General Terms and Conditions (GTC) of Esumedics GmbH, 09366 Niederdorf (Germany), as of 01 June 2024
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 reviewed on our homepage under www.esumedics.com.
II. Conclusion of Contract, Content of the Contract
Our offers, deliveries and services are exclusively subject to these terms and conditions. Deviating terms and conditions of the customer do not become part of the contract. They apply simultaneously to all future transactions, even if they are not expressly agreed upon again. Conflicting terms and conditions are expressly contradicted. 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 executing the order.
Technical and design deviations from descriptions and information on our homepage, in brochures, offers and written documents as well as changes in services, construction and materials in the course of technical progress are reserved, 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 may not be made available to third parties without our written consent and must be returned immediately upon request.
III. Prices, Payments
Unless otherwise agreed, our prices apply ex works including packaging and loading, plus shipping costs. In addition to the prices, VAT is added at the respective statutory rate.
If the applicable prices of our suppliers or other costs on our products increase in the period between the conclusion of the contract and delivery, we are entitled to increase the agreed prices to the appropriate extent.
Unless otherwise offered or agreed, our invoices are payable in advance.
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 questions between the customer and us have been clarified and that the customer has fulfilled all obligations incumbent on him, such as the provision of the necessary official approvals or the provision of information and advance payment. In the event of a delay caused by the customer, the customer will automatically be in default of acceptance after this period. The acceptance of the ordered and delivered goods is a main obligation of the customer. 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 must bear the additional costs of customs duties, fees, freight costs and other taxes and costs.
Our delivery date is met if our product has left the factory by the end of this date or if we have indicated that it is ready for shipment. If acceptance is to be carried out, the acceptance date shall be decisive; this does not apply in the case of a justified refusal of acceptance.
If we are not responsible for the delay, such as in the event of energy shortages for which we are not responsible, import difficulties, operational and traffic disruptions, strikes, force majeure or delays on the part of our suppliers, the performance period will be extended accordingly.
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 demand lump-sum compensation. It amounts to 0.5% for each full week of delay, but a maximum of 5% in total of the value of that part of the service that cannot be used on time or in accordance with the contract as a result of the delay. Further claims are excluded.
V. 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.
If the shipment or acceptance is delayed or omitted due to circumstances for which the customer is responsible, the risk shall pass to the customer as soon as we have notified him of the readiness for dispatch or acceptance.
VI. Retention of Title
The product delivered by us remains our property until full payment has been made (reserved goods).
We are entitled to insure the reserved goods against theft, breakage, fire, water and other damage at the customer’s expense, 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 to performance.
If the customer is more than ten days in arrears with a payment due in whole or in a significant part and a reasonable payment deadline set by us has expired without success, we can demand that the customer surrender the reserved goods, even without having previously declared withdrawal from the contract. The same applies if an insolvency application is filed for the customer’s assets and this 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 destruction 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 reserved goods. The customer bears any restocking costs incurred as a result of this measure.
VII. Claims for Defects (Warranty)
For all new products manufactured or distributed under its own name, the warranty is 24 months from the transfer of risk, whereby the labor costs incurred to remedy defects on site are not included. For other merchandise, the warranty is limited to the warranty of the respective manufacturer. Consumables, hygiene articles and order-related customer-specific articles are excluded from the warranty. Our liability extends to the fact that our products are free of defects 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 customer must inspect the product immediately upon receipt. Recognizable 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, Section 377 of the German Commercial Code (HGB) applies.
Failure to comply with the operating and maintenance instructions as well as changes or extensions to the hardware or software not approved by us will result in the expiry of the warranty claim and the exclusion of any liability. You must inspect the goods immediately upon receipt of them to determine defects, shortages or transport damage. 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 immediately, but no later than one week after receipt of the product. Defects that cannot be discovered within this period, even after careful examination, 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 removal of defects or replacement delivery.
We may, by our choice, demand that the defective part or device is sent to us at our expense for repair and subsequent return.
Any further damages are excluded. The customer must immediately give us sufficient opportunity for subsequent performance; 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. We are therefore not liable for damage that has not occurred to the product itself and not for other financial losses suffered by the customer.
VIII. Liability
- We are only 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) any mandatory legal liability of us or our legal representatives or vicarious agents. - Warranty claims against us are only available to the direct buyer and are not assignable. Notwithstanding the above provisions, liability for financial losses and consequential damages, in particular for loss of profit or loss of savings, is excluded, unless we have acted intentionally or through gross negligence. All claims – for whatever legal reasons – expire within 12 months after receipt of the goods. The statutory deadlines apply to intentional or fraudulent conduct, to claims under the Product Liability Act / Medical Devices Act and to recourse claims by the entrepreneur under Section 479 (1) of the German Civil Code.
IX. 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.
X. 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 performance is the company headquarters in Niederdorf. The place of jurisdiction in dealings with merchants is Chemnitz. However, we are entitled, at our discretion, to sue at the customer’s registered office.