GTC's
GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF FELLERHOFF MED-TEC GMBH
I. General regulations
The provisions set forth under this I. shall apply to all agreements such as purchase, rental, successive, service and maintenance contracts, short-term rental or other continuing obligations, unless otherwise provided.
§ 1 General, scope of application
1 All agreements and offers are based on these General Terms and Conditions of Delivery and Payment of Fellerhoff MED-TEC GmbH (hereinafter referred to as FMT). FMT Fellerhoff MED-TEC does not recognize any terms and conditions of the customer that conflict with or deviate from the Terms and Conditions of Delivery and Payment unless FMT expressly agrees to their validity in writing. The terms and conditions shall also apply if FMT performs the service to the customer without reservation in the knowledge of conflicting or deviating terms and conditions.
All agreements made between FMT and the Customer with regard to the execution of the Contract shall be set out in writing in the Contract. This also applies to a waiver of the written form.
These Terms and Conditions shall also apply to all future transactions of FMT with the Customer.
§ 2 Subject matter of the contract
1. the following services are provided by FMT when purchasing an FMT product:
- Shipping products to the specified delivery address
- If part of the contract; assembly and installation of supplies to clinical facilities at the contractually agreed location; FMT delivers the products to the location specified by the customer in this respect. This must meet the technical requirements of the product. The customer has to provide unhindered access and transport possibilities;
- one-time briefing on the features and handling of the product.
The provision of additional services requires the conclusion of a separate maintenance and service contract.
2. the FMT does not provide any patient-related services or consultations. Therapy suggestions on the part of the FMT are non-binding. The decision about the therapy or the aid suitable for the patient is exclusively incumbent on the responsible physician. Necessary transfers of patients are to be carried out by the nursing staff / relatives of the customer. The responsibility for these measures also lies exclusively with the customer.
3. the customer is obliged to study all relevant documents, in particular the instructions for use, safety instructions and all relevant specifications of the health authorities and to ensure that the FMT products are used in accordance with these documents.
4.FMT delivers the products according to the respective product specification. All specifications, dimensions and performance data are approximate. FMT reserves the right to deviations.
§ 3 Offer and offer documents
1. the offers made by FMT are subject to confirmation, unless otherwise stated in the order confirmation. FMT can revoke the offer at any time and is bound to the offer prices for a maximum of 30 days.
2. FMT reserves the property rights and copyrights to the offer documents, in particular to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties.
§ 4 Property rights of FMT
1. all property rights to the FMT products, including the know-how in systems, concepts etc., which are developed or provided within the scope of the contractual relationships and/or service provision, remain exclusively with FMT. The customer is only entitled to use the products.
2. the customer is not entitled to change or remove logos or other references to property rights of FMT, which are attached to the FMT products or otherwise made recognizable in the context of the service provision.
The use of photos is generally not permitted and requires written permission from FMT for further use.
§ 5 Prices and terms of payment
1. all prices are exclusive of the statutory value added tax. The sales tax shall be shown separately on the invoice in accordance with the sales tax rate applicable on the date of invoicing.
2. the deduction of cash discount requires a special written agreement. FMT has the right to make deliveries dependent on the provision of security. FMT does not pay interest on advance payments or payments on account.
3. the remuneration owed shall be payable without deduction
due for payment immediately upon receipt of the invoice, unless otherwise contractually agreed in writing. If the customer is in default of payment, FMT is entitled to claim default interest in the amount determined according to § 288 BGB. The assertion of further rights remains reserved. If necessary, invoices will be issued by our payment service provider. This is done in the name of FMT.
4. furthermore, in the event of default of payment by the customer, FMT may, also cumulatively, declare outstanding, remaining purchase price installments or other claims existing against the customer immediately due and payable and make further deliveries from this contract or from other contracts dependent on a prior security deposit or a payment step by step against delivery as well as assert the rights from the reservation of title.
4a. If our services are billed by your health or long-term care insurance company and these are not reimbursed in full because services have already been billed for you elsewhere, we will bill you for the difference.
In addition, you confirm that you may not lend, transfer or pledge the care aids and appliances provided to any third party.
5. any insurance costs are not included in the prices quoted.
5a. In case of short-term rental of an electric wheelchair, we charge a deposit of 500€ only if the customer does not take out a comprehensive insurance worth 27,-€.
This insurance covers all damage to the wheelchair that was not caused intentionally.
6. the customer has the right to offset only if his counterclaims are legally established, undisputed or recognized by FMT. Disputed counterclaims do not entitle the customer to retention.
7.FMT has the right to increase its prices at any time according to the increases of production costs, especially wages, raw material, transport and other costs. In case of a continuing obligation the customer has a special right of termination in this case if this price increase exceeds the increases of the cost of living index. The customer shall exercise this right within six weeks after receipt of the notification of the price increase.
8. if FMT has several outstanding claims against the Customer, FMT has the right to allocate the payments made in time according to the order of the deliveries made and/or the contracts concluded, irrespective of which redemption provision the Customer gave to the payment.
§ 6 Delivery time, delivery, transfer of risk
1. even if FMT specifies delivery times, these are not binding. However, FMT will endeavor to comply with the delivery times and inform the customer of any delays.
2. the delivery of the products requires that a customer has fulfilled his obligations to cooperate. In particular, the customer shall take care of all technical and organizational issues concerning the place of use, existing technical equipment (power connections, etc.) and conditions of use.
When purchasing products, the risk is transferred to the Buyer as soon as the products have left the FMT warehouse.
This does not apply in the case of the sale of consumer goods.
4. if the customer is in default of acceptance or violates other obligations to cooperate, FMT has to store the products properly at the expense of the customer. FMT is entitled to claim compensation for the damage incurred including any additional expenses, in particular for the storage of the products. In this case, in case of purchase of an FMT product, the risk of accidental loss or accidental deterioration of the purchased item shall also pass to Customer at the moment Customer is in default of acceptance.
5. events of force majeure, for example natural events, war, legislation, fire, drought, lockout, strike as well as other circumstances, which are not the responsibility of FMT and which make a timely execution of accepted orders impossible, release FMT from the contractual delivery obligation for the duration of their existence.
§ 7 Rights in case of defects
1. information on the quality and possible uses of the products do not include any guarantees, in particular not according to §§ 443, 444, 639 BGB (German Civil Code), but only a description of the object of performance, unless they are expressly designated as such in writing. Guarantees in the legal sense regarding the quality or durability of the products or their suitability for a certain purpose can only be given by the management of FMT. They must be in writing and must be expressly marked as "guarantee". Other employees of FMT are not authorized to issue guarantees.
2. the customer must notify FMT in writing of defects or wrong deliveries of products immediately after receipt.
3. if a defect is detected while observing the obligation to give notice of defects according to § 377 HGB, the customer may demand subsequent performance. FMT is entitled to remedy defects at its own discretion by repair or by replacement of the defective part or the whole delivery item. If FMT is not ready or not able to remove the defect or to deliver a replacement or if this is delayed in an unreasonable way for the customer or if the removal of the defect/replacement fails for other reasons, the customer is entitled to withdraw from the contract or to demand an appropriate reduction of the payment (reduction).
4. a claim for rescission of the contract or reduction of the purchase price shall only be given if the defect cannot be remedied within a reasonable period of at least four weeks or if the subsequent performance is associated with disproportionate costs, is unreasonable or is to be regarded as having failed for other reasons. In the event of withdrawal from the contract, the customer shall not be entitled to any additional compensation. In the event of only minor defects, the customer shall not be entitled to withdraw from the contract.
5. the customer may only claim damages and reimbursement of expenses in accordance with § 8.
6. in case of complaints the customer has to give FMT immediately the opportunity to inspect the rejected goods; in particular FMT has to make the rejected goods available on request and at its expense. In case of unjustified complaints FMT reserves the right to charge the customer with transport costs as well as the inspection expenses. Repairs and replacements due to improper or non-conforming use of the product will be charged separately according to effort and costs.
7. claims for defects shall not exist if the defect is due to the violation of operating and maintenance instructions, unsuitable or improper use or storage, faulty or negligent handling or tampering with the delivery item by the customer or third parties, and the customer does not refute a corresponding substantiated claim that only one of the aforementioned circumstances has caused the defect.
8. the limitation period for all rights of the customer due to defects of the purchased products is 12 months from delivery of the products. This shall also apply to work performed on the product (in particular repair work after expiry of the warranty period). If the customer is a consumer in the sense of § 13 BGB, the provisions of §§ 433 to 435, 437, 439 to 443 BGB remain unaffected.
9. insofar as products or parts of products are subject to a manufacturer's warranty, FMT shall be released from the warranty obligation.
§ 8 Limitation of liability
1. the liability of FMT - no matter on which legal ground - is limited to damages caused by FMT or its employees, its legal representatives or vicarious agents intentionally, grossly negligently or in case of violation of obligations essential for the fulfillment of the purpose of the contract slightly negligently.
2. in cases of slight negligence the liability of FMT is limited to the amount of damages typical for comparable transactions of this kind, which were foreseeable for FMT at the time of conclusion of the contract or at the latest at the time of committing the breach of duty. Claims for loss of profit, saved expenses, claims for damages of third parties as well as other indirect consequential damages cannot be demanded, unless a characteristic guaranteed by FMT according to § 7.2. has the purpose to protect the customer against such damages.
3. FMT is not liable for damages to third parties resulting from the use of the products by the customer without prior medical order or resulting from an application that was not carried out and supervised by medically trained personnel.
4. claims for damages under the Product Liability Act, due to guaranteed characteristics and due to injury to life, limb or health shall remain unaffected by the above provisions.
5. FMT shall be liable for infringements of industrial property rights in accordance with the above provisions if and to the extent that such industrial property rights are infringed when the goods are used in accordance with the contract, which are valid in the Federal Republic of Germany and published at the time of delivery.
6. if the customer is insured against damages, FMT is exempt from liability.
7. in all other respects FMT shall not be liable.
§ 9 Retention of title on purchase
1. in case of purchase of FMT products FMT reserves the right of ownership of the purchased item until receipt of all payments resulting from the business relationship. In case of breach of contract by the customer FMT is entitled to take back the purchased goods. The taking back of the purchased goods does not constitute a withdrawal from the contract, unless FMT gives an explicit written declaration to that effect. After taking back the purchased goods FMT is entitled to realize them, the realization proceeds are to be credited against the liabilities of the customer - less the accruing process and realization costs.
2. the customer is obliged to keep the goods free of charge with the diligence of a prudent businessman and to handle them with care. In particular, he is obliged to store them separately from his other goods, to document FMT's (co-)ownership of the goods unambiguously and to insure the goods at his own expense against all risks (in particular fire, water and theft damages) to the extent required. FMT is entitled to demand proof of the conclusion of the insurances. If the customer fails to take out the insurance, all claims of FMT arising from all contractual relationships will become due immediately. If maintenance and inspection work is necessary and no corresponding maintenance and service contract exists with FMT, the customer must have this work carried out by FMT at his own expense.
The customer is entitled to resell the purchased goods in the ordinary course of business. However, he already now assigns to FMT all claims in the amount of the final invoice amount (including VAT) of the claim of FMT, which accrue to him from the resale to his customers or third parties. The customer remains authorized to collect this claim even after the assignment. The authority of FMT to collect the claim itself remains unaffected. However, FMT undertakes not to collect as long as Customer meets its payment obligations from the collected proceeds, is not in default of payment and, in particular, no petition in bankruptcy or composition proceedings has been filed or payments have not been suspended. However, if this is the case, FMT may demand that Customer discloses the claims assigned to FMT and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. In this case the authorization to resell and to collect the claims assigned to FMT expires automatically.
3a. Aids that are provided to the customer via the health or long-term care insurance as a flat-rate supply may not be resold, rented or otherwise resold. The aid remains the property of FMT. If the aid has been purchased by the health or nursing care insurance, the right of ownership is transferred to the health or nursing care insurance. These aids may also not be purchased, rented or otherwise resold.
4. the customer is prohibited from pledging or transferring by way of security the goods delivered under retention of title. The Customer shall immediately notify FMT of any seizure or any other impairment of FMT's property rights by third parties and shall confirm the property right in writing to both the third parties and FMT. The costs remaining to FMT in spite of a victory in a legal dispute resulting from this shall be borne by the Customer. As far as the third party is not able to reimburse the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO (German Code of Civil Procedure), the customer is liable for the resulting loss.
5. in case of behavior contrary to the contract of the orderer / customer, in particular in case of default of payment, FMT is entitled to take back the goods; the orderer agrees already now to take back the goods in this case. The customer waives the rights which would be entitled to him from forbidden interference and allows FMT the access to the rooms in which the reserved goods are located. The taking back of the goods is only a rescission of the contract if this is expressly declared by FMT. The costs incurred by FMT due to the repossession (in particular transport costs) shall be borne by Customer. The customer can demand the delivery of the goods taken back without explicit declaration of withdrawal only after complete payment of the purchase price and all costs.
6. with the exception of clause three above, Customer shall in any case avoid that rights to the products delivered under retention of title arise in favor of third parties. In case of a violation a contractual penalty in the amount of all outstanding claims against FMT will be due.
§ 10 Resale and subletting after purchase
When purchasing FMT products, the customer undertakes not to resell or sublet them to third parties named by FMT with whom FMT has a direct contractual relationship.
§ 11 Termination
1. either party may terminate contracts as a whole in writing in the event that the other party:
(a) caused a material breach of the Contract ("Good Cause") which has not been cured within thirty (30) days after receipt of the notice of breach;
b) has filed for the opening of insolvency proceedings, has submitted an affidavit pursuant to Section 807 of the German Code of Civil Procedure (ZPO) or has become aware of a significant deterioration in the financial circumstances of the other party.
2. FMT is also entitled to terminate contracts by written notice if the incidents mentioned in paragraph 2. are imminent or if the customer has damaged the reputation or business of FMT.
The customer shall give notice of termination of a permanent supply "Grandparents' Box" in writing to FMT. The termination will be effective at the end of the current month. In the current month of termination, we reserve the right to invoice goods already delivered.
§ 12 Old electrical equipment, implementation of ElektroG
1. old electrical appliances with the WEEE reg. no. DE 74334860 must be disposed of separately. FMT has undertaken to take back old electrical appliances directly from the customer and to ensure proper disposal. The customer must therefore return electrical appliances to be disposed of within Germany to FMT. The customer will report electrical appliances to be disposed of in writing via Info@fellerhoff-medizintechnik.de. FMT will immediately collect the electrical equipment to be disposed of. The customer will not incur any costs due to the disposal. If the customer distributes the products received from FMT to third parties within Germany, the customer shall ensure that the third party also returns old electrical appliances to FMT for collection by notifying the above hotline. The third party will not be charged any costs for the disposal.
2. FMT is obliged to inform users in private households according to § 10 ElektroG. If the customer distributes the products to private households, the information provided by FMT must also be forwarded.
§ 13 Messages
The customer shall report defects to the e-mail address info@fellerhoff-medizintechnik.de. Unless otherwise agreed, defects reported before 12 noon will - as far as possible - be dealt with within one working day. Defects reported after 12 noon will - as far as possible - be dealt with on the following working day.
§ Section 14 Prohibition of Assignment, Partial Nullity
The assignment of claims of the customer against FMT to third parties is only permitted with the written consent of FMT.
2. should individual provisions of the contract with the customer, including these general terms and conditions of delivery and payment, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
(3) Any yielding or non-assertion of rights under the contractual relationship on the part of the contracting parties shall not constitute a final waiver of rights.
§ 15 Place of Jurisdiction, Place of Performance, Choice of Law
1. if the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction is the registered office of FMT; however, FMT is also entitled to sue the customer at the general place of jurisdiction applicable to him.
Unless otherwise stated in the order confirmation, the place of performance shall be the registered office of FMT. Postal address and place of performance, Fellerhoff MED-TEC GmbH, Heinrich-Hertz-Straße 17, D-46399 Bocholt.
3. the law of the Federal Republic of Germany shall apply exclusively, to the exclusion of its private international law, insofar as it refers to the validity of another legal system. The application of the Uniform UN Sales Law (Convention of Contracts for the International Sale of Goods) is also excluded.
II. Supplementary special regulations for rental
§ 16 Subject matter of the contract in case of rent (short-term and long-term rent to private persons or clinical institutions)
1. the following services are provided when renting an FMT product:
- Delivery of a disinfected system, in technically perfect condition
- Assembly and installation at the location agreed with the customer, if this is requested by the customer and has been contractually agreed; FMT shall deliver the products to the location specified by the customer. This location must meet the technical requirements of the product. The customer has to provide unhindered access and transport possibilities; he will confirm the correctness of the products in writing;
-Provision of the accessories required for the use of the product as far as ordered or necessary;
- Repairs, including travel costs and spare parts, the installation of which becomes necessary within the scope of the proper use of the device or have been agreed upon in the contract.
-Collection at end of contract/phase out.
The costs for this delivery, installation and collection have been negotiated in writing in advance. FMT is entitled to charge surcharges for delivery and collection outside normal business hours.
§ 17 Term of contract
Rental contracts for products for clinic use have a duration of at least one day. Days that have elapsed shall be deemed to be a full rental day. This also applies to the days of delivery and collection.
For private customers, the rental period is based on the contractually agreed period.
The transfer of medical aids within the framework of a lump-sum care allowance from a health or long-term care insurance company is governed by the respective contract between FMT and the health or long-term care insurance company.
§ 18 Obligations of the customer
(1) The Customer may use the items provided only for the contractual purpose, in particular only for the care of its own patients or for its own use. Customer shall notify FMT of any change of location / station. If the product has been moved to another location without being notified, FMT will verify the condition of the product at the customer's expense in order to determine any damage caused by the transport. The damage caused by the transport of the product is attributable to the customer,
Furthermore, the customer may not transfer or sublet the leased products to Ditte without the written consent of FMT.
2. defects of the rented products are to be reported to FMT immediately. The customer is prohibited from repairing the rented products or having them repaired without consulting FMT. The customer has to guarantee FMT access to the rented products at any time.
2. the customer is obliged to diligently follow the instructions of FMT for the care of the products. The products are to be used in accordance with the instructions for use.
3. the customer has to hand over the rental object after the expiry of the contract period, if it is no longer needed or in case of default in payment of the rent on first demand by FMT. FMT is then entitled to enter the Customer's premises, to dismantle and remove the rented items. The customer already now waives his rights from prohibited interference.
4. the customer has to reimburse FMT for all costs incurred for the collection of the rental objects in the cases of behavior contrary to the contract mentioned in clause 1. In addition, FMT may charge the Customer the daily rental price for each remaining day of the agreed contract term in accordance with the current FMT price list. The right of FMT to claim higher damages remains unaffected.
§ 19 Late delivery, collection
1. on collection the product must be in the same condition as on delivery. Insofar as parts are missing upon collection, these will be invoiced by FMT at the original price.
§ 20 Maintenance and care
Maintenance and servicing may be the subject of a separate maintenance and service contract.
In the case of lump sum care payments by a health or long-term care insurance company, all maintenance is performed by FMT.
III. Special Provisions for Maintenance and Service Contracts
§ 21 Subject matter of the contract
The scope and subject matter of the maintenance and services shall be determined by the maintenance and service contract, if any, concluded.
§ 22 Maintenance and service provision
1. FMT will provide the maintenance and services in a timely manner. As far as possible, Maintenance and Services will be provided at the place of installation of the FMT Products.
2. if the product was transported to another place, FMT is entitled to verify the condition of the product at the expense of the customer in order to determine damage caused by transportation.
The customer is obliged to follow the instructions of FMT for the maintenance of the products conscientiously. As far as the customer disregards these instructions, FMT will be released from the maintenance and service.
4. the customer has to notify defects of products immediately. Upon receipt of such notice, FMT shall endeavor to remedy the defect by repair. In doing so, FMT is entitled to offer interim emergency solutions, such as replacement of the product imposition of restrictions on use to prevent relapse.
5. if the customer does not already conclude a maintenance and service contract upon receipt of the products by FMT, FMT is not obliged to conclude a maintenance and service contract at a later date.
6. Unless otherwise agreed, maintenance costs shall be charged separately for each product. The prices are binding until the respective end of the year and can then be adjusted.
7. FMT is entitled to entrust subcontractors with the performance of the services under this contract.
8. the FMT is free from the maintenance and services as far as:
- defects have arisen due to improper or incorrect use of the products;
- Defects caused by modifications or interventions in or maintenance of the products by persons other than those designated by FMT;
- In all cases for which the customer is responsible, e.g. improper or irregular cleaning to be carried out by the customer, damage to the product from the outside;
- Damage to the product or parts of the product from the outside, e.g. paint or plastics;
- Damage due to voltage failure or fluctuations;
- Any other damage or defect caused by anything other than normal use.
Unless otherwise agreed, the term of a maintenance and service contract shall be one year. In the case of flat-rate supply by health or long-term care insurance companies, the contractual agreements with the respective health or long-term care insurance company shall apply. The term shall be automatically extended by a further year unless it is terminated in writing with two months' notice.
10. FMT is only obliged to service and maintain the products supplied by FMT.
11. FMT is entitled to terminate the maintenance and service contract with immediate effect if the customer transfers the products to a third party.
Status: 14.02.2023
Fellerhoff MED-TEC
Heinrich Hertz Street 17
46399 Bocholt