Terms and Conditions

matra med eK Terms and Conditions

1. General, Scope, Form

1.1. The following General Terms and Conditions (GTC) of matramed Medizintechnik eK (hereinafter matramed) apply exclusively to all business with our customers; conflicting, deviating or supplementary terms and conditions of the customer are not recognized unless matramed has expressly agreed to their validity. This requirement for consent also applies if matramed carries out the delivery or service to the customer without reservation despite knowing that the customer has conflicting or deviating terms and conditions.

1.2. Individual agreements made with the customer in individual cases (including ancillary agreements, additions and changes) always take precedence over these General Terms and Conditions.

1.3. Customers within the meaning of these terms and conditions are both consumers (§13 BGB) and entrepreneurs (§14 BGB).

1.4. All agreements on deliveries and services as well as ancillary agreements must be in text form to be valid (fax, email, paper).

2. Offer and conclusion of business, subject to change

2.1. Offers from matramed are non-binding and subject to self-supply. The order of the goods by the customer is considered a binding contractual offer. Unless otherwise stated in the order, matramed can accept this offer within two weeks of receipt. Acceptance can be made by our written or telex confirmation or by delivery of the goods to the customer.

2.2. Our cost estimates/offers, drawings and other offer documents remain our property. We alone have the copyright to exploit them.

2.3. matramed reserves the right to make changes to the execution of the service within the scope of the usual quantity and quality tolerances, provided that this is reasonable for the customer. In particular, a peripheral device supplied may differ from the device specified in the contract if this does not lead to a change in the performance or quality of the main device.

3. Deliveries, performance time, unavailability of performance, force majeure, partial performance

3.1. The delivery period is agreed individually or stated by us when accepting the order. If this is not the case, the delivery period is approximately 3-4 weeks from the conclusion of the contract.

3.2. Delivery deadlines are met if the contractual item has left the warehouse before the deadline expires or the customer has been informed that it is ready for dispatch. The customer may not refuse to accept delivery due to minor defects or deviations in peripheral devices in accordance with 2.3.

3.3. If the customer is an entrepreneur, matramed is entitled to postpone delivery or service for the duration of the hindrance in the event of force majeure, whereby matramed will immediately inform the customer of the hindrance and its expected duration. All circumstances for which matramed is not responsible and which make it impossible or unreasonably difficult for matramed to provide the delivery or service, as well as official measures that hinder delivery or service, are considered force majeure. If the hindrance, for which matramed is not responsible, lasts longer than two months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the unfulfilled part if he can prove that he is no longer interested in the outstanding fulfillment of the contract due to the delay. If partial performance has been effected, the customer can only withdraw from the contract as a whole if he can also prove that partial fulfillment of the contract is of no interest to him.

3.4 In the event that the service is not available, matramed reserves the right to withdraw from the contract, whereby matramed will immediately notify the customer of the hindrance and its expected duration and will immediately refund any consideration already provided by the customer.

3.5. Compliance with the delivery and service obligations by matramed requires the timely and proper fulfillment of all contractual obligations by the customer.

3.6. matramed is entitled to make partial deliveries and partial services, provided this is reasonable for the customer.

 

4. Prices, payment terms, default, offsetting, right of retention

4.1. Unless otherwise agreed, matramed's prices are free delivery including installation and the costs for packaging and disposal. Excluded from this are goods over 10 kg (e.g. equipment trolleys, gel containers, etc.). When delivering ultrasound accessories, the buyer bears the costs for packaging and shipping. In the case of shipping to businesses, matramed will take out transport insurance at the customer's request and at the customer's expense. Unless otherwise agreed in individual cases, the prices current at the time the contract is concluded apply. The prices are exclusive of the applicable statutory sales tax.

4.2 The invoice amounts are due immediately after receipt of the invoice and delivery of the goods without deduction. However, if the customer is an entrepreneur, matramed is entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. A corresponding reservation will be declared at the latest with the order confirmation. For reminders required after the invoice is due, a reminder fee of €10.00 will be due per reminder.

4.3. matramed is entitled to initially offset payments against older debts of the customer and will inform the customer about the type of offsetting that has taken place. If costs and interest have already been incurred, matramed is entitled to offset the payment first against the costs, then against the interest and finally against the main service.

4.4. A payment is only deemed to have been made when matramed can dispose of the amount. In the case of cheques, payment is only deemed to have been made when the cheque is cashed.

4.5. The customer is in default upon expiry of the above payment deadline. If the customer defaults, matramed is entitled to demand interest of 5 percentage points above the base interest rate from a customer who is a consumer, and 9 percentage points above the base interest rate from a customer who is a business. Matramed is permitted to prove and assert higher damages caused by the default.

4.6. If matramed becomes aware of circumstances that call into question the customer's creditworthiness, in particular if the customer stops making payments, matramed is entitled to demand payment of the entire remaining debt, even if it has accepted checks.

4.7. The customer is only entitled to offset if his counterclaim has been legally established, is undisputed or has been recognized by matramed.

The customer has a right of retention only to the extent that the asserted counterclaim arises from the same purchase contract.

4.8. Only persons with written authorization from matramed are authorized to accept payments.

 

5. Retention of title

5.1. matramed reserves ownership of the contractual item until full payment of the respective invoice amount has been received. If the customer is an entrepreneur, the retention of title extends to all current and future claims arising from the purchase contract and an ongoing business relationship with the entrepreneur.

5.2. The customer is obliged to treat the goods - as well as rental and demo equipment - with care during the period of retention of title, in particular to protect them from knocks, impacts and mechanical stress and to store them in a dry and dust-free place in closed rooms. If maintenance and inspection work is required, the customer must carry out these regularly at his own expense. In the case of demo and rental equipment, liability is transferred to the customer upon handover.

5.3. In addition, the customer is obliged to insure the goods owned by matramed at their own expense against fire, water and theft at their replacement value. To secure matramed's claim for payment, the customer hereby assigns all claims arising from the insurance contract to matramed. matramed accepts this assignment. The customer may collect these claims assigned to matramed on his own account in his own name for matramed, as long as matramed does not revoke this authorization. This does not affect matramed's right to collect these claims itself; however, matramed will not assert the claims itself and will not revoke the direct debit authorization as long as the customer properly meets its payment obligations. matramed is entitled to demand the submission of proof of the existence of insurance cover. Pledging, transfer of ownership by way of security and other dispositions are not permitted as long as the retention of title exists, without prejudice to Section 6.5.

5.4. In the event of seizures or other interventions by third parties, the customer must notify matramed immediately in writing. If the third party is unable to reimburse matramed for the legal and extrajudicial costs of a lawsuit in accordance with Section 771 of the Code of Civil Procedure, the customer is liable for the damage incurred by matramed.

5.5. The customer must notify matramed immediately in writing if an application for the opening of insolvency proceedings has been filed.

5.6. If the customer is an entrepreneur, the customer may use the reserved goods and resell them in the ordinary course of business as long as he is not in default of payment. However, he may not pledge the reserved goods or transfer them as security. The customer hereby assigns in full to matramed as security the customer's claims for payment against his customers from a resale of the reserved goods as well as those claims of the customer in relation to the reserved goods that arise from another legal reason against his customers or third parties (in particular claims from tort and claims for insurance benefits), including all balance claims from current accounts. matramed accepts this assignment. The customer may collect these claims assigned to matramed on his own account in his own name for matramed as long as matramed does not revoke this authorization. The right of matramed to collect these claims itself is not affected by this; However, matramed will not assert the claims itself and will not revoke the direct debit authorization as long as the customer properly meets his payment obligations. However, if the customer acts in breach of contract - in particular if he is in arrears with the payment of a fee - matramed can demand that the customer inform matramed of the assigned claims and the respective debtors, inform the respective debtors of the assignment and hand over all documents to matramed and provide all information that matramed needs to assert the claims.

5.7. If the customer acts in breach of contract – in particular if payment is delayed – matramed is entitled to withdraw from the contract and demand the return of the reserved goods.

5.8. matramed will release security rights at the customer's request if their realizable value exceeds the total claim of matramed to be secured by 10%.

6. Transfer of risk, transport insurance, delay in acceptance

6.1. Deliveries by matramed to companies are made from the Bexbach warehouse. If the customer defaults on acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the customer is responsible, matramed is entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this, we charge a flat-rate compensation of EUR 75 per calendar day, starting with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch. Proof of greater damage and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The customer is permitted to prove that we have suffered no damage at all or only significantly less damage than the above flat rate.

6.2. If the customer is an entrepreneur, in the case of shipment to the customer, the risk passes to the customer when the contractual item is handed over to the person carrying out the transport; this also applies to transport by matramed. Transport damage must be reported immediately in writing to matramed and the delivering freight forwarder.

6.3 If the customer is a consumer, the risk of accidental loss and accidental deterioration of the item sold – even in the case of mail order sales – only passes to the customer upon delivery of the item.

6.4 Delivery shall be deemed to have taken place if the customer is in default of acceptance.

7. Warranty and Limitation of Liability

7.1. The limitation period for claims due to defects is one year from the start of the statutory limitation period. Deviating from this, the statutory limitation period applies i) in the case of Section 438 Paragraph 1 No. 1 BGB (proprietary rights of third parties), for recourse claims according to Section 478 Paragraph 1 BGB (entrepreneur's recourse), for recourse claims according to Section 445 BGB (supplier's recourse) and in the case of fraud; ii) for claims for damages based on intent or gross negligence, culpable injury to life, body or health or liability under the Product Liability Act.

7.2. Any seller guarantees given by matramed for specific items or manufacturer guarantees granted by the manufacturers of specific items are in addition to the claims for material or legal defects within the meaning of Section 8.1. Details of the scope of such guarantees can be found in the guarantee conditions that may accompany the items.

7.3. If the customer is an entrepreneur, matramed will initially provide a warranty for defects in the goods by repair or replacement delivery at its discretion. If the customer is a consumer, he or she initially has the choice of whether the subsequent performance should be carried out by repair or replacement delivery. However, matramed is entitled to refuse the type of subsequent performance selected if it is only possible at disproportionate costs and the other type of subsequent performance does not result in significant disadvantages for the consumer.

7.4 Obvious defects (including damage to packaging and quantity discrepancies) must be reported in writing to the customer immediately, but no later than eight days after receipt of the delivery. Hidden defects must be reported in writing to the customer immediately, but no later than three days after their discovery. Otherwise, the delivery is deemed to have been approved with regard to the defect.

7.5. The customer's claims for damages and reimbursement of expenses, regardless of the legal basis, are excluded. This exclusion of liability does not apply i) in the case of liability under the Product Liability Act, ii) in the case of intent or gross negligence, iii) in the case of culpable injury to life, body or health or iv) in the case of culpable violation of essential contractual obligations, i.e. obligations whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the customer regularly relies and may rely. However, liability for violation of essential contractual obligations is limited to compensation for foreseeable, contract-typical damage, unless liability is based on intent or gross negligence, injury to life, body or health or under the Product Liability Act. Insofar as matramed's liability is excluded or limited, this also applies to the benefit of matramed's legal representatives, employees, subcontractors and vicarious agents if they are directly called upon by the customer. The above provisions do not involve a change in the burden of proof to the detriment of the customer.

7.6. If the customer is an entrepreneur, only the manufacturer's product description is deemed to be agreed as the quality of the goods. Public statements, recommendations or advertising by the manufacturer do not constitute a contractual description of the quality of the goods.

7.7. If the customer receives defective device documentation, matramed is only obliged to deliver a defect-free product manual

7.8. Claims for damages against matramed are generally excluded if any components of the system are modified or replaced by the customer without the written permission of matramed. This also applies to wearing parts and in the case of other uses - not previously mentioned to us - which deviate from the usual operational area of ​​application.

7.9. Claims for damages arising from the fact that the use of hardware and software products infringes on the intellectual property rights of third parties are fundamentally excluded.

7.10. Claims for defects against matramed are only available to the direct customer and are not transferable.

8. Spare parts

If necessary, matramed can also offer tested used parts as spare parts or, instead, other functional technical solutions.

9. Application software

If the customer is provided with application software with our deliveries, he is granted the non-exclusive right, for an unlimited period of time, to use the software on the products supplied, in an unchanged form and for the purposes stated in the product description. The software may only be copied for backup purposes; any changes to the software are prohibited. The usage fee for the software is included in the purchase price. Updates are charged separately.

10. Installation and customer service

10.1. Installation and customer service are carried out by matramed or by authorized specialist companies arranged by matramed.

10.2. Before delivery of ultrasound devices, the customer must ensure that the installation site is easily accessible, that the structural requirements are met, that there is sufficient space, sufficient ventilation, a floor suitable for castors and the weight of the device, that the floor has sufficient load-bearing capacity and that the necessary electrical connections are available, that it is sufficiently protected against moisture and brine, and that it is sufficiently shielded from the rest of the practice area against the usual operating noises of the device.

10.3. Difficulties in the delivery and installation of ultrasound devices can be invoiced separately, as can all additional costs that arise if the conditions specified under section 11.2 are not met upon delivery on the day of the agreed installation date.

10.4. Spare parts and repairs that are not covered by the warranty must be paid for separately by the customer.

10.5. If, in the case of repairs, the cost estimate is exceeded by up to 8% (of the total), this is harmless and corresponds to standard commercial practice. If the costs exceed the cost estimate by more than 8%, matramed will inform the customer of this and must receive a new order from the customer in this regard.

11th ElektroG

The customer is responsible for the disposal of the products we supply (ElektroG). Our delivery also exempts the respective manufacturer of the product from the obligation to dispose of and take back the product.

12. Miscellaneous

12.1. If the customer is a merchant, a legal entity under public law or a special fund under public law, Zweibrücken shall be the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

12.2. The law of the Federal Republic of Germany applies. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.

12.3. Should any provision of the above terms and conditions be or become invalid, this shall not affect the validity of all other provisions or agreements.
as of March 2020