Allgemeine Geschäftsbedingungen der EXAMION GmbH

Terms and Conditions

A. GENERAL PROVISIONS

1. Scope of these Terms and Conditions

 

1.1 These Terms and Conditions shall apply to all business relations with our customers in which we,

 

EXAMION GmbH

Erich-Herion-Straße 37

70736 Fellbach, Germany

 

Stuttgart Register Court: HRB 13550,

VAT ID: DE 147835160

 

act as

 

seller or supplier,

party to an exchange contract,

obligor or

work contractor.

 

1.2 These Terms and Conditions shall only apply if the customer is an entrepreneur within the meaning of Section 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law. These Terms and Conditions do not apply if the customer is a consumer within the meaning of Section 13 BGB.

 

1.3 Unless otherwise agreed, these Terms and Conditions in the version last notified to the customer shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.

 

1.4 The rights and obligations of the contracting parties arise from (1) the contract including any ancillary agreements, supplements and amendments, (2) our order confirmation, (3) our respective price list and (4) these Terms and Conditions. In the event of any conflict between the provisions of the foregoing documents, the provisions of the documents listed first shall prevail over those of the documents listed thereafter.

 

1.5 Only our Terms and Conditions shall apply. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we execute the contract in the knowledge of the customer's general terms and conditions without reservation.

 

1.6 References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are amended or expressly excluded in these Terms and Conditions.

 

 

2. Conclusion of contract

 

2.1 Our offers are subject to change and non-binding. We reserve the right to make technical changes as well as changes in shape, color and/or weight within reason.

 

2.2 The customer's order shall be deemed a binding offer of contract. Unless otherwise stated in the customer's order or contract offer, we are entitled to accept this contract offer within 4 weeks of receipt. Acceptance can be declared either in text or written form (e.g., by an order confirmation) or by execution of the contract. A mere confirmation from us that we have received the customer's order or contract offer does not constitute a binding acceptance.

 

2.3 The conclusion of the contract is subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction has been concluded with our supplier. The customer will be informed immediately in case of unavailability of the service and the consideration will be refunded.

 

 

3. Prices and terms of payment

 

3.1 Unless otherwise expressly agreed or stated by us in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.

 

3.2 If it is individually agreed that we are to ship goods to the customer as part of the performance of the contract, the customer shall bear the transport costs ex warehouse, including any customs duties, fees, taxes and other public charges.

 

3.3 Unless expressly agreed otherwise in individual cases, invoices shall be due for payment within 7 days from the date of invoice without deductions. However, we are entitled at any time – also within the framework of an ongoing business relationship – to realize a contractual performance in whole or in part only against advance payment. We declare a corresponding reservation with the order confirmation at the latest. Payments by the customer shall only be deemed to have been effected when we can freely dispose of the corresponding amounts. Payment orders, checks and bills of exchange shall only be accepted on account of performance, with all collection and disposition charges to be borne by the customer.

 

3.4 Upon expiry of the agreed payment period, the customer shall be in default. We reserve the right to claim default interest at the applicable statutory default interest rate as well as the right to claim any further damages caused by default. With respect to merchants, our claim to the commercial due date interest (Section 353 German Commercial Code [Handelsgesetzbuch, HGB]) shall remain unaffected.

 

3.5 The customer may only set off undisputed or legally established claims against our claims. The customer shall only be entitled to assert a right of retention on account of due and fully effective counterclaims from the same contractual relationship.

 

3.6 If, after conclusion of the contract, it becomes apparent (e.g., by filing for insolvency proceedings) that our claim regarding the consideration to be provided by the customer is jeopardized by the customer's inability to perform, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 German Civil Code [Bürgerliches Gesetzbuch, BGB]). In the case of contracts for the manufacture of non-fungible goods ("custom-made products"), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

 

3.7 If, in the case of a contract for work and services, the customer exercises their right to terminate the contract in accordance with Section 648 Clause 1 German Civil Code (BGB), we may demand 20% of the agreed total price as lump-sum compensation if delivery has not yet commenced. If the delivery has already started, 80% of the agreed total price must be paid. The customer shall be at liberty to prove in each case that the remuneration actually due is lower; we, on the other hand, shall be at liberty to prove in each case that we are entitled to a higher remuneration.

 

 

4. Delivery, transfer of risk, acceptance

 

4.1 Delivery dates or delivery periods shall always be considered non-binding and approximate, unless a fixed delivery date has been expressly agreed in writing. They shall be deemed to have been complied with at the time of timely notification of readiness for dispatch or, if dispatch by us has been agreed, at the time of timely dispatch of the good. In any case, the term of a delivery period shall not begin until all technical and other questions related to the delivery have been clarified. We are entitled at any time to make partial or early deliveries; in these cases, packaging and shipping costs will only be charged once. In the case of orders blocked for reasons of creditworthiness, delivery dates already confirmed shall become invalid; after the block has been lifted, new delivery dates to be confirmed by us in writing shall apply in each case. The provisions of Section A Clause 2.3 of these Terms and Conditions shall remain unaffected.

 

4.2 Delivery is made from our warehouse, which is also the place of performance for the delivery and any subsequent performance. The good will be shipped to another destination at the customer's expense, if this is agreed individually. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

 

4.3 The risk of accidental loss and accidental deterioration of the good shall pass to the customer, at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the good as well as the risk of delay shall already pass to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment upon delivery of the good. Insofar as acceptance has been agreed, it shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance is equal if the customer is in default of acceptance.

 

 

5. Default of performance

 

5.1 If we are unable to meet binding performance deadlines (including delivery deadlines) for reasons for which we are not responsible ("non-availability of performance"), we shall inform the customer thereof without undue delay and at the same time notify the customer of the expected new performance deadline. If the service is still not available within the new schedule, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already paid by the customer. Cases of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, as well as cases in which neither we nor our suppliers are at fault or in which we are not obligated to procure in the individual case.

 

5.2 The occurrence of our default of performance shall be determined in accordance with the statutory provisions. In any case, however, an overdue notice from the customer is required. If we are culpably in default of performance, the customer may demand lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the net price (“performance value”) for each completed calendar week of the default, but in total not more than 5% of the value of the delayed performance. We reserve the right to prove that the customer has not suffered any damage or that the damage is significantly less than the aforementioned lump sum.

 

5.3 The rights of the customer according to Section A Clause 8 of these Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

 

 

6. Reservation of proprietary rights

 

6.1 In the case of sales, barter transactions and deliveries of work and materials, we retain title to the good until all claims arising from the current business relationship with the customer have been settled in full (“reserved goods”).

 

6.2 The customer is obliged to treat reserved goods with care. If maintenance and inspection work is required, the customer must carry this out regularly at its own expense.

 

6.3 The customer is obliged to notify us immediately of any access to the reserved goods by third parties – for example in the event of seizure – as well as any damage to or destruction of the reserved goods. The customer shall notify us without delay of any change in ownership of the reserved goods and of any change in their own place of business.

 

6.4 We shall be entitled to withdraw from the contract and demand the return of the reserved goods in the event of a breach of contract by the customer, in particular in the event of a default in payment or a breach of an obligation pursuant to Section A Clause 6.2 or 6.3 of these Terms and Conditions.

 

6.5 The customer is entitled to resell the reserved goods in the ordinary course of business. He already now assigns to us all claims in the amount of the invoice amount which accrue to him against a third party through the resale. We accept the assignment. After the assignment, the customer is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer does not properly fulfill their payment obligations and defaults on payment.

 

6.6 The handling and processing of the reserved goods by the customer shall always be carried out in our name and on our behalf. If processing is carried out with items not belonging to us, we shall acquire co-ownership of the new good in proportion to the value of the reserved goods delivered by us relative to the other processed items. The same shall apply if the reserved goods are blended with other items not belonging to us.

 

 

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

 

7.1 In the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions) the statutory provisions shall apply to the customer's rights, unless otherwise stipulated below.

 

7.2 If a delivered good is defective, we may initially choose whether to provide supplementary performance by remedying the defect ("rectification") or by delivering a good that is free of defects ("replacement delivery"). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.

 

7.3 We are entitled to make the subsequent performance owed dependent on the customer providing the consideration due (e.g., paying the purchase price due). However, the customer shall be entitled to retain a part of the consideration which is reasonable in relation to the defect.

 

7.4 The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the good complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective good to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective good nor the installation of the defect-free good if we were not originally obliged to install it.

 

7.5 If the customer unjustifiably demands that a defect be remedied, we may demand reimbursement from the customer of the costs incurred by us as a result (in particular testing and transport costs), unless the lack of defectiveness was not apparent to the customer through no fault of their own.

 

7.6 The limitation period for claims for defects in respect of works and new goods shall be 12 months from delivery of the item or, if acceptance of a work is stipulated, from the time of its acceptance. The statutory provisions on the statute of limitations in the case of fraudulently concealed or intentionally caused defects as well as the conditions of any warranty assumed by us shall remain unaffected.

 

7.7 Claims for defects in used goods are excluded, except in the case of fraudulently concealed or intentionally caused defects as well as to the extent of any warranty assumed by us.

 

7.8 If the customer is a merchant within the meaning of the German Commercial Code (HGB), he shall be subject without prejudice to the statutory obligations to inspect goods without delay and to give notice of defects in accordance with Section 377 and Section 381 of the German Commercial Code (HGB).

 

7.9 Claims of the customer for damages or reimbursement of futile expenses shall exist also in the event of defects only in accordance with Section A Clause 8 of these Terms and Conditions and shall otherwise be excluded.

 

 

8. Liability

 

8.1 Our liability for defects of quality and title shall be governed by the provisions in Section A Clause 7 of these Terms and Conditions. In all other respects, our liability shall be governed by the following Clauses 8.2 to 8.6.

 

8.2 Unless a more lenient liability is stipulated by law, we shall be liable without limitation for the following:

 

    in the event of intent or gross negligence,

    for loss of life, physical injury or damage to health,

    in accordance with the provisions of the Product Liability Act as well as

    to the extent of any warranty assumed by us.

    

8.3 In the event of a minor negligent breach of an obligation that is essential for achieving the purpose of the contract ("cardinal obligation"), our liability shall be limited in amount to the damage that is foreseeable as well as typical according to the nature of the transaction in question, unless a more lenient liability is stipulated by law.

 

8.4 The provisions on lump-sum compensation for damage caused by delay pursuant to Section A Clause 5.2 of these Terms and Conditions shall remain unaffected.

 

8.5 There shall be no further liability on our part.

 

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

 

 

9. Subcontracting, assignment

 

9.1 We are entitled to use affiliated companies or external parties to fulfill our obligations.

 

9.2 The customer is not entitled to assign, otherwise transfer or extend the underlying contract between us and them or any rights and/or obligations under this contract to external parties, unless we agree in writing in advance.

 

 

10. Applicable law and place of jurisdiction

 

10.1 These Terms and Conditions and the contractual relation between us and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding reference to other legal systems and excluding the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) of April 11, 1980.

 

10.2 If the Contracting Person is a businessman (“Kaufmann”), as defined by the German Commercial Code, a legal person under public law or a special fund under public law, the place of exclusive – and international – jurisdiction for all disputes directly or indirectly derived from the contractual relationship, is Fellbach, Germany, as our place of business. The same shall apply if the customer is an entrepreneur (“Unternehmer”) within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these Terms and Conditions or a prior individual agreement or at the customer's general place of jurisdiction. Overriding statutory provisions, in particular on exclusive responsibilities, shall remain unaffected.

 

10.3 The settlement of disputes by arbitration outside the ordinary course of law is excluded, even if the validity of an international trade clause (“Incoterms®”) of the International Chamber of Commerce (“ICC”) has been agreed for a delivery and if that international trade clause provides for the settlement of disputes by such arbitration.

 

 

11. Final provisions

 

11.1 All amendments and/or supplements to contractual agreements concluded with the customer, including these Terms and Conditions, are to be made in writing. The same shall also apply to the amendment or supplementation of this written form requirement itself.

 

11.2 A complete or partial omission or a delayed assertion of any right on our part against the customer does not imply a waiver of this or any other right.

 

B. SPECIAL PROVISIONS FOR THE INSTALLATION OF X-RAY OR THERAPY SYSTEMS AND FOR RELOCATION SERVICES

1. Scope

 

1.1 This Section B of our Terms and Conditions serves as a supplement to the general provisions outlined in Section A for cases in which we are designated to install X-ray or therapy systems or to provide relocation services for such equipment.

 

 

2. Definitions

 

2.1 “Electrical planning” refers to the process of creating an electrical plan. The electrical plan describes which electrical connections must be present in the installation facilities.

 

2.2 “Radiation protection planning” refers to the process of creating a radiation protection plan. The radiation protection plan outlines the radiation protection with which the installation facilities must be equipped.

 

2.3 “Installation planning” is the process of creating a plan for installation of the equipment. The installation plan describes where and, if applicable, with which orientation equipment is to be placed in the installation facilities. The installation plan usually contains further specifications on constructional requirements and necessary equipment of the installation facilities.

 

2.4 “Assembly” refers to the totality of all operations for the assembly of equipment parts with a geometrically determined shape and generally comprises operations such as placing, adjusting and securing with screws. “Disassembly” is the inverse process of assembly.

 

2.5 “Acceptance test” refers to the acceptance test specified in the Radiation Protection Ordinance that must be performed by the manufacturer or supplier as part of quality assurance prior to commissioning an X-ray or radiation therapy system.

 

2.6 “Target value determination” refers to the determination of reference values for the periodic constancy tests that are specified in the Radiation Protection Ordinance and that are to be performed within the framework of the acceptance test.

 

2.7 “Configuration” refers to the totality of operations by which computer software and/or hardware is adapted for a particular intended use by determining the settings that are most appropriate for that use. For this purpose, only factory-provided settings can be chosen; no new setup options are created.

 

2.8 “Basic instruction” refers to the process of providing the customer's medical operators with basic knowledge of equipment operation and maintenance.

 

2.9 “Installation” shall, unless otherwise expressly defined in the individual case, be understood exclusively as the assembly of a system, the connection of the system to the freely accessible termination points of power and data networks (sockets, jacks) already present in the installation room as well as the configuration of such system and, if required by law, the acceptance test. Work other than that referred to in the preceding sentence shall not be part of the installation, even if it is preparatory work or ancillary work.

 

2.10 “Set-up” shall be understood, with reference to an X-ray or therapy system, as a generic term for the services defined in the above Clauses 2.1 to 2.9. Accordingly, each of the services defined in the Clauses 2.1 to 2.9 is also a set-up service in this sense.

 

2.11 “Relocation Service”, with respect to an existing X-ray or therapy system, refers to a service that involves disassembly, movement to another location, and subsequent reassembly at that other location.

 

 

3. Agreement on services

 

3.1 We are only obliged to perform certain services if and to the extent that this is expressly contractually agreed between us and the customer.

 

3.2 If, after conclusion of the contract, the customer requests a change in the content and/or scope of the services and we agree to this request, for whatever reason, expressly or by conclusive action, the customer shall bear the additional expenses incurred as a result of the requested changes, including our additional charges. If the amount of the additional charges is not determined, then, if there is a tax, the tax-related additional charges, and in the absence of a tax, the usual additional charges are to be regarded as agreed. We shall not be responsible for any delays occurring as a result of the requested changes. If no agreement can be reached between us and the customer on the amount of the additional work or the additional charges and/or on the extent of the time delays, we shall be at liberty to reject the request for change.

 

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

 

3.4 We do not perform any expert testing within the meaning of the Radiation Protection Ordinance, not even by way of commissioning external parties. The commissioning of an external party to carry out expert testing is the sole responsibility of the customer.

 

4. Special delivery conditions

 

4.1 If it is individually agreed that we will deliver to the installation facilities or facilities for temporary storage, or that we will commission an external party to do so, this agreement is subject to the proviso that those facilities can be reached from the nearest road or parking lot that is freely accessible for a truck, either at ground level or via an elevator that is sufficiently dimensioned and capable of carrying the installation goods.

 

4.2 In any case, the customer shall inform us in good time of any circumstances at the installation site that could make delivery difficult or impossible (e.g., no sufficient free parking spaces in front of the installation building, no ground-level path to the installation room, elevators that are narrow, do not exist or do not have sufficient load-bearing capacity, narrow stairs or stairs that do not have sufficient load-bearing capacity).

 

4.3 In no event shall we be obligated to borrow, rent, or otherwise procure or provide cranes, outside elevators, hoists, or similar equipment for delivery.

 

 

5. Cooperation obligations of the customer

 

5.1 The customer must enable us to perform the agreed services on time, without interruption and without hindrance. In particular, the customer must

  • obtain the necessary public-law approvals in good time and submit them to us on request,
  • provide us with all necessary planning documents, in particular radiation protection plans and relevant construction drawings, free of charge upon request,
  • ensure that general order is maintained at the installation site and ensure that work being carried out simultaneously by other companies (e.g., tradesmen) does not interfere with or obstruct work being carried out by us,
  • coordinate the activities of other companies in such way that all necessary preliminary work – in particular electrical and structural preliminary work including the installation of the necessary radiation protection elements, lines, fuses and supply connections – is carried out in good time,
  • ensure that hardware and software of other suppliers is properly installed, configured, functional and accessible to us to the required extent and corresponds to the current state of the art, insofar as this is necessary for the agreed services,
  • provide storage areas for components and work equipment as needed and electrical connections for work equipment, AND
  • provide hoisting equipment if required for the installation of ceiling-guided equipment, unless it is expressly agreed that we will ensure the availability of such hoisting equipment.

    

5.2 The customer must ensure themselves and prove to us at their own expense that the floors, walls and ceilings are sufficiently load-bearing for the system to be installed. Unless and insofar as expressly agreed otherwise, it shall also be the customer's responsibility to ensure that the installation facilities are suitable for the system to be installed (e.g., with regard to floor conditions, any underfloor heating that might prevent drilling, room dimensions, ambient conditions, and with regard to radiation protection and electromagnetic interference).

 

5.3 The customer must ensure that the statutory fire protection regulations are complied with, even after the system to be installed has been set up, including any ancillary work (e.g., laying cables, installing radiation protection elements).

 

5.4 If the customer is unable to fulfill one or more of its aforementioned obligations or is unable to do so on time, they shall notify us of this immediately. The same shall apply if timely performance is more than insignificantly endangered and the customer recognizes this or should have recognized this by exercising reasonable care. We shall not be responsible for any delays occurring as a result of a breach of duty by the customer. Our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance), shall remain unaffected.

 

5.5 If we incur additional costs in the provision of services because the customer does not fully comply with their aforementioned obligations, we shall be entitled to demand compensation for the additional costs from the customer, without prejudice to any further claims.

 

 

6. Contact

 

6.1 In addition to our customer service representative whom the customer can contact for general project management questions, we will, if necessary, provide the customer with a further contact for specific subject areas (e.g., technical questions).

 

6.2 The customer shall designate to us, at the latest during scheduling, a contact person, including telephone number and/or email address, who is authorized to make the decisions required in connection with the agreed services and who is available to us in case of questions.

 

 

7. Scheduling

 

7.1 A non-binding installation period will be discussed with the customer during the general planning meetings. The customer will be informed of the exact installation and set-up dates as soon as the contract for the services to be provided has been effectively concluded between us and the customer and the customer has confirmed to us that all necessary preliminary works have been provided.

 

 

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

As of: April 04, 2019