General Standard Terms And Conditions - ATMOS LC 16 Gebrauchsanweisung

1. General
Our General Standard Terms and Conditions apply
exclusively. Client's terms and conditions which are
contrary to or deviate from our General Standard Terms
and Conditions are not recognised unless their validity is
explicitly confirmed in writing. Our General Standard Terms
and Conditions also apply even if we deliver to clients
without reservation, in the knowledge of the client's
contrary terms and conditions. Our General Standard
Terms and Conditions also apply to all future business
with that client.
2. Proposal - Order Confirmation
Our proposals are subject to change without notice unless
otherwise stated in our order confirmation. Each order is
only accepted by us following our written order confir-
mation.
3. Orders
Every order requires an exact description of all of our
product's details. We assume no liability for errors and
damage caused by inaccurate or incomplete ordering
details.
4. Prices
Unless otherwise stated in the order confirmation, our
prices in the order confirmation are ex factory prices and
exclude packaging and value added tax. Packaging is
charged separately at cost price in the invoice. Value
added tax is charged separately in the invoice according
to the legal rate on the invoice date. We reserve the right
to change prices appropriately should price reductions or
increases, especially due to wage settlements, changes
in the price of materials or currency fluctuations, be
incurred. Proof of such changes will be provided for the
client on request.
5. Payment Conditions - Balancing
Unless otherwise stated in the order confirmation, our
invoices are payable with a 2% discount within 14 days
(except for repair and assembly services) or within 30 days
from the invoice date net cash. We are entitled to charge
interest after the due date at a rate 2% above the relevant
basic interest rate of the German Federal Bank. Should
the client have payment arrears, we are entitled to charge
interest on arrears at a rate 5% above the relevant basic
interest rate of the German Federal Bank. Should we be
able to prove higher damages due to arrears, we are also
entitled to claim these. The client only has the right to
balance invoices against its own claims should such claims
be confirmed in a court of law or recognised by us. The
client does not have the right of retention due to disputed
counterclaims.
6. Delivery Periods
Fulfilment of our delivery duties requires the punctual and
proper fulfilment of the client's duties. The right to defense
on the grounds of an unfulfilled contract is reserved.
Should the client default in accepting the goods delivery
or breach other cooperation duties, we are entitled either
to withdraw from the contract or claim compensation for
any increased costs incurred up to that time without setting
a further deadline. The right to make further claims is
reserved. Furthermore, in such cases, the risk of coin-
cidental destruction or a coincidental deterioration in the
quality of the delivered goods is transferred to the client
in the case of default in accepting such goods or payment
arrears.
Acts of God or stoppages (due to insufficient supplies of
material, industrial disputes etc.) entitle us either to
demand an appropriate extension of delivery periods or
to partly or entirely dissolve the delivery contract. This
does not give the client the right to claim damages. We
have fulfilled delivery periods if the delivery goods have
left our factory or the client has been informed of the goods'
readiness for delivery within such delivery periods.
Delivery periods stipulated by the client are not recognised
by us unless they form part of our order confirmation. We
adhere to legal terms and conditions in cases where, as a
result of an undue delay in the delivery for which we are
liable, the client is entitled to claim that his interests in a
continued fulfilment of the contract have ceased. We also
adhere to legal terms and conditions should a delay in
delivery be caused by deliberate or grossly negligent
action by us or our representatives for which we are
responsible. We are also responsible for such actions by
our representatives or agents. Should the delivery delay
not be caused by our deliberate infringement of contractual
duties for which we are responsible, our liability is limited
to damage which is regarded as typical for that case. We
are liable according to the legal terms and conditions if
and in so far as the delivery delay for which we are
responsible is caused by an infringement of a substantial
contractual duty. In such cases, our liability is also limited
to damage which is regarded as typical for that case.
Should the delivery delay be caused by a culpable
infringement of non-substantial contractual duties, our
client is also entitled to claim a one-off damage compen-
sation worth 3 percentage points of the delivery value of
the goods for each week's delay, up to a maximum which
is no higher than 15 percentage points of the delivery
value of the goods.

General Standard Terms and Conditions

7. Delivery - Familiarisation
In the case of the delivery of devices for the medico-
technical industry which require assembly and/or
familiarisation for the final customer using specialist trade
personnel (such as Ear, Nose and Throat Apparatus and
Suction Units), we reserve the right to deliver the goods
exclusively to the relevant specialist traders. Should the
trader not carry out assembly and/or familiarisation for
the final customer, this is carried out by us. In such cases,
we reserve the right to charge the client for the additionally
created costs. Our specialist traders operate a recording
system so that, if necessary, our products can be traced
to the final customer. The specialist trader undertakes to
immediately report to us all events and risks which must
be reported in connection with our products.
8. Passage of Risk - Packaging
Unless otherwise stated in our order confirmation, delivery
is agreed ex factory. The risk of the goods' damage or
loss is therefore transferred to the client as soon as the
goods leave the factory or the client is in default of
acceptance of the goods. This also applies to cases where
we confirm prepaid carriage. Transport packaging and all
other packaging according to the packaging regulations
is not returnable. Our client is responsible for disposing
the packaging at its own cost. Our deliveries are insured
by us at the client's expense unless explicitly otherwise
agreed. No insurance is arranged in the case of goods
which are collected by our clients. In the case of transport
damage, claims are only handled if the client receives
confirmation of any damage, reduced weight or loss by
the shipping company before accepting the delivery.
9. Liability - Guarantee
The client is responsible for examining the delivered goods
immediately after receiving them to determine any eventual
deficiencies or delivery errors, and to report these
immediately. Should the client fulfil this examining and
reporting responsibility, and should payment conditions
be fulfilled, we will provide the client with a material and
processing guarantee. The period of our guarantee
depends on each product and is indicated in its brochure
or handbook. The guarantee period, which begins upon
the passage of risk, is also a limitation period and applies
to claims for compensation for consequential damage due
to deficiencies unless claims due to unlawful acts exist. In
such cases, the legal limitation period applies. Our client
can make use of the material and processing guarantee
as follows, so long as he can provide first buyer proof (in
the form of an invoice or delivery note) and provided that
the product still has the original, unchanged serial number:
a. We choose whether to fulfil our guarantee by providing
repair services free of charge or replacing the product.
We can also provide these guarantee services through
an authorised company;
b. Our client must send the product at its own cost in its
original packaging or alternative protective packaging of
equal quality to us or an address stated by us. Transport
is carried out at the client's risk. Should the product be
stationary, the guarantee is fulfilled on site. Travel
expenses incurred by us or an authorised company for
this purpose are carried by the client.
c. Our guarantee ceases to apply if changes of any kind
have been made to our product, unless such changes
have been made by us or a company authorised by us, or
have been previously agreed upon in writing by us. Our
guarantee also ceases to apply if third parties have carried
out repairs to our products or replaced parts thereof. This
applies regardless of the fact whether these measures
individually or collectively led to a deficiency of the product;
d. We accept no responsibility for damage and/or deficien-
cies caused by
- incorrect installation or incorrect or insufficient main-
tenance;
- incorrect operation of the product
(in contradiction to the handbook delivered with the product);
- using the product in any way other than the contractually
agreed appropriate use according to the nature of the
product;
- connecting or using our product in a way which does not
conform with the relevant technical and/or security
requirements of the country in which the unit is operated;
- inappropriate or negligent handling and care, especially
with respect to dirt, lime, suction of fluids, inappropriate
cleaning and sterilisation;
- using accessories and/or replacement parts which are
not explicitly approved;
- incorrect assembly and/or initial operation by the client
or third parties;
- accidents, acts of God, especially lightening, water, fire,
public unrest and insufficient ventilation.
We are not liable for damage to other objects apart from
our product itself, except in the case of any deliberate or
grossly negligent actions by us or our representatives or
agents. Should no deliberate breach of contract be
claimed, our liability is limited to damage which is regarded
as typical for that case. This also applies in the case of
our culpable infringement of substantial contractual duties.
The indispensable conditions of German Liability Law
remain unaffected thereby.
10. Overall Liability
Further liability for damage compensation going beyond
those covered in Clause 9 of our General Standard Terms
and Conditions are excluded – without regard for the le-
gal nature of the claim made. This especially applies to
damage compensation claims resulting from culpa in
contrahendo, positive breach of contract or claims due to
unlawful acts according to § 823 of the German Civil Code.
Compensation claims due to subsequent impossibility of
performance or inability to perform remain unaffected
thereby. This also applies in so far as the liability is
indispensable on the grounds of stipulations in Product
Liability Law. Should our liability for compensation be
excluded or limited, this also applies with respect to the
personal compensation liability of our employees, staff,
representatives and agents.
11. Reservation of Ownership
We retain ownership of our goods until the receipt of all
payments arising from the business relationship, including
all demands arising from installation orders, subsequent
orders, repairs, accessory deliveries and replacement
orders. Should we have agreed upon payment on the basis
of cheque and bill transactions, the ownership reservation
applies until the cheque received by us has been paid in,
and does not expire through our credit upon receiving the
client's cheque. In the case of a breach of contract by the
client, especially payment arrears, we are entitled to
repossess our goods. Repossession of our goods repre-
sents a withdrawal from the contract, unless explicitly
declared in writing by us. We have the right to utilise the
product after its repossession, whilst the income form such
use is balanced against the client's arrears, after deducting
appropriate utilisation costs.
The client is responsible for handling the goods with care.
Should maintenance and inspection work be necessary,
the client must carry these out punctually at his own cost.
Our client is entitled to sell the goods he has bought from
us in a proper sale transaction. However, he must
immediately assign all outstanding claims to the value of
the final invoice sum (including value added tax) of our
claims to his customers or third parties. The client is
entitled to collect this claim even after such assignment.
Our right to collect the claim ourselves remains unaffected
thereby.
We undertake to release the securities to which we are
entitled if requested to do so by the client should the
realisable value of the our securities be more than
10 percentage points higher than the outstanding claims.
We reserve the right to choose the securities to be
released.
12. Plans and Illustrations
We retain ownership of and copyrights to all plans,
illustrations, calculations and other documents which are
attached to our proposals. The client must receive explicit
written permission before passing these on to third parties.
Imitating our legally patented products is forbidden and
will be prosecuted.
13. Jurisdiction and Place of Performance
Our central office is the place of performance for all
disputes in connection with these General Standard Terms
and Conditions and the contracts closed with clients under
them. This jurisdiction excludes other jurisdiction relating
to persons or subject-matter. Furthermore, our client is
not entitled to bring charges against us in another court
should he file counter-charges, carry out counterbalancing
or declare retention. We, however, are entitled to bring
charges against our client at their general place of
jurisdiction or at another relevant court recognised by
German or foreign law.
Unless otherwise stated in the order confirmation, our
central office is the place of performance.
Lenzkirch, February 01, 2001
ATMOS MedizinTechnik GmbH & Co. KG
79853 Lenzkirch/Germany