General Terms and Conditions (B2B-GTC)
of Andreas Fahl Medizintechnik-Vertrieb GmbH for Business Transactions
§1 Scope and General Information
- These General Terms and Conditions for business transactions ("B2B-GTC") apply to all our business relationships with our business customers and resellers ("Purchaser").
- These B2B-GTCs shall apply in particular to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB [German Civil Code]). Unless otherwise agreed, the B2B-GTCs in the version valid at the time of the order placed by the Purchaser or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
- Our deliveries, services and offers are made exclusively on the basis of these B2B-GTCs; we do not recognise any terms and conditions of the Purchaser which are in conflict with or deviate from our B2B-GTCs unless we have expressly agreed to their validity in writing. Our GTCs shall even apply if the Purchaser refers to his general terms and conditions within the scope of the order and we do not expressly object to same.
- Our B2B-GTCs shall apply only to entrepreneurs (§ 14 BGB), legal entities under public law and special funds under public law.
- Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation shall take precedence over these B2B-GTCs. In cases of doubt, commercial clauses shall be interpreted in accordance with the Incoterms issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
- Legally relevant declarations and notifications by the Purchaser with regard to the contract (e. g. setting of deadlines, notification of defects, rescission or reduction) must be made in written form. Written form within the meaning of these B2B-GTCs includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in case of doubt about the legitimacy of the declarant, shall remain unaffected.
- References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these B2B-GTCs.
2§ Conclusion of the Contract
- Our offers are non-binding and tentative and subject to prior sale, unless they are expressly marked as binding. This shall also apply if we have provided the Purchaser with samples, catalogues, other product descriptions or documents - also in electronic form - to which we reserve ownership rights and copyrights.
- The order of Goods by the Purchaser shall be deemed as a binding contractual offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two (2) weeks upon receipt by us.
- Acceptance of contractual offers can be declared by us either in writing (e.g. by order confirmation) or by delivery of the Goods to the customer.
- The documents supplied by the Purchaser (information, drawings, samples or similar) are definitive for us; the Purchaser is liable for their correctness in terms of content, technical feasibility and completeness; we are not obliged to check these.
3§ Prices, Terms of Payment
- Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory sales tax.
- Unless otherwise agreed in individual cases or unless otherwise stated in the order confirmation, our prices shall be ex works (according to Incoterms 2020 or the respective current version) from our premises in Cologne. Costs for packaging are not included in the prices, unless expressly agreed otherwise.
- Unless otherwise agreed in individual cases, our invoices are due for payment net (without deduction) within 20 days of the invoice date and receipt of the invoice. However, we shall be entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation no later than with the order confirmation.
- Upon expiry of the aforementioned payment deadline, the Purchaser shall be in default. During the period of default, the purchase price shall bear interest at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by delay. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB [German Commercial Code]) remains unaffected.
- The Purchaser shall not be entitled to withhold payments due to counterclaims or to set them off against counterclaims, unless these have been acknowledged by us, are uncontested or have been legally established. The Purchaser’s counter-rights arising from the same contract due to defects, non-performance and/or unfinished or incomplete performance shall remain unaffected hereby.
- If, after conclusion of the contract, it becomes apparent (e.g. through termination of the trade credit insurance or application for the opening of insolvency proceedings) that our claim to the purchase price is in jeopardy by the Purchaser's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of specific items (custom-made products), we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
4§ Delivery Time, Delay in Delivery, Force Majeure
- Unless expressly agreed otherwise, information on delivery times is only approximate. A delivery period shall not commence until all details of execution have been clarified and both parties have agreed on the terms of the order. Agreed delivery dates will be rescheduled accordingly.
- Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the obligations incumbent upon the Purchaser. In particular, this includes the timely and complete delivery of the documents to be supplied by the Purchaser, insofar as we perform the order according to drawings, specifications, samples, requirements and / or other documents of the Purchaser. Plea of non-performance of the unfilled part of the contract shall remain reserved.
- Occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. However, a reminder shall be required under all circumstances.
- If we are prevented from timely delivery or performance through force majeure, for example labour disputes for which we are not responsible, official measures, energy or raw material shortages, transport bottlenecks or hindrances, pandemics or epidemics and measures to combat them, operational hindrances, e.g. through fire, water and / or machine damage, or other disruptions in the operational process at our premises or those of our suppliers / subcontractors for which we are not responsible and which are demonstrably of considerable influence, we shall be obliged to inform the Purchaser immediately. In such cases, we shall be entitled to postpone the time of delivery or performance by the duration of the event of force majeure or the disruption, provided that we have complied with our aforementioned obligation to provide information. If the delivery or service becomes impossible as a result, our obligation to perform shall be void to the exclusion of compensation for damages. If the Purchaser proves that the subsequent performance is of no interest to him as a result of the delay, he may withdraw from the contract to the exclusion of any further claims. If the event of force majeure or if the disruption lasts longer than one month, we may withdraw from the contract with regard to the part not yet fulfilled if we have complied with our aforementioned information obligation and insofar as we have not assumed the procurement risk or a delivery guarantee. Force majeure is any external event caused by elementary forces of nature or by the actions of third parties, which is unforeseeable according to human perception and experience, which cannot be prevented or rendered harmless by economically acceptable means, even by utmost care reasonably to be expected under the circumstances, and which is also not to be accepted by us due to its frequency.
- Provision 4.4 shall apply accordingly insofar as we have concluded a congruent covering transaction with the Purchaser prior to conclusion of the contract which, if it had been properly executed, would have enabled us to fulfil our contractual delivery obligations to the Purchaser, and we are not supplied, not supplied correctly and/or not supplied on time by our supplier and we are not responsible for this.
- If we are in default, the Purchaser shall be entitled to set a reasonable period of grace in writing and to withdraw from the contract in the absence of a successful outcome. Granting a grace period shall not be required if we seriously and ultimately refuse performance or if the underlying contract is a transaction for delivery by a fixed date within the meaning of Section 323 (2) No. 2 of the BGB or Section 376 of the HGB or if there are special circumstances which, taking into account the interests of both Parties, justify immediate rescission.
- The rights of the Purchaser pursuant to § 8 of these B2B-GTCs 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 Passing of Risk
- Unless otherwise stated in the order confirmation, delivery ex works (according to Incoterms 2020 or the respective current version) shall be agreed. Place of delivery and place of performance are our premises in Cologne. This shall also apply if we have assumed shipping costs or have disbursed them for the Purchaser or if partial deliveries are made.
- If the Purchaser falls into default of acceptance or if the delivery is delayed for reasons for which the Purchaser is responsible, we shall be entitled to claim indemnification for the resulting damage including all additional expenses. In such caseswe shall store the goods at the Purchaser’s risk and charge the Purchaser for this storage accordingly.
- The Purchaser shall inform us in writing if he wishes a special method of transport and/or transport insurance cover for the shipment; the costs incurred in this respect shall be borne by the Purchaser, even if we have otherwise assumed the transport costs as an exception.
- We shall be authorised to make partial deliveries insofar as this is reasonable for the Purchaser, and taking his interests into account.
- Insofar as acceptance has been agreed, this shall be decisive for passing of the risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly for an agreed acceptance, unless otherwise stipulated below.
- Insofar as acceptance is to be performed, the Goods shall be deemed as having been accepted when
- delivery and, insofar as we are also responsible for installation, installation has been completed,
- we have notified the Purchaser thereof with reference to the deemed acceptance pursuant to this provision 5.5 and have requested the Purchaser to accept the Goods,
- 20 working days have passed since delivery or installation, and
- the Purchaser has failed to accept the Goods within this period of time, unless the failure to accept was due to a defect notified to us which makes the use of the purchased Goods impossible or significantly impairs their use.
- Transfer or acceptance shall be deemed to have taken place if the Purchaser is in default of acceptance.
- Upon request by and at the expense of the Purchaser, the goods shall be dispatched to a different destination (sale involving the carriage of goods). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular carrier, shipping method, packaging).
- Insofar as the carriage of goods was agreed, the risk of accidental loss and accidental deterioration of the goods shall already pass to the Purchaser upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. This shall also apply if we have assumed shipping costs or have disbursed them for the Purchaser or if partial deliveries are made. If dispatch or handover is delayed for reasons attributable to the Purchaser, the risk shall pass to the Purchaser from the day on which the goods are available for dispatch and we have notified the Purchaser accordingly.
§6 Retention of Title
- We shall 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).
- Without our express written consent, the Purchaser may neither pledge the reserved goods to third parties nor assign them by way of security until the secured claims have been paid in full. In the event of pledging or other interventions by third parties, the Purchaser must immediately notify us in writing so that we can file a lawsuit in accordance with § 771 German Code of Civil Procedure [Zivilprozessordnung – ZPO]. Insofar as the lawsuit has been successful and the third party is not able to reimburse us for the judicial or extrajudicial costs of the lawsuit pursuant to § 771 ZPO, the Purchaser shall be liable for the costs incurred by us.
- The Purchaser shall be entitled to resell the delivered goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including statutory sales tax) of our claims accruing to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The Purchaser shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected hereby. However, we shall be obliged not to collect the claim as long as there are no objections to bills of exchange or cheques, the Purchaser fulfils his payment obligations from the collected proceeds, is not in default of payment and no petition for the opening of insolvency proceeds has been filed against his assets. If this is the case, however, we may request that the Purchaser informs us of the assigned claims and their debtors, provides all information required for collection, hands over relevant documentation and discloses the assignment to the debtors (third parties).
- Processing or transformation by the Purchaser of the reserved Goods delivered by us shall always be performed on our behalf. If the reserved goods delivered by us are processed with other items / materials which do not belong to us, we shall acquire co-ownership of the new item at a pro rata value of the reserved goods to the other processed items / materials at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under reservation.
- If the reserved Goods delivered by us are inseparably mixed with other items / materials not belonging to us or combined in such a manner that they become essential components of a single object, we shall acquire co-ownership of the new object at a pro rata value of the reserved Goods to the other mixed or combined items / materials at the time of the combination or mixing. If the combination or mixing is effected in such a manner that the item of the Purchaser is to be regarded as the main item, it is hereby agreed that the Purchaser shall transfer co-ownership to us on a pro rata basis. The Purchaser shall keep the co-ownership thus created in safe custody for us. In all other respects, the same shall apply to the item created by combining or mixing as to the Goods delivered under reservation.
- The Purchaser shall be obliged to treat the reserved Goods with care; in particular, he shall be obliged to insure them adequately at his own expense against fire, water damage and theft at their replacement value. Insofar as maintenance and inspection work is required, the Purchaser must perform this in good time at his own expense.
- In the event of loss of or damage to the reserved Goods, the Purchaser shall assign to us any existing claims to insurance benefits to the amount of the final invoice (including sales tax) of our claims in respect of the delivery item as additional security in advance.
- If, in the case of deliveries abroad, specific measures and/or declarations on our part are required by the importing country for the above-mentioned retention of title or other rights described in the preceding paragraphs to become effective, the Purchaser shall notify us thereof in writing or in text form without undue delay and shall perform and/or submit these measures and/or declarations at ihis own expense without undue delay. If the laws of the importing country do not permit retention of title, the Purchaser shall be obliged to provide us with other suitable security for the delivered goods or other security at his own expense without undue delay and at reasonable discretion (§ 315 BGB).
- We shall undertake to release the securities to which we are entitled at the request of the Purchaser to the extent that the recoverable value of our securities exceeds the claims to be secured by more than 10%; the choice of securities to be released shall be incumbent upon us.
- The statutory provisions shall apply to the Purchaser’s rights in the event of material defects or defects in title (including incorrect and short deliveries, as well as incorrect assembly/installation or inadequate instructions) unless otherwise specified below.
- In all cases, the special statutory provisions on the reimbursement of expenses in the case of final delivery of the newly manufactured goods to a consumer (supplier's recourse pursuant to §§ 478, 445a, 445b or §§ 445c, 327 Section 5, 327u BGB) shall remain unaffected, unless an equivalent compensation has been agreed, for example within the scope of a quality assurance agreement.
- The basis of our liability for defects is above all the agreement reached on the quality and the intended use of the Goods (including accessories and instructions). Product descriptions or manufacturer's specifications shall only be deemed to be an agreement on quality in this sense if this was contractually agreed or such descriptions or specifications were made public by us (in particular in catalogues) at the time the contract was concluded.
- Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulations as to whether a defect exists or not (§ 434 Section 3 BGB). Public statements made by the manufacturer or on his behalf, in particular in advertising or on the label of the Goods, shall take precedence over statements made by other third parties.
- In the case of goods with digital elements or other digital content, we only owe availability and, if applicable, updating of the digital content insofar as this expressly results from a quality agreement in accordance with the preceding provision 7.3. We accept no liability in this respect for public statements made by the manufacturer and other third parties.
- The warranty rights of the Purchaser require that he has duly fulfilled his obligations to inspect the Goods and make a complaint in accordance with § 377 HGB. If the contractual relationship between us and the Purchaser is a contract for work, § 377 HGB shall apply accordingly. Goods intended for installation or other further processing, shall be subject to an inspection under all circumstances, at the latest prior to installation or processing.
- If an acceptance inspection of first-sample check has been agreed with the Purchaser, a claim for defects which the Purchaser would have been able to identify through proper inspection or a first-sample check shall be excluded.
- If the delivered Goods or the manufactured work is defective, we may first choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering Goods free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Purchaser in the individual case, the Purchaser may reject it. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
- We shall be entitled to make the owed subsequent performance conditional upon the Purchaser effecting payment of the agreed purchase price. However, the Purchaser shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
- The Purchaser shall be obliged to give us the time and opportunity necessary for subsequent performance, in particular to provide us with the Goods subject to complaint. In the event of a replacement delivery, the Purchaser shall return the defective goods as per statutory regulations to us upon our request. Subsequent performance shall not include the disassembly, removal or deinstallation of the defective Goods or the installation, attachment or fitting of a defect-free item if we were not originally obliged to perform these services; claims by the Purchaser for reimbursement of corresponding costs ("disassembly and installation costs") shall remain unaffected.
- We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, disassembly and installation costs, in accordance with the statutory provisions and these GTCs, if a defect actually exists. Otherwise, we may demand reimbursement from the Purchaser for the costs incurred as a result of the unjustified request to remedy the defect if the Purchaser was aware or was negligent in not knowing that there was in fact no defect.
- If subsequent performance has failed or if a reasonable period to be set by the Purchaser for subsequent performance has expired unsuccessfully or is dispensable according to statutory provisions, the Purchaser may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In case of a minor defect, however, no right of rescission shall exist.
- Claims by the Purchaser with regard to damages or reimbursement of futile expenses shall only also exist for defects subject to § 8 of these General Terms and Conditions and are otherwise excluded. § 9of these GTCs shall apply to the limitation periods.
§8 Exclusions and Limitations of Liability
- Subject to the stipulations in provisionv 8.2 we shall be liable for damages – in case of contractual, non-contractual or other claims for damages irrespective of the legal grounds, in particular for defects, default and impossibility, culpa in contrahendo and tort – only in case of intent and/or gross negligence, including intent and/or gross negligence of our representatives or vicarious agents. In addition, we shall also be liable in case of simple negligence, including simple negligence of our representatives and vicarious agents, for any damage arising from the breach of an integral contractual obligation, i. e. an obligation the fulfilment of which is essential for the proper performance of the contract and upon which the Purchaser may therefore regularly rely (cardinal obligation). Insofar as we are not blamed for an intentional breach of duty, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.
- The exclusions and limitations of liability governed in provision 8.1 shall not affect claims for damage arising from injury to life, limb or health or claims by the Purchaserer under the Product Liability Act [Produkthaftungsgesetz – ProdHaftG], the statutory special provisions for final delivery of the goods to a consumer and other mandatory statutory liability provisions. The above exclusions and limitations of liability shall also not apply if we have fraudulently concealed a defect or if the Purchaser is liable from the assumption of a guarantee or because of the assumption of the procurement risk.
- The provisions 8.1 to 8.2 shall also be applicable if the Purchaser claims compensation for futile expenses instead of damages in lieu of performance.
- Insofar as our liability is excluded or limited, this shall also apply with regard to the personal liability for damages for our employees, personnel, staff, representatives and vicarious agents which is based upon identical legal grounds.
§9 Statute of Limitations
- The Purchaser’s claims arising from material defects or defects in title shall become statute-barred one year as of delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
- Mandatory limitation deadlines shall remain unaffected. Relief from the statute of limitations given in provision 9.1 shall not apply to claims due to injury to life, limb or health, for claims caused through intent and / or gross negligence as well as claims due to the assumption of a guarantee or the assumption of procurement risks. Longer limitation periods as in accordance with § 438 Section 1 No. 1 BGB (rights in rem of a third party) and §§ 438 Sections 3 and 634a Section 3 BGB (malice) shall also remain unaffected. If the last contract in the supply chain is a sale of consumer goods within the meaning of § 474 BGB (i. e. final delivery of the goods to a consumer), the limitation periods pursuant to § 445b BGB shall also remain unaffected.
- The limitation periods resulting from provisions 9.1 and 9.2 for claims due to material defects and defects of title shall apply accordingly to competing contractual and non-contractual claims for damages of the Purchaser based on a defect of the contractual Goods. However, if in an individual case the application of the statutory limitation rules should lead to an earlier limitation of competing claims, the statutory limitation period shall apply to the competing claims. Statutory limitation deadlines under the Product Liability Act shall remain unaffected in any case.
- Insofar as the statute of limitations for claims against us is shortened in accordance with provisions 9.1 to 9.3, this shortening shall apply accordingly to any of the Purchaser’s claims based on identical legal grounds against our legal representatives, employees, staff, agents as well as performing and vicarious agents.
§10 Rights of Rescission; Exchange/Return Beyond Warranty
- The Purchaser shall only be entitled to rescind the contract due to a breach of duty by us not consisting in a defect if we can be held responsible for the breach of duty.
- In all other respects, all products delivered by us shall be excluded from exchange and return beyond the warranty right (§ 7). A return of the Goods is permitted in exceptional cases provided that we have declared our consent in writing or in text form and that the Goods are returned to us carriage paid, in their original packaging, undamaged and in perfect hygienic condition within seven days upon receipt of the Goods. A return of the Goods is only possible against a processing charge corresponding to the expenditure. If the examination of the returned Goods shows that these return conditions have been met in full, we shall issue a credit note for the invoice amount of the returned Goods deducting the handling fee therefrom accordingly.
- Custom-made products, sterile goods and hygiene articles (in particular articles intended to be used in direct body contact) shall generally remain excluded from exchange and return.
§11 Compliance, Export Controls
- With regard to the contractual relationship, the Purchaser shall be obliged to comply with the statutory provisions applicable to him in each case. This applies in particular to anti-corruption and money laundering laws as well as antitrust, labour and environmental protection regulations.
- The Purchaser shall comply with the applicable export control and sanction regulations and laws of the European Union (EU), the United States of America (US/USA) and other jurisdictions ("Export Control Regulations").
- The Purchaser shall inform us in advance and provide us with all the information (including final destination) required for us to comply with export control regulations, in particular if our products, technology, software, services or other Goods are ordered for use in connection with
- a country or territory, natural or legal person, that is subject to restrictions or prohibitions under EU, US or other applicable export control and sanction regulations, or
- the design, development, production or use of military or nuclear goods, chemical or biological weapons, missiles, space or aircraft applications and delivery systems in this respect.
- The fulfilment of contractual obligations by us is subject to the proviso that the applicable export control regulations do not preclude this. In such a case, we shall therefore be entitled in particular to refuse or withhold performance of the contract without any liability to the Purchaser.
- Should the Purchaser fall into default of acceptance, we shall be entitled to claim indemnification for the damage incurred.
§12 Privacy Statement
- We processes personal data exclusively in compliance with data protection regulations. We provide information on the exact details of the processing of personal data provided by the Purchaser to us in the course of an order in the information sheet pursuant to the General Data Protection Regulation (GDPR) which can be accessed at https://www.fahl-medizintechnik.de/en/footer-menu/privacy-policy/.
- If a Purchaser transmits personal data of a third person (e. g. an employee), the Purchaser shall be obliged to inform such person pursuant to the GDPR in due time about data processing by us; we shall not be obliged to inform such person.
§13 Applicable Law, Place of Jurisdiction
- These B2B-GTCs and all legal relations between the Purchaser shall be subject to the laws of the Federal Republic of Germany with the exclusion of the UN Convention on the Contracts for the International Sale of Goods.
- The exclusive, also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Cologne. However, we shall, be entitled to take legal action at the general place of jurisdiction of the Purchaser.
- If a provision in these B2B-GTCs or a provision within the scope of other agreements is or becomes invalid, this shall not affect the validity of all other provisions or agreements.
Andreas Fahl Medizintechnik-Vertrieb GmbH
Registered Office of the Company: Cologne, Germany
Registered at the Cologne Local Court, HRB 27160
Managing Director: Andreas Fahl