Conditions of Sale (Version: 24.03.2013)
Part 1: General Provisions
1. The present General Terms and Conditions (hereinafter referred to as the ‘GTC’) govern business transactions with enterprises within the meaning of section 14 of the German Federal ‘BGB – Buergerliches Gesetzbuch’ (Civil Law Code) and are deemed an integral part of all contracts (single orders and continuing contractual relations) concluded (even all future contracts) between Heine Optotechnik GmbH & Co. KG (hereinafter referred to as ‘HEINE’) and other contractual parties (hereinafter referred to as ‘Customers’ respectively), where the subject matter of such contracts is the sale of products and goods of HEINE.
2. In relation to consumers within the meaning of section 13 BGB, the statutory requirements are applicable, in so far as the statute law does prohibit the application of the following provisions to consumers.
3. Individual agreements take preference in any event over the present GTC. Any divergent GTC’s of the customer have no validity, unless HEINE expressly agrees to them in writing.
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Part 2: General Conditions of Sale
1. All offerings of HEINE are subject to alterations. Indications regarding product availability and delivery times are non-binding unless expressively confirmed in writing by HEINE.
2. All orders have to be made in writing. Any order made by the customer shall not be binding on HEINE until it has been confirmed by HEINE in writing. It is the sole discretion of HEINE to accept or reject an order.
3. Technical descriptions in the order confirmation are non-binding, as HEINE hereby reserves the right to make alterations for technical improvements up to the date of consignment.
4. During the period of default of acceptance on the part of the customer, HEINE is entitled to store the goods at the risk and on the expense of the customer. The customer has the right to prove that no or only minor loss or damage has been suffered. HEINE has the right to employ the services of a forwarder or a storekeeper.
5.1 HEINE shall deliver goods ex works. Any costs arising out of the delivery of the goods, i.e. costs for packaging, transport, insurance, taxes, and custom duties shall be at the expense of the Customer.
5.2 Any delay on the part of the Customer in the fulfilment of his financial obligation or other cooperation duties will entitle HEINE to an adequate extension of the delivery period. The same shall apply, if HEINE does not receive a required official approval in time.
5.3 Partial deliveries are permitted.
5.4 HEINE reserves the right to change or discontinue at any time, without liability, the production, marketing or sale of any or all of the Products, to change the specifications of any or all of the Products, to change or withdraw any trademark application with respect to any or all Products and to change or withdraw any services offered in connection with any or all Products.
6. Should a customer refuse acceptance of the goods supplied, after a reasonable time period has been set, HEINE can refuse to fulfil the contract and claim damages against the customer for loss or damage due to non-fulfilment. HEINE is entitled to choose as indemnity for loss or damage from the customer, either an all-inclusive contractual penalty of 0.5% of the agreed selling price per commenced calendar week as from the end of the time period of respite for compliance, or an indemnification of the actually suffered loss or damage. The customer has the right to prove, that no or only minor loss or damage has been suffered.
7. The goods shall be delivered at the risk of the Customer. Risk in the goods including all risks of loss or damage shall pass to the Customer at the time of delivery. Time of delivery means that HEINE hands the goods over to the transport carrier, freight forwarder or any other person designated by the Customer for the transport of the goods without loading the collecting vehicle. The passing of the risk also applies when the customer is in default of acceptance of the delivery.
8.1 Customer shall examine the delivered products immediately after receipt in every respect for any non-conformity with the Contract. The Customer shall give immediate notice to HEINE by fax of any non-conformity with the Contract specifying in detail the non-conformity.
8.2 A Customer failing to give such notice shall be deemed to have accepted the goods, unless the defect in question is one not discernible by such examination. Upon the subsequent appearance of a defect not discoverable by such examination, notice thereof must be given immediately upon its being discovered, otherwise the goods will be held to have been accepted notwithstanding such defect.
9.1 HEINE warrants that all goods delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications and will be free from design defects.
9.2 Defective parts shall be repaired or replaced by HEINE at its sole discretion within reasonable time – even if the defects are substantial. All cost arising from replacement parts, transportation, as well as for dismantling and installation shall be born by HEINE.
9.3 HEINE shall not be liable for consequential, indirect or incidental damages, including without limitation loss of profit and production.
9.4 This shall not apply to damages to persons. For damages to property HEINE shall only be liable within the scope of the benefits of his liability insurance.
9.5 The Customer shall notify HEINE in writing immediately on occurrence of a defect informing HEINE in detail of the nature and the probable cause of the defect.
9.6 Any claim based on an alleged defect shall be statute-barred if not asserted within 6 months from its discovery.
9.7 The guarantee does not apply to incorrect use, the use of non-original HEINE parts or accessories. (Especially bulbs, as these are designed with emphasis on the following criteria: Colour temperature, life expectancy, safety, optical quality and performance.) Also excluded are repairs or modifications made by persons not authorised by HEINE or cases where the customer does not follow the instructions supplied with the product. Any modification of a HEINE product with parts or additional parts which do not conform to the original HEINE specification will invalidate the warranty for the correct function of the product and further invalidate any warranty claims which result from such a change or modification. Further claims, in particular claims for damage not directly related to the HEINE product, are excluded.
9.8 The Customer warrants that the exclusion of warranty as stated in 9.7 above will also be observed by his customers and trade partners.
10. Upon request of HEINE the goods complained about shall be returned free of charge in case of low value costs sections.
11. Reduction of the purchase price is in any event excluded. Additional claims, e.g. a consequential losses based on defects are also excluded. The entire onus of proof is on the customer for all eligibility requirements, in particular the deficiencies themselves, the time of the discovery of a deficiency, and the timeliness of the complaint.
12. No new warranty time periods are commenced upon the exchange of component parts, assemblies, or of entire items of equipment.
13.1 Instead of the statutory warranty time period of 2 years, HEINE will grant a guarantee of 5 years from the date of the consignment of the goods ex works, concerning its equipment (excluding disposables, e.g. bulbs, single-use articles, and rechargeable batteries). Date of consignment means that HEINE hands the goods over to the transport carrier, freight forwarder or any other person designated by the Customer for the transport of the goods without loading the collecting vehicle.
The guarantee covers irreproachable workmanship, on condition of the proper use of the equipment and the observation of the operating instructions. During the warranty- and guarantee time period, errors and defects regarding the equipment will be rectified free of charge, in so far as such are evidenced by defective materials, processing and/or constructional errors. Should the Customer complain of a material deficiency during the warranty time period, the onus of proof lies always with the Customer, that the product was defective already upon receipt of the goods. The statutory warranty and the guarantee do not apply to loss or damage caused by wear and tear, negligent use, the non-employment of original HEINE components and/or spares (in particular bulbs, as these have been especially developed for HEINE instruments in accordance with the following criterions: colour temperature, useful service life, safety, optical quality and performance. The statutory warranty and the guarantee do not apply to interventions by persons not authorised by HEINE or when the operating instructions are not observed by the Customer. Any modification of a HEINE product with parts or additional parts which do not conform to the original HEINE specification will invalidate the warranty for the correct function of the product and further invalidate any warranty claims which result from such a change or modification. Further claims, in particular claims for damages regarding other products than HEINE products, are hereby excluded.
13.2 HEINE GAMMA G5®, G7®, GP®, GST®, XXL LF® Sphygmomanometers
Instead of the statutory warranty time period of 2 years, HEINE will grant a guarantee of 5 and/or 10 years respectively, from the date of the consignment ex works, concerning blood pressure measuring instruments excluding the accessories, i.e. a guarantee of 5 years on the HEINE GAMMA G5®/GP®/GST®, and a guarantee of 10 years on the HEINE GAMMA G7®/ XXL LF®. In regard to cuff-casing and balls, HEINE will grant a warranty of 2 years from the date of consignment ex works.
The guarantee covers irreproachable workmanship, on condition of the proper use of the equipment and the observation of the operating instructions.
During the warranty- and guarantee time period, errors and deficiencies arising on the equipment will be rectified free of charge, in so far as such are evidenced by defective materials, processing and/or constructional errors. Should a Customer complain of a material deficiency during the warranty time period, the onus of proof lies always with the Customer, that the product was defective already upon receipt of the goods. The statutory warranty and the guarantee do not apply to loss or damage caused by wear and tear, negligent use, the non-employment of original HEINE components and/or spares, or not-original accessories, and to alterations and repair conducted by persons, not authorised by HEINE. Any modification of a HEINE product with parts or additional parts which do not conform to the original HEINE specification will invalidate the warranty for the correct function of the product and further invalidate any warranty claims which result from such a change or modification. Further claims are hereby excluded.
13.3 HEINE Fiber Optic Laryngoscope: Performance Guarantee
HEINE hereby grants a 5 year guarantee on its HEINE HiLite® the Classic+, Modular+ and SANALON+ Laryngoscope models with improved light transmission, which will ensure that the illumination strength does not decline below 1000 Lux even after considerable autoclave cycles (in cases of 4000 autoclaves of a standard autoclave cycle of 134 °C and 5 min.). The performance guarantee applies to HEINE Laryngoscopes which are cleaned, sterilised, disinfected, and autoclaved in accordance with the operating instructions.
14.1 HEINE shall not be liable for defects caused by parts not supplied by it, modifications made without HEINE’s written consent, repairs carried out by the Customer in an inappropriate manner or for normal wear and tear.
14.2 Notwithstanding other provisions in this agreement HEINE shall not be liable for consequential, indirect or incidental damages, including without limitation loss of profit and production, except as expressly set out in the GTC. This shall not apply for damage to persons. For damage to property HEINE shall only be liable within the scope of the benefits of his liability insurance.
15.1 As cases of force majeure are considered all such events that are unforeseeable by the parties at the time of conclusion of the contract and are unavoidable even with due observance of the necessary care, such as acts of God, war and labour disputes. This shall also apply if such events occur with sub-contractors.
15.2 During the period of force majeure the contractual obligations and rights shall be suspended. The party concerned shall inform the other party without delay on the beginning and the cause of the delay and later on the cessation thereof. If force majeure lasts for more than 6 months, both parties will make a decision with respect to the further execution of the contract based on the principle of good faith.
15.3 If the parties do not come to an agreement, either party may bring the matter before the competent courts.
16.1 Items pertaining to the Supplies (Retained Goods) shall remain the property of HEINE until each and every claim HEINE has against the Distributor on account of the business connection has been fulfilled. If the combined value of the security interests of HEINE exceeds the value of all secured claims by more than 10 %, HEINE shall release a corresponding part of the security interest if so requested by the Distributor. Upon release HEINE reserves the right to choose between different security interests.
16.2 For the duration of the retention of title, the Distributor may not pledge the Retained Goods or use them as security, and resale shall only be possible in the ordinary course of the business of the Distributor and only on condition that the Distributor receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
16.3 If the Distributor resells the retained goods, the Distributor shall relinquish forthwith to HEINE any future claims from the resale to its customers, together with all accessory rights – including any payment balance requests - without the requirement to issue any further declarations. If the Retained Goods are resold together with other items without a single price being agreed for the Retained Goods, the Distributor shall relinquish to HEINE that part of the total price requested that corresponds to the reserved goods price invoiced by HEINE.
16.4 The customer is under a contractual duty hereby, to treat goods with all due care during the existence of a reservation of ownership rights. When inspection- and maintenance routines are necessary, then the customer is to undertake these regularly at its own expense. The customer is to inform HEINE above all in writing with immediate effect of any attachment of the goods by third parties, in particular of enforced sequestration measures, as well as any damage to- or destruction of the goods.
16.5 Subject to revocation at any time, the Distributor is authorised to collect assigned claims arising from the resale. On the basis of an important reason, in particular with regard to default in payment, suspension of payment or the petition to institute insolvency proceedings, HEINE is entitled to revoke the Purchaser's authorisation for the collection of claims. After prior warning, under observance of a reasonable deadline, HEINE, in addition, may disclose the assignment of securities, may utilise the assigned claims and may demand the Distributor's disclosure of the assignment of security towards the customer.
16.6 The Distributor shall notify HEINE forthwith of any pledges, seizures or other alienation or act of intervention by third parties. Should an authorised interest be substantiated, the Distributor shall provide HEINE with the required information and the required documents in order to assert a claim of the rights of HEINE.
16.7 In the case of non-performance of contractual obligations by the Distributor, especially with respect to default in payment, and after an unsuccessful expiry of a reasonable deadline set to Distributor to make payment due, HEINE shall be entitled to withdraw from the contract and to take back the Retained Goods. Legal provisions regarding the dispensability of setting a deadline remain unaffected there from. The Distributor shall be obliged to surrender the Retained Goods. In the event that the Retained Goods are taken back or claimed, or pledged by HEINE, the contract will not be considered terminated unless expressly stated by HEINE.
17. In the event of any contractual infringement by the customer, in particular in case of default of payment, HEINE is entitled to withdraw from the contract and to reclaim the goods. In addition, HEINE is entitled to withdraw from the contract upon the infringement of a contractual duty by the customer, and to reclaim the goods, when it cannot be reasonably expected of HEINE to continue the contract.
18. When otherwise not indicated, invoices are due for settlement payment within 30 days, net and against cash. Cash also includes a bank transfer or a cheque drawn on a bank.
19. A payment is only deemed as settled when the funds are unrestrictedly at the disposal of HEINE. Cheques will be accepted in fulfilment only and are only deemed as settlement payment when the proceeds are credited to the bank account of HEINE.
20. In the case of circumstances becoming known between the issuing of the confirmation of the order and the consigning of the delivery, which might prevent a fulfilling of a contractual duty, either of the parties are entitled hereunder to withdraw from the agreed settlement payment conditions and to introduce new terms and conditions.
21. The acceptance of discountable bills of exchange is to be subject to the reservation of certain rights. Discounting- and other charges are always to be for the account of the buyer and are to be paid in cash with immediate effect. The amounts of bills of exchange will be credited under reservation of their negotiability. The deposit of bills of exchange will only be deemed as payment if acceptance will be confirmed by HEINE in writing.
22.1 Unless explicitly provided otherwise, Product prices shall be in Euros ex works and shall exclude VAT, packaging, insurance, transport costs and any other taxes, levies, duties or fees that may be assessed or levied by taxing authority (including of any Federal, state or local governments or agencies) claiming jurisdiction over this Agreement.
22.2 HEINE has the right upon fourteen (14) days prior written notice to Customer to change the price of the Products.
22.3 During such fourteen (14) day period, the Customer may place orders not exceeding the monthly average of the orders placed during the previous three (3) months increased by thirty (30) percent.
22.4 The Customer shall not be bound in any way by the prices paid to HEINE, but shall determine at his own risk the prices for the sale of HEINE-Products to third parties.
23. HEINE is entitled hereunder to assign financial claims on the customer from the supply of goods and the rendering of services for financing purposes.
24. HEINE is entitled hereunder, to use payments received, firstly to offset the charges incurred, then the interest charged and lastly for the settlement of the principal financial claim. The customer is to be informed of such.
25. During the time period when the customer is in default of payment, interest charges of 8% over the current bank rate will accrue on the unsettled financial claims. HEINE hereby reserves the right to prove and assert against the customer a greater final amount of loss or damage suffered from default of payment. HEINE hereby reserves the right to charge arrears interest in the usual commercial amount but in an amount of at least the interest charged by the bank.
26. Invoices will be deemed as accepted by the Customer, when not contradicted within 21 days.
27. The Customer is only entitled to offset financial claims when its own counter financial claims are judicially and legally determined, or when these are undisputed. The Customer may only exercise a right of retention hereunder when its own counter financial claims arise out of the same business contract. In the case of complaints, the due settlement payments of the Customer may only be withheld to the extent, that such are in an appropriate relationship to the deficiencies suffered, provided that the claims of the Customer are undisputed or judicially and legally determined.
28. Exports from the Federal Republic of Germany are subject to the current export regulations. The export of goods in non-E.U. member states require the written approval of HEINE, independent of whether the Customer is responsible itself for obtaining all import- and export permits.
29. In case of a termination without notice a compelling reason will be constituted in particular, if such other Party:
29.1 is declared bankrupt or under judicial re-organisation;
29.2 has become, or threatens to become, insolvent or is involved in any other insolvency procedure;
29.3 if any application for insolvency proceedings has been filed;
29.4 has a receiver, trustee, liquidator or any other administrator appointed over any element of his business, property, assets or monies;
29.5 is dissolved or a decision for liquidation of the Distributor is made;
29.6 any change, whether by operation of law, incapacity, illness, death, or otherwise, in active management, ownership, financial assets, real or personal property or effective control of the Distributor which HEINE considers will result, or may result, in an adverse impact upon the Distributor’s ability effectively to distribute any of the Products or otherwise to perform under his Agreement.
30.1 Both Parties are obliged to keep confidential all confidential documents and all confidential information received by reason of the execution of this Contract and they shall not disclose such documents or information to any third party nor exploit for its own use and use only for the purpose of this Contract. The Parties shall bind their employees and third parties to be engaged in the execution of this Contract on this obligation to maintain secrecy.
30.2 The obligation to secrecy shall remain in force even after the termination of the co-operation by reason of this agreement.
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Part 3: The General Regulation of Indemnifications; Limits of Legal Liability, Protection Rights, Data Protection
1. Contractual- and statutory indemnifications are only assertable by the Customer respectively, when such are attributable to a premeditated- or gross negligent infringement of contractual duties on the part of HEINE, by its legal representatives, or by its management executives.
2. HEINE is also legally liable in addition, on enforceable legal grounds for typical, predictable, immediate and average consequential loss or damage when such are caused by the gross negligent- or premeditated acts of an ordinary vicarious fulfilment agent, or by the negligent infringement of material contractual duties on the part of HEINE, by its legal representatives, or by its management executives.
3. The limit of the legal liability of HEINE is limited to the sum insured under the insurance(s) contracted by HEINE, always provided that such is permissible under the relative contractual business relationship.
4.1. Legal liabilities for loss of damage arising from death, bodily injury and health detriment, are not affected by such limits of legal liability. The foregoing limits of legal liability do not apply to claims of Customers under product liability or guarantee.
4.2. Otherwise, the legal liability for the indemnification of loss or damage is excluded hereunder without taking the legal nature of the claim asserted into consideration. In this sense, HEINE is not legally liable hereunder, in particular for loss or damage, which does not occur to the subject matter of the supply, e.g. such as loss of profits and other sundry loss or damage to the assets of the customer and other consequential losses. Indemnification for the expenditure of the customer is limited hereunder to the amount of commercial interest, which the customer has in the fulfilling of the contract. Otherwise, Part 4.1. hereof is to apply.
5. When software is part of the supply, it will be made available to the Customer for his sole use or for resale, i.e. the Customer may not make copies for third parties nor make such available for the use of others. Multiple user rights will require a special written agreement.
6.1 All personally referred data are essentially to be treated confidentially. The data necessary for the development of business are electronically processed and stored, and then passed on to associated or retained enterprises within the scope of order processing. In addition, the data is also passed on to associated enterprises, and possibly also to the ‘Schufa – Schutzgemeinschaft fuer allgemeine Kreditsicherung’ (German Credit Rating Agency) and other commercial information agencies, for the purpose of verifying creditworthiness and the monitoring of solvency.
6.2 The statutory requirements of the ‘Bundesdatenschutzgesetz‘ (German Federal Data Protection Legislation) are to be observed during data processing. The attention of all participants is notwithstanding hereby drawn to the possibility, that unauthorised persons can obtain access to data during transmission via the internet, as the current state-of-the-art of technology is unable fully to exclude such.
7. Privacy notice
7.1 HEINE Optotechnik GmbH & Co. KG is committed to respecting your privacy. The company website and the contact form are in full compliance with German Federal data privacy regulations set down in the TDG (Teleservices Act), TDDSG (Teleservice Data Protection Act), MDStV (State Treaty on Media Services) and the UWG (Unfair Competition Act). If you have any questions in this regard, please do not hesitate to contact us>>.
7.2 Details that you provide (first name, surname, telephone number, e-mail address and message) will be stored, but we will only use this information for processing your request. Your details will be treated in the strictest confidence. We will not pass on your details to third parties for marketing purposes.
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Part 4: Final Provisions
1. It is hereby declared and agreed, that no verbal side agreements are superseded and invalid hereunder, i.e. the stipulations of these present GTC’s and the contract are the sole agreements.
2. When the written form is agreed, or foreseen in these present GTC’s, such is also to apply to transmissions via telefacsimile (telefax) or email.
3. Should any ineffectiveness arise under individual agreements and/or clauses respectively in these present GTC’s or under the contract, then such is not to affect the validity of the overall stipulations of the GTC’s or the contract in their other remaining parts.
4. The parties hereby declare and agree that any loopholes occurring by reason of dispositive law are automatically to be filled, under consideration of the declared intent of the parties.
5. These GTC and their interpretation as well as the entire legal relationship between HEINE and the respective contracting party are exclusively subject to German substantive law. The application of the UN Sales Convention (CISG) and the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome1) is expressly excluded. German is the language for negotiations and contracts.
6. The place of fulfilment and jurisdiction, as also for cheque- and other documentary processes, is the domicile of the registered office of HEINE, within the scope of section 38 of the German Federal ‘ZPO – Zivilprozessordnung’ (Civil Law Proceedings Ordinance). This place of jurisdiction is also applicable when the customer or supplier has no general inland place of jurisdiction after the conclusion of the contract, or when the customer or supplier removes its domicile or normal place of residence abroad, or its place of residence or usual place of abode is unknown, at the point in time of making application to the court.