1 Scope of application
- 1.1 The following terms and conditions form the basis upon which KARL STORZ delivers services in relation to technical medical products (hereinafter “service object (s)”) and the ordering of such services by the Customer. The provisions of the specific agreement have priority.
- 1.2 Contrary terms and conditions of the Customer will not form part of the agreement unless their applicability is expressly agreed in writing by KARL STORZ.
2 Customer’s Duties of co-operation
- 2.1 The most important operator duties of the Customer in relation to the service objects include operation in accordance with the instructions of use, undertaking functional checks and the replacement of consumables at the required intervals as well as cleaning in accordance with the instruction manual.
- 2.2 In the event of a fault, the Customer must take the requisite measures promptly for the protection of persons and property. KARL STORZ must be informed. Use of the service object must be ceased immediately upon detection of the fault, unless such use has been approved by KARL STORZ.
- 2.3 Within the scope of its possibilities, the Customer must ensure compliance with the requirements of the product liability laws, in particular the Medical Devices Act in conjunction with the provisions of the Medical Devices Operator Ordinance and the Medical Devices Safety Plan Ordinance. KARL STORZ makes it known that failure to observe these duties is prosecutable under Sections 40 ff. Medical Devices Act. The Customer undertakes to co-operate within the terms of the medical product observation and notification system set out under Section 29 Medical Devices Act and to observe the duties of notification prescribed therein.
- 2.4 If technicians are deployed on-site, the Customer will ensure KARL STORZ has unrestricted access to the service objects. The local area (operating theatres in particular) must be basically cleaned. The Customer will also ensure that appropriately qualified contact persons are present during the performance of service works. The Customer is also duty bound to ensure the professional backing-up at short intervals of data (in particular patient-related data) connected with the service objects. The Customer must also ensure that the requisite utility connections are in place and that the service objects are shielded from normal daily operations. KARL STORZ reserves the right to separately bill the Customer for costs arising in connection with waiting times if (for example) agreed dates are not complied with or if access to the devices must first be arranged.
- 3.1 Following the dispatch of the defective service object to KARL STORZ, the acceptance of the service order will be performed by means of a written confirmation. Repairs or repair replacements will then be carried out as quickly as possible. Repair and delivery times are always stated without obligation, unless otherwise agreed.
- 3.2 Cost estimates will only be prepared upon the request of the Customer. If the Customer does not raise any objection within 10 days of having received the cost estimate, the repair order will be deemed awarded on the basis of the terms and conditions set out in the cost estimate. KARL STORZ will inform the Customer if the originally estimated repair costs are exceeded by more than 10% during the performance of the repairs. If the Customer raises an objection within the stipulated period, KARL STORZ will return the device unrepaired to the Customer.
- 3.3 If devices provided for the purpose of bridging repair periods are not returned to KARL STORZ within the allocated period for return (10 working days from the return delivery of the service objects) a charge of 0.5% of the new value of the article will be levied for each overdue day (but said charge to be no less than 250.00 EUR plus VAT). After a period of 4 weeks the new value will be charged to the Costumer’s account. If a device provided for the purpose of bridging a repair period is returned in an improper condition, KARL STORZ reserves the right to charge up to 30% of the new value for the restoration of the device.
- 3.4 If, under the pre-exchange-procedure, KARL STORZ does not receive any service object back within two weeks of the dispatch it will bill the Customer for the new value of the replacement goods.
- 4.1 Payments are to be made direct to KARL STORZ within the agreed period and without discount. Cash discounts are extinguished in relation to due payments.
- 4.2 Outstanding payments will be charged at the statutory rate of default interest irrespective of any fault on the part of the Customer. In case of default 5.00 Euro will be charged per reminder insofar as no higher costs have been incurred.
- 4.3 If KARL STORZ renders services abroad, the Customer will reimburse KARL STORZ for all payable foreign taxes and duties incidental to the services.
- 4.4 If, following the conclusion of the agreement, KARL STORZ becomes aware of any circumstances that establish justified doubt in relation to the Customer's ability to pay, KARL STORZ is entitled to demand suitable collateral security prior to undertaking any subsequent processing of the order or delivery of services.
- 4.5 The Customer may only set-off counter-claims against the claims of KARL STORZ if these counter-claims are either undisputed or have been established through a final decision taken by a court of law. The same applies in relation to the assertion of a right of retention or right to refuse performance. Any retention connected with a notification of defect is only permissible to the extent it is reasonable in relation to the defect that has occurred.
- 4.6 KARL STORZ reserves the right to allocate payments for the settlement of the longest outstanding invoice items and the interest and costs accrued thereon and namely in the following order: Costs, interest, principal debt.
- The Customer will bear all costs of dispatch.
6 Retention of Title
- Where KARL STORZ delivers a repair replacement, replacement goods or other retail goods, these goods will remain its property until the complete payment of all outstanding debts arising from the business relationship. In the event the delivered article is combined with an object which is property owned by others, KARL STORZ will be deemed the manufacturer.
7 Inadequate supply of services
- 7.1 Any liability of KARL STORZ for the faulty supply of services requires that the Customer inspects the delivered services without delay and reports any defects immediately. Hidden defects must be notified immediately after identification.
- 7.2 KARL STORZ is obligated, at no charge, to repeat or repair incomplete or improperly rendered services. If KARL STORZ fails to fulfil this obligation and a subsequent additional period for compliance expires without result, the Customer will be entitled to demand a reduction in the service cost or it may cancel the agreement. The Customer has no other warranty rights under this agreement.
- 7.3 If an examination of the notification of defect finds that there is no defect or that the Customer is responsible for the defect, KARL STORZ is entitled to charge the Customer for the costs of the examination and any elimination of the fault.
- 7.4 Warranty claims are subject to a limitation period of one year following the delivery of the service. Repair or replacement delivery does not mean this limitation period begins to run anew. These limitation periods do not apply where KARL STORZ provided a warranty in relation to the characteristics of the supplied article or the repair services.
- 8.1 KARL STORZ is only liable in respect of damage sustained by the actual service object or for the consequential damage caused by defects (damage not sustained directly by the service object itself; loss of use) where this concerns a deliberate or grossly negligent breach of duty by KARL STORZ or one of its vicarious agents. Otherwise KARL STORZ is only liable for damage relating to the breach of significant contractual duties, death or personal injury caused by a breach of duty on the part of KARL STORZ or one of its vicarious agents. In this context the liability of KARL STORZ for the breach of significant contractual duties, consequential damage due to defects and gross negligence is limited to foreseeable damage typical for the type of services except in the case of death or personal injury. No liability is assumed in respect of the erroneous implementation (including contrary to instructions) of the technical advice provided by means of the hotline information service or if the notices in the training documentation are not observed. Liability for lost profits is excluded.
- 8.2 KARL STORZ is in no way liable for damage/losses for which the Customer is responsible due to its failure to implement the repair recommendations issued by KARL STORZ, or which the Customer caused through its improper operation, incorrect assembly or installation or other actions or failures, or which are attributable to external causes outside of the control of KARL STORZ.
- 8.3 KARL STORZ is in no way liable for the loss of data or damage to data or the costs for its recovery.
9 Force majeure
- 9.1 In the event of force majeure KARL STORZ will be released from all liability in relation to delay/non-performance and it is entitled to delay performance by a commensurate period of time.
- 9.2 Force majeure includes every unforeseeable and unavoidable event or sequence of events and circumstances outside of the usual sphere of influence of KARL STORZ, which prevents the fulfilment of the contractual obligations.
- 10.1 The Customer undertakes, for the duration of the business relation with KARL STORZ and thereafter, not to disclose any information of a confidential nature (including information in instruction manuals, technical manuals, catalogues, descriptions). The documents containing this confidential information must be returned to KARL STORZ without demand at the end of the business relationship.
- 10.2 The customer may disclose confidential information to its employees to the extent that this is required for the implementation of the provisions of this agreement. Any disclosure to third parties is only permitted with the express written consent of KARL STORZ.
- 11.1 Amendments or additions to these General Terms and Conditions must be made in writing.
- 11.2 Any dispute arising from this contractual arrangement will be heard – where legally permissible 2 before the relevant court in Tuttlingen. The parties are however entitled to pursue legal actions at the defendant’s place of general jurisdiction.
- 11.3 The contractual relationship is governed by German substantive and procedural law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the referral regulations of international private law.
- 11.4 Through the issue of an order the customer implicitly consents to the storage and communication of personal information and other data required for the purpose of checking creditworthiness, collection of payments as well as notifications pursuant to the Medical Devices Act. The Customer can, upon request, receive information detailing the consequences of refusing this consent.
- 11.5 If any individual provisions of these terms and conditions are wholly or partially ineffective, this does not prejudice the effectiveness of the remaining provisions or the other parts of such provisions. Ineffective provisions here and now are deemed to be substituted for those that most closely fulfil the commercial purposes intended by the parties.