General terms and conditions
§ 1 General – Scope
1. The proxomed terms and conditions apply exclusively; proxomed does not recognise customer conditions to the contrary. The proxomed terms and conditions shall also apply if proxomed makes the delivery unconditionally, in knowledge of the customer’s conflicting conditions.
2. Verbal or telephone agreements, and all other declarations, particularly sub-agreements and changes to the contract, must be made in writing in order to be deemed valid. This shall also apply in relation to abolishing this clause. It shall similarly apply to any promises, advice or explanations given by proxomed staff.
3. The proxomed sales conditions shall also apply to all future business transactions with the customer and shall only apply to persons acting in their commercial or self-employed professional capacity (entrepreneurs) at the time of contract conclusion, and public legal entities or special funds under public law.
§ 2 Offer
1. If the customer’s order is classified as an offer under Section 145 of the German Civil Code (BGB), proxomed can accept this within 4 weeks.
2. Unless otherwise agreed, proxomed’s offers are subject to change.
3. proxomed shall remain the owner of samples, proposed costings, diagrams, images, photos and similar tangible and intangible information – including in electronic form; These must not be made accessible to third parties without proxomed’s written consent.
§ 3 Prices – Payment conditions
1. Unless otherwise stated in the order confirmation, proxomed’s prices are considered “ex works”.
2. proxomed reserves the right to increase the prices appropriately if costs increase after contract conclusion, particularly as a result of increases in material prices or changes to transport cost. proxomed shall prove this to the customer upon request.
3. The legal VAT applicable on the day of invoicing shall be shown separately in the invoice, in addition to the prices.
4. Unless otherwise governed in individual contracts, payments must be made in full into proxomed’s account within 14 days of invoicing.
5. The following financing options are available:
1) 30% down payment upon order placement, remaining payment made within 14 days of delivery, or
2) Bank guarantee for the full order amount, or
3) Lease confirmation for the full order amount
6. In the case of point 5. 1), goods are only ordered upon receipt of the down payment, in the cases of point 5. 2) and 5. 3), goods are only ordered upon receipt of the bank guarantee or lease confirmation.
7. If the agreed payment due dates are not met, standard bank default interest of 5% above the Euribor as per Section 288 BGB, but at least 8%, shall be payable. The right to assert further claims, particularly for payment default, remains reserved.
8. Offsetting and withholding rights are generally excluded. They shall only exist insofar as the customer’s counterclaim is legally established, recognised or undisputed; furthermore, a withholding right shall only exist insofar as the counterclaims are based on the same contractual relationship.
9. If the order is cancelled at the request or initiation of the customer, proxomed can – regardless of the option of asserting higher damages – claim at least 40% of the order total for the order-processing costs and lost profit. The customer may prove that damages are less than those estimated.
§ 4 Delivery time and delivery delays
1. The delivery time is established in the agreements made between the contractual parties. For proxomed to comply with it, all commercial and technical questions between the contractual parties need to have been clarified, and the customer must have fulfilled all its obligations, such as choosing all equipment details or making a down payment. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if the delay is caused by proxomed.
2. Compliance with the delivery deadline shall be subject to correct and prompt delivery by suppliers. proxomed shall advise of any foreseeable delays as quickly as possible.
3. The delivery deadline is considered upheld if the delivery item has left proxomed’s factory, or notice of readiness for dispatch has been issued, by the set date.
4. Partial deliveries are permitted insofar as these are feasible for the customer.
5. If shipment/acceptance of the delivery item is delayed for reasons caused by the customer, the customer shall be charged the delay-related costs, effective one month after notice of readiness for dispatch/acceptance has been issued. If the agreed acceptance date (delivery date) is exceeded, standard bank default interest of 5% above the Euribor, but at least 8% per annum as per Section 288 BGB, shall be payable to pre-finance the order value. proxomed is also entitled to claim storage costs at a rate of 1% of the item value per month. The right to assert further claims, particularly for default on acceptance, shall remain reserved.
6. If non-compliance with the delivery deadline is due to force majeure, labour disputes or other events beyond proxomed’s control, the delivery deadline shall be extended accordingly. proxomed shall advise the customer of the start and end of such circumstances as soon as possible.
7. If proxomed faults into default, causing damage to the customer, the customer shall be entitled to demand flat compensation. This shall amount, for every full week of delay, to 0.5% overall, but a maximum of 5% of the value of the part of the total delivery that cannot be used promptly or as per the contract as a result of the delay. If the customer sets proxomed an appropriate deadline for supplementary performance – taking into account the legal exceptions – and this deadline is still not upheld, the customer shall be entitled to withdraw from the contract in accordance with the legal regulations. The right to further liability for deliberate acts and gross negligence shall remain reserved.
§ 5 Transfer of risk
1. The risk shall be transferred to the customer once the delivery item has left the factory, including in the event of partial deliveries. In the event proxomed has taken charge of delivery and setup, the risk shall be transferred once the equipment has been set up at the customer’s premises.
2. Insofar as an acceptance confirmation or handover confirmation (leasing) is required, the customer is not permitted to refuse said acceptance/handover confirmation if no major defect is present.
3. If shipment/acceptance is delayed or fails to occur due to circumstances not attributable to proxomed, the risk shall be transferred to the customer on the day the notice of readiness for dispatch/acceptance is issued. proxomed commits to taking out insurance policies as requested by the customer, at the customer’s expense.
§ 6 Warranty
Under exclusion of further claims – subject to Section 7 –, proxomed provides warranties for material and legal deficiencies in the delivery as follows:
1. All parts proving to be defective as a result of circumstances existing prior to the transfer of risk must be either repaired or replaced, at proxomed’s discretion, free of charge. The customer’s warranty rights require that the customer have duly complied with its duties of inspection and objection as per Section 377 of the German Commercial Code (HGB). Any complaints must be raised with proxomed in writing as follows:
- For obvious faults: Immediately.
- For concealed faults: Immediately upon detection, but within no more than six months of the transfer of risk.
2. If the purchased item proves to have a defect for which proxomed is responsible, proxomed shall be entitled to, at its discretion, either repair this or replace the item. The customer must, upon consultation with proxomed, give proxomed the necessary time and opportunity to perform all repairs and replacement deliveries deemed necessary by proxomed; otherwise, proxomed shall be exempt from its liability for the resulting consequences.
3. Unless otherwise stated below, further customer claims – regardless of their legal grounds – shall be excluded. Proxomed shall thus not be liable for damages not caused to the actual delivery item itself; it is particularly not liable for lost profit or other financial losses suffered by the customer.
4. The above warranty disclaimed shall not apply for physical injury or if the damage has been caused by a deliberate act or gross negligence on the part of proxomed.
5. Insofar as proxomed negligently breaches a major contractual obligation, its obligation to provide compensation for material damage and physical injury shall be limited to the compensation stated in proxomed’s product-liability insurance. proxomed will gladly make the policy available for the customer’s viewing about request.
6. The warranty period is 12 months, starting from the transfer of risk. This period is a statute of limitations and shall also apply to compensation claims for consequential damages caused by defects, unless claims for misconduct can be asserted. Repairs to the purchased item shall not affect the warranty term.
7. The warranty conditions described on our website do not apply to second-hand equipment. The equipment is purchased as seen, with no warranty eligibility.
8. a) Medical devices: The warranty shall only exist if a function test of the new or repaired item has been conducted, in accordance with the provisions of the German Medical Devices Operator Ordinance (MPBetreibV), by proxomed or an authorised person acting in consultation with proxomed, and the person hired by the operator has been briefed in correct handling, usage and operation of the purchased item, as well as in permitted combinations with other medical devices, objects and accessories, as per the MPBetreibV. The warranty shall additionally only exist if the repaired item is operated and used solely by persons who have undergone the necessary training or who have the relevant knowledge and experience as per the MPBetreibV, or if the repaired item has been serviced and maintained by experts in accordance with the MPBetreibV, or setups have been performed in accordance with the MPBetreibV and manufacturer instructions.
b) Fitness equipment: The warranty shall only exist if a function test of the new or repaired item has been conducted by proxomed or an authorised person acting in consultation with proxomed, and the person hired by the operator has been briefed in correct handling, usage and operation of the purchased item, as well as in permitted combinations with other equipment, objects and accessories. The warranty shall additionally only exist if the repaired item is operated and used solely by persons who have undergone the necessary training or who have the relevant knowledge and experience, or if the repaired item has been serviced and maintained by experts, or setups have been performed in accordance with manufacturer instructions.
9. In particular, no guarantee is made for natural wear and tear, erroneous or negligent usage, incorrect maintenance or unsuitable equipment. If the customer or a third party performs inappropriate repairs, proxomed shall not be responsible for the consequences thereof. The same shall apply for changes made to the delivery item without proxomed’s prior consent.
10. The purchaser must prove it meets the requirements for raising warranty claims, particularly in terms of the defect itself, the time of the defect, and the promptness with which the defect was reported.
§ 7 Joint and several liability
1. proxomed shall not be liable for compensation – regardless of the legal grounds, particularly for breaches of contractual obligations or breaches resulting from misconduct, particularly for producer-liability claims as per Section 823 BGB – unless claims are expressly allowed under these conditions or by proxomed.
2. The provision above shall not apply to claims defined by Sections 1, 4 of the German Product Liability Act in the event of deliberate acts or gross negligence. The same shall apply in the event of initial incapacity or culpable impossibility.
3. Insofar as proxomed’s liability is excluded or limited, this shall also apply to the personal liability of its staff, representatives and assistants.
4. The statute of limitations for claims between the customer and proxomed shall be based on the statute of limitations for material defects as per Section 6 Para. 6. This shall not apply to claims for misconduct that are not derived from the defective nature of the delivery item or service.
§ 8 Retention of title
1. proxomed shall retain ownership of its deliveries until all customer liabilities to proxomed established at the time of contract conclusion, and those established in future, have been settled. In the event the customer acts contrary to contract, particularly in the event of payment default, proxomed shall be entitled to retract the purchased item. This retraction shall not constitute a withdrawal from the contract, unless proxomed has expressly stated this in writing. proxomed shall be authorised to reuse the purchased item once it has been retracted. Proceeds from this use shall be offset against the customer’s liabilities – minus the appropriate usage costs.
2. The customer must immediately inform proxomed in writing of any attachment or other third-party interventions, so that proxomed can take legal action as per Section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse proxomed for the legal and extrajudicial costs of such action, the customer shall be liable for the shortfall.
3. The customer shall be entitled to resell the purchased item as part of ordinary business activities; it does, however, already assign proxomed all claims for the final invoice amount (including VAT) that it is entitled to raise, as a result of the resale, against its customers or third parties, regardless of whether or not the purchased item has been further processed before being resold. The customer shall also be authorised to collect this claim after the assignment, unless it is in payment default and, in particular, has not filed for bankruptcy or ceased payments. In the case of the latter, proxomed can ask the customer to advise it of the assigned claims and their debtors, and to provide all information necessary for collection.
4. If the purchased item is processed together with other non-proxomed objects, proxomed shall acquire co-ownership of the new item based on the ratio between the purchased item’s value and that of the other processed objects at the time of processing. For the rest, the rules applying to the item resulting from the processing shall be the same as those for the conditionally delivered purchased item.
5. proxomed commits to releasing its entitled collateral at the customer’s request, insofar as the value of said collateral exceeds the claims due to be safeguarded by more than 20%, proxomed reserves the right to choose the collateral released.
§ 9 Disposal of equipment
1. By virtue of the signed purchase contract, it shall be considered agreed that business customers shall dispose of equipment, in accordance with EU Regulation 2002/96/EU on waste electrical and electronic equipment, themselves.
§ 10 Applicable law, jurisdiction
1. The place of performance for our deliveries is the location of the supplier’s factory. If proxomed is also responsible for rendering services (e.g. assembly), the place of performance shall be the place where the services are due to be rendered. The place of performance for the customer’s payment obligation shall be the point of payment stated on our invoice. The jurisdiction shall exclusively be that of the competent court at proxomed’s headquarters. proxomed shall, however, be entitled to take legal action at the customer’s headquarters.
2. All legal relations between the customer and proxomed shall be solely governed by federal German law, which is definitive for legal relations between domestic parties. The UN Convention on Contracts for the International Sale of Goods (CSG) shall not apply.
Particular conditions
For proxomed Medizintechnik GmbH software (DP programs)
§ 1 Application
1. The software may only be used by the customer and its agents and may only be used on the designated device in each case.
§ 2 Usage right
1. proxomed shall grant the customer a non-exclusive, non-transferable right to use the program. The program shall be delivered in its original version. The customer may only copy, rework or translate the software, or convert it from object code to source code, to the extent legally permitted (Section 69 a ff of the German Copyright Act (UrhG)). The customer commits to not removing manufacturer information – particularly copyright notices – or modifying this without proxomed’s prior consent.
§ 3 Retention of title
1. Ownership rights, copyrights and distribution rights to the program and the program ideas, including documentation, shall be retained by proxomed, or, if applicable, by its upstream suppliers/the program’s author. The amount charged for the software shall exclusively be considered a usage fee. Sharing the program, including documentation, for a fee or free of charge is prohibited unless proxomed has consented to this in writing.
§ 4 Liability for defects
1. As the current technological standards mean data-processing programs cannot be created flawlessly, proxomed is unable to guarantee that the features and functions stated in the service description will run flawlessly. These are not stated as promises, but instead only constitute a product description compiled in good faith and to the best of proxomed’s knowledge. Supplementary performance occurs in the form of repair or replacement, at Proxomed’s discretion. If repairs or flawless replacement remain unsuccessful, the customer can demand a reduction in the usage fee or rescission of the contract. If the customer is a merchant, no liability can be assumed for consequential damages caused by defects in the event promised features are not present, unless proxomed or its assistants have acted deliberately or with gross negligence.
2. a) Medical devices: The warranty shall not apply in the event of malfunctions if these are due to the customer not using the programs as per the service description and MPBetreibV provisions. This is particularly the case if a function test on the purchased item has not been conducted at the usage site by proxomed or an authorised person acting in consultation with proxomed in accordance with the provisions of the MPBetreibV, or the persons hired by the operator have not been briefed in correct handling, usage and operation of the purchased item, as well as in permitted combinations with other medical devices, objects and accessories, as per the MPBetreibV. The warranty shall additionally cease to apply if the repaired item has not been operated and used solely by persons who have undergone the necessary training or who have the relevant knowledge and experience as per the MPBetreibV, or if the repaired item has not been serviced and maintained by expert persons, businesses or establishments in accordance with the MPBetreibV, or setups have not been performed in accordance with the MPBetreibV and manufacturer instructions.
b) Fitness equipment: The warranty shall not apply in the event of malfunctions if these are due to the customer not using the programs as per the service description and manufacturer instructions. This is particularly the case if a function test on the purchased item has not been conducted at the usage site by proxomed or an authorised person acting in consultation with proxomed, or the persons hired by the operator have not been briefed in correct handling, usage and operation of the purchased item, as well as in permitted combinations with other medical devices, objects and accessories. The warranty shall additionally cease to apply if the repaired item has not been operated and used solely by persons who have undergone the necessary training or who have the relevant knowledge and experience, or if the repaired item has not been serviced and maintained by expert persons, businesses or establishments, or setups have not been performed in accordance with the manufacturer instructions.
§ 5 Final provisions
1. Insofar as the particular conditions for software do not contain any special regulations, the proxomed conditions of delivery and payment shall additionally apply to the licensing of software programs.
Regarding consulting by proxomed Medizintechnik GmbH
The consulting is performed based on the preparatory conversations held between the parties and is founded on co-operation and mutual trust. proxomed shall disclose its applied methods, their function methods and purposes, as well as the risks and possible results in each phase of consulting.
In this context, proxomed wishes to advise that consulting is a free and active process involving personal responsibility, and that specific successes cannot be guaranteed. proxomed shall be at the customer’s disposal as a process assistant and change-maker – but the actual change work shall be performed by the customer.
As of October 01, 2014