General Terms and Conditions

A.    GENERAL PROVISIONS

1. Scope of these GTC

1.1 The present general terms and conditions (“GTC”) apply to all business relations with our customers for whom we,

EXAMION GmbH
Erich-Herion-Straße 37
70736 Fellbach
Germany
Registration Office (Stuttgart): HRB 13550,
VAT-ID: DE 147835160,

act as:
  • Seller or supplier,
  • Contracting partner of an exchange contract,
  • Service provider or
  • Works contractor.
1.2 These GTC will only apply if the customer is an entrepreneur in accordance with § 14 of the German Civil Code ("Bürgerliches Gesetzbuch”), a legal entity under public law or a special fund under public law. These GTC will not apply if the customer is a consumer in accordance with § 13 of the German Civil Code.

1.3 Unless otherwise agreed, these GTC in the latest version communicated to the customer will also apply as framework agreement for similar future contracts, without us having to refer to these GTC again in each individual case.

1.4 The contracting parties’ rights and obligations result from (1) the contract, including possible additions, amendments and modifications, (2) our order confirmation, (3) our relevant price list and (4) these GTC. In case of contradiction between the provisions of the aforementioned documents, the provisions of the documents mentioned first will have precedence over those of the documents mentioned
subsequently.

1.5 Exclusively our general terms and conditions shall apply. General terms and conditions of the customer which differ from, conflict with or supplement our general terms and conditions will apply only if and to the extent that we have expressly consented to their application in writing. This requirement of consent applies in any event, for example even if we, being aware of the customer’s general terms and conditions, carry out the contract implementation without reservation.

1.6 References to the validity of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations shall also apply without such clarification insofar as they are not directly changed or are explicitly excluded in these GTC.

2. Conclusion of contract

2.1 Our offers are non-binding. Technical changes as well as changes in form, color and weight are reserved within reasonable limits.

2.2 The customer’s order represents a binding offer of a contract. Unless otherwise stated in the order or the customer’s binding offer, we are entitled to accept said offer of a contract within 4 weeks of its receipt. The acceptance can be made either in written form or in text form (e.g. by means of an order confirmation) or by contract implementation. A mere confirmation by us that the order or the offer of a contract has been received does not represent a binding acceptance.

2.3 Contracts will be concluded under the proviso of correct and timely deliveries to us by our suppliers. This only applies in the event that we are not responsible for the failure to deliver, in particular in the event of the conclusion of a congruent hedging transaction with our supplier. In the case of non-availability of performance, the customer will
immediately be informed thereof and any consideration will be reimbursed.

3. Prices and terms of payment

3.1 Unless expressly otherwise agreed or stated by us in an individual case, our prices valid at the time of the conclusion of the contract will apply, in fact ex works plus legal value added tax.

3.2 If it is individually agreed that we should send objects to the customer in connection with the execution of the contract, the customer bears the cost of transportation, including possible custom duties, fees, taxes and any other public levies.

3.3 Unless explicitly otherwise agreed in an individual case, invoices shall be paid within 7 days of invoicing without any deduction. We are however entitled any time – even within the framework of a continual business relation – to perform a contract only against payment in advance. We will declare such proviso at the latest on the time issuing the order confirmation. Payments shall be deemed to have been affected only when the amount is freely available to us. Payment orders, cheques and bills of exchange are only accepted for settlement, whereby all resulting collection and discount expenses are charged to the customer.

3.4 When the payment term agreed upon has expired, the customer is in default. We reserve the right to claim interest of delay at the legally applicable interest rate as well as to assert possible further damages caused due to delay. Our claim for the commercial maturity interest against merchants in virtue of § 353 of the German Commercial Code (“Handelsgesetzbuch”) remains unaffected.

3.5 The customer can only offset undisputed or lawfully established counterclaims against our claims. The customer shall be entitled to assert a right of retention only on the ground of a due and fully effective counterclaim arising from the same contractual relationship.

3.6 If it becomes apparent after conclusion of the contract that our entitlement to the consideration of the customer is jeopardized through insufficient ability of the customer to pay (e.g. by an application for opening of insolvency proceedings), we are, according to the statutory regulations, entitled to refuse to perform and – if applicable after setting a deadline – to cancel the contract (§ 321 of the German Civil Code). In case of contracts concerning the production of non-fungible objects (“individual production”) we are entitled to an immediate withdrawal; the statutory regulations concerning the dispensability of fixing a deadline remain unaffected.

3.7 If a contract to produce a work was concluded and the customer uses his right to terminate the contract in accordance with § 648 sentence 1 of the German Civil Code, we are entitled to demand a flat-rate indemnity of 20% of the agreed total price, when delivery has not yet begun. If the delivery has already begun, 80% of the agreed total price has to be paid. The customer shall have the right to prove that the actual compensation due is less; whereas we shall have the right to prove that we are entitled to a further compensation.

4. Delivery, Passing of risk, Acceptance

4.1 Delivery dates and delivery periods are always non-binding and approximate, unless fixed deadlines have been explicitly agreed upon in writing. They shall be deemed to have been met with the time of punctual notification of readiness for shipment or, if dispatch by us is agreed, with dispatch in due time. In any case, delivery deadlines shall only commence when all technical and other questions relating to the delivery have been clarified. We are at all times entitled to undertake partial or early deliveries; in such cases packing and delivery costs will be charged only once. For orders placed on credit hold, confirmed delivery dates shall be suspended; once the hold has been lifted, new delivery dates confirmed by us in writing will apply. The provisions of section A point 2.3 of these GTC remain unaffected.

4.2 Delivery is carried out ex works and this is also the place of performance of all deliveries as well as of possible performance of cure (remedy of defects or supplement deliveries of defect-free objects). Objects can be sent to another destination at the customer’s expense, as far as this has been agreed upon. Insofar as not otherwise agreed upon, we are entitled to determine the type of shipment (in particular transport company, shipment route, packaging) ourselves.

4.3 The risk of accidental loss and accidental deterioration of the objects shall pass to the customer at the latest when the objects are handed over to the customer. If there is a contract of sale involving the carriage of objects, the risk of accidental loss and accidental deterioration of the objects as well as the risk of delay shall however already pass to the customer with the hand-over of the objects to the carrier, the freight forwarder or the other person or institution determined to carry out the shipment. Insofar as an acceptance has been agreed upon, the moment of acceptance shall be decisive for the passing of risk. Incidentally, the statutory provisions governing contracts to produce a work shall also apply accordingly to an agreed acceptance. It is deemed equivalent to a hand-over or acceptance if the customer is in default with the takeover.

5.    Delay of performance

5.1 Insofar as we cannot observe binding performance deadlines (including delivery deadlines) for reasons we are not responsible for (“non-availability of the performance”), we will inform the customer hereof without undue delay and at the same time communicate an expected new performance deadline. If the performance is not available within the new deadline either, we shall be entitled to withdraw from the contract in full or in part; we will reimburse any consideration already paid by the customer immediately. Deemed as case of non-availability of the performance in this respect is in particular the late delivery to us by our suppliers if we have concluded a congruent hedging transaction, as well as cases where neither we nor our suppliers are at fault or where in an individual case we are not obliged to procurement.

5.2 The occurrence of our performance delay is determined in accordance with the provisions of law. In any case however, a reminder by the customer will be required. If we are culpably in delay of performance, the customer may demand a flat-rate compensation for the thus suffered loss. The flat-rate compensation shall be 0.5% of the net price (“performance value”) per complete calendar week of delay, subject to a maximum of 5% of the value of the performance rendered late. We reserve the right to prove that the customer has suffered no loss at all or only a substantially smaller loss than the above flat-rate sum.

5.3 The rights of the customer according to section A point 8 of these GTC and our statutory rights, especially in case of exclusion of the performance obligation (e.g. due to impossibility or unreasonableness of the performance and/or performance of cure) remain unaffected.

6. Retention of title


6.1 We reserve the right of ownership with regard to sales, barter transactions and deliveries of works until full settlement of all claims from the current business relationship with the customer (“conditional goods”).

6.2 The customer shall be obliged to treat the conditional goods with care. If maintenance or inspection work is required, the customer must conduct such work in due time at his own cost.

6.3 The customer undertakes to immediately inform us in case a third party gains access to the conditional goods – e.g. in the event of seizure – as well as in case of any damage to the goods or in case the conditional goods are destroyed. The customer shall notify us immediately of a change in possession of the conditional goods or a change of address of his registered office.

6.4 We shall be entitled to withdraw from the contract and demand the return of the conditional goods if the customer is in breach of contract, in particular in the event of default of payment or should there be a breach of an obligation set forth in section A point 6.2 or 6.3 of these GTC.

6.5 The customer shall be entitled to re-sell the conditional goods in the normal course of business. He hereby assigns to us in advance all accounts receivable in the amount of the invoice value that accrue to him from re-selling the goods to third parties. We hereby agree to accept said assignment. After assignment, the customer is authorized to collect accounts receivable. We reserve the right to collect the said accounts receivable ourselves, if the customer is not meeting his payment obligations and/or in case of insolvency.

6.6 Processing and incorporation of the conditional goods by the customer shall always be done for and on behalf of us. Should the goods be incorporated into objects which are not our property, we shall become co-owner of the new object pro rata the value of the conditional goods delivered by us. The above shall also apply, if the conditional goods have been mixed with any other objects which are not our property.

7. Rights of the customer in case of material defects and legal defects

7.1 The statutory provisions shall apply to the rights of the customer in case of material defects and legal defects (including incorrect or short delivery as well as improper installation or faulty installation instructions), unless otherwise stipulated hereinbelow.

7.2 If a delivered object is defective, we can initially choose whether we shall provide performance of cure by remedying the defect (repair) or by supplement delivery of a defect-free object (substitute delivery). Our right to refuse performance of cure under the statutory prerequisites remains unaffected.

7.3 We are entitled to make the owed performance of cure dependent on the fact that the customer provides the due consideration (e.g. pays the due purchase price). The customer is however entitled to retain a part of the consideration which is reasonable in the ratio to the defect.

7.4 The customer must give us the time and opportunity which are necessary for the owed performance of cure, in particular to hand over the object for which a complaint was made for purposes of inspection. In the event of a substitute delivery, the customer must return the defective object to us according to the statutory regulations. The performance of cure does not include demounting of the defective object nor (re-)mounting of the defect-free object, if initially we were not obligated to mount.

7.5 In case of an unjustified request for removal of a defect by the customer, we are entitled to claim a refund of the incurred expenses (in particular inspection and transportation costs) from the customer, unless the lack of defectiveness was non-culpably not recognizable for the customer.

7.6 The limitation period for claims arising from defects in works and in new goods is 12 months as of delivery of the objects, or, in as far as acceptance of work is stipulated, as of the acceptance. The statutory provisions regarding the limitation period for fraudulently concealed defects or defects caused on intent, as well as the conditions of a guarantee possibly assumed by us, remain unaffected.

7.7 Claims for defects in second-hand goods are excluded, except in case of fraudulently concealed defects or defects caused on intent and within the scope of a guarantee possibly assumed by us.

7.8 If the customer is a merchant pursuant to the German Commercial Code, he shall be subject to the statutory obligations of immediate examination of the goods and immediate notification of defects in accordance with §§ 377 and 381 of the German Commercial Code.

7.9 The right of the customer to claim damage compensation in the event of defects shall exist only in accordance with Section A point 8 of these GTC and is otherwise excluded.

8. Liability

8.1 Our liability for material defects and legal defects shall be governed by the provisions in Section A point 7 of these GTC. Otherwise, our liability shall be governed by the provisions in the following points 8.2 to 8.6 below.

8.2 Unless the law does not provide a lesser degree of liability, we assume unlimited liability
  • in cases of intent or gross negligence,
  • for injury to life, limb or health,
  • in accordance with the provisions of the German Product Liability Act (“Produkthaftungsgesetz”), and
  • to the extent of a guarantee possibly assumed by us.

8.3 In case of a slightly negligent violation of an obligation that is essential for achieving the purpose of the contract (“cardinal obligation”), our liability will be limited in amount to the damages that are foreseeable and typical according to the type of business transaction in question, in as far as the law doesn’t provide a lesser degree of liability.

8.4 The provisions concerning the flat-rate compensation for damage caused by delay in accordance with section A point 5.2 of these GTC remain unaffected.

8.5  There shall be no further liability beyond the aforementioned on our part.

8.6 The above provisions on limitations of liability shall also apply to the personal liability of our employees, representatives and organs.

9. Commissioning of third parties, Assignment

9.1 We are entitled to make use of affiliated companies or third parties to fulfil our obligations.

9.2 The customer is not entitled to assign, extend or otherwise transfer the underlying contract between us and him, or rights and/or obligations arising thereof, to third parties, unless we have given our prior written consent.

10. Choice of law and Place of Jurisdiction

10.1 These GTC and all contractual relations between us and the customer shall be governed by the law of the Federal Republic of Germany with the exclusion of reference to other legal systems and with the exclusion of the United Nations Convention on Contracts for International Sale of Goods (“CISG”) from April 11th, 1980.

10.2 If the customer is a merchant in the terms of the German Commercial Code, a legal entity under public law or a special fund under public law, our registered office in Fellbach is the exclusive – also internationally – place of jurisdiction for all disputes arising directly or indirectly from the contractual relations. The same applies if the customer is a company in accordance with § 14 of the German Civil Code. We are, however, also entitled to bring legal action in the place of fulfillment in accordance with these GTC, in a place possibly stipulated in an overriding individual agreement or at the general court of jurisdiction of the customer. Statutory regulations of prime importance, particularly as to exclusive competence, remain unaffected.

10.3 Dispute settlement in the framework of arbitration proceedings outside the ordinary course of law is excluded. This exclusion also applies for a delivery for which the validity of an international trade clause (“Incoterms®”), worked out by the International Chamber of Commerce (“ICC”), has been agreed upon and for all international trade terms which provide for a dispute settlement in the framework of such arbitration proceedings.

11. Final provisions

11.1 Any changes and/or supplements to the contractual agreements with the customer, including these GTC, are to be made in written form. This also applies for changes or supplements of this requirement for written form itself.

11.2 Full or partial omission or belated assertion of any right on our part toward the customer does not constitute a waiver of such right or any other right.

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B.    SPECIAL PROVISIONS FOR THE CONSTRUCTION OF X-RAY AND THERAPY SYSTEMS AS WELL AS FOR RELOCATION PERFORMANCE

1. Scope of application

1.1 This section B of our general terms and conditions complements the general provisions in section A for situations where we are required to construct X-ray or therapy systems or to render relocation performances for such systems.

2. Definitions

2.1 “Electrical planning” is the process by which an electric diagram is drawn up. The electric diagram provides information as to which electric connections have to be available at the installation site.

2.2 “Radiation protection planning” is the process by which a radiation protection plan is drawn up. The radiation protection plan describes the radiation protection with which the installation site has to be equipped.

2.3 “Layout planning” is the process by which the layout plan is drawn up. The layout plan describes where and, if necessary, with which spatial orientation, the devices have to be located at the installation site. The layout plan generally contains further specifications on constructional prerequisites and necessary equipment of the installation site.

2.4 “Assembly” means all processes needed for mounting the device parts with a specific geometrical form and generally includes operations such as placing, adjustments and screwing together. “Disassembly” is the reversal of the assembly.

2.5 “Acceptance test” is the acceptance test provided for in the German Regulations on Radiation Protection (“Strahlenschutzverordnung”), which has to be performed by the manufacturer or the supplier within the framework of quality assurance before putting the X-ray or radiotherapy system into operation.

2.6 “Target value determination” is the reference value determination for the regular constancy tests provided for in the German Regulations on Radiation Protection and to be carried out within the framework of the acceptance test.

2.7 “Configuration” consists of all processes, by which computer software and/or hardware is adapted for a particular application by adjusting to settings options that are most appropriate for that application. For this purpose, exclusively factory-set options are available; new settings options will not be created.

2.8 “Basic user training” is the process by which basic knowledge about the usage and maintenance of the system is provided to the customer’s medical operating personnel.

2.9 “Installation” is, unless explicitly otherwise defined, to be exclusively understood as the assembly of the system, connection of the system to the termination points of the mains and data network (sockets, connectors) already existing and freely accessible at the installation site as well as the configuration of the same system and, if prescribed by law, the acceptance test. Works other than those referred to in the preceding sentence are no part of the installation, not even if it concerns preparatory works or auxiliary works.

2.10 “Construction” is, with regard to an X-ray or therapy system, to be understood as a general term for all performances described in the previous points 2.1 to 2.9. Consequently, each performance described in points 2.1 to 2.9 is, in this sense, a construction performance at the same time.

2.11 “Relocation performance” is, with regard to an existing X-ray or therapy system, a service performance including disassembly, delivery to another location and re-assembly at that location.

3. Agreement on performances

3.1 We are only obliged to provide certain performances, if and in as far as such have been expressly contractually agreed between us and the customer.

3.2 If, after conclusion of the contract, the customer requests a change in content and/or scope of the performances and we expressly or implied agree with this request, the customer will bear any additional expenses emerging from the requested changes, including our additional remuneration. If the total amount of the additional remuneration has not been stipulated and there is a statutory tariff, additional remuneration according to the tariff shall be regarded as being agreed, in the absence of a tariff, the usual additional remuneration shall apply. We are not responsible for delays due to the required changes. If we and the customer do not reach an agreement on the total amount of the additional expenses and/or on the extent of the delay, we shall reserve the right to reject the change request.

3.3 We shall not claim additional charges for changes in performances for which the customer is not responsible.

3.4 We do not perform authorized expert’s inspections (“Sachverständigenprüfungen”) within the meaning of the German Regulations on Radiation Protection, neither by means of a third-party commission. Commissioning a third party for an authorized expert inspection is the sole responsibility of the customer.

4. Special terms of delivery

4.1 If it is individually agreed that we shall deliver to the installation site or to a temporary storage facility, or that we shall commission such a delivery to a third party, such agreement is subject to the reservation that these locations can be approached by trucks via adjacent road or parking areas and that these locations are accessible either on ground level or by means of a lift that is sufficiently dimensioned and load-bearing for the installation goods.

4.2 In any case, the customer shall inform us in a timely manner about circumstances at the installation site that may complicate delivery or make it impossible (e.g. no sufficient free parking areas in front of the installation building, no ground-level path to the installation site, narrow lift, lift with insufficient load-bearing capacity or absence of a lift, narrow stairs or stairs with insufficient load-bearing capacity).

4.3 In no event shall we be required to borrow, rent or obtain in any other way cranes, outdoor elevators, lifting platforms or similar devices for delivery, nor to put such at disposal.

5. Cooperation obligations of the customer

5.1 The customer must enable us to carry out the agreed performances on schedule, unimpeded and without interruption. In particular, the customer must
  • obtain the necessary authorizations under public law in due time and submit such to us, if requested,
  • make available to us, upon request and free of charge, all necessary planning documents, in particular radiation protection plans and relevant building construction drawings,
  • ensure the preservation of general order at the installation site, see to it that works carried out by other companies (e.g. craftsmen) at the same time do not interfere with or obstruct our performances,
  • coordinate activities of other companies in such a way that all necessary preliminary works – in particular electronic and constructional preliminary works, including installation of radiation protection elements, pipes, wiring, fuses and supply connections – are provided in good time,
  • ensure that hard- and software of other suppliers are fully functional and state of the art, have been properly installed and configured and can be accessed by us to the extent necessary, in as far as such is required for the agreed performances,
  • if needed, put at our disposal storage areas for components and tools as well as electrical connections for tools, AND
  • if needed, put at disposal a lifting platform for the installation of ceiling-mounted objects, unless it has been expressly agreed that we have to ensure the availability of a lifting platform.

5.2 The customer must ascertain and prove to us on his expenses that floors, walls and ceilings on which the installation goods are to be mounted possess sufficient load-bearing capacity. Unless expressly otherwise agreed, the customer is also obliged to ensure that the installation site is suitable for the installation goods to be installed (e.g. with regard to the floor composition, a possibly existing underfloor heating that may preclude drilling, spatial dimensions, ambient conditions and with regard to radiation protection and electromagnetic interference).

5.3 The customer must ascertain that all legal fire regulations are still met after the construction of the installation goods, including possible additional works (e.g. laying of cables, installation of radiation protection elements).

5.4 If the customer cannot fulfill or not fulfill in good time one or more of the aforementioned obligations, he shall immediately inform us. The same goes, if the timely fulfillment is more than inconsiderably jeopardized and the customer recognizes such or should recognize such when applying reasonable care. We are not responsible for time delays due to the customer’s violation of an obligation. Our legal rights, in particular upon exclusion of the obligation to perform (e.g. on the grounds of impossibility or unreasonableness of performance), remain unaffected.

5.5 If, within the framework of providing performances, additional costs arise because the customer does not fully fulfill his aforementioned obligations, we shall have the right to claim compensation for the additional costs from the customer, irrespective of any other claims.

6. Contact persons

6.1 In addition to our sales representative, who is the point of contact for the customer for general issues concerning the project implementation, we will name the customer an additional contact person for specific topics (e.g. technical questions), if necessary.

6.2 The customer shall name one representative, including his telephone number and/or e-mail address, who will be authorized to take necessary decisions relating to the agreed performances and will be at our disposal for any questions, no later than at the time of project scheduling.

7. Time scheduling

7.1 A non-binding project time frame will be discussed with the customer within the framework of the general planning discussions. We will communicate the exact construction dates to the customer as soon as the contract concerning the performances to be provided between us and the customer has been validly concluded and the customer has confirmed, that all necessary preliminary works have been rendered.

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General Terms and Conditions of EXAMION GmbH, Erich-Herion-Straße 37, 70736 Fellbach, Germany

Version: 04.04.2019

EXAMION GmbH

Erich-Herion-Str. 37
70736 Fellbach
Germany

+49 (0)711 120002-0
info[at]examion[dot]com

© 2019 EXAMION. All Rights Reserved.