General Terms and Conditions of Fasciotens GmbH,
1. Preliminary remark
- 1.1 The Company is active in the field of medical technology and offers its business partners technologies and services in the researched medical products. In this context, the Company has developed medical devices for open abdominal surgery and post-operative care of people. These General Terms and Conditions (“GTC”) serve to standardise the marketing and sale of the Company’s products (“Product” or “Goods”).
- 1.2 The Company intends to sell the medical technology to both distributors and any end customers (for example, hospitals) (both “Customer”, “Contractual Partner” or “Buyer”). The following General Terms and Conditions shall only apply if the Seller is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law. With other contractual partners – in particular consumers in the sense of § 13 BGB) – a conclusion of contract is not intended.
- 2.1 The general provisions of these GTC apply to all contractual relationships entered into via the online offer as well as in analogue distribution in relation to the Company.
- 2.2 These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of business of contractual partners shall not become part of the contract. This shall also apply if the Company, being aware of the general terms and conditions of the contractual partner, unconditionally accepts the latter’s services.
- 2.3 Individual agreements made in individual cases (including subsidiary agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation by the Company shall be authoritative for the content of such agreements.
- 2.4 Legally relevant declarations and notifications to be made to the Company after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be in writing in order to be effective.
- 2.5 References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTCs.
3. conclusion of contract; order processing
- 3.1 All information provided by the Company on goods and prices prior to the conclusion of the contract, as well as the offer to conclude the contract itself, are subject to change and non-binding. This shall also apply if the Company has provided the Buyer 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 the Company has reserved property rights and copyrights. A contract may be concluded both online via the online shop and analogously by way of written agreement to conclude the contract.
- 3.2 The offers of the products in the online shop do not constitute a legally binding offer, but a non-binding online catalogue, which is merely a non-binding invitation to the customer to submit a binding offer
- 3.3 In the online shop, the customer can select the desired product of the company and collect it in a so-called shopping cart by clicking the button “add to shopping cart”. By clicking on the button “order subject to payment”, he makes a binding request to purchase the goods in the shopping basket. Before sending the order, the customer can change and view the data at any time. However, the application can only be submitted and transmitted if the Customer accepts these GTC by clicking on the “Accept GTC” button, gives his consent to the Company’s use of his data and has thereby included it in his application.
- 3.4 The Company will then send the Customer an automatic confirmation of receipt by e-mail, in which the Customer’s order is listed again and which the Customer can print out using the “Print” function. The automatic acknowledgement of receipt merely documents that the Company has received the Customer’s order and does not constitute acceptance of the application. The contract is only concluded when the Company issues the declaration of acceptance, which is sent by a separate e-mail (order confirmation). In the event that technical problems should occur or the e-mail address provided by the Customer cannot be delivered, the acceptance of the offer can also be made by sending the ordered goods within ten days. In this e-mail or in a separate e-mail, but no later than upon delivery of the goods, the text of the contract (consisting of the order, GTC and order confirmation) shall be sent by us to the customer on a durable data medium (e-mail or paper printout) (contract confirmation).
- 3.5 Insofar as the analogous conclusion of the contract occurs, the order of the goods by the buyer shall be deemed to be a binding offer of contract. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer, so that a contract is only concluded as a result of this. The Buyer shall point out obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion before acceptance; otherwise the contract shall be deemed not to have been concluded.
- 3.6 The contract shall be concluded in German, unless another language is expressly chosen and accepted by the Company.
4. Delivery, availability of goods
- 4.1 The delivery period shall be agreed individually or stated by the Company upon acceptance of the order. If this is not the case, the delivery period shall be approx. 3 months from the conclusion of the contract.
- 4.2 If binding delivery deadlines cannot be met for reasons for which the Company is not responsible (non-availability of the service; delivery bottlenecks in production), the Buyer shall be informed of this without delay, with notification of the expected new delivery date. If this delivery date cannot be met contrary to expectations, the Company shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the Buyer shall be refunded without delay. Any further claims arising from the non-performance of the Company shall be excluded on the part of the Buyer.
- 4.3 A delay in delivery shall only occur after the Buyer has sent a written reminder. A claim for damages for delay is excluded. In the event of a culpable delay in delivery, the Buyer may claim liquidated damages in the amount of 0.5% of the net price (delivery value)for each completed calendar week, but in no case more than a total of 5% of the delivery value of the goods delivered late. The Company reserves the right to prove that the Buyer has suffered no damage at all or only significantly less damage than the aforementioned lump sum.
- 4.4 If the delivery is made within the Federal Republic of Germany, the delivery is regularly carried out by the Company. Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, the Company shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
- 4.5 A delivery outside the Federal Republic of Germany shall be made either by an intermediary or by way of a sale by delivery to a place other than the place of performance with the addition of a forwarding agent (including the transfer of risk) within the meaning of clause 4.6.
- 4.6 The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer 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 buyer as soon as the goods are handed over to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. The handover shall be the same if the Buyer is in default of acceptance.
- 4.7 If the Buyer is in default of acceptance, fails to cooperate or if delivery is delayed for other reasons for which the Buyer or persons attributable to the Buyer are responsible, the Company shall be entitled to demand compensation for the resulting damage, including any additional costs (e.g. storage costs).
5. Prices and shipping costs
- 5.1 Prices are generally based on a separate agreement at the time of conclusion of the contract, unless a price has been expressly stated (in writing). The prices are exclusive of statutory value added tax.
- 5.2 The costs for standard shipping within the Federal Republic of Germany shall be borne by the Company. In the case of a mail order purchase, a shipment outside the Federal Republic of Germany or shipment for other reasons of the buyer, the buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the buyer.
- 5.3 Unless otherwise agreed and permitted by law, the Buyer shall bear the costs of any return shipment or of a new delivery through no fault of the Company.
- 5.4 The purchase price is due and payable within 14 days of the date of invoice. The Company reserves the right, within the framework of current business relations, to make a delivery in whole or in part at any time only against advance payment. Such a reservation shall be declared within the scope of the order confirmation.
- 5.5 The Buyer shall be in default upon expiry of the payment period – without the need for a reminder. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. The Company reserves the right to claim further damage caused by default. The claim to commercial due date interest (§ 353 HGB) vis-à-vis merchants remains unaffected.
- 5.6 The Buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed.
- 5.7 The Company shall be entitled to refuse performance and (if necessary, after setting a deadline) to withdraw from the contract if it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that the claim to payment of the purchase price is jeopardised by the Buyer’s inability to pay. In the case of contracts for the manufacture of unjustifiable items (custom-made products), the company may also declare the withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
6. Retention of title
- 6.1 The Company retains title to the goods sold until full payment of all present and future claims of the Company arising from the contract of sale and any current business relations (secured claims).
- 6.2 The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The Buyer shall notify the Company in writing without delay if an application is made to open insolvency proceedings or insofar as access by third parties (e.g. seizure) is made to the goods belonging to the Company
- 6.3 The Buyer 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.
- 6.3.1 The retention of title extends to the products resulting from the processing, mixing or combining of the goods at their full value, whereby the Company 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, the Company shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
- 6.3.2 The Buyer hereby assigns to the Company 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 any co-ownership share of the Company pursuant to the preceding paragraph. The Company accepts the assignment. The Buyer’s obligations set out in clause 6.2 shall also apply in respect of the assigned claims.
7. Warranty for material defects
- 7.1 The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier’s recourse pursuant to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by installation in another product, or have otherwise been used to the detriment of further processing.
- 7.2 The basis of the Company’s liability for defects is above all the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract or which have been publicly announced by the Company (in particular in catalogues or on the Internet homepage) shall be deemed to be an agreement on the quality of the goods.
- 7.3 Insofar as the quality has not been agreed, it is to be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 BGB). For public statements of the manufacturer or other third parties (e.g. advertising statements) do not lead in any case to a liability of the company.
- 7.4 The buyer’s claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, the Buyer shall notify the Company thereof in writing without delay. If the Buyer fails to carry out a proper inspection and/or to give immediate notice of a defect (within the meaning of Section 377 (2) of the German Code of Civil Procedure), liability for the defect not reported or not reported in time or not reported properly shall be excluded.
- 7.5 If the delivered item is defective, the Company may initially choose between subsequent performance by remedying the defect (rectification) or by delivery of a defective item (replacement). The right to legally refuse subsequent performance remains unaffected.
- 7.6 The Company is entitled to make the subsequent performance owed dependent on full payment of the purchase price. The Buyer shall only have a right of retention in exceptional cases, subject to proportionality.
- 7.7 The Buyer must give the Company the time and opportunity required for the subsequent performance owed, in particular the goods complained about must be made available for inspection purposes (even in the case of alleged complete destruction). In the event of a replacement delivery, the Buyer must return the defective item regardless of its condition.
- 7.8 The Company is entitled to demand reimbursement of the costs incurred (e.g. testing and transport costs) in the event of an unjustified request to remedy a defect.
- 7.9 Claims of the Buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with clause 8 and are otherwise excluded.
8. Other liability
- 8.1 Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the Company, its legal representatives or vicarious agents. Material contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
- 8.2 In the event of a breach of material contractual obligations, the Company shall only be liable for the foreseeable damage typical for the contract if such damage was caused by simple negligence, unless it is a matter of claims for damages by the Customer itself arising from injury to life, body or health.
- 8.3 The Company shall not be liable for damage caused by third party negligence (such as incorrect use of the device). Likewise, the Company shall not be liable for damages arising from interruptions in the availability of the platforms of the Online Shop for which it is not responsible (e.g. technical problems of the Internet or telecommunication lines, UMTS transmission) that cannot be influenced by a party.
- 8.4 The Company shall in no case be liable for ensuring that the respective user of the medical technology performs a correct, proper and professional application on the patient. This shall be understood to mean in particular, although not exclusively, the (incorrect) application of the goods to a product class not expressly designated by the Company (e.g. use of a product which, according to the Company’s instructions, must not/cannot come into contact with wounds or internal body surfaces, although this occurs in the context of the complaint/application and a wound infection then forms with subsequent conditions, for example). The Buyer shall indemnify the Company against any claims for compensation by third parties, insofar as these are not based on a breach of contract on the part of the Company arising from this contractual relationship and direct liability on the part of the Company vis-à-vis the third party is possible on the merits.
- 8.5 The Company shall not be liable for orders placed by customers using unlawfully obtained payment or other order data (e.g. “phishing” of credit card data, identity deception, etc.).
- 8.6 Insofar as liability is excluded or limited by the Company, this shall also apply to the personal liability of employees, representatives and vicarious agents.
- 8.7 The provisions of the Product Liability Act shall remain unaffected.
- 9.1 Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery (or, insofar as permissible, from the passing of risk), unless a special statutory case applies.
- 9.2 The above limitation period shall also apply to contractual and non-contractual claims for damages of the Buyer 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 the individual case. Otherwise, the statutory limitation periods shall apply.
- 10.1 The Company and the Customer shall, even after the end of this Agreement, maintain confidentiality of Confidential Information. “Confidential Information” shall mean all information and documents of the respective other party which are marked as confidential or are to be regarded as confidential from the circumstances, in particular information about operational processes, business relations and know-how, as well as all work results.
- 10.2 Such Confidential Information is excluded from this obligation,
- 10.2.1 which was demonstrably already known to the Recipient at the time of the conclusion of the Agreement or subsequently becomes known to it from a third party, without thereby violating a confidentiality agreement, statutory provisions or official orders;
- 10.2.2 which are in the public domain at the time of entering into the Contract or thereafter become in the public domain to the extent not based on a breach of this Contract; or
- 10.2.3 which are required to be disclosed by law or by order of a court or public authority. To the extent permissible and possible, the recipient obliged to disclose shall notify the other party in advance and give it the opportunity to oppose the disclosure.
- 10.3 The Customer and the Company shall observe the relevant provisions of data protection law. Personal data shall only be collected, processed or used to the extent that this is necessary for the performance of the contract and is permissible under the relevant statutory provisions. Any further collection, processing and use of your personal data shall only take place insofar as this is permitted by a legal provision or you have consented to it.
11. Further development
- 11.1 The Company is an innovative company which wishes to further develop and continuously improve its products in the field of medical technology. The Company therefore intends to collect and evaluate the practical experience of its customers with the product in order to constantly review and improve the product and thereby achieve even better performance for the customer and even better care for the patient.
- 11.2 In this respect, the Company aims to keep a register or an evaluation of the completed applications of its products for the further development of its products. In order to achieve this, the forwarding of patient information by the customers to the Company is necessary. The customers will therefore forward the information to the Company at regular intervals, provided that the customer has lawfully collected the information in compliance with the DSGVO and the BDSG and the information is actually forwarded to the Company in an anonymised and non-individualisable form.
- 11.3 It is pointed out that in no case should or can the information lead to the individualisability of the patients, rather only information such as the age, the gender and the course of use of the product is sufficient.
- 12.1 Neither this Agreement nor any agreement within the scope of the other contractual relationship shall establish a corporate relationship or agency relationship, nor any other relationship under corporate law between the contracting parties.
- 12.2 Amendments and additions to the contract must be made in writing. This also applies to the amendment or cancellation of this clause.
- 12.3 The contract shall be governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention) and excluding private international law.
- 12.4 The place of jurisdiction for all disputes in connection with the services of the Company shall be Cologne, if permissible.
- 12.5 Should individual provisions of the above be or become invalid or unenforceable, this shall not affect the remaining provisions. Instead of the invalid or unenforceable provision, the valid provision that comes closest to the economic purpose of the provision to be replaced in this way shall be deemed to have been agreed. The same shall apply to the supplementary interpretation of the contract in the event of a loophole.
Cologne, July 2018