§ 1. General
a) Scope These general terms and conditions apply to all business relationships between Baldus Medizintechnik GmbH and Baldus Sedation GmbH & Co. KG and Baldus Medical GmbH & Co. KG (hereinafter referred to as Baldus) and the customer in the version valid at the time the contract was concluded. Conflicting general terms and conditions of the customer are hereby expressly contradicted.
b) Contract Agreement The contract language is German. The display option in other languages is only intended as an aid. Customers within the meaning of these terms and conditions are exclusively entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). There are no rights of withdrawal because the customers are not consumers. Subsidiary agreements must be made in writing.
c) Conclusion of the contract and storage of the contract text The contract is concluded through the individual application and the related declaration of acceptance. The text of the contract will not be saved, as the content of the contract results individually from the agreement made.
d) Subsequent changes to the terms and conditions Baldus is entitled to retrospectively adapt and supplement the general terms and conditions with regard to existing business relationships, insofar as changes in legislation or case law require it or other circumstances lead to the contractual equivalence relationship not only being disrupted to an insignificant extent. A subsequent change to the terms and conditions will become effective if the customer does not object within six weeks after notification of the change. At the beginning of the period, Baldus will expressly inform the customer of the effect of his silence as acceptance of the contract change and give him the opportunity to make an express declaration during the period. If the customer objects in due time, both Baldus and the customer can terminate the contractual relationship extraordinarily.
§ 2 delivery
a) Part deliveries Baldus is entitled to make partial deliveries if this is reasonable for the customer. In the case of partial deliveries, however, the customer does not incur any additional shipping costs.
b) Delivery and service delays Delivery and service delays due to force majeure and due to extraordinary and unforeseeable events, which cannot be prevented even by the utmost care on the part of Baldus and which Baldus is not responsible for (this includes in particular strikes, official or judicial orders and cases that are incorrect or improper Self-delivery despite the covering transaction), entitled Baldus to postpone the delivery for the duration of the obstructing event.
c) Exclusion of delivery Post office box addresses are not supplied.
d) Default in acceptance If the customer defaults on accepting the ordered goods, Baldus is entitled to withdraw from the contract after setting a reasonable grace period and to claim damages for default or non-performance. During the delay in acceptance, the customer bears the risk of accidental loss or accidental deterioration.
e) Time of performance Unless expressly agreed otherwise, Baldus will deliver within six weeks. In the case of prepayment, the start of the delivery period is the day after the payment order has been issued to the transferring bank or, in the case of payment by purchase on account, the day after the conclusion of the contract. The period ends six weeks later at the end of the day of the week that corresponds to the day of the beginning of the period. If the last day of the period falls on a Saturday, Sunday or a public holiday recognized by the state at the place of delivery, the period ends on the next working day.
f) Range of services Part of Baldus’ range of services is the implementation of instruction in the operation of medical products according to MPG for the fee shown in the respective offer. The briefing is carried out after an appointment has been made between Baldus and the customer with the stipulation that the briefing should generally take place on the day of delivery and assembly of the medical product. Due to unforeseeable events (e.g. illness, accident, traffic-related obstruction, etc.), Baldus or the customer may have to cancel the appointment. Both Baldus and the customer are obliged to contact the other party immediately after the occurrence of such a hindrance and to cancel the appointment. A cancellation on the part of Baldus does not entitle the customer to withdraw from the contractual relationship or to claim damages. Baldus and the customer will arrange a replacement date as close as possible in the event of an appointment cancellation.
§ 3 payment
a) Prices and shipping costs All prices are exclusive of sales tax and plus the costs for packaging and shipping, unless collection by the customer at Baldus’ place of business has been agreed. The minimum order value is € 25.00 net plus the costs for packaging and shipping.
b) travel expenses In the case of delivery by Baldus, € 0.81 net per kilometer traveled and a flat rate of € 85.00 net for the travel time plus € 85.00 net per hour for travel times longer than one hour.
c) assembly costs For assembly or work on site, Baldus charges € 85.00 net per hour for a technician, fitter or customer service technician. If the customer makes use of telephone support from Baldus technicians outside of the warranty rights, Baldus will charge € 1.99 net per minute or part thereof. Billing takes place on an invoice basis.
d) storage costs If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, Baldus is entitled to demand compensation for the damage incurred, including any additional expenses. In the event that the customer is in default of acceptance, Baldus will store the goods at the customer’s risk and expense. For storage, Baldus charges the customer a fee of % of the value of the goods, regardless of the duration of storage.
e) Default in payment The customer is in default of payment if the payment is not received by Baldus within one week of receipt of the invoice. In the event of late payment, interest of 9% points above the base rate of the European Central Bank will be charged. Should the customer fall into arrears with his payments, Baldus reserves the right to charge reminder fees of 5 euros. The assertion of further damages, in particular also the default lump sum according to § 288 paragraph 5 sentence 1 BGB, remains unaffected. An extension of the payment term to 8, 14 or 30 days is possible after consultation with Baldus.
f) Right of retention The customer is only entitled to assert a right of retention for counterclaims that are due and are based on the same legal relationship as the customer’s obligation.
g) Sundays, public holidays and night surcharges: Work done after 9:00 p.m. during the week (Monday to Friday) will be charged with a 50%igen surcharge (time span 9:00 p.m. to 6:00 a.m. on the following day). This also applies to work that is carried out on Saturdays. Sunday and holiday work are charged with a 100%igen surcharge.
§ 4 Responsibility of the customer
The customer is solely responsible for the content and correctness of the data transmitted for a custom-made product.
§ 5 retention of title
a) General The delivered goods remain the property of Baldus until the purchase price has been paid in full. The customer must treat the goods that are subject to simple retention of title with care at all times. The customer assigns a claim or replacement that he receives for the damage, destruction or loss of the delivered goods to Baldus. If the customer acts in breach of contract, in particular in the event of default in payment, Baldus is entitled to take back the purchased item. This withdrawal of the purchased item constitutes a withdrawal from the contract.
b) Attachment and other impairments If the item subject to retention of title is seized or otherwise impaired by third parties, the customer must notify Baldus immediately so that a lawsuit can be filed in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the customer is liable for the loss incurred by Baldus.
c) Redemption If the customer acts in breach of contract, in particular in the event of default in payment, but also in the case of filing for insolvency proceedings against the customer’s assets, Baldus is entitled to take back the item. In this case, taking back the item does not constitute a withdrawal from the contract, unless Baldus expressly declares this in writing.
d) Extended reservation of title with regard to resale The customer is entitled to sell the reserved goods in the course of business. As security for the purchase price, he assigns to Baldus his future purchase price claim against the third party arising from the resale of the item at the time of the conclusion of the contract in the amount of the final amount including VAT.
e) Extended reservation of title with regard to further processing Any treatment, processing or transformation of the purchased item by the customer is always done in the name of and on behalf of Baldus. In this case, the customer’s entitlement to the purchased item continues with the remodeled item. If the purchased item is processed with other items not belonging to Baldus, Baldus acquires joint ownership of the new item in the ratio of the objective value of the purchased item to Baldus to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer proportional co-ownership to Baldus and keep the resulting sole or co-ownership for Baldus. To secure the claims against the customer, the customer also assigns those claims to Baldus that the customer accrues against a third party through the connection of the reserved goods with a property; Baldus already accepts this assignment.
f) Release of collateral If the value of the collateral exceeds the value of the secured claims by more than 15 %, Baldus is obliged to release collateral at the customer’s request.
§ 6 Warranty
a) Warranty claim There are statutory warranty rights. A warranty claim can only arise with regard to the quality of the goods; reasonable deviations in the aesthetic properties of the goods are not covered by the warranty claim. Insofar as guarantees are given in addition to the warranty claims, you will find their precise conditions for each product. Possible guarantees do not affect the warranty rights.
b) Rights in the event of minor defects If there is only an insignificant defect, the customer is only entitled to a reasonable reduction in the purchase price, excluding the right of withdrawal.
c) Compensation for defects No guarantee is given for damage that can be traced back to improper handling or use of the goods. Baldus only pays compensation for defects in the goods in the event of willful intent or gross negligence. This exclusion does not affect liability for damage to life, limb or health. The provisions of the Product Liability Act remain unaffected by the disclaimer.
d) Scope of warranty In the event of a defect, Baldus will, at its own option, provide supplementary performance in the form of rectification of the defect or a new delivery. The risk of accidental loss or deterioration of the item is transferred to the person assigned to transport it as soon as it is handed over. Warranty claims become statute-barred within one year after the transfer of risk determined in this way.
e) Entrepreneur’s obligation to notifyn Obvious defects must be reported immediately in writing; Otherwise the assertion of warranty claims is excluded. Deadline is sufficient for the timely dispatch. The customer bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the notification of defects.
§ 7 liability
a) Disclaimer Baldus and its legal representatives and vicarious agents are only liable for intent or gross negligence. Insofar as essential contractual obligations (consequently such obligations, compliance with which is of particular importance for the achievement of the contractual purpose) are affected, liability is also assumed for slight negligence. The liability is limited to the foreseeable, contract-typical damage. Even in the event of a grossly negligent breach of non-essential contractual obligations, Baldus is only liable to the amount of the foreseeable, contract-typical damage.
b) Reservation of Liability The above exclusion of liability does not apply to liability for damage resulting from injury to life, limb or health. The provisions of the Product Liability Act remain unaffected by the disclaimer.
§ 8 final provisions
a) Place of jurisdiction Our place of business is agreed as the exclusive place of jurisdiction for all legal disputes arising from this contract, provided you are a merchant, a legal entity under public law or a special fund under public law.
b) Choice of law Unless mandatory statutory provisions according to your home law conflict with this, German law, excluding the UN sales law, is deemed to have been agreed.
c) Severability Clause The ineffectiveness of individual provisions does not affect the validity of the remaining general terms and conditions.