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ATMOS General terms and conditions
1. General:
Our General Standard Terms and Conditions apply exclusively. Client's
terms and conditions which are contrary to or deviate from our General
Standard Terms and Conditions are not recognised unless their validity
is explicitly confirmed in writing. Our General Standard Terms and
Conditions also apply even if we deliver to clients without reservation,
in the knowledge of the client's contrary terms and conditions. Our
General Standard Terms and Conditions also apply to all future business
with that client.
2. Proposal - Order Confirmation
Our proposals are subject to change without notice unless otherwise
stated in our order confirmation. Each order is only accepted by us
following our written order confirmation.
3. Orders
Every order requires an exact description of all of our product's details.
We assume no liability for errors and damage caused by inaccurate or
incomplete ordering details.
4. Prices
Unless otherwise stated in the order confirmation, our prices in the
order confirmation are ex factory prices and exclude packaging and
value added tax. Packaging is charged separately at cost price in the
invoice. Value added tax is charged separately in the invoice according
to the legal rate on the invoice date. We reserve the right to change
prices appropriately should price reductions or increases, especially
due to wage settlements, changes in the price of materials or currency
fluctuations, be incurred. Proof of such changes will be provided for the
client on request.
5. Payment Conditions - Balancing
Unless otherwise stated in the order confirmation, our invoices
are payable with a 3% discount within 10 days (except for repair and
assembly services) or within 21 days from the invoice date net cash;
money receipts is decisive for complying with this term. We are entitled
to charge interest after the due date at a rate 2% above the relevant
basic interest rate of the German Federal Bank. Should the client have
payment arrears, we are entitled to charge interest on arrears at a rate
5% above the relevant basic interest rate of the German Federal Bank.
Should we be able to prove higher damages due to arrears, we are also
entitled to claim these. The client only has the right to balance invoices
against its own claims should such claims be confirmed in a court of
law or recognised by us. The client does not have the right of retention
due to disputed counterclaims.
6. Delivery Periods
Fulfilment of our delivery duties requires the punctual and proper
fulfilment of the client's duties. The right to defense on the grounds of an
unfulfilled contract is reserved.Should the client default in accepting the
goods delivery or breach other cooperation duties, we are entitled either
to withdraw from the contract or claim compensation for any increased
costs incurred up to that time without setting a further deadline. The right
to make further claims is reserved. Furthermore, in such cases, the risk
of coin-cidental destruction or a coincidental deterioration in the quality
of the delivered goods is transferred to the client in the case of default
in accepting such goods or payment arrears. Acts of God or stoppages
(due to insufficient supplies of material, industrial disputes etc.) entitle
us either to demand an appropriate extension of delivery periods or to
partly or entirely dissolve the delivery contract. This does not give the
client the right to claim damages. We have fulfilled delivery periods if the
delivery goods have left our factory or the client has been informed of
the goods' readiness for delivery within such delivery periods. Delivery
periods stipulated by the client are not recognised by us unless they
form part of our order confirmation. We adhere to legal terms and
conditions in cases where, as a result of an undue delay in the delivery
for which we are liable, the client is entitled to claim that his interests
in a continued fulfilment of the contract have ceased. We also adhere
to legal terms and conditions should a delay in delivery be caused by
deliberate or grossly negligent action by us or our representatives for
which we are responsible. We are also responsible for such actions by
our representatives or agents. Should the delivery delay not be caused
by our deliberate infringement of contractual duties for which we are
responsible, our liability is limited to damage which is regarded as typical
for that case. We are liable according to the legal terms and conditions if
and in so far as the delivery delay for which we are responsible is caused
by an infringement of a substantial contractual duty. In such cases, our
liability is also limited to damage which is regarded as typical for that
This Operating instructions is copyrighted. Duplication, translations, microfilming and savings on electronic systems, particularly for commercialpurposes
are illegal without prior agreement of the manufacturer. All compiled data are based on manufacturers instructions. All logos,
product names and designations used in this catalogue are property of the respective manufacturer.
We do not take over any warranty and liability in the case of missing inscriptions. Subject to modifications and amendments.
case. Should the delivery delay be caused by a culpable infringement
of non-substantial contractual duties, our client is also entitled to claim
a one-off damage compen-sation worth 3 percentage points of the
delivery value of the goods for each week's delay, up to a maximum
which is no higher than 15 percentage points of the delivery value of
the goods
7. Delivery - Familiarisation
In the case of the delivery of devices for the medico-technical industry
which require assembly and/or familiarisation for the final customer using
specialist trade personnel (such as Ear, Nose and Throat Apparatus and
Suction Units), we reserve the right to deliver the goods exclusively to
the relevant specialist traders. Should the trader not carry out assembly
and/or familiarisation for the final customer, this is carried out by us. In
such cases, we reserve the right to charge the client for the additionally
created costs. Our specialist traders operate a recording system so
that, if necessary, our products can be traced to the final customer. The
specialist trader undertakes to immediately report to us all events and
risks which must be reported in connection with our products.
8. Passage of Risk - Packaging
Unless otherwise stated in our order confirmation, delivery is agreed
ex factory. The risk of the goods' damage or loss is therefore transferred
to the client as soon as the goods leave the factory or the client is in
default of acceptance of the goods. This also applies to cases where we
confirm prepaid carriage. Transport packaging and all other packaging
according to the packaging regulations is not returnable. Our client is
responsible for disposing the packaging at its own cost. Our deliveries are
insured by us at the client's expense unless explicitly otherwise agreed.
No insurance is arranged in the case of goods which are collected by
our clients. In the case of transport damage, claims are only handled if
the client receives confirmation of any damage, reduced weight or loss
by the shipping company before accepting the delivery.
9. Warranty
The client is responsible for examining the delivered goods
immediately after receiving them to determine any eventual deficiencies
or delivery errors, and to report these immediately. Should the client
fulfil this examining and reporting responsibility, and should payment
conditions be fulfilled, we shall be liable to the client within the scope
of legal regulations. Our period of warranty shall in all cases be two
years. Our client can make use of the warranty as follows, so long as
he can provide first buyer proof (in the form of an invoice or delivery
note) and provided that the product still has the original, unchanged
serial number:
a. We choose whether to fulfil our guarantee by providing repair
services free of charge - either on the client's premises or in our factory
- or replacing the product. We can also provide these guarantee
services through an authorised company;
b. Should a product be returned to us, the client agrees to send
the product in its original or similar packaging, offering the same
protection as the original packaging, to our address or any address
notified by us.
c. Our guarantee ceases to apply if changes of any kind have been
made to our product, unless such changes have been made by us
or a company authorised by us, or have been previously agreed
upon in writing by us. Our guarantee also ceases to apply if third
parties have carried out repairs to our products or replaced parts
thereof. This applies regardless of the fact whether these measures
individually or collectively led to a deficiency of the product;
d. We accept no responsibility for damage defects caused by
- operational wear and tear;
- incorrect installation or incorrect or insufficient maintenance;
- incorrect operation of the product (in contradiction to the handbook
delivered with the product); - improper use or operating faults; -
inappropriate or negligent handling and care, especially with respect
to dirt, lime, suction of fluids, inappropriate cleaning and sterilisation;
- using accessories and/or replacement parts which are not explicitly
approved;
- incorrect assembly and/or initial operation by the client or third
parties; - the client's negligence in handling the product; - unacceptable
operating conditions, such as humidity, temperatures, the power supply,
vibrations.
- accidents, acts of God, especially lightening, water, fire, public
unrest and insufficient ventilation. We are not liable for damage to
other objects apart from our product itself, except in the case of any
deliberate or grossly negligent actions by us or our representatives or
agents. Should no deliberate breach of contract be claimed, our liability
is limited to damage which is regarded as typical for tthat case. This
also applies in the case of our culpable infringement of substantial
contractual duties The indispensable conditions of German Liability
Law remain unaffected thereby.
- For second-hand equipment, the period of warranty shall be reduced
to a period of twelve months.
10. Reservation of Ownership
We retain ownership of our goods until the receipt of all payments
arising from the business relationship, including all demands arising
from installation orders, subsequent orders, repairs, accessory deliveries
and replacement orders. Should we have agreed upon payment on the
basis of cheque and bill transactions, the ownership reservation applies
until the cheque received by us has been paid in, and does not expire
through our credit upon receiving the client's cheque. In the case of
a breach of contract by the client, especially payment arrears, we are
entitled to repossess our goods. Repossession of our goods repre-sents
a withdrawal from the contract, unless explicitly declared in writing by
us. We have the right to utilise the product after its repossession, whilst
the income form such use is balanced against the client's arrears, after
deducting appropriate utilisation costs.The client is responsible for
handling the goods with care. Should maintenance and inspection work
be necessary, the client must carry these out punctually at his own cost.
Our client is entitled to sell the goods he has bought from us in a proper
sale transaction. However, he must immediately assign all outstanding
claims to the value of the final invoice sum (including value added tax)
of our claims to his customers or third parties. The client is entitled to
collect this claim even after such assignment. Our right to collect the
claim ourselves remains unaffected thereby.We undertake to release
the securities to which we are entitled if requested to do so by the
client should the realisable value of the our securities be more than 10
percentage points higher than the outstanding claims. We reserve the
right to choose the securities to be released.
11. Plans and Illustrations
We retain ownership of and copyrights to all plans, illustrations,
calculations and other documents which are attached to our proposals.
The client must receive explicit written permission before passing these
on to third parties. Imitating our legally patented products is forbidden
and will be prosecuted.
12. Jurisdiction and Place of Performance
Our central office is the place of performance for all disputes in
connection with these General Standard Terms and Conditions and
the contracts closed with clients under them. This jurisdiction excludes
other jurisdiction relating to persons or subject-matter. Furthermore, our
client is not entitled to bring charges against us in another court should
he file counter-charges, carry out counterbalancing or declare retention.
We, however, are entitled to bring charges against our client at their
general place of jurisdiction or at another relevant court recognised by
German or foreign law.Unless otherwise stated in the order confirmation,
our central office is the place of performance.
Lenzkirch, September 2008
ATMOS MedizinTechnik GmbH & Co. KG
79853 Lenzkirch/Germany
MedizinTechnik
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