General terms and conditions (GTCs)
of iMS GmbH medizinische Laser Tutzing

 

I. General, scope of application

  1. The business relationships with our contractual partners are based exclusively on the following General Terms and Conditions (GTC). They apply to our offers, the execution of the respective contract, in particular to our subsequent deliveries and services. These GTC are expressly recognized by our contractual partners when they place an order.
  2. In business transactions with merchants, legal entities and special funds under public law, our GTC shall also apply to all future transactions with the contractual partner.
  3. We do not recognize any terms and conditions of the contractual partner that conflict with or deviate from our GTC unless we have expressly agreed to their validity in writing. The recognition of deviations shall only apply to the current contract. Our GTC shall also apply if we carry out the delivery and service to the contractual partner without reservation in the knowledge that the contractual partner’s terms and conditions conflict with or deviate from our GTC.

II. Conclusion of contract

  1. Our offers, prices, cost estimates and other commitments are subject to change unless they are made in writing and expressly designated as binding.
  2. Descriptions of delivery items, technical specifications, illustrations, drawings as well as dimensional, weight and performance specifications that are part of a non-binding offer are for illustrative purposes only and are non-binding unless they are expressly designated as binding.
  3. If the contractual partner does not expressly indicate in the order that he only wishes a specific version of the ordered goods or that his specifications and requirements should not be deviated from under any circumstances, we shall assume that we are entitled to deliver the technically modified version in the course of continuous technical development, provided that this is reasonable for the contractual partner, considering the legitimate interests of both parties.
  4. Orders are only accepted by our written confirmation or by execution.

III. Copyright and exploitation rights

  1. We reserve unrestricted ownership and copyright exploitation rights to illustrations, drawings, calculations, cost estimates and other documents; they may not be made accessible to third parties. This applies in particular to such written documents that are designated as “confidential”; our express written consent must be obtained before passing them on to third parties. We may make our contractual partner’s documents accessible to third parties to whom we permissibly transfer the delivery or individual partial services.
  2. Drawings and documents belonging to offers must be returned to us immediately upon request if the order is not placed with us.

IV. Prices

  1. Our prices are quoted in EURO (€), unless otherwise stated. They apply ex our distribution warehouse, excluding freight, customs, insurance, packaging, installation and assembly and other usual ancillary costs.
  2. The statutory value added tax is not included in our prices; it will be charged additionally at the statutory rate on the day of invoicing. (if applicable)
  3. Price changes are permissible if there are more than four months between the conclusion of the contract and the agreed delivery date; in this case, the price valid on the day of delivery shall be deemed to have been agreed. There is no right of withdrawal due to price increases.

V. Delivery and delivery periods

  1. The delivery period shall commence on the date of the order confirmation, but not before receipt of all documents or information required for the execution of the order. Subsequent requests for changes or additions by the contractual partner shall extend the delivery period accordingly.
  2. The usual delivery period for our laser catheters is 8 weeks. We advise our customers to take this into account in their inventory management and in their ordering procedure.
  3. In the event of force majeure and other unforeseeable, extraordinary circumstances for which we are not responsible (e.g. war, blockade, fire, natural disasters, riots, lack of personnel due to illness, strike, lockout, operational, transportation, material procurement and energy supply disruptions as well as official intervention), we are entitled to extend the delivery period to a reasonable extent. The delivery period shall be extended by the duration of the disruption.
  4. We are entitled to make partial deliveries to a reasonable extent. Partial deliveries and partial services may be invoiced separately by us. If payment for a partial delivery is delayed, we may suspend further fulfilment of the contract.

VI. Acceptance, taking back

  1. If the contractual partner refuses acceptance after the expiry of a reasonable period of grace granted to him or expressly declares that he does not wish to accept, we may withdraw from the contract and demand compensation. We can demand a lump sum of 25% of the order amount as compensation. The contractual partner is entitled to prove that we have incurred no or significantly less damage. If, in an individual case, we incur exceptionally high damages that significantly exceed the lump-sum compensation, we shall be entitled to claim these damages.
  2. The contractual partner or its authorized personnel is obliged to confirm acceptance of our goods delivery in writing with a full signature.
  3. Any return of goods is expressly subject to reservation and in compliance with the applicable regulations on medical products and only after prior consultation with us. Any costs incurred, such as postage, packaging, processing and return fees on the part of the upstream suppliers will be passed on to the contractual partner.
  4. Sterile goods are generally excluded from return.

VII. Transportation, transfer of risk and shipping

Delivery shall be made at the expense and risk of the contractual partner, even if delivery is made carriage paid and/or in the seller’s means of transportation. The risk shall pass to the contractual partner at the location of our distribution warehouse as soon as the goods have been handed over to the first carrier and have left our warehouse for shipment.

Goods not accepted on time shall be stored at the expense and risk of the buyer. Shipping instructions must be stated in the order, otherwise the choice of shipping method is left to us without any obligation for the fastest and cheapest transportation. Unless expressly specified by the buyer, the goods shall be shipped uninsured at the buyer’s expense and risk.

Goods ordered or provided for inspection, testing, rental or loan must be insured by the customer against the usual risks (at least fire, water, theft) during the period of provision and, in the event of non-acceptance, returned to us at the expense and risk of the contractual partner. Any handling and repair costs incurred after the return shipment shall be borne by the contractual partner.

VIII. Warranty and duty to inspect

  1. The contractual partner is obliged to inspect the goods immediately upon receipt. The contractual partner must report obvious defects in writing within 7 working days after delivery or transfer of risk, and non-obvious defects within the same period after their discovery, stating the individual defects in detail. Claims for defects shall become time-barred 12 (twelve) months after delivery; however, §438, para. 1 no. 1 BGB (German civil code) and §479 para. 2 BGB shall remain unaffected.
  2. If there is a defect for which we are responsible, we are entitled, at our discretion, to remedy the defect or to replace the goods. Replaced goods shall become our property. The contractual partner shall not be entitled to rectify the defect himself or to compensation for the costs incurred as a result.
  3. If we refuse to remedy the defect or make a new delivery, if this becomes unreasonable for the contractual partner or if it fails, the contractual partner may, at his discretion, withdraw from the contract or reduce the purchase price. A claim for damages instead of performance is excluded unless the damage is due to a grossly negligent or intentional breach of duty.
  4. The warranty is excluded for defects caused by unsuitable or improper use, incorrect assembly or commissioning by the contractual partner or third parties, natural wear and tear, incorrect or negligent handling or maintenance, unsuitable operating materials, defective installation work, chemical, electrochemical or electrical influences.
  5. If we have acted on the basis of a notice of defect from the customer without there being an objective defect, we may demand compensation for our expenses.

IX. Liability

  1. Unless otherwise stipulated above, our liability for damages – regardless of the legal grounds – is excluded. We are therefore not liable for damages that have not occurred to the delivery item itself; damages resulting from injury to life, limb or health are not asserted. Furthermore, it shall not apply if claims for damages are asserted due to the absence of a warranted characteristic or due to a guarantee given by us. Finally, it shall not apply if we negligently breach a cardinal obligation or an essential contractual obligation. In this case, our liability to pay compensation shall be limited to the foreseeable damage typical of the contract.
  2. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
  3. The above provisions shall not apply insofar as claims under § 1 and § 4 of the Product Liability Act are concerned.
  4. The contract partner shall indemnify iMS GmbH against all liability for damages – irrespective of the legal grounds – arising from the fact that it has resold the products supplied by iMS and, in the context of this resale, iMS or third parties suffer damage as a result of the supplied products being improperly transported, stored or used. This indemnification also applies to damages incurred by iMS or third parties due to the fact that the contractual partner does not comply with the statutory information and reporting obligations incumbent on him.

X. Retention of title

  1. Delivered goods shall remain our property (reserved goods) until full payment has been made (in the case of checks until they have been cashed without reservation). In the case of merchants, we reserve title to the delivered goods until all payments arising from the business relationship with the contractual partner have been received. In the event of seizure or other interventions by third parties, the contractual partner must inform us immediately in writing so that we can assert our rights.
  2. We undertake to release the securities to which we are entitled at the request of the contractual partner to the extent that the value of our securities exceeds the claims to be secured by more than 20%; we shall be responsible for selecting the securities to be released.

XI. Terms of payment

  1. Unless otherwise agreed, our invoices are due for payment net without deduction upon receipt. All payments are to be made free of charges for us.
  2. We expressly reserve the right to refuse checks or bills of exchange. Discount and bill charges shall be borne by the contractual partner and are due immediately.
  3. If the contractual partner is in default of payment, we shall be entitled to demand default interest at the statutory rate stipulated in §288 BGB. If we are able to prove higher damages caused by default, we shall be entitled to claim these.
  4. The contractual partner may only offset undisputed or legally established claims. A right of retention of the contractual partner with claims not resulting from the respective contract is excluded.

XII. Medical devices

The customer confirms that he is aware of the relevant national, European and international regulations in connection with the sale and/or operation of medical devices, such as the Medical Devices Act or Guidelines on a Medical Device Vigilance System, and undertakes to comply with them. Furthermore, the customer confirms that he is qualified and authorized to commission, use or trade in, store and purchase the respective medical device in accordance with the applicable national, European and international regulations.

XIII. Packaging

Insofar as we are legally obliged to take back the transport and outer packaging, the customer shall bear the costs for the return transport of the packaging used.

XIV. Place of fulfilment, applicable law and place of jurisdiction

  1. The place of fulfilment for all claims arising from the business relationship with the contractual partner, in particular for deliveries and payments, is the registered office of iMS GmbH, unless otherwise stated in the order confirmation.
  2. The law of the Federal Republic of Germany shall apply to all legal relationships between the parties, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  3. The place of jurisdiction for all disputes arising from the business relationship shall be Starnberg if the contractual partner is a registered trader, a legal entity under public law or a special fund under public law or if the contractual partner moves its domicile or usual place of residence outside the territory of the Federal Republic of Germany after conclusion of the contract or if the domicile or usual place of residence of the contractual partner is not known at the time the action is brought. However, we are also entitled to sue the contractual partner at the court responsible for the registered office of the contractual partner.

XV. Consent under data protection law

The customer expressly agrees that we may collect, process and use the personal data provided by the customer or to be provided in the future for marketing purposes, including by setting up a customer file. This consent can be revoked by the customer at any time with effect for the future.

XVI. Severability clause and final provisions

  1. Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements. The ineffective provision shall be replaced by a provision which comes closest to the economic purpose intended by the parties by way of interpretation.
  2. Amendments, deviations and supplements must be made in writing. This also applies to the waiver of this written form requirement.

iMS GmbH
Tutzing, September 15, 2018