Validity

The following General Terms and Conditions (GTC) apply to all contractual and other legal relationships of hestomed GmbH, Am Eichenwald 13, D-09356 St. Egidien, Germany, effective February 1, 2020.

These GTC replace all previous versions of our General Terms and Conditions.
Deviating GTCs of our contractual partners are only effective with respect to us if we have expressly agreed to their validity in writing.
Individual contractual provisions always take precedence over any provisions of these General Terms and Conditions that conflict with the relevant individual agreement.
Deviating agreements and ancillary agreements to contracts concluded with us require express written confirmation in order to be valid. This written form requirement also expressly applies to the waiver of the written form requirement.

Conclusion of Contract

Our offers are always subject to change.

A contract is only concluded upon our order confirmation or delivery.

By placing an order, the customer expressly confirms his or her ability to pay.

To secure our payment claims, we may request advance payments of an appropriate amount or the provision of securities even after the contract has been concluded.

If the security required hereunder is not provided and an advance payment is not made, we are entitled to withdraw from the concluded contract.

Supplementary contractual documents such as illustrations, plans, drawings, samples, and other supplementary information are not binding for the technical execution. We may make design changes that do not affect the usability of the goods without consulting the customer.

Costs incurred because the customer changes their order after the contract has been concluded regarding the properties of the goods to be delivered are borne by the customer.

We are not liable for damages caused by inaccurate or incomplete information provided by the customer when placing the order.

We retain title to all documents provided by us to initiate a contract. The copyrights are and remain with us. To protect our trade secrets, the documents or copies thereof may not be made accessible to third parties or reproduced without our prior express written consent. The documents must be returned to us upon request.

Imitation of our protected products and services is prohibited.

Delivery

1. Delivery dates and delivery periods, which can be agreed upon as binding or non-binding, must be stated in writing.
   They begin with the dispatch of the order confirmation, but not before the provision of any permits, approvals, and other documents required for processing the order by the customer.
2. Unless expressly agreed otherwise in exceptional cases, any information provided by us regarding a delivery time or delivery period is not binding.
   The customer may request delivery two weeks after a non-binding delivery date has been exceeded.
   We shall be in default upon receipt of this request.
   If the customer is therefore entitled to compensation for damages caused by delay, this is limited to a maximum of five percent of the agreed purchase price in the case of slight negligence attributable to us.
3. If the buyer also wishes to withdraw from the contract and/or demand compensation instead of performance, he must notify us after the expiry of the relevant period in accordance with clause 2. Sentence 2 of this section, we may set a reasonable grace period for delivery and simultaneously threaten to withdraw from the contract and/or claim damages instead of performance (setting a deadline with a threat of rejection).
   If the customer is entitled to damages instead of performance, the claim is limited to a maximum of 10% of the agreed purchase price in the case of slight negligence.
   If the customer is a legal entity under public law, a special fund under public law, or an entrepreneur who, when concluding the contract, is acting in the exercise of his commercial or independent professional activity, claims for damages in the case of slight negligence are excluded.
   If delivery becomes impossible by chance while we are in default, we shall only be liable within the scope of the liability limitations agreed above.
   In this case, we shall not be liable if the damage would have occurred even if delivery had been made on time.
4. If a binding delivery date or a binding delivery period is exceeded, we shall be in default as soon as the delivery date or delivery period is exceeded. The customer's rights are then determined by clauses 2 and 3 of this section.
5. Force majeure or operational disruptions occurring at our company or our suppliers that temporarily prevent us from delivering on the agreed date or within the agreed period through no fault of our own shall extend the dates and deadlines specified in this section by the duration of the disruptions caused by these circumstances. If such disruptions result in a delivery delay of more than four months, the customer may withdraw from the contract.
6. A delivery deadline is deemed to have been met if the goods have left the factory by the expiry of the delivery deadline or the customer has been notified of readiness for dispatch.
7. We are entitled to make partial deliveries. A failure to perform a partial delivery does not entitle the customer to withdraw from the contract in its entirety.

Transfer of Risk/Acceptance

The risk of any accidental deterioration of the purchased/rented item passes to the customer in all cases upon leaving our factory, even if we have undertaken additional services for delivery and/or installation of the goods.

International shipments are insured at the customer's expense; we only insure domestic shipments if the customer expressly requests this and bears the costs.

Goods that the customer is required to collect from us will be stored at the customer's risk from the time of notification of readiness.

In the event of a delay in acceptance lasting longer than one month, the customer must bear storage costs amounting to 1% of the order amount per month without deductions as net storage costs, unless the customer can prove that we actually incurred lower storage costs. If we can prove that higher storage costs actually occurred, we can instead demand reimbursement of these costs.

Notwithstanding this, we may exercise our statutory rights if acceptance has not yet taken place within one month of notification of availability.

If we therefore demand compensation for damages due to withdrawal from the purchase contract, this shall amount to 10% of the purchase price. The compensation shall be higher or lower if we prove either higher damages or the customer proves lower damages in the specific case.

Retention of Title in Purchase Contracts

Goods delivered by us remain our property until the purchase price, including all ancillary claims, has been paid – and if our customer is a legal entity under public law, a special legal fund, or an entrepreneur acting in the exercise of his or her commercial or independent professional activity at the time of conclusion of the contract, until all our claims arising from the ongoing business relationship have been paid.

Despite the retention of title, the customer is entitled to sell the goods as part of a regular business transaction while maintaining our retention of title, or to conclude a contract for the transfer of use for a fee. In this case, the customer must inform us about the transfer of the goods to a third party.

Other dispositions, in particular pledging and transfer of ownership by way of security, are not permitted.

The customer's claims resulting from the resale/transfer against payment are assigned to us to secure our claims from the business relationship - even without an express agreement to this effect in individual cases. We accept the assignment.

The customer may collect the claim assigned to us provided that they are not in default of payment or we have revoked the collection authorization granted. Upon payment by the recipient of the delivery, the proceeds replace the goods. In the event of the third party's default of payment, we are entitled to a right of separation.

If the customer fails to fulfill their payment obligation, we may withdraw from the contract and demand the return of the goods delivered by us. In this case, the customer must grant us access to the goods.

The customer must notify us immediately of any seizure of items belonging to us or claims assigned to us, as well as any other access by third parties.

This also applies to consignment goods provided by us. In addition, the consignment goods must be insured against all risks at the customer's expense and stored in such a way that no deterioration in use or value occurs. The customer must bear any costs resulting from improper storage.

Warranty for Purchase Contracts

1. Unless our customer is a consumer, the sale of used items is subject to the exclusion of any claims for defects. Unless our customer is a consumer, the warranty period for the sale of new items is one year.
2. Further claims remain unaffected to the extent that we are legally liable for them or something else has been agreed upon, particularly in the case of a guarantee.
3. The buyer must immediately assert claims for defects against the seller. In the case of verbal notification of claims, a written confirmation of receipt of the notification must be provided upon request.
4. If the purchased item proves to be defective, the claim for subsequent performance is initially limited to repair. Parts installed or replaced as part of the rectification of defects become our property.
5. For use and maintenance contracts, the statutory warranty regulations apply unless otherwise agreed in an individual contract.
6. The provisions of this section do not apply to claims for damages; the Liability section applies to claims.

Complaints

The customer must inspect the goods immediately upon receipt.

The customer must notify us in writing of any complaints of any kind (material defects, incorrect delivery, missing items, etc.) immediately upon receipt of the goods; Otherwise, the goods are deemed to have been accepted, unless the defect in question was not apparent upon inspection.

The customer must accept the goods even if they exhibit reasonable deviations that do not impair their use.

We can only accept externally visible damage or loss of the goods if the customer properly records and documents the damage before accepting the goods from the carrier. If we handle transport damage, the customer must immediately send us the freight and shipping documents along with a damage note and a declaration of assignment.

Third-Party Rights, Compliance with Legal Regulations

Unless expressly agreed otherwise, we assume that products sold or transferred by us will be used exclusively in the Federal Republic of Germany.

We guarantee that our products comply with the legal requirements applicable in the Federal Republic of Germany and do not infringe the rights of third parties - e.g., trademark or patent rights - in the Federal Republic of Germany.

Any resale of goods purchased from us abroad must be coordinated with us to ensure that the legal regulations and rights of third parties are also observed in the intended country of use.

If this coordination is not carried out prior to the sale, transfer, or use of the products abroad, and we are subsequently held liable for any violations of regulations or infringement of third-party rights, the buyer is obligated to from all resulting claims, costs, including legal costs, penalties, fines, and other costs.

In the event that the buyer resells or transfers our products to third parties, the buyer undertakes to contractually impose the obligations arising from this section on his contractual partner and to provide us with evidence of this upon request. If the third party fails to impose this further obligation on the third party, the buyer shall be liable to us as if he himself had resold, transferred, or used our products abroad without prior agreement.

Liability

1. If, due to statutory provisions, we are required to pay for damage caused by slight negligence, our liability is limited as follows:
   Liability only exists in the event of a breach of essential contractual obligations, such as those which the customer intends to impose on us according to the purpose of the contract or whose fulfillment makes the proper fulfillment of the contract concluded with us possible in the first place and on whose compliance the customer regularly relies and may rely.
   This liability is limited to the typical damage foreseeable at the time the contract was concluded.
   To the extent that the damage is covered by insurance taken out by the buyer for the relevant claim (excluding lump sum insurance), we are only liable for any associated disadvantages to the customer, e.g., higher insurance premiums or interest disadvantages, until the claim is settled by the insurer.
2. Regardless of our fault, our liability remains limited in the event of fraudulent concealment of a defect, from the assumption of a guarantee or a Quality risk and the Product Liability Act are unaffected.
3. Our liability for delayed delivery is conclusively regulated in the Delivery section.
4. The personal liability of our legal representatives, vicarious agents, and employees for damages caused by them through slight negligence is excluded.
5. The limitations of liability in this section do not apply to injury to life, limb, or health.

Prices and Payment Terms

All our prices are ex works, excluding packaging, freight, insurance, and assembly, unless otherwise agreed in the delivery conditions.

All our prices are always net cash.

Unless otherwise agreed individually, an order and logistics fee of EUR 7.90 net will be charged per order in addition to the value of the goods.

For an order value of less than EUR 40.00 net, an additional A surcharge of EUR 8.00 will be charged for small quantities.

Our prices are based on the material prices, wages, and other costs applicable at the time the contract is concluded.

If one or more of these parameters change significantly during the term of a continuing obligation or a continuing delivery contract, we are entitled to adjust our purchase price claim, the compensation for use, or our remuneration claim at our reasonable discretion, in accordance with Section 315 of the German Civil Code (BGB).

For orders with a term of more than six months from the date of order placement, subject to a different individual contractual agreement, at least 1/3 of the agreed remuneration/purchase price must be paid upon ordering, a further 1/3 upon readiness for delivery, and the final payment of 1/3 upon delivery.

Prohibition of offsetting/rights of retention

The customer may only offset our payment claims if their claims are undisputed. or have been legally established.

The customer may only assert a right of retention against us if it is based on claims arising from the same contract.

Special provisions for use, long-term delivery, and maintenance contracts

To the extent that one of the aforementioned contracts can be terminated for good cause, good cause exists for both parties in particular if:

a) insolvency, composition, or liquidation proceedings have been filed or initiated against the assets of the other party, or

b) the other party has significantly violated its deadlines despite a warning.

A good cause entitling the customer to extraordinary termination without notice also exists if the customer loses its contract to provide rescue services, regardless of the reason.

We are entitled to extraordinary termination of one of the aforementioned contracts without notice even if We are entitled to demand payment if the customer fails to meet their payment obligations despite the due date, even after a grace period of two weeks.

Properties according to the Medical Devices Act (MPDG) and the Medical Devices Operator Ordinance (MPBetreibV)

If we undertake inspection, maintenance, or other work on the customer's equipment or on equipment and medical devices provided to us, this expressly does not release the customer from their obligations and liability under the Medical Devices Operator Ordinance (MDG) and the Medical Devices Operator Ordinance (MPDG). We expressly do not assume the customer's legal position as operator and do not assume any resulting liability.

Place of Jurisdiction and Choice of Law

1. For all current and future claims arising from the business relationship with merchants, legal entities under public law, or special funds under public law – including bills of exchange and check claims – the exclusive place of jurisdiction is Chemnitz.
2. The same place of jurisdiction applies if the customer does not have a general place of jurisdiction within the country.

Applicable Law

These General Terms and Conditions and all legal relationships between us and the buyer shall be governed exclusively by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

Final Provisions

Should individual parts of these General Terms and Conditions or concluded individual contracts be invalid, this shall not affect the validity of the entire set of terms and conditions or contract.

The invalid agreement shall then be replaced by the legally permissible provision be replaced by a provision that most closely reflects, legally and economically, the intention of the parties expressed in the invalid clause.

St. Egidien, February 2, 2023