1. General – Scope
Deliveries, services, and offers of cardioscan GmbH (hereinafter “CS”) are exclusively based on these terms and conditions. They also apply to all future business relationships, even if they are not expressly agreed again. These conditions are deemed accepted at the latest upon receipt of the goods or service. Counter-confirmations of the buyer with reference to their own business or purchasing conditions are hereby contradicted.
2. Offer and Conclusion of Contract
- The offers of CS are non-binding and subject to change. Declarations of acceptance and all orders require written or telex confirmation from CS to be effective. If the buyer’s order itself qualifies as an offer according to § 145 BGB, it is binding and can be accepted by CS within 4 weeks by sending an order confirmation or by sending the ordered goods within this period.
- Drawings, illustrations, dimensions, weights, or other performance data are only binding if expressly agreed in writing. In the case of all types of development contracts, the subject of the contract is the agreed performance, not the success.
- Sales representatives of CS are not authorized to make oral collateral agreements or give oral assurances that go beyond the content of the written contract.
- The prices stated in the order confirmation shall be considered the agreed purchase price. For orders with a delivery time of more than 4 months, CS reserves the right to charge the prices applicable on the day of delivery or to increase prices in line with the incurred cost increases. If the increase exceeds 5% of any agreed price, the purchaser shall have the right to terminate the contract.
- All prices are quoted without value-added tax, which will be shown separately on the invoice at the statutory rate on the day of invoicing.
- Prices are generally quoted ex works CS, excluding packaging, expenses for installations or assembly, instructions on software, and transport and travel costs, which will always be charged separately. All prices are quoted in euros.
- Delivery dates or deadlines, which are regularly agreed to be non-binding, require written form or written confirmation. In any case, CS is only obliged to adhere to these dates or deadlines to the best of their ability. Delivery is made to the agreed delivery address.
- CS is entitled to partial deliveries and partial services. CS reserves the right to restrict the delivery quantity or the scope of delivery due to own non-delivery or limited stock of CS as well as other extraordinary events. If it is unreasonable for the purchaser, he has the right to terminate the contract.
- CS shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for CS – this includes in particular strike, lockout, official orders etc. even if they occur at suppliers of the seller or their sub-suppliers – even in case of bindingly agreed deadlines and dates. They entitle CS to postpone the delivery or service by the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled. If the impediment lasts longer than three months, Purchaser shall be entitled to withdraw from the contract with regard to the part not yet fulfilled after setting a reasonable grace period. A period of grace of 4 weeks is reasonable. If the delivery time is extended or if CS is released from its obligation, Purchaser may not derive any claims for damages therefrom, provided that CS has immediately notified Purchaser of the aforementioned circumstances.
- If CS is responsible for the non-observance of bindingly agreed deadlines and dates or is in default, Purchaser shall be entitled to compensation for delay amounting to a maximum of 5% of the invoice value of the deliveries and services affected by the delay. Any further claims are excluded, unless the delay is due to at least gross negligence on the part of CS.
- Compliance with CS’s delivery and performance obligations shall be subject to Purchaser’s timely and proper fulfillment of its obligations.
- If Purchaser fails to meet his obligation to accept delivery or fails to do so in due time, CS reserves the right to store the goods at Purchaser’s expense and risk or to claim damages for non-performance. Upon default of acceptance, the risk of accidental deterioration or accidental loss shall pass to Purchaser. After setting a grace period of a maximum of 14 days, CS shall be entitled – without prejudice to further legal claims – to withdraw from the contract or to claim damages.
- Purchaser shall make all arrangements necessary for a smooth delivery. In the event of delays, the waiting times and additional travel costs shall be borne by the Purchaser.
5. Transfer of risk
- Unless otherwise stated in the order confirmation, delivery “ex CS headquarters” is agreed. The risk shall pass to Purchaser as soon as the consignment has been handed over to the person performing the transport or has left the warehouse of CS for the purpose of shipment. In the event that shipment becomes impossible through no fault of CS, the risk shall pass to Purchaser upon notification of readiness for shipment.
- If requested by Purchaser, CS shall cover the delivery by transport insurance. The costs incurred in this respect shall be borne by Purchaser.
- Unless otherwise agreed in writing, all payments are due within 30 days of the invoice date without deductions. For commercial and foreign transactions, the payment agreements stipulated in writing shall apply. The date of receipt of payment in cash or as a credit to a business account of CS shall be decisive for compliance with the payment deadline.
- CS is not obliged to accept checks or bills of exchange. Should these nevertheless be accepted on account of performance, the costs of payment and discounting shall be borne by Purchaser. Accepted checks or bills of exchange can be returned without justification with the demand for cash payment.
- In case of default or deferral of payment after expiry of the payment deadline, CS shall be entitled to demand interest from the due date in the amount of 5% above the respective base interest rate of the European Central Bank as compensation. The right to further compensation remains unaffected.
- If compliance with Purchaser’s payment obligations or the enforceability of CS’s claims is jeopardized due to the circumstances listed below by way of example – unsatisfactory credit information, non-compliance with payment dates agreed with CS, existing enforcement measures against Purchaser – CS may at any time demand securities, advance payment or immediate maturity of all claims. If Purchaser does not comply with such a request within 6 days, CS shall be entitled to withdraw from the contract or to claim damages. Even if the right of withdrawal is chosen, CS is entitled to claim expenses and costs incurred, lost profit as well as compensation for the use of the delivered goods. Subject to proof of a higher amount, CS is entitled to charge the lost profit at a flat rate of 25% of the agreed purchase price.
- Purchaser is only entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, are undisputed or have been acknowledged by CS in writing. Furthermore, Purchaser shall be entitled to withhold payment due to counterclaims arising from the same contractual relationship.
- CS is obliged to execute the placed orders carefully and professionally and to protect the interests of Purchaser appropriately. Purchaser’s attention is drawn to the fact that, according to the current state of technical development, temporary and insignificant errors, in particular in software products, cannot be completely excluded. The contractual conformity of the deliveries and services provided shall be checked by the Purchaser in any case immediately upon receipt.
- Complaints shall only be accepted if, in the case of obvious and recognizable defects, they are notified to CS in writing without delay, but no later than 14 days after handover of the goods or provision of the services. Hidden defects, which could not be alleviated after the immediate inspection, can only be asserted against CS if the notice of defect is received by CS within 6 months after the performance has left the place of performance, § 377 HGB (German Commercial Code) shall apply accordingly in all other respects.
- Warranty claims shall only exist in the event of timely notification of defects and provided that no interventions (in particular repairs) have been carried out on the goods by the Purchaser or third parties. The defective delivery items shall be kept ready for inspection by CS or third parties commissioned by CS in the condition in which they are at the time of detection of the defect. If an inspection of the goods on the basis of a complaint that has been made shows that there is no defect, CS is entitled to demand reasonable remuneration for the inspection in addition to any transport and travel costs incurred.
- If a defect is acknowledged, CS shall, at its own discretion, either deliver a replacement or remedy the defect to the exclusion of any other warranty claims of Purchaser. Multiple rectifications are permissible. In case of rectification of defects, CS is obliged to bear all expenses required for this purpose, in particular transport, travel, labor and material costs, as far as these are not increased by the fact that the purchased item has been taken to a place other than the agreed place of delivery.
- If the rectification or replacement delivery fails after a reasonable period of time, Purchaser may, at its option, demand a reduction of the purchase price (abatement) or rescission of the contract (redhibition). CS shall only be liable for defects of order components not provided by CS itself but purchased from third parties up to the amount of its own claims against the respective supplier. In this case CS assigns any warranty claims or claims for damages against third parties to the purchaser, whereby CS itself is released from liability. CS shall be liable like a guarantor insofar as the claims against the third party do not exist or are not enforceable. Warranty claims against CS shall be revived if, without this being the fault of Purchaser, it has become impossible or unsuccessful for the third party to fulfill the warranty obligation, if the third party finally refuses or culpably delays the warranty.
- In the case of goods sold under factory or manufacturer’s warranty, Purchaser is obliged to contact the manufacturer’s works first – with simultaneous written notification of defects to CS in due time – for the purpose of rectification of defects or delivery of spare parts, the address of which shall be given to Purchaser immediately upon request. Only if the manufacturing plant rejects the warranty, CS shall be obliged to provide warranty in compliance with the above provisions, whereby Purchaser shall immediately present the letter of rejection from the manufacturing plant.
8. Retention of Title
- CS shall retain title to all goods delivered by it or on its behalf by third parties to Purchaser or on Purchaser’s instructions to third parties (Reserved Goods) until all claims arising from the present or future business relationship with Purchaser have been satisfied in full. If the realizable value of the securities exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%, CS shall release the securities to which it is entitled at Purchaser’s request at its discretion.
- Purchaser may sell or process goods subject to retention of title in the ordinary course of business as long as Purchaser is not in default of any obligation owed to CS. Pledging or transfer by way of security of goods subject to retention of title is not permitted. Purchaser hereby assigns to CS by way of security any claims accruing to him against his customers or third parties in respect of the Retained Goods from the resale or any other legal ground (insurance, tort) to the amount of the agreed gross purchase price (including VAT), irrespective of whether the Retained Goods have been resold without or after processing. CS revocably authorizes him to collect the claims assigned to it for its account in his own name. This authorization to collect may only be revoked if Purchaser does not duly meet his payment obligations.
- In case of seizure or confiscation or other dispositions by third parties, Purchaser shall immediately notify CS so that CS can enforce its property rights. Insofar as the third party is not in a position to reimburse CS for the judicial or extrajudicial costs incurred in this connection, Purchaser shall be liable for these.
- In case of breach of contract by Purchaser, in particular in case of default of payment, CS shall be entitled to take back the goods after having sent a reminder and Purchaser shall be obliged to surrender the goods. In case of a demand for return due to reserved ownership, Purchaser already now waives any right of possession and allows CS’s employees to collect the Reserved Goods as well as to enter or drive onto company rooms and premises for this purpose. Such repossession shall only constitute a withdrawal from the contract if this has been expressly declared in writing.
9. Construction changes
- CS reserves the right to make design changes at any time; however, it shall not be obligated to make such changes even to products already delivered.
- Software products are sold against payment of a license fee for unlimited use, unless otherwise agreed. The software products are intellectual property of CS. Purchaser undertakes to use the products only as agreed, in particular not to make any copies in order to pass them on to third parties against payment or free of charge. If a third party appropriates the products illegally, Purchaser shall immediately notify CS and shall ensure that the original condition is restored, insofar as this is possible and reasonable for Purchaser. Purchaser is not entitled to change or remove the company name or other own information of CS on a software product without its express written consent. Information about the software products shall be kept secret, unless it has to be made available at the time of sale.
- CS reserves the property rights and copyrights to illustrations, drawings, calculations and other documents. They must not be made accessible to third parties. This applies in particular to such written documents that are designated as “confidential”. Prior to their disclosure to third parties, Customer must obtain the express written consent of CS.
- Customer agrees not to exploit the information provided by Cardioscan itself, to reproduce it for its own commercial purposes and/or to pass it on to third parties without prior written consent. The customer acknowledges that Cardioscan is the sole and unrestricted owner of the rights to the information and/or documents disclosed. This obligation of the customer also applies if the intended contract does not materialize. In the event that a contract is concluded, this obligation shall continue to apply for 5 years after termination of the contract. If the customer violates this obligation, Cardioscan is entitled to claim damages according to the statutory provisions.
11. limitation of liability
- Claims for damages from positive breach of contract, from culpa in contrahendo and from tort are excluded against CS as well as against its vicarious agents, except in case of intentional or grossly negligent acts. This also applies to claims for damages due to non-fulfillment, but only insofar as compensation for indirect or consequential damages is demanded, unless the liability is based on an assurance intended to protect the purchaser against the risk of such damages. The above limitations of liability shall not apply to the culpable breach of essential contractual obligations and cardinal obligations. Any liability shall be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. Any liability of CS under the Product Liability Act and other claims arising from producer liability shall remain unaffected.
12. Place of Performance, Place of Jurisdiction, Applicable Law
- Place of performance and place of jurisdiction for all liabilities arising from the contractual relationship with Purchaser shall be the place of the registered office of CS, provided Purchaser is a merchant or has no general place of jurisdiction in Germany. However, CS shall also be entitled to sue Purchaser at the court of Purchaser’s domicile.
- The business relations between CS and Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany.
13. Final Provisions
- All amendments, supplements and terminations of contracts between the parties must be in writing. Subsidiary agreements as well as the amendment of this written form clause shall also require written form.
- Should individual provisions of the contract including these “General Terms and Conditions” be invalid, this shall not affect the validity of the remaining provisions. Instead, the invalid provision shall be replaced by a substitute provision which comes as close as possible to the purpose intended by the invalid provision. The same shall apply if a gap in the contract becomes apparent in the course of the business relationship.