General terms and conditions of the zebris Medical GmbH
§ 1 General information, scope
(1) The following General Terms and Conditions for deliveries and services of zebris Medical GmbH shall be valid exclusively for normal business transactions and for Internet transactions; any conditions of the customer contradicting or deviating from the General Terms and Conditions of zebris Medical GmbH shall not be recognized, unless zebris Medical GmbH has explicitly agreed to their validity in writing. The General Terms and Conditions of zebris Medical GmbH shall also be valid if zebris Medical GmbH, conducts the delivery or renders the service to the customer without reservation, despite being aware of any conditions contradicting or deviating from the General Terms and Conditions of the customer.
(2) All agreements and sub-agreements regarding deliveries and services to be rendered by zebris Medical GmbH shall require the written form for their validity (email shall also suffice).
§ 2 License terms
(1) The license terms of other manufacturers that are to be supplied to the customer by contract, shall constitute an integral part of these General Terms and Conditions. A copy of these license terms shall be handed over to the customer upon request.
§ 3 Contractual products for the medical field
(1) Contractual products of zebris Medical GmbH (software and hardware), intended for application in the medical field, shall be subject, amongst other things, to the provisions of the Medical Devices Act (German: Medizinproduktegesetz (MPG)) and the regulations governing the installation, operation and application of medical devices (German: VO-MP). A change made to the medical devices, even if this should exclusively involve the installation of additional software products, shall only be carried out by specially trained personnel. For this reason, the contractual products of zebris Medical GmbH, intended for the medical field, are sealed. zebris Medical GmbH may keep a copy of the software status of the product for verification purposes at the time of delivery, in accordance with the Medical Devices Act and the VO-MP.
(2) Should the customer pass contractual products on to the third persons during the course of his ordinary business activity, the customer shall be obligated to inform these third-party customers of the consequences of the MPG and VO-MP and to obligate these third-party customers not to make any alterations to the contractual products themselves, or have any alterations made thereto by anyone who is not specially trained to do so.
§ 4 Reservation of the right to make alterations
(1)zebris Medical GmbH reserves the right to make alterations to the construction and design within the context of the normal tolerances for quantity and quality.
§ 5 Delivery and time of performance, partial performance
(1) Delivery deadlines shall be deemed as adhered to, if prior to their expiration the subject of the Contract has left the factory, or the customer has been informed of the readiness for dispatch.
(2) Adherence to the obligations of zebris Medical GmbH to deliver and to render services shall require the timely and due fulfillment of all the customer's contractual obligations.
(3) Agreed delivery deadlines shall be deemed as adhered to if zebris Medical GmbH informs the customer in writing that the contractual product to be delivered by zebris Medical GmbH - even if part of a complete system - is ready to be collected or installed, or if the contractual product was handed over to the carrier on the agreed delivery date. Should the consignment of goods ready for dispatch be delayed for reasons that zebris Medical GmbH is not responsible for, the contractual products may be placed in storage at the cost and risk of the customer.
(4) The delivery date agreed according to the anticipated performance capacity of zebris Medical GmbH, shall be understood subject to any unforeseeable circumstances and obstacles, irrespective of whether these occur at zebris Medical GmbH, or at the location of the producer or the supplier of other parts of a complete system. They shall include, for example, force majeure, state measures, refusals to grant licenses, industrial disputes of all kinds, sabotage, lack of raw materials, delayed deliveries of the manufacturers to zebris Medical GmbH, or delayed deliveries by the suppliers of other parts of a complete system to zebris Medical GmbH or directly to the customer. Occurrences of this kind shall extend the delivery date accordingly, even if they occur during a delay that has already come into effect. Should zebris Medical GmbH default with a delivery by more than 4 weeks, the customer may withdraw from the Contract after having set a reasonable final deadline in writing, excluding any claims. Should the delivery delays of zebris last longer than 8 weeks, zebris Medical GmbH shall also be entitled to withdraw from the Contract in whole or in part.
(5) Unless otherwise agreed, zebris Medical GmbH shall be entitled, but not committed, to insure the goods to be dispatched against transport risks of all kinds at the customer's expense. Neither this nor a possible takeover shall have any influence on the transfer of risk.
(6) Should the consumer order the goods electronically, zebris Medical GmbH shall immediately confirm the receipt of the order. The confirmation of the receipt may be combined with the declaration of acceptance; otherwise it shall be given separately.
(7) zebris Medical GmbH shall be entitled to refuse acceptance of the order - after having examined the customer's creditworthiness, for instance. Furthermore, zebris Medical GmbH shall be entitled to limit the order to a quantity common for households or companies.
(8) Should the consumer order the goods electronically, zebris Medical GmbH shall immediately save the contractual text and send it to the customer by email upon request, together with these General Terms and Conditions.
§ 6 Cancellation, deferment of the delivery dates and withdrawal from the Contract
(1) Should the customer cancel confirmed orders in whole or in part, or agree with zebris Medical GmbH on a deferment of the delivery dates, for which he is responsible, zebris Medical GmbH may assert claims for compensation up to the amount of the list price of the order without furnishing separate proof.
(2) The agreement on the deferment of delivery dates shall require the written form. In the event of default of acceptance, zebris Medical GmbH shall, in addition to the pecuniary claim, have the right either to fix a new delivery date, withdraw from the Contract or claim damages for the delay.
(3) In the event of zebris Medical GmbH being committed to combine the contractual product with other products to be procured by the customer, and if the delivery of these parts should be delayed for reasons zebris Medical GmbH is not responsible for, the customer shall then compensate zebris Medical GmbH for the damage subsequently caused by the delay.
(4) Should the customer intend to use the contractual product as part of a complete system, and should this intended purpose constitute an integral part of the Contract with zebris Medical GmbH, the customer shall then be entitled to the right to withdraw from the Contract if the remaining parts of the complete system fail to be delivered for reasons the customer is not responsible for, and if the customer no longer has any interest in the contractual product for this reason. In this case, zebris Medical GmbH shall be entitled to claim compensation for the damages it has thereby been caused, and to its lost profit.
§ 7 Prices and terms of payment
(1) Unless otherwise stated, the prices of zebris Medical GmbH shall be understood ex works without installation and assembly, including the respectively valid legal turnover tax. Packaging costs and costs for returning packaging shall be charged separately. The same shall apply for postal charges and delivery costs. For these, the respective current prices for packaging costs, postal charges and delivery costs shall be valid. For the dunning letters required after the invoiced amount has become due, a dunning charge of € 10 shall be due per dunning letter.
(2) Payments shall be due 10 days after receipt of the invoice, without any deduction. The invoice shall be sent with the delivery. Drafts and checks shall only be made out upon special agreement and shall be accepted for zebris Medical GmbH exempt from any costs and charges.
(3) A set-off or assertion of a right of retention due to counterclaims that have not been acknowledged by zebris Medical GmbH, or asserted in good time, shall be excluded.
(4) Only persons with written authority granted by zebris Medical GmbH shall be authorized to accept payments.
§ 8 Delivery, transfer of risk and acceptance
(1) All deliveries by zebris Medical GmbH shall be effected ex works. The risk of loss shall pass to the Buyer at the time of acceptance, but provided however that from the time of arrival of the goods at the site, the Buyer shall be liable for the following damages: damages caused by natural disasters like storm and flood, for damages caused by fire, explosion, terror and theft. The Buyer shall effect the relevant insurances with appropriate coverage.
(2) In the case of shipment, zebris Medical GmbH shall take out a transport insurance at the request of the contractor, at the contractor's expense and in its favor. Transport damages shall be reported immediately in writing to zebris Medical GmbH and also the carrier conducting the delivery.
(3) The customer shall inspect the sales products immediately upon receipt as to their completeness and any possible damage, and shall confirm to zebris Medical GmbH in writing that the sales products have been received without any visibly apparent damage. Should no confirmation or complaint be notified within a time-limit of 10 days after receipt of the delivery, the latter shall be deemed as executed.
(4) Insignificant deficiencies not affecting the operational reliability of the sales product, shall not entitle the customer to refuse the acceptance of the delivery.
(5) The risk of accidental destruction shall pass to the customer upon handing over the contractual product to the carrier, his agent or to other persons named by zebris Medical GmbH, at the latest however, upon handing the contractual product over directly to the customer or his agent. Should the dispatch be delayed or become impossible for reasons that zebris Medical GmbH is not responsible for, the risk shall pass to the customer upon being notified of the readiness for dispatch.
(6) Should zebris Medical GmbH be additionally obligated to familiarize the customer briefly with the operation of the contractual product, or should a connection of the contractual product with other parts to a complete system be necessary, with a subsequent brief familiarization, the contractual product shall be deemed as accepted when zebris Medical GmbH has notified the customer that the contractual product has been fully connected and the customer has been familiarized briefly with the operation.
(7) Should the customer refuse the acceptance, or should the parties fail to agree on a date for the familiarization, the contractual product shall then be deemed as accepted, at the latest 14 days after zebris Medical GmbH has notified the customer in writing that the contractual product (and the connection to the complete system) has been completed. At this point, zebris Medical GmbH shall offer the customer a brief familiarization run-through once again on the contractual product or the complete system.
§ 9 Retention of title
(1) zebris Medical GmbH shall reserve the right of ownership to the subject of the contract until all the payments arising form this Contract have been received. zebris Medical GmbH shall be authorized to demand surrender of the subject of the contract should the Contract be violated, or, in particular, in the case of default of payment. In the case of zebris Medical GmbH taking back the subject of the Contract, this shall not imply its withdrawal from the Contract, unless zebris Medical GmbH has explicitly declared this in writing.
(2) The consumer shall be committed to handle the goods with care during the retention of title. Should maintenance and inspection work be required, the consumer shall carry this out at regular intervals at his own expense.
(3) The contractor shall be committed to handle the goods under retention of title with care, and above all, not to stack the coated goods of zebris Medical GmbH, to protect them from impact, knocks and mechanical stress, and to keep them in dry storage in closed rooms. Furthermore, the contractor is obligated to take out an adequate insurance for the goods at the new value, at its own cost, against damages such as fire, water and theft. The contractor shall now already assign all its claims arising from the insurance policy to zebris Medical GmbH. zebris Medical GmbH shall be entitled to request evidence showing the existence of insurance coverage. Insofar as any maintenance work should become necessary, the contractor shall carry this out in good time, at his own expense. Pledging, protective conveyance and other disposals by the contractor shall not be permissible for as long as the retention of title exists.
(4) In the case of default of payment, also with respect to other/future deliveries or services rendered to customers by zebris Medical GmbH, or in the case of a dwindling of the customer's asset , zebris Medical GmbH shall not be permitted to assert its retention of title to the retained goods by entering the business premises of the customer and seizing the retained goods.
(5) In the case of attachments or other interventions of third parties, the customer shall notify zebris Medical GmbH immediately thereof in writing, in order to enable zebris Medical GmbH to take action in accordance with Article 771 ZPO [German code of civil procedure]. Should the third party be unable to reimburse zebris Medical GmbH the judicial and extra-judicial costs of an action in accordance with Article 771 ZPO, the customer shall be liable for the damages incurred to zebris Medical GmbH. The assertion of the retention of title or the attachment of the delivery item by zebris Medical GmbH shall not be deemed as a withdrawal from the Contract if the customer is a businessman.
(6) Should goods under retention of title be sold to a third party, zebris Medical GmbH shall as of now, due to the assignment holder of the contractual claims with all the ancillary rights, existing against the third of debts explicitly agreed to herewith, become the party. Assignments and pledges of these debts is only permissible with the prior consent of zebris Medical GmbH.
(7) Items supplied for testing and presentation purposes shall remain the property of zebris Medical GmbH. They shall only be used by the customer on the basis of a separate agreement with zebris Medical GmbH.
(8) The customer shall not be authorized to sell the goods under reservation beyond the due business volume.
§ 10 Warranty
(1) zebris Medical GmbH guarantees that the contractual products have no defects, whereby these defects also include a lack of the guaranteed characteristics. The contractual products shall be produced with the necessary care due.
(2) If the contractual product is integrated as part of a complete system, zebris Medical GmbH shall only accept the guarantee for the contractual product up to the interface.
(3) zebris Medical GmbH shall not accept any guarantee for the contractual product being applicable for any purpose other than the purpose of application intended in the Contract. In particular, zebris Medical GmbH shall neither guarantee the ability of the contractual product to be removed or utilized with other hardware, nor the possibility of implementing additional software, particularly if this software did not exist at the time of concluding this Contract, or its application in the contractual product was not foreseeable for zebris Medical GmbH.
(4) zebris Medical GmbH advises the customer explicitly that any alterations made to the contractual product, insofar as these are intended for the medical application, shall be carried out exclusively by personnel specially trained for this purpose, and that after making an alteration, a special individual test shall be required before permitting the contractual product to be implemented again in the medical field. zebris Medical GmbH shall exclude any guarantee for the contractual products where alterations have been made to their condition at delivery, that have not been due to the normal application of the contractual product or the application intended in the Contract, unless the customer or a third-party customer proves in a special individual test at his own expense, that the contractual product is still suitable for the medical field despite the alteration, and that the alteration has not been the cause of the fault occurring.
(5) zebris Medical GmbH guarantees that the contractual products are described in the product information in a generally appropriate way and that they are basically applicable in this context. The specifications and descriptions in the product information alone shall not serve as a confirmation of certain properties. A confirmation of properties in the legal sense shall only be given if the respective particulars have been confirmed in writing by zebris Medical GmbH.
(6) The guarantee claims against zebris Medical GmbH shall lapse 4 months after the delivery. They shall be transferable insofar as zebris Medical GmbH has been notified of the transfer in advance. Irrespective of this, zebris Medical GmbH shall pass on any further warranty or guarantee commitments of other manufacturers to the customer to their full extent, without assuming the responsibility therefor itself. If these can be asserted exclusively by zebris Medical GmbH, zebris Medical GmbH shall then be entitled to the reimbursement on account of the expenses incurred.
(7) The customer shall be committed to assert guarantee claims against zebris Medical GmbH immediately after they have become known.
(8) In the case of an improvement, zebris Medical GmbH shall bear the costs of the work. All other additional costs, particularly transport costs for the replacement part, shall be borne by the customer insofar as these other additional costs are not disproportionate to the order value. The return of goods has to be delivered free of charge, risk of return shipment are borne by the shipper.
(9) Should the customer receive an inadequate product manual, zebris Medical GmbH shall merely be obligated to supply an adequate product manual; however, this shall only be the case if the deficiency in the product manual conflicts with the proper use.
(10) The guarantee shall not be valid if the contractual product has not been properly installed by the customer or third parties, or has been independently serviced, repaired, utilized, altered or exposed to environmental conditions failing to conform with the installation requirements, unless the customer has proved that these conditions were not the cause for the reported defects. Furthermore, the guarantee shall not be valid if original technical symbols have been changed or removed without the written consent of zebris Medical GmbH, or in the case of products for the medical field, the guarantee seal has been broken and the customer fails to provide evidence of any specific individual test permitting the application of the product in the medical field.
(11) If the examination of a notice of defects shows that a case of guarantee is not applicable, as the contractual product itself is not the cause of the defect, even if it is part of a complete system and the defect was to have had an effect on the contractual product, the travel expenses to and from the location, the examination and the repair shall be charged in accordance with the respectively valid service prices of zebris Medical GmbH.
§ 11 Liability
(1) The liability of zebris Medical GmbH shall be restricted to the damages which could have been reasonably foreseen at the time of concluding the Contract under the circumstances known at the time. zebris Medical GmbH shall not be held liable for indirect damages, consequential damages due to faults, or loss of profit.
(2) The liability of zebris Medical GmbH for willful intent and gross negligence, for confirmed properties, and liability in accordance with the regulations of the law on product liability, shall remain unaffected by the above-mentioned liability restrictions. The personal liability of the shareholders, directors and employees of zebris Medical GmbH as well as members who have been employed as agents of zebris Medical GmbH shall be excluded.
(3) In the case of sales products for the medical field, zebris Medical GmbH shall not be liable for incorrect diagnoses and the damage resulting therefrom, that were made as a result of using the sales product. This shall also be valid if the sales product as such, or as part of a complete system, was unknowingly or already knowingly to have been defective or if results were to have been shown incorrectly.
(4) The customer shall be committed to make regular data backups that have to be made daily when using the contractual product in the medical field. The liability of zebris Medical GmbH shall be restricted, also in the case of gross negligence, to the costs for repair that would have been incurred if the regular data backups had been carried out.
(5) zebris Medical GmbH shall only be held liable for its own content on the website of the Online Shop. Insofar as zebris Medical GmbH enables access to other websites through links, zebris Medical GmbH shall not be responsible for the extraneous content of these websites. zebris Medical GmbH shall not adopt extraneous content as its own. Should zebris Medical GmbH gain knowledge of illegal contents on external websites, zebris Medical GmbH shall immediately block the access to these websites.
(6) The claims for compensation shall lapse 12 months after delivery, or the rendering of the service.
§ 12 Data protection and data transfer
(1) The transfer of data from one medical system to another can only be carried out partially and in no way free of errors by zebris Medical GmbH for reasons that are inherent in the system. It shall not be considered as an error if individual data fields on the one system have no equivalent on the other, or cannot be taken over for other reasons. The transfer is effected fully automatically. The customer is therefore obligated prior to using the transferred data in the medical field, to compare the data transferred in each individual case with the original data in order to exclude any transfer errors. Errors can be caused by incorrectly transferred, additional or completely omitted data records, or individual data. zebris Medical GmbH shall not be liable for incorrect diagnoses and the damage subsequently caused, that were made as a result of using the transferred data. This shall also be valid if the data failed to have been recognized as incorrect.
(2) With our "Data Protection Information" we inform our customer about:the type, scope, duration and purpose of the collection, processing and utilization of the personal data required for executing orders and accounts;his right of objection to setting up and using his anonymized utilization profile for the purpose of advertising, market research and a demand driven structuring of our offer;the passing on of data to companies commissioned by zebris Medical GmbH and committed to observing the legal data protection regulations, for the purposes and the duration of the credit assessment and dispatch of the goods;the right to obtain free information on his personal data stored at our company;the right to correction, deletion and blockage of his personal data stored at zebris Medical GmbH.
(3) The collection, processing and utilization of personal data for marketing purposes shall require the consent of the customer. The customer shall have the possibility of granting this consent prior to placing his order. The customer shall have the right to cancel his consent at any time with effect for the future
§ 13 Export
(1) Contractual products and technical know-how provided by zebris Medical GmbH are intended for utilization and continuance in the country supplied to and agreed to with the customer. The re-export of contractual products, either individually, as a part of a complete system or in a system-integrated form shall be subject to approval for the customer, and shall be subject in principle to the foreign trade regulations of the Federal Republic of Germany, or of the other country of delivery agreed with the customer. The customer shall acquire information on these regulations on his own accord. Irrespective of whether the customer states the final destination of the supplied contractual products, the customer shall be responsible for procuring the necessary approval on his own accord, of the respectively competent foreign trade authority before he exports such contractual products.
(2) Each additional delivery of contractual products by the customer to third parties, with or without the knowledge of zebris Medical GmbH, shall simultaneously require the transfer of the export license conditions. The customer shall be liable for the proper observance of these conditions.
§ 14 Assembly and customer service
(1) The installation and customer service shall be carried out by zebris Medical GmbH or by authorized specialist companies assigned by zebris Medical GmbH.
(2) Prior to delivering equipment, the customer shall guarantee that the place of installation is easily accessible, that the constructional requirements are given, that there is sufficient space and a floor suitable for the weight of the device and with an adequate carrying capacity, that the necessary electrical connections are available, and that the remaining practical area is sufficiently screened from the usual operating noise of the equipment. For a remote control connection for a computer from the reception desk the respective computer cable must already be laid prior to the delivery.
(3) Difficulties encountered during the delivery and installation of equipment shall be invoiced separately to the customer, and also all the costs that are incurred if at the time of delivery on the agreed date of the assembly, the prerequisites stated under 14.2 are not available.
(4) Spare parts and repairs not included in the guarantee shall be paid for separately by the customer.
§ 15 Other provisions
(1) The customer shall be entitled to assign his claims arising from the Contract insofar as he has informed zebris Medical GmbH thereof in advance and the latter is in agreement therewith.
(2) The place of fulfillment for the delivery of the contractual products and the place of jurisdiction for all legal disputes is Isny im Allgäu.
(3) The law of the Federal Republic of Germany shall be valid. The provisions of the UN law on sales shall be excluded.
(4) The exclusive place of performance for all the disputes arising from this Contract is Ravensburg. The same shall be applicable if the customer has no general place of jurisdiction in Germany, or his residence or habitual abode at the time of instituting the action is not known.
(5 ) Should one of the clauses of the business terms and conditions mentioned above be or become ineffective, the validity of all the remaining clauses or agreements shall not be affected thereby