delivery, the applicable prices of our suppliers or other costs on our products increase, we are entitled to increase the agreed prices to the corresponding extent.
Unless otherwise agreed, our invoices are payable without deduction 14 days after the invoice date. We are entitled, notwithstanding the Buyer’s provision to the contrary, to initially offset payments against the Buyer’s older debt. If costs and interest have already been incurred, we are entitled to offset the payment first against the costs, then against the interest and finally against the main service. If the buyer fails to meet his payment obligations in accordance with the contract, or if he stops making payments, or if we become aware of other circumstances that call into question the creditworthiness of the buyer, we are entitled to make the entire remaining debt due, to demand advance payment or security deposits. Offsetting and rights of retention of the customer against our receivables from goods and services are excluded, unless the counterclaim is undisputed, legally established or it is based on an alleged defect in the product delivered by us for which we demand payment.
IV. Delivery
The dates and deadlines mentioned by us are non-binding, unless expressly agreed otherwise in writing. The customer is obliged to accept the ordered goods within 4 weeks from the delivery date confirmed by us. Our timely performance requires that all commercial and technical issues have been clarified between the customer and us and that the customer has fulfilled all obligations incumbent on him, such as the provision of necessary official permits or deposits. In the event of a delay caused by the customer, the customer will automatically be in default of acceptance after the expiry of this period. The acceptance of the ordered and delivered goods is a primary obligation of the customer. In the event of default of acceptance, we are entitled to immediately invoice the ordered goods and their payment is due in full within the agreed payment period from the date of invoice. At the time of invoicing, the customer is given access to the ordered goods by picking them up at our factory. We have the right to make partial deliveries to a reasonable extent. If the customer requests partial deliveries, he has to bear the additional expenses of customs duties, fees, freight costs and other taxes and costs.
Our delivery date is met if our product has left the factory by this date or if we have indicated readiness for shipment. Insofar as an acceptance is to be carried out, the acceptance date is decisive; this does not apply in the event of justified refusal of acceptance.
If we are not responsible for the delay, such as in the event of an energy shortage for which we are not responsible, import difficulties, operational and traffic disruptions, strikes, force majeure or delays by our suppliers, the performance time will be extended appropriately.
If we are responsible for the delay, the customer can withdraw from the contract in accordance with the statutory provisions. If the customer suffers damage as a result of the delay, he is entitled to claim lump-sum compensation. It shall be 0.5% for each full week of delay, but not more than 5% in total of the value of that part of the service which, as a result of the delay, cannot be used on time or cannot be used in accordance with the contract. Further claims are excluded.
V. Corona (Covid 19) Clause
If we are hindered in the performance of our contractual performance by effects that are directly or indirectly related to the corona virus (Covid 19) or a mutation thereof, the following applies:
- An impediment in the performance of services exists in particular if quarantine measures are imposed on our company or a not insignificant part of our company or a supplier due to the occurrence of the corona virus or a mutation thereof,
- officially ordered business closures, curfews, travel bans or foreign return orders/bans are issued,
- necessary material or service from abroad is not available due to officially ordered entry bans or supply chains are interrupted by official measures,
- a not inconsiderable proportion of our employees are in quarantine due to an infection with the corona virus or a mutation thereof.
In this case, we are obliged to inform the customer immediately of the occurrence of the disability and its effects in text form.
In this case, we are entitled to extend our delivery dates and deadlines depending on the extent and duration of the hindrance and its consequences, without the customer being entitled to a right of withdrawal from the contract or a claim for damages. We will not be in arrears due to the extension of our delivery dates and deadlines.
Both parties are obliged to do everything in their power and reasonable to mitigate damages. Insofar as the interruption due to the disability lasts longer than 6 months, we are entitled to terminate the contract in whole or in part, without the customer being able to derive any claims for compensation from this.
VI. Transfer of Risk, Insurance
The risk passes to the customer as soon as the product has left our factory or distribution warehouse. This also applies if we take over other services, such as shipping costs or delivery. Insofar as an acceptance has to take place, the risk is transferred upon acceptance.
If shipment or acceptance is delayed or omitted due to circumstances for which the customer is not responsible, the risk is transferred to the customer as soon as we have notified him of readiness for dispatch or acceptance.
VII. Retention of Title
The product delivered by us remains our property until full payment has been made (goods subject to retention of title).
We are entitled to insure the goods subject to retention of title against theft, breakage, fire, water and other damage at the expense of the customer, unless the customer can prove to us that he has taken out appropriate insurance himself. As a result, the customer assigns all claims against his insurer to us if he invokes one of the aforementioned impediments.
If the customer is more than ten days delayed with a payment due in whole or to a significant extent and a reasonable payment deadline set by us has elapsed without success, we may demand the return of the goods subject to retention of title from the customer, even without having previously declared our withdrawal from the contract. The same applies if the client’s assets are filed for insolvency and the client is not withdrawn within 20 days from the date of filing the application. If the customer does not comply with the demand for surrender or if there is a risk of loss or loss of the goods subject to retention of title, we are entitled to take possession of the goods subject to retention of title. For this purpose, we are allowed to enter the location of the goods subject to retention of title. Take-back costs incurred as a result of this measure shall be borne by the customer.
VIII. Claims for Defects (Warranty)
For all new products manufactured or distributed under the company’s own name, the warranty is 24 months from the transfer of risk, whereby the labor costs incurred for the on-site rectification of defects are included within the first 12 months. For other merchandise, the warranty is limited to the warranty of the respective manufacturer. Consumables, hygiene products and customer-specific items are excluded from the warranty. Our liability extends to the absence of defects in our products in accordance with the state of the art. Our liability is excluded:
a) if our products are not properly transported, stored or used by the customer or by third parties;
b) in the event of natural wear and tear;
The microbiological purity (CFU/g) ≤ 30 for medical masks can no longer be guaranteed as soon as the plastic outer packaging is damaged or opened.
The customer must inspect the product immediately upon receipt. Identifiable defects must be reported to us in writing within one week of receipt of the product. If this does not happen, the product is considered approved. In addition, § 377 HGB applies.
Failure to comply with the operating and maintenance instructions as well as modifications or extensions of the hardware or software not approved by us will void the warranty claim and exclude any liability. Upon receipt of the goods, you must inspect them immediately to detect defects, shortages or damage in transit. In the event of transport damage, a damage report must be drawn up to secure any claims for damages against the transport company. You must notify us in writing of any defects without delay, but no later than within one week of receipt of the product. Defects that cannot be discovered within this period even after careful inspection must be reported to us in writing immediately after discovery.
Our legal liability due to defects is limited to subsequent performance, i.e. at our discretion to remedy defects or to provide a replacement.
We may, at our option, request that
a) the defective part or device be sent to us at our expense for repair and subsequent return; or
b) the customer has the defective part or device ready and a service technician is sent by us to the buyer to carry out the repair.
Any further compensation is excluded. The customer must immediately give us sufficient opportunity to remedy the situation; otherwise, we are exempt from liability for the resulting consequences. The customer must return the replaced parts to us. If the subsequent performance has failed, the customer is entitled to reduce the consideration or – in the case of significant defects – to withdraw from the contract.
Further claims by the customer due to defects are excluded. Therefore, we are not liable for damages that have not occurred to the product itself and not for other financial losses of the customer.
IX. Liability
- We shall only be liable for damages in the event of:
a) intentional or grossly negligent fault on the part of us or our legal representatives or vicarious agents;
b) negligent breach of a material contractual obligation (cardinal obligations) by us or our legal representatives or vicarious agents, but limited to typical damages that were foreseeable at the time the contract was concluded;
c) negligence on the part of us or our legal representatives or vicarious agents causing injury to life, limb or health; or
d) a mandatory legal liability of us or our legal representatives or vicarious agents. - Warranty claims against us are only available to the immediate buyer and are not assignable. Notwithstanding the above provisions, liability for financial losses as well as consequential damages, in particular for loss of profit or lost savings, is excluded, unless we have acted intentionally or with gross negligence. All claims – for whatever legal reasons – become time-barred within 12 months of receipt of the goods. The statutory deadlines apply to intentional or fraudulent conduct, to claims under the Product Liability Act / Medical Devices Act as well as to recourse claims by the entrepreneur pursuant to Section 479 (1) of the German Civil Code (BGB).
X. Export
The export of our goods to non-EU countries requires our prior written approval, regardless of the fact that the customer is responsible for obtaining any official import and export permits himself.
XI. Choice of Law; Place of performance; Venue
The law of the Federal Republic of Germany applies. The UN Convention on Contracts for the International Sale of Goods is excluded.
The place of fulfilment is the company’s headquarters in Niederdorf (Germany).
The place of jurisdiction in dealings with merchants is Chemnitz. However, we are also entitled, at our option, to sue at the customer’s registered office.