GENERAL TERMS AND CONDITIONS
§ 1. GENERAL, SCOPE OF APPLICATION
(1) All agreements and offers are based on these General Terms and Conditions of SLK Vertriebsgesellschaft mbH (hereinafter referred to as SLK). The terms and conditions apply exclusively, conflicting or deviating from the terms and conditions of the customer SLK does not recognize, unless SLK expressly agrees to their validity in writing. The terms and conditions shall also apply if SLK performs the service to the customer without reservation despite being aware of conflicting or deviating terms and conditions.
(2) All agreements made between SLK and the customer with regard to the execution of the contract must be recorded in writing in the contract.
(3) These terms and conditions shall also apply to all future transactions with the customer.
§ 2. SUBJECT MATTER OF THE CONTRACT IN CASE OF RENTAL OR PURCHASE OF A SLK PRODUCT
(1) When renting or purchasing an SLK product, SLK shall provide the following services: delivery of a hygienically flawless product. SLK delivers the goods to the location specified by the customer, but only within the Federal Republic of Germany. Maintenance measures which are necessary for the intended use of the product, repairs and replacements due to improper or improper use of the product will be invoiced separately.
(2) SLK shall not provide any patient-related services or advice. SLK's therapy suggestions are not binding. The decision on the therapy lies exclusively with the responsible physician. Necessary repositioning of patients must be carried out by the customer's nursing staff.
The responsibility for the measures also lies exclusively with the customer.
§ 3. OFFERS AND OFFER DOCUMENTS
The prices on which the offers are based are exclusive of the applicable statutory value-added tax. The offers are subject to change, unless otherwise stated in the order confirmation. SLK shall no longer be bound by the offer prices after expiry of a period of 4 weeks from the date of the offer. SLK reserves the property rights and copyrights to the offer documents, in particular to illustrations, drawings, calculations and other documents. They may not be made accessible to third parties.
§ 4. PRICES AND TERMS OF PAYMENT
(1) All prices are exclusive of the statutory value added tax. The value added tax shall be shown separately in the invoice in accordance with the value added tax rate applicable on the day of invoicing.
(2) The deduction of a discount requires a special written agreement.
(3) Unless otherwise stated in the order confirmation, the payment due shall be due net (without deduction) immediately upon receipt of the invoice. If the customer is in default of payment, SLK shall be entitled to demand default interest at a rate of 6% p.a. above the respective discount rate of the Deutsche Bundesbank. If a higher damage caused by default can be proven, this can be asserted. However, the customer is entitled to prove to SLK that SLK has incurred no or a significantly lower loss as a result of the delay in payment.
(4) The customer only has the right to offset if his counterclaims are legally established, undisputed or recognized by SLK.
The customer shall have no right of retention on account of disputed counterclaims.
§ 5. DELIVERY TIME
(1) The delivery of the products presupposes that the customer has fulfilled his obligations to cooperate. In particular, the customer must clarify all technical and organizational questions relating to the use of the delivered products and provide SLK with precise information on the place of use, existing technical equipment (power connections, etc.) and conditions of use.
(2) If SLK is in default for reasons for which it is responsible, liability for damages shall be excluded in the event of simple negligence.
(3) If, after SLK has fallen into arrears, the customer sets a reasonable grace period with a threat of rejection, he shall be entitled to withdraw from the contract after the fruitless expiry of the grace period. The customer shall only be entitled to claims for damages due to non-fulfilment of the contract in the amount of the foreseeable damage if the delay is due to intent or gross negligence. Otherwise, liability for damages shall be limited to 50% of the damage incurred.
(4) The limitation of liability according to Clauses 2 and 3 shall not apply if the customer can assert that his interest in the performance of the contract has ceased due to the delay for which SLK is responsible.
(5) If the customer is in default of acceptance or violates other obligations to cooperate, SLK shall be entitled to demand the costs for the damage incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time of purchase of an SLK product when the customer is in default of acceptance.
§ 6. PECIAL PROVISIONS FOR RENT:
DURATION OF CONTRACT, TRANSFER TO THIRD PARTY, OBLIGATION TO INSURE, OBLIGATION TO RETURN
(1) Rental agreements may be terminated by the customer at any time during the term of the agreement. The agreed rent is to be paid until the termination takes effect. In the case of rental agreements concluded for a specific period (long-term, budget and hire purchase agreements), the rent shall be calculated retroactively for the actual period of lease according to the daily rental prices in accordance with the valid SLK price list in each case in the event of premature termination.
(2) The customer may only use the objects provided for the contractual purpose, in particular only for the care of his own patients. The customer shall not be permitted to transfer the rented items to third parties.
(3) The customer must insure the rented items against all risks (in particular personal injury and property damage) to the extent necessary.
(4) The customer shall surrender the rental object upon expiration of the contract period or in the event of default in payment of the rent upon first request by SLK. SLK shall then be entitled to enter the customer's premises and to dismantle and transport the rented items.
(5) The customer shall reimburse SLK for all costs incurred for the collection of the rented items in the event of conduct contrary to the terms of the contract referred to in Clause 4. In addition, SLK may charge the customer the daily rental price for each remaining day of the agreed contract term in accordance with the valid SLK price list. SLK's right to claim higher damages remains unaffected.
§ 7. WARRANTY FOR DEFECTS
(1) SLK guarantees that the product is free of material and manufacturing defects upon delivery.
(2) Assurances with regard to the properties of the products and their intended use can only be given by the management of SLK. They must be made in writing and must be expressly marked as "warranties". Other employees of SLK are not authorized to give assurances. Statements in catalogues and sales documents merely represent a description of the object of performance and not an assurance.
(3) The warranty rights of the customer shall only exist if the customer inspects the delivery item immediately after delivery and immediately asserts any recognizable defects against SLK. If such a defect becomes apparent later, it must be reported immediately. Otherwise, the delivered item shall also be deemed to have been approved with regard to the defect.
(4) Warranty claims for defects for which SLK is not responsible are excluded. This is particularly the case if the defect is due to the fact that (A) the customer has not observed the instructions in the operating and maintenance instructions, (B) the product has been improperly used, transported, stored or damaged by force, (C) the product, devices, device parts or accessories not manufactured or supplied by SLK have been used during use, (D) the product has been modified, or (E) the device has been serviced by a third party and not by SLK.
(5) In the event of defects for which SLK is responsible, SLK shall be entitled, at its discretion, to either remedy the defect or supply a replacement. In the event of defects in the consumables supplied, a replacement delivery shall be made. In the event of rectification of defects, SLK shall bear the necessary expenses, in the case of purchase only up to the amount of the purchase price, in the case of rental only up to the amount of the rental interest incurred for the rental period. If SLK is not willing or able to remedy the defect or to deliver a replacement, or if this is delayed for reasons for which SLK is responsible, or if the remedy of the defect / replacement fails for other reasons, the customer shall be entitled, at his discretion, to demand rescission of the contract (rescission) or a corresponding reduction in payment (reduction).
(6) Unless otherwise stated below, further claims of the customer - for whatever legal reasons - are excluded. SLK is therefore not liable for damages that have not occurred to the delivery item itself: in particular, SLK is not liable for consequential damages caused by defects, in particular for lost profit or other financial losses of the customer.
(7) The above exclusion of liability does not apply if the cause of damage is based on intent or gross negligence. Furthermore, it shall not apply if the customer asserts claim for damages due to non-fulfilment due to the defect of a warranted characteristic.
(8) In the event of a negligent breach of a contractual accessory obligation or a contractual obligation, the obligation to pay compensation shall be limited to foreseeable damage typical of the contract.
(9) The warranty period for purchases is 1 year from the date of delivery. The warranty period for work performed on the product (in particular repair services after expiry of the warranty period) shall be 6 months with regard to the part repaired or replaced in each case. These periods are periods of limitation and also apply to claims for spare parts and consequential damages, unless claims are asserted in tort.
§ 8. TOTAL LIABILITY
(1) Any further liability for damages beyond that provided for in § 5 No. 3 and § 7 No. 5 and 8 shall be excluded - irrespective of the legal nature of the asserted claim. This provision shall not apply in the event of intent or gross negligence on the part of SLK or a legal representative or executive employee of SLK or for claims pursuant to § 1 and § 4 of the Product Liability Act and for cases of inability to perform and impossibility of performance for which SLK is responsible. SLK shall not be liable for damages to third parties resulting from the use of the products by the customer without prior medical order or resulting from an application which was not carried out and monitored by medically trained specialists.
(2) Insofar as SLK's liability is excluded or limited, this exclusion of liability also applies to the personal liability of its employees, representatives and vicarious agents.
(3) Insofar as SLK's liability is excluded according to the above provisions, the customer shall indemnify SLK against corresponding claims by third parties.
§ 9. RETENTION OF TITLE IN THE EVENT OF PURCHASE
(1) In the event of the purchase of SLK products, SLK shall retain title to the object of purchase until receipt of all payments arising from the business relationship. If the customer acts in breach of contract, SLK shall be entitled to take back the purchased item. Taking back the object of sale does not constitute withdrawal from the contract, unless SLK makes an express written declaration to this effect. SLK shall be entitled to dispose of the purchased item after it has been taken back. The proceeds from the sale shall be set off against the customer's liabilities - less any procedural and selling costs incurred.
(2) The customer is obliged to treat the object of sale with care, in particular he is obliged to insure it at his own expense against fire, water and theft. If maintenance and inspection work is necessary and there is no corresponding service contract with SLK, the customer must have this work carried out by SLK at his own expense.
(3) In the event of attachments or other interventions by third parties, the customer must notify SLK immediately in writing.
If SLK initiates legal action as a result of interventions by third parties, the customer shall bear the procedural costs incurred.
(4) The customer is entitled to resell the object of purchase in the ordinary course of business: however, he hereby assigns to SLK all claims in the amount of the final invoice amount (including value-added tax) of SLK's claim accruing to him from the resale to his customers or third parties. The customer remains authorized to collect this claim even after the assignment. SLK's authority to collect the claim itself remains unaffected by this. However, SLK undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made for the opening of bankruptcy or composition proceedings or payments have been suspended. However, if this is the case, SLK may demand that the customer disclose the claims assigned to SLK and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(5) SLK undertakes to release the securities to which SLK is entitled at the customer's request insofar as the realizable value of the securities exceeds the claims to be secured by more than 20 percent. SLK shall be responsible for selecting the securities to be released.
10. ASSIGNMENT PROHIBITION
The assignment of the customer's claims against SLK to third parties is only permissible with the written consent of SLK.
§ 11. PLACE OF JURISDICTION, PLACE OF PERFORMANCE
(1) If the customer is a registered trader, the place of business of SLK shall be the place of jurisdiction; however, SLK shall also be entitled to sue the customer at the general place of jurisdiction applicable to him.
(2) Unless otherwise stated in the order confirmation, SLK's place of business shall be the place of performance.
SLK Vertriebsgesellschaft mbH am Herdicksbach 18 in D-45731 Waltrop Germany