General Terms and Conditions (GTC)

General Terms and Conditions of SERAG-WIESSNER GmbH & Co. KG

§ 1
Scope

(1) These General Terms and Conditions apply exclusively. Barring our express written consent, we will not acknowledge any terms and conditions of the purchaser that conflict with or differ from our General Terms and Conditions. These General Terms and Conditions apply even if we are aware of terms and conditions of the purchaser that conflict with or differ from our own General Terms and Conditions and even if we supply the goods without reservation. These General Terms and Conditions remain in effect until such time as new or amended General Terms and Conditions take effect for all future transactions.

(2) Any agreement that differs from these General Terms and Conditions, including agreements made with our sales staff (field service, order intake, etc.), will not apply except with our prior written confirmation.

(3) These General Terms and Conditions apply to businesses, bodies governed by public law, and special funds governed by public law.

§ 2
Offer – Acceptance - Conclusion of Contracts

(1) Our offers are non-binding and subject to change without notice. However, this does not apply if an offer has been expressly marked by us as binding or contains a specific deadline for acceptance.

(2) A contract will not be concluded unless and until we have confirmed the order. However, a contract will be concluded no later than upon the performance of our contractual service. Our delivery note serves as confirmation of the order.

(3) If the purchaser orders the goods electronically, we will confirm receipt of the order promptly. However, the confirmation of receipt does not constitute binding acceptance of the order.

(4) Particularly when medical devices are subject to dispensing restrictions under the German Medical Devices Dispensing Regulation (Medizinprodukteabgabeverordnung), we will, upon receiving the order, verify whether the purchaser is authorized to receive the product in question. If the purchaser is not authorized, we will not supply the product, and no contract will be concluded.

(5) We reserve proprietary rights and copyrights to all drawings, diagrams, calculations, and other documents provided to the purchaser in relation to the issuance of the order. The purchaser must refrain from disclosing these documents to any third party and may only make them available with our express written consent.

(6) Any and all technical and scientific information are non-binding unless otherwise expressly agreed in writing or required by law. Information is provided to the best of our knowledge and belief.

In the event of concluding a contract via our Online Store, the following also applies:

(7) By placing an order in the Online Store, the ordering party makes a binding offer to purchase the relevant article.

(8) The line of products in our Online Store is aimed at businesses (Unternehmer as set forth under § 14 of the German Civil Code (BGB)), legal entities under public law, and special funds under public law under § 310 (1) BGB, as applicable.

(9) A business is an individual, a legal entity, or a partnership having legal capacity that acts in the exercise of their commercial or self-employed activity when executing the legal transaction. In contrast, the designation “consumer” shall apply if the purpose of the order is not primarily attributable to a commercial or self-employed business activity.

(10) Contracts with the purchaser will be concluded exclusively in German or English regardless of whether the purchaser places the order via the German- or English-language website of the Online Store. If the order is placed on our English-language website, only the English version of these General Terms and Conditions will be controlling.

§ 3
Prices and Payment Terms

(1) The gross prices indicated in the Online Store, including the legal value-added tax (VAT), apply to orders placed via our Online Store.

(2) The purchaser can pay the purchase price by credit card. However, with every order, we reserve the right not to offer certain modes of payment or to refer the purchaser to other modes of payment, including but not limited to prepayment. The purchaser is not entitled to any particular mode of payment.

(3) The prices indicated in the hospital, wholesale, and overall list of prices apply to businesses that do not order via the Online Store. These prices are net and exclude VAT. The legal amount of VAT will be stated separately on the invoicing date. Unless otherwise indicated by the order confirmation, our prices appearing in the list of prices prevailing at the time of the order shall apply. Where small orders for goods having a net value under EUR 100.00 are placed other than via our Online Store, we shall charge a prorated logistics fee of EUR 10.00.

(4) Unless the order confirmation indicates otherwise, the purchase price is due and payable in full within 30 days of the invoice date. As to the consequences of late payment, the applicable legal rules apply.

(5) The following applies to orders placed other than via our Online Store: For payment within 14 days of invoicing, a 2% discount will be granted. However, this discount will not be granted if any earlier invoices are still due and payable.

§ 4
Delivery Periods

(1) Delivery dates and periods are not binding unless and until we have expressly agreed to them in writing. The delivery period indicated by us only begins once all contractually relevant issues have been clarified.

(2) In order for us to fulfill our delivery obligation, the purchaser must have fulfilled their obligation in good time and proper form. We reserve the right to assert the defense of non-performance.

(3) If the purchaser defaults on acceptance or is at fault for breaching other duties of cooperation, we have the right to claim compensation of any and all losses incurred by us as a result, including any additional expenses. We also reserve the right to assert any further claims.

(4) If the criteria specified in para. (3) above are met, the risk of accidental destruction or deterioration of the goods shall pass to the purchaser as of the time they defaulted on acceptance or payment.

(5) In case of delivery delays resulting from force majeure or other unforeseeable circumstances beyond our control (such as strike, lockout, delivery delays caused by suppliers, interruptions in the supply of energy, government action), the delivery period will be extended by a reasonable amount of time. If the delivery delay lasts more than six weeks, both Contracting Parties have the right to rescind the contract.

(6) In case of a delivery delay caused by us other than through intent or gross negligence, we shall be liable for lump-sum compensation in the amount of 3% of the value of the delivery, but not more than 15% thereof, for every full week of delay.

(7) We have the right to perform partial deliveries/services at any time.

(8) The foregoing does not affect any additional legal claims or rights the purchaser may have because of a delivery delay.

§ 5
Passing of Risk – Shipment

(1) Unless the order confirmation indicates otherwise, delivery is agreed to be “ex works”. In the case of shipment, the risk of accidental loss/deterioration of the purchase object passes to the purchaser upon delivery to the forwarding agent, carrier, or party otherwise designated to carry out the shipment. This applies regardless of whether the shipment of the goods is made from the place of performance or of which party assumes the freight costs.

(2) A dual waste-disposal system approved by the relevant authority under the German Packaging Regulations (Verpackungsordnung), as amended from time to time, has been set up for our packaging material. Therefore, transport and all other packaging under the German Packaging Regulations, with the exception of pallets, will not be taken back.

(3) We will only take out transport insurance for the delivery upon request by the purchaser. The purchaser covers the associated costs.

(4) The goods will be shipped via parcel service or a freight forwarder.

§ 6
Notice of Defects, Warranty for Defects and Recourse against the Manufacturer

(1) (1) For merchants as defined in the German Commercial Code (HGB), warranty rights exist only insofar as they have duly met the inspection and notification obligations incumbent on them (under § 377 HGB).

(2) (2) Purchasers who are not merchants as defined in the German Commercial Code must notify us of patent defects in writing within 14 days of delivery of the goods.

(3) (3) In the event of a defect in the delivered goods that existed at the time of the transfer of risk, we either repair or replace the goods, at our option, provided we have been notified of the defect in good time. In all cases, the purchaser must give us the opportunity to repair or replace the product within a reasonable time. The foregoing provision has no effect on claims of recourse. The purchaser must obtain our consent before shipping the goods back to us.

(4) (4) If the repair/replacement proves unsuccessful, the purchaser may rescind the contract or reduce the fee notwithstanding any compensation claims.

(5) (5) The warranty for defects does not apply unless defects and associated damage are demonstrably based on faulty materials, construction, design or, faulty instructions for use (if we were obligated to provide such).
No claims for defects do apply if the deviation from the agreed-upon quality is not significant, if the serviceability of the purchased object has not been significantly affected, in case of normal wear and tear, or in case of damage occurring after the transfer of risk because of faulty or negligent handling, excessive loads, unsuitable equipment, or because of external influences not required by the contract. If the purchaser or a third party performs repair work or alterations improperly, no warranty claims do apply to them or the consequences thereof.
In particular, the warranty and the resulting liability based on defects do not apply to the consequences of faulty use, inappropriate storage conditions, or the effects of other influences that are inconsistent with the average standard influences specified by us in our product description, any different product specification agreed upon, or the respective product-specific labeling or accompanying information (e.g., instructions for use).

(6) Claims of the purchaser for expenses required for repair or replacement, including but not limited to transport, travel, work-related and material costs, including any development and installation costs, are prohibited if these expenses increase because the delivered goods were subsequently transferred to a location other than the purchaser’s establishment, unless the transfer is consistent with the intended use of the goods.

(7) Recourse claims of the purchaser against us apply only insofar as the purchaser has not made any agreement with its customer that goes beyond the warranty claims required by law. Paragraph (5) above applies accordingly to the scope of the customer’s recourse claim against the deliverer.

(8) Any additional warranty of quality and/or any additional guarantee shall apply to the goods delivered by us only if it was expressly made in the order confirmation for the item in question. Statements appearing in brochures, catalogs, product labels, and the like do not constitute guarantees or warranties of quality.

(9) Claims for defects become time-barred within 12 months from the transfer of risk, and in the case of refusal by the customer to accept delivery, from the date of receipt of the notice that the goods were ready for acceptance by the user. Where compensation claims in cases involving intent or gross negligence or cases involving injury to life, limb, or health are based on a breach of duty by the user that was caused by intent or negligence, the statute of limitations applies. If the law pursuant to § 445 (b) of the BGB (Recourse claims) specifies longer periods as mandatory, such periods shall apply.

§ 7
Liability

(1) We are liable as required by law concerning claims under the German Medicinal Products Act (Arzneimittelgesetz) and the German Product Liability Act (Produkthaftungsgesetz), as well as under expressly agreed-upon guarantees, provided they were issued by us. Liability as required by law also applies to any breach of duty by our legal representatives or our agents and employees that results from intent or negligence and causes injury to life, limb, or health. Liability as required by law further applies to losses based on any breach of contract resulting from intent or gross negligence and to the fraudulent concealment of defects by our legal representatives, agents or employees.

(2) Liability also applies to losses caused by ordinary negligence if such negligence concerns the breach of fundamental duties. Fundamental duties are contractual duties whose observance is of particular importance for achieving the purpose of the contract. However, liability only applies if the losses are foreseeable and typically associated with the contract. Apart from that, however, we are not liable for breaches of ancillary duties that are not essential to the contract and are caused by ordinary negligence. The foregoing limitations of liability also apply where liability for acts and omissions of legal representatives, executives, and other agents and employees is concerned.

(3) Any other liability is excluded regardless of the legal nature of the claim asserted. Where an exclusion or limitation of liability applies, it also applies to the personal liability of our salaried employees, workers, staff, representatives, and agents and employees.

(4) Any use or handling beyond our statements on the label or in the product documents (e.g., recycling of disposables, storage conditions, use-by date, and the like) shall be at the purchaser’s own risk, thereby excluding any warranty or liability on our part.

(5) The foregoing provisions shall not entail a reversal of the burden of proof.

§ 8
Reservation of Title

(1) We reserve title to the goods until all claims arising from the contract have been paid in full. This also applies to future deliveries, even if we do not expressly mention this. If the purchaser acts in breach of the contract, particularly in the event of a delay in payment and a valid withdrawal, we have the right to reclaim the goods. Once we have recovered the goods, we are authorized to realize them and deduct the proceeds from the purchaser’s obligations, less reasonable realization costs.

(2) The purchaser must handle the goods with care until such time as title has transferred to it. In particular, the purchaser has to adequately insure the goods, at its own expense and at their replacement value, against losses and damage from fire, water, and theft. The purchaser assigns to us here and now, and we accept, any and all claims against the insurance based on a claim concerning the reserved goods in the value of the reserved goods.

(3) In the event of seizure or other interventions by third parties, the purchaser must immediately inform us in writing, until such time as title has transferred, so that we can bring an action under § 771 of the German Code of Civil Procedure (ZPO). The purchaser is liable for losses incurred by us because the third party is unable to reimburse us for the in-court and out-of-court costs of an action under § 771 ZPO.

(4) The purchaser is authorized to resell the goods in the ordinary course of business. However, the purchaser assigns to us here and now, and we immediately accept, all receivables arising from such resale against end customers or third parties in the amount of the final invoice amount (including VAT), regardless of whether the goods were resold with or without further processing. The purchaser remains authorized to collect this receivable even after the assignment. However, this does not affect our right to collect the receivable directly. Nevertheless, we will not collect the receivable as long as the purchaser fulfills its payment obligations arising from the proceeds collected and is not in payment default and, in particular, no petition in insolvency has been filed and payments have not ceased. Otherwise, however, we may demand that the purchaser disclose the assigned receivables and the associated debtors, provide us with all details required for collection of the receivables, hand over the associated documents, and notify the debtors (third parties) of the assignment.

(5) If the value of the security interests exceeds our payment claims by more than 15%, SERAG-WIESSNER GmbH & Co. KG will release the excess amount of the security interests upon request by the purchaser.

§ 9
Applicable Law / Jurisdiction

(1) The laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG), apply to contracts between purchasers and us.

(2) If the purchaser is a merchant, a legal entity under public law, or a special fund under public law, our registered address is the place of jurisdiction for all disputes arising from or in connection with these General Terms and Conditions. However, we are entitled to bring action against the purchaser in the court of its place of business or domicile.

(3) Unless the order confirmation indicates otherwise, the place of performance is our registered office.

§ 10
Final Provisions

(1) We hereby expressly call attention to the specific provisions that may be of relevance to the purchaser of our products based on the German Medicinal Products Act or the German Medical Devices Act or other health protection provisions (e.g., record-keeping and reporting duties, expertise of the sales staff, and the like).

(2) To be valid, any and all collateral agreements must be made in writing.

(3) If any provision of Agreement violates mandatory law in whole or in part or is otherwise invalid or void, this shall not affect the validity of the remaining provisions hereof.

§ 11
Privacy

(1) The order and the data provided by the purchaser will be stored by us. As a rule, personal information is only processed with the user’s prior consent. An exception applies where the processing of the data is permitted by law.

(2) For all information concerning the handling and processing of personal information, please refer to our Privacy policy