GENERAL TERMS AND CONDITIONS Company Hofer GmbH & Co KG
(hereinafter referred to as “HOFER-MEDICAL”)
1.1 Our deliveries and services shall only be provided in accordance with the following General Terms and Conditions. In the event of an ongoing business relationship, these terms and conditions shall also apply to all subsequent deliveries and services, in particular also in the case of verbal or telephone call-off and follow-up orders, without any special reference or reference.
1.2 HOFER-MEDICAL shall not be bound by the customer’s terms and conditions of purchase or deviating counter-confirmations, even if HOFER-MEDICAL does not expressly disagree to them.
1.3 All contract supplements, amendments or collateral agreements shall require the written confirmation of HOFER-MEDICAL to be effective.
1.4 The customer agrees that we may use the data received from the business relationship with him for our business purposes in accordance with the Data Protection Act.
1.5 Should any provision of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
2. Offer and conclusion of contract
2.1 Unless otherwise agreed, our offers are valid for 3 months from the date of issue.
2.2 The customer shall remain bound by his order as long as we have not expressly refused to accept the order.
2.3 The contract is concluded upon dispatch of our order confirmation to the customer.
3 Reservation of the right to make changes
We reserve the right to make design and material changes to the product description in the catalogue due to optimised technologies and product improvements, provided that the normal use of the goods or the use assumed under the contract is not significantly or adversely affected and the change is reasonable for the buyer. The buyer has the right to contradict to the change.
4. Prices, packaging, freight, insurance
4.1 The price resulting from the customer price list valid on the day of delivery shall be invoiced. We are entitled to take full account of any price changes occurring between the conclusion of the contract and the time of delivery. The price invoiced in each case shall only apply to the specific order determined by quantity and delivery time. The prices are ex works plus packaging, shipping and insurance costs.
4.2 All prices are net prices. They are exclusive of VAT at the rate applicable at the time of invoicing, unless we are exempt from VAT under the German Value Added Tax Act.
5.1 Unless otherwise stated in the order confirmation, our invoices are payable within 21 days of the invoice date without deduction.
5.2 If payment by instalments has been agreed, the total amount shall become due for payment if the customer defaults on payment of an instalment. A three-day respite is granted with regard to the payment dates agreed for instalments.
5.3 We expressly reserve the right to refuse cheques and bills of exchange. Acceptance is always only on account of payment. Discount and collection charges shall be borne by the customer and are due immediately.
5.4 In the event of default, we shall charge default interest in the amount of 10% above the respective discount rate of the Austrian National Bank plus VAT at the applicable rate, subject to a higher real interest rate, which we may claim under the title of damages. In the event of late payment, any reminder and collection charges incurred shall be reimbursed.
5.5 We are not obliged to fulfil the contract as long as the customer does not fulfil his obligations as agreed, in particular does not pay due invoices. Offsetting by the customer against other than undisputed or legally recognised claims of the customer as well as rights of retention and other rights to refuse performance on the part of the customer are excluded.
5.6 If the customer defaults on a payment in whole or in part, if a bill of exchange or cheque of the customer is not honoured or if we receive information that makes the granting of credit to the customer in the amount resulting from the order appear questionable or if an application is made for the opening of judicial insolvency proceedings or if the customer makes an out-of-court settlement proposal to its creditors, we shall be entitled to demand immediate payment of all outstanding invoices, including those not yet due or deferred, and to demand advance payment for all outstanding deliveries. The customer may avert the obligation to make early payment by providing appropriate security.
5.7 HOFER-MEDICAL shall be entitled to set off payments of the customer against older debts first. If costs of prosecution such as reminder costs have already been incurred, HOFER-MEDICAL shall be entitled to set off payments of the customer first against these costs, then against the interest and finally against the principal performance.
6.1 The content and scope of our delivery obligation shall be determined solely by our written order confirmation. The delivery time shall be deemed to have been met if the goods have been dispatched or the customer has been notified that they are ready for collection before the expiry of the deadline. If a delivery date is not met for reasons for which we are responsible, the customer must grant us a reasonable period of grace. If the deadline expires without result, the customer shall only have the right to withdraw from the contract. Further rights, in particular any compensation for damages and other claims are excluded, unless we have caused the delay in delivery wilfully or through gross negligence.
6.2 All cases of force majeure and other unforeseeable events (for example: violence, strike, machine damage, insufficient material supply, general shortage of raw materials, official measures, lack of labour, restrictions on energy supply and services, lack of transport facilities, non-delivery by suppliers or subcontractors) or causes beyond our control shall entitle us, at our discretion, either to postpone delivery to a reasonable extent and for a reasonable period of time, at least for the duration and extent of such hindrances, or to withdraw from the contract. The customer shall have no rights or claims due to non-delivery or self-delivery under such circumstances, even if such circumstances occur after the delivery time has already been exceeded.
6.3 The acceptance of our delivery or service by the customer is a primary obligation. The customer shall also be in default of acceptance if we make a literal offer. If the customer refuses acceptance, he shall bear all transport and storage costs without prejudice to his payment obligation. The purchase price shall be due immediately in the event of default of acceptance, even if later payment dates have been agreed. At our discretion, we are also entitled to demand compensation for non-fulfilment instead. Minor defects shall not entitle the customer to refuse acceptance.
7.1 Certain goods can also be made available to the customer on loan. This is only possible if these goods have been expressly ordered by the customer as a returnable consignment and this order has been approved by us.
7.2 Goods made available on loan must be returned to us completely cleaned and disinfected at the end of the agreed loan period. A written confirmation that the goods have been cleaned and disinfected must be enclosed with the return consignment. If this has not been done, the customer will be charged a flat-rate expense allowance for the reprocessing of the instruments. The amount of this compensation shall be based on the actual expense.
7.3 If, when ordering a loaned delivery, it was agreed that a loan fee should be paid for this in accordance with the price list valid at the time, this loan fee shall also be due if the loaned goods are returned without actually having been used by the customer.
8. Return of goods
8.1 We are not obliged to take back goods in their original packaging that have been delivered in perfect condition. In exceptional cases, goods ordered in error may be taken back within a period of 14 days from the date of delivery, stating the delivery note number. A processing fee of at least €50.00 or a maximum of 30% of the net value of the goods will be charged for this. No returns will be accepted without prior agreement.
8.2 Furthermore, in the case of bioresorbable and sterile goods, returns and credit notes will only be issued for goods with a sterile expiry date of more than 12 months.
8.3 Returns must always be made in their original condition. Opened, labelled, glued or otherwise damaged implants or instruments or deliveries cannot be returned.
8.4 Customised products cannot be returned.
9.1 The method and route of dispatch shall be at our discretion. Additional costs for special types of dispatch requested by the customer, which must be notified in writing with the order, shall be covered by the customer. Increases in freight rates between order confirmation and dispatch may be invoiced separately to the customer.
9.2 The risk shall in any case – even in the case of carriage paid deliveries or services free domicile – pass to the customer at the time at which the delivery item leaves our delivery works or distribution centre. If dispatch or delivery is delayed at the request of the customer or for other reasons for which Hofer-Medical is not responsible, the risk shall pass to the customer upon notification of readiness for dispatch.
10. Retention of title
10.1 The delivered goods shall remain our property until full payment of the purchase price, including any default interest and reminder fees already accrued.
10.2 The customer is only permitted to resell the goods subject to retention of title in the normal course of business. The customer is not authorised to dispose of the reserved goods in any other way, in particular to pledge them or transfer them by way of security. The applicable requirements for the trade or sale of medical products must be observed.
10.3 The customer hereby assigns to us all claims against his customers arising from the sale of the goods subject to retention of title as security for the claims to which we are entitled against him. The customer shall notify his customer of the assignment, make a corresponding entry in the books, provide us with all necessary information and hand over to us the documents required to assert our claims. The customer is authorised to collect the claims from the resale despite the assignment unless we reserve the right to collect the claims ourselves. The applicable requirements for the trade or sale of medical products must be observed.
10.4 In the event of seizures, confiscations or other interventions by third parties in the ownership rights of our reserved goods, the customer must draw attention to our ownership. The customer must notify us immediately in writing of any third-party intervention, stating the address of the third party and all other circumstances of the case. In the event of imminent danger, the customer must take the legal remedies necessary to secure our right of ownership at his own expense. The customer shall bear the intervention costs incurred by us. If the goods subject to retention of title have come into the possession of a third party, we shall be entitled to demand their return without the co-operation of the customer.
10.5 As long as the goods sold remain our property, the customer is obliged to treat them with care and respect. In the event that the customer does not fulfil this obligation as well as the obligations to pay the purchase price or other contractual obligations, we shall be entitled to take back the goods sold without this being regarded as a withdrawal from the contract. In this case, we shall only be obliged to hand over the goods to the customer again once the fulfilment of his contractual obligations has been ensured, in particular once the entire outstanding purchase price has been paid immediately.
10.6 In the event of repossession of the goods subject to retention of title, we shall also be entitled to sell them on the open market or have them auctioned. The customer shall be liable for our default claim. The assertion of our retention of title shall only be deemed a cancellation if it is expressly declared. As long as we have ownership rights to the object of purchase, we or our authorised representatives are entitled to convince ourselves of the existence and condition of the object of purchase at any time. For this purpose, the customer must grant us free access to the reserved goods. The applicable requirements for the trade or sale of medical products must be observed.
10.7 The rules on retention of title shall apply analogously if goods to which we retain title are mixed or processed with other goods.
11. Warranty and compensation
11.1 We shall provide a warranty for defects in our deliveries and services for a period of one year from delivery in the form that we shall, at our discretion, repair or replace the goods free of charge. If the repair or replacement delivery fails, the customer may, at his discretion, rescind the contract or reduce the price. Customary or minor or technically unavoidable deviations in quality, form or equipment are not deemed to be defects and cannot be objected to. This also applies to deliveries based on samples or specimens.
11.2 Complaints about defects can only be considered if they are reported immediately. They must be made in writing and must be precisely specified. The customer must ensure that the goods are still in the same condition as at the time of delivery.
11.3 Warranty obligations do not exist, not even within the warranty period, if the defect is due to normal wear and tear, improper handling, inadequate maintenance, unusual environmental influences or transport. Furthermore, any warranty shall be excluded if our goods are modified and/or mixed or blended with other goods that have not been purchased from us or recommended for use without our consent.
11.4 Claims for damages due to slight negligence, furthermore due to negligent or grossly negligent breach of secondary contractual obligations, in particular consultation or clarification obligations, are excluded. Compensation for any indirect damage or consequential damage caused by a defect or compensation for loss of profit is also excluded. Information on processing and application possibilities of our goods, technical advice and other information on suitability and use. Weights, dimensions, shapes, performance and appearance of our goods are non-binding. Entrepreneurs within the meaning of the Consumer Protection Act are excluded from any liability for material damage resulting from any defectiveness of the goods.
11.5 All claims of the customer arising from the contract as well as all contractual and tortious claims in connection therewith shall lapse if they are not asserted to us in writing within 3 weeks of receipt of the delivery at the place of destination but shall in any case expire within 12 months of the due date. In the case of claims for damages by the customer, these periods shall run from the customer’s knowledge or grossly negligent ignorance of the facts giving rise to the claim.
12. Place of fulfilment and jurisdiction, final provisions
12.1 The place of fulfilment and exclusive place of jurisdiction is the competent court for the city of Fürstenfeld. Austrian law shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods and all national and international conflict of laws rules.
12.2 These terms and conditions shall apply for the entire duration of the business relationship. Insofar as previous terms and conditions of sale, delivery and payment have applied in the context of longer business relationships, these shall cease to apply.
13. Advice / Information
We shall only be liable for information and advice on the use of our products if a special fee has been agreed for this and any damage incurred by the buyer has been caused at least by gross negligence.
14. Severability clause
Should any provision of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions.
Hofer GmbH & Co KG
A 8280 Fürstenfeld
Tel: +43 3382 53388
Fax: +43 3382 53093