General Terms and Conditions
of Andreas Fahl Medizintechnik-Vertrieb GmbH
All deliveries, services and offers by Andreas Fahl Medizintechnik-Vertrieb GmbH, hereinafter referred to as the Seller, shall be subject to these General Terms and Conditions exclusively, even if the Buyer, hereinafter also referred to as the Consumer or Entrepreneur, refers to other conditions. Deviating or supplementary conditions are expressly rejected by the Seller. Counter-confirmations by the Buyer with reference to his business or purchasing conditions are hereby objected. These General Terms and Conditions shall also apply if the Seller carries out the delivery without reservation despite being aware of the Buyer’s deviating terms and conditions.
These General Terms and Conditions shall also apply to all future business relations, even if they are not expressly agreed upon again. At the latest upon acceptance of the goods or services, these General Terms and Conditions shall be deemed accepted.
Individual agreements between the Seller and the Buyer (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions insofar as they are divergent. Such agreements must be made in writing or in text form.
Legally relevant declarations and notifications by the Buyer with regard to the contract (e. g. setting of deadlines, notification of defects, rescission or reduction) must also be made in written or text form (e. g. letter, email, fax).
Offers by the Seller are non-binding and tentative and subject to prior sale, unless they are expressly marked as binding. The order shall be deemed as a binding contractual offer to the Seller. Unless otherwise stated in the Buyer’s order, the Seller shall be entitled to accept this contractual offer within two (2) weeks upon receipt by the Seller.
Delivery shall be ex warehouse Cologne, which shall also be the place of performance for delivery and any subsequent performance. Upon request by and at the expense of the Buyer, the goods shall be dispatched to a different destination (sale involving the carriage of goods). Unless otherwise agreed, the Seller shall be entitled to determine the type of shipment (in particular carrier, shipping method, packaging).
Unless otherwise agreed by individual agreement, all prices and conditions shall be based upon the Seller’s price and conditions list valid at the time of delivery. Prices are quoted ex the Seller’s warehouse (ex works) in Euro plus the respective applicable statutory value added tax as well as packaging and shipping costs.
The Seller’s invoices shall be due and payable without any deduction no later than 20 days from the date of the invoice.
Payment shall only be deemed effected once the Seller can dispose of the amount.
The Buyer shall not be entitled to withhold payments due to counterclaims or to set them off against counterclaims, unless these have been acknowledged by the Seller, are uncontested or have been legally established. The Buyer’s counter-rights arising from the same contract due to defects, non-performance and/or unfinished or incomplete performance shall remain unaffected hereby.
To the extent permitted by law, Cologne shall be the place of performance for payment and delivery. This shall also apply if the Seller has assumed shipping costs or has disbursed them for the Buyer or if partial deliveries are made.
The Seller shall retain title to the delivered goods until receipt of all payments arising from the business relationship with the Buyer.
Without the Seller’s express written consent, the Buyer may neither pledge the reserved goods to third parties nor assign them by way of security until the secured claims have been paid in full. In the event of pledging or other interventions by third parties, the Buyer must immediately notify the Seller in writing so that the Seller can file a lawsuit in accordance with § 771 German Code of Civil Procedure [Zivilprozessordnung – ZPO]. If the lawsuit has been successful and the third party is not able to reimburse the Seller for the judicial or extrajudicial costs of the lawsuit pursuant to § 771 ZPO, the Buyer shall be liable for the costs incurred by the Seller.
If the Buyer is an Entrepreneur, he shall be entitled to resell the delivered goods in the ordinary course of business; however, he hereby assigns to the Seller all claims in the amount of the final invoice amount (including statutory value added tax) of the Seller’s claims accruing to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The Buyer shall remain authorised to collect this claim even after the assignment. The Seller’s authority to collect the claim himself shall remain unaffected hereby. However, the Seller shall be obliged not to collect the claim as long as the Buyer fulfils his payment obligations from the collected proceeds, is not in default of payment and no petition for the opening of insolvency proceeds has been filed against his assets. If this is the case, however, the Seller may request that the Buyer informs the Seller of the assigned claims and their debtors, provides all information required for collection, hands over relevant documentation and discloses the assignment to the debtors (third parties).
The Buyer shall not be entitled to dispose of the reserved goods in any other way.
The Buyer shall only be entitled to rescind the contract due to a breach of duty by the Seller not consisting in a defect if the Seller can be held responsible for the breach of duty.
In all other respects, all products delivered by the Seller shall be excluded from exchange and return beyond the warranty right (§ 10). A return of the goods is permitted in exceptional cases provided that the Seller has declared his consent in writing or in text form and that the goods are returned to the Seller carriage paid, in their original packaging, undamaged and in perfect hygienic condition within seven days upon receipt of the goods. A return of the goods is only possible against a processing charge corresponding to the expenditure. If the examination of the returned goods shows that these return conditions have been met in full, the Seller shall issue a credit note for the invoice amount of the returned goods deducting the handling fee therefrom accordingly.
Custom-made products, sterile goods and hygiene articles (in particular articles intended to be used in direct body contact) shall generally remain excluded from exchange and return.
Right of Withdrawal
Consumers in the sense of § 13 German Civil Code [Bürgerliches Gesetzbuch – BGB] have the right to withdraw from their contract declaration within 14 days without indicating any reasons.
The withdrawal period shall be 14 days as of the date on which the Consumer or a third party other than the carrier and designated by the Consumer acquires physical possession of the goods.
In order to exercise the right of withdrawal, the Consumer must inform the Seller,
Andreas Fahl Medizintechnik-Vertrieb GmbH, PO Box 92 03 44, 51153 Cologne, Germany, Fax: +49 (0) 2203 2980-100, E-Mail: firstname.lastname@example.org,
of his decision to withdraw from the contract by an unequivocal declaration (e. g. a postal letter, telefax or e-mail). The Consumer may make use of the attached model withdrawal form but this is not mandatory.
In order to meet the withdrawal deadline, it is sufficient if the Consumer sends the notification of the exercise of the right of withdrawal prior to the expiry of the withdrawal period.
Effects of Withdrawal
In case of a valid withdrawal by the Consumer, the Seller shall reimburse to the Consumer all payments that the Seller has received from the Consumer, including delivery charges (with the exception of additional charges arising from the Consumer’s choice of a method of delivery other than the least expensive standard type of delivery offered by the Seller), without delay and in any event not later than 14 days as of the date on which the Seller received the Consumer’s notice on the withdrawal from the contract. For such reimbursement, the Seller will use the same means of payment that the Consumer used for the original transaction, unless expressly agreed otherwise with the Consumer; in no event will the Consumer be charged for this reimbursement. The Seller may refuse reimbursement until the Seller has received the goods back or until the Consumer has provided evidence of having returned the goods, whichever is the earliest.
The Consumer must return the goods or hand them over to
Andreas Fahl Medizintechnik-Vertrieb GmbH
without undue delay and in any case at the latest within 14 days as of the day on which the Consumer notifies the Seller of the withdrawal from this contract. This deadline shall be deemed to have been observed if the Consumer dispatches the goods before the period of 14 days has expired. The Consumer shall bear the direct costs for returning the goods. The Consumer is only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods. Establishing the nature, characteristics and functioning of the goods means testing and trying out the goods as it is for instance possible and common in a regular shop.
Exclusion of the Right of Withdrawal
Unless otherwise agreed by the Seller and the Consumer, the right of withdrawal shall not apply to contracts for the supply of sealed goods which, for reasons of health or hygiene, are not suitable for return if their seal has been removed after delivery, or to contracts for the supply of goods which are not prefabricated and the manufacture of which is determined by an individual choice or specification by the consumer or which are clearly tailored to the personal needs of the customer.
Model Withdrawal Form
(If you would like to withdraw from the contract, please fill in this form and return it to us.)
To: Andreas Fahl Medizintechnik-Vertrieb GmbH, PO Box 92 03 44, 51153 Cologne, Germany, Fax: +49 (0) 2203 2980-100, E-Mail: email@example.com:
- Hereby, I/we (*) give notice that I/we (*) withdraw from my/our (*) contract of the sale of the following goods (*) / for the provision of the following service (*):
- Ordered on (*) / Received on (*):
- Name of consumer(s):
- Address of consumer(s):
- Signature of consumer(s) (only if this form is communicated on paper):
(*) Delete as appropriate.
Delivery dates and deadlines, which may be agreed as binding or non-binding, must be specified in writing. In addition to compliance with statutory provisions, the prerequisite for adherence to the time of delivery is the fulfilment of all contractual obligations by the Buyer, e. g. effecting advance payments.
The Seller shall be entitled to partial deliveries and partial performance at any time insofar as this is reasonable for the Buyer.
Even in case of bindingly agreed times and deadlines, the Seller shall not be responsible for delays in delivery and performance due to force majeure and due to events which significantly complicate the delivery for the Seller or make it impossible without the Seller being accountable, e. g. disruptions at the supplier’s works. The Seller shall then be entitled to postpone the deliveries for the duration of the delay.
Should the Buyer fall into default of acceptance, the Seller shall be entitled to claim indemnification for the damage incurred.
The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest when the goods are handed over. In case of a sale involving the carriage of goods, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
Replacement for breakages, shortfalls or wrong deliveries occurring during transport shall only be possible if proper confirmation of the transport agent is presented. Without such confirmation, complaints cannot be accepted.
If the Buyer falls into default of acceptance or if the delivery is delayed for reasons for which the Buyer is responsible, the Seller shall be entitled to claim indemnification for the resulting damage including all additional expenses. In such cases, the Seller shall store the goods at the Buyer’s risk and charge the Buyer for this storage accordingly.
The statutory provisions shall apply to the Buyer’s rights in the event of material defects or defects in title (including incorrect and short deliveries), unless otherwise specified below.
In case of final delivery of the goods to a Consumer (sale of consumer goods in the sense of § 474 BGB, the statutory special provisions of §§ 445a, 445b, 478 sec. 1 BGB shall always remain unaffected. In all other cases, the special provisions on supplier recourse shall not be applicable.
The warranty rights of a Buyer who is a businessman require that he has duly fulfilled his obligations to inspect the goods and make a complaint in accordance with § 377 German Commercial Code [Handelsgesetzbuch – HGB]. If an acceptance inspection has been agreed with the Buyer, a claim for defects which the Buyer would have been able to identify through proper inspection or initial sample inspection shall be excluded.
The Seller shall be given the opportunity to inspect defective goods in the condition in which they were at the time the defect was discovered.
In case instructions for use, operation or maintenance of the product manufacturer and/or the Seller are not followed, unauthorised modifications are made to the goods, parts are replaced without authorisation or consumables are used which do not correspond to the original specifications, any warranty or liability on the part of the Seller for any defect or damage arising therefrom shall lapse. Any liability for normal wear and tear or for defects occurring in goods after the expiry date specified in the instructions for use has passed is excluded.
Should the delivered goods be defective, the Buyer shall be entitled to the statutory rights in accordance with the following provisions:
First, the Seller shall be entitled, at his discretion, either to remedy the defect or to deliver goods free of defects to the Buyer (subsequent performance). The Buyer shall be obliged to give the Seller the time and opportunity necessary for subsequent performance. The Seller’s right to refuse subsequent performance under the statutory conditions shall remain unaffected.
If a defect actually exists, the Seller shall bear the expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs. Should the Buyer’s request to remedy a defect turn out to be unjustified, the Seller may request reimbursement from the Buyer for the costs thus incurred. Subsequent performance shall include neither the removal of the defective item nor a reinstallation if the Buyer was already aware of the defect at the time of installation or if the installation was not carried out in accordance with specifications. This shall also be applicable if the Buyer did not identify the defect prior to installation due to gross negligence, unless the Seller fraudulently concealed the defect or has given a guarantee.
In the event of a replacement delivery, the Buyer shall return the defective goods to the Seller upon the Seller’s request.
The Seller shall be entitled to make subsequent performance conditional upon the Buyer effecting payment of the agreed purchase price for the delivered goods. However, the Buyer shall be entitled to withhold a reasonable part of the payment of the purchase price.
If subsequent performance fails, the Buyer shall be entitled, at his discretion, to rescind the contract or to request a reduction of the agreed purchase price. In case of a minor defect, however, no right of rescission shall exist.
Claims by the Buyer with regard to damages or reimbursement of futile expenses shall only exist subject to § 11 of these General Terms and Conditions and are otherwise excluded.
Subject to the provisions of the following section, the Seller shall be liable for damages – in case of contractual, non-contractual or other claims for damages irrespective of the legal grounds, in particular for defects, default and impossibility, culpa in contrahendo and tort – only in case of intent and/or gross negligence, including intent and/or gross negligence of the Seller’s representatives or vicarious agents. In addition, the Seller shall also be liable in case of simple negligence, including simple negligence of the Seller’s representatives and vicarious agents, for any damage arising from the breach of an integral contractual obligation, i. e. an obligation the fulfilment of which is essential for the proper performance of the contract and upon which the Buyer may therefore regularly rely (cardinal obligation). Insofar as the Seller is not accountable for an intentional or grossly negligent breach of duty, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.
The exclusions and limitations of liability provided for in the preceding section shall not affect claims for damage arising from injury to life, limb or health or claims by the Buyer under the Product Liability Act [Produkthaftungsgesetz – ProdHaftG], the statutory special provisions for final delivery of the goods to a Consumer and other mandatory statutory liability provisions. The above exclusions and limitations of liability shall also not apply if the Seller has fraudulently concealed a defect or if the Seller is liable from the assumption of a guarantee or because of the assumption of the procurement risk.
The provisions of this § 11 shall also be applicable if the Buyer claims compensation for futile expenses instead of damages in lieu of performance.
Insofar as the Seller’s liability is excluded or limited, this shall also apply with regard to the personal liability for damages for the Seller’s employees, personnel, staff, representatives and vicarious agents which is based upon identical legal grounds.
By derogation from legal regulations, the Buyer’s claims arising from material defects or defects in title shall become statute-barred one year as of delivery of the purchased item to the Buyer.
The relief from the statute of limitations pursuant to § 12.1 shall not apply to claims by Consumers as well as claims for damages due to injury to life, limb or health and/or claims for damages due to damage caused through gross negligence or intent by the Seller as well as claims due to the assumption of a guarantee or of procurement risks. In this respect, statutory provisions shall apply. Longer limitation periods as in accordance with § 438 sec. 1 no. 1 BGB (rights in rem of a third party) and § 438 sec. 3 BGB (malice) shall also remain unaffected. If the last contract in the supply chain is a sale of consumer goods within the meaning of § 474 BGB (i. e. final delivery of the goods to a Consumer), the limitation periods pursuant to § 445b BGB shall also remain unaffected.
The above limitation periods shall also apply to contractual and non-contractual claims for damages by the Buyer based upon a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Mandatory limitations periods and limitation deadlines under the Product Liability Act shall remain unaffected in any case.
Insofar as the statute of limitations for claims against the Seller is shortened in accordance with § 12.1 to § 12.3, this shortening shall apply mutatis mutandis to any of the Buyer’s claims based on identical legal grounds against the Seller’s legal representatives, employees, staff, agents as well as performing and vicarious agents.
The Seller processes personal data exclusively in compliance with data protection regulations. The Seller informs on the exact details of the processing of personal data provided by the Buyer to the Seller in the course of an order in the information sheet pursuant to the General Data Protection Regulation (GDPR) which can be accessed at www.fahl-medizintechnik.de/en/footer-menu/privacy-policy/.
If a Buyer transmits personal data of a third person (e. g. an employee), the Buyer shall be obliged to inform such person pursuant to the GDPR in due time on the Seller’s data processing; the Seller shall not be obliged to inform such person.
These General Terms and Conditions and all legal relations between the Seller and the Buyer shall be subject to the laws of the Federal Republic of Germany with the exclusion of the UN Convention on the Contracts for the International Sale of Goods. This choice of law implies that the Buyer, who is a Consumer, with habitual residence in one of the countries of the European Union or Switzerland, shall not be deprived of the protection granted by mandatory provisions of the laws of such country.
If the Buyer is a businessman within the meaning of the German Commercial Code, a legal entity under public law or special funds under public law the exclusive, also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Cologne, Germany. The same shall apply if the Buyer is an Entrepreneur within the meaning of § 14 BGB. The Seller shall, however, be entitled to take legal action at the general place of jurisdiction of the Buyer.
Andreas Fahl Medizintechnik-Vertrieb GmbH
Registered Office of the Company: Cologne, Germany
Registered at the Cologne Local Court, HRB 27160
Managing Director: Andreas Fahl
As per 06/2019