General Terms of Sale of Key Surgical GmbH
§ 1 Scope, non-validity of other terms of business
- For the business relationship between the customer and us and for all legal transactions concluded in connection with the business relationship, these General Terms and Conditions shall apply exclusively, in the relevant version valid at the time of the respective legal transaction.
- Any deviations from these General Terms and Conditions shall require our written confirmation to be effective. The same shall also apply to a waiver of the written form requirement.
- Deviations, conflicting or supplementary terms of business of the customer shall not become part of the contract even if known by us, unless we expressly agree to their validity in writing.
- These General Terms and Conditions apply to both customers who are Consumers as well as to customers who are Entrepreneurs.
Consumers within the meaning of these General Terms and Conditions are all natural persons, in so far as they conclude a legal transaction with us, which can neither be attributed to their commercial nor their professional occupation.
Excluded from this definition are members of the “Bund niedergelassener Gastroenterologen” (BNG). Due to the price commitment of the BNG, which applies to this group, we reserve the right to separately examine each offer made by BNG members. Contrary to what is described in paragraph 4, an acceptance of the offer by us will only be effected by a separate confirmation of acceptance and not by an automatically generated order confirmation by email.
§ 2 Offers, conclusion of contracts, delivery dates
Events for which we are not responsible (‘force majeure’), in particular such events that are outside our sphere of influence (such as a lack of raw materials) shall result in an appropriate extension of the delivery times. This shall also apply to expressly agreed delivery times.
- The general presentation of our goods (i.e. on our web pages or in promotional brochures) is non-binding and does not represent an offer for the conclusion of a contract.
- With the order, the customer bindingly declares to want to purchase the goods ordered. The customer must be at least 16 years old to order goods from us. In the case of any doubt, proof of age must be furnished by the customer.
If the customer orders the goods via our online shop, the order declaration is submitted by clicking on the button ‘Order now’. Before that, the customer has the opportunity to check the information entered and, if necessary, make changes or corrections by clicking on the button ‘Edit’. Only by clicking on the button ‘Order now’ does the customer make the binding offer to conclude a contract of sale with us for the items placed in the electronic shopping cart.
- For orders placed via our online shop, we will, without undue delay, confirm their receipt by email. Such confirmation of receipt does not represent acceptance of the customer’s order. However, we may combine our confirmation of receipt with an express declaration of acceptance.
- We are entitled but not committed to accept the contractual offer from the customer once the relevant order has been received by us. Orders are accepted either by way of an express declaration by us or through delivery of the goods to the customer, each within a period of 14 calendar days from the time the order was sent to us. Beyond this set period, customer is not bound to their order.
- Contracts my currently be concluded in English or in German.
- Contracts are concluded with the reservation that we receive correct and timely deliveries from our suppliers. However, this reservation shall only apply as far as we are not responsible for the non-delivery, in particular if we have concluded a congruent covering deal (kongruentes Deckungsgeschäft) with the relevant supplier. We will notify the customer without undue delay of the non-availability of goods ordered and will refund any amounts already paid without undue delay in respect of the relevant items.
- If the customer has ordered the goods via our online shop, the text of the contract will be stored on conclusion of the contract for the purpose of executing the order. The confirmation of receipt, which we send the customer by email on receipt of the order, contains all relevant contract information. We recommend to store and retain this email. Provided the customer has set up an ‘Online Customer Account’ in the online shop, placed orders can also be viewed here.
- Ex gratia payments by us and other accommodation – including repeated accommodation – do not constitute any claim of the customer for the future.
- Any statements made by us regarding delivery times shall be non-binding, provided a binding delivery time has not been expressly agreed. In general, our non-binding delivery time is three to four working days after receipt of payment, unless we have quoted a different anticipated delivery time in connection with the item ordered.
§ 3 Right of Revocation for Consumers
If the customer is a Consumer and the contract with this customer is concluded solely by means of telecommunication tools (i.e. email, internet of fax) in terms of § 312b German Civil Code (BGB), the customer has a Right of Revocation (Widerrufsrecht) in accordance with the following provisions:
Right of Revocation
The customer may revoke their contract declaration either in writing (i.e. letter, fax, email) or by returning the goods within a period of two weeks (‘Period of Revocation’) without stating any reasons. The Period of Revocation begins on the day after delivery of the goods, but earliest on the day following receipt of this instruction in writing (i.e. letter, fax, email) and not prior to fulfillment of our obligations to inform as required under German law (§ 312c para. 2 German Civil Code (BGB)) and – provided customer’s order was placed via our online shop – our obligations in respect of electronic business transactions (§ 312e para. 1 sentence 1 German Civil Code (BGB)).
Compliance with the Period of Revocation only requires timely dispatch of the revocation notice or timely return of the goods. The revocation notice must be addressed to:
Should the customer have been informed of their Right of Revocation only after the contract has been concluded, the Period of Revocation shall be one month.
Consequences of revocation
In the event of a valid revocation, the reciprocally received services and goods shall be returned and, if applicable, any benefits gained restituted (i.e. interest). Should the customer not be able to return to us the services or goods received or, as a whole or in part, only in depreciated condition, the customer must, if applicable, pay compensation to this extent. For deliveries of merchandise this shall not apply if the depreciation of the merchandise is solely due to its inspection, as would have been possible for the customer in a retail outlet, for instance. In other respects, the customer can avoid the obligation to pay compensation by not using the merchandise like an owner and refraining from doing anything that impairs its value. However, if the customer was not informed in writing (i.e. letter, fax, email) about the obligation to pay compensation and about the opportunities of its avoidance latest at the time the contract was concluded, the customer shall not pay compensation for any depreciation arising from the contractual use of the merchandise.
Goods that can be sent by parcel post are to be returned at our risk. The customer must meet the cost of the return postage if the goods delivered correspond to the goods ordered and if the cost of the goods to be returned does not exceed Euro 40, or if, in the event of a higher cost of the goods, the customer has not yet paid the consideration or a contractually agreed installment at the time of revocation. Otherwise, the sales return is free of charge for the customer.
Goods that cannot be sent by parcel post will be collected from the customer. Obligations to reimburse payments must be fulfilled within a period of 30 days. For the customer, the period set begins on dispatch of the cancellation declaration or shipment goods, for us it begins on their receipt.
The Right of Revocation does not exist in the case of contracts
- for the delivery of goods produced in accordance with customer specifications or those clearly tailored to personal requirements of the customer or those not suitable to be returned due to their composition or those which may spoil quickly or where their expiration date would be exceeded,
- for the delivery of audio and video recordings or software, provided the Consumer has broken the seal of the data media delivered and
- for the delivery of newspapers, periodicals and magazines.
- End of instruction on the Right of Revocation -
§ 4 Reservation of ownership
The Entrepreneur shall be committed to notify us without undue delay of any third party access to the goods, for instance in the case of seizure, as well as any damage to or the destruction of the goods. The Entrepreneur must notify us immediately of any change in ownership of the goods as well as a change in the place of business.
The Entrepreneur shall be entitled to sell the goods on in ordinary business transactions. The Entrepreneur hereby assigns to us all third party claims incurred as a result of the resale in the amount of the relevant invoice. We hereby accept the assignment. On assignment, the Entrepreneur shall be authorized to collect the receivable. However, we reserve the right to collect the receivable ourselves and/or to revoke the resale authorization, in as far as the Entrepreneur does not meet their payment obligations to us and defaults in payment.
- Delivered goods shall remain our property until the purchase price has been paid in full. Up until then, the customer shall be committed to treat the goods with care.
- For contracts with Entrepreneurs, we additionally retain ownership of the goods also up to full payment of all existing receivables from the ongoing business relationship with the Entrepreneur.
- Manufacturing and processing of the goods by the Entrepreneur shall at all times be carried out for our benefit. In the event merchandise is processed that is not in our ownership, we shall acquire co-ownership of the new object at a ratio of the value of the goods delivered by us to the other manufactured merchandise. The same shall apply if the goods are combined with other objects, which are not in our ownership.
§ 5 Prices and charges, terms of payment
For deliveries within the Federal Republic of Germany, the flat delivery charge currently amounts to EUR 5.90 per parcel. However, this flat delivery charge does not apply to orders with a value of EUR 100.00 or more.
For deliveries to Austria, the flat delivery charge currently amounts to EUR 9.90 per parcel.
For deliveries to all other countries within the EU, the flat delivery charge currently amounts to EUR 14.90 per parcel.
For deliveries to all other Non-EU countries within Europe, the flat delivery charge currently amounts to EUR 19.90 per parcel.
For all other countries outside Europe, the flat delivery charge currently amounts to EUR 24.90 per parcel.
- All prices quoted include the relevant statutory rate of VAT.
- All prices quoted are exclusive of delivery charges and exclusive of any other charges quoted, such as packaging cost. For deliveries abroad (in particular to Non-EU-Countries), additional costs may arise for customs.
- In principle, customer may choose their preferred payments method, i.e. advance payment, PayPal, Sofortüberweisung/instantpayment (only in Germany and Austria), credit card, direct debit or check. However, we reserve the right to exclude individual types of payment for the customer. This shall apply in particular to orders placed via our online shop, first-time orders, orders from Entrepreneurs and customers, where we consider credit-worthiness is not guaranteed.
- The customer may only set off counter-claims against our claims as far as the counter-claim has been legally and finally determined or is undisputed.
- The customer is permitted rights of retention only as far as they relate to claims based on the same contractual relationship.
§ 6 Liability for defects
- Consumers must notify us in writing of any defects on the goods apparent on receipt within a period of two months from receipt of the goods. Decisive for observing the period set is receipt of the notification by us. Should the Consumer omit this notification, any claims for defects by the customer in respect of these obvious defects shall be excluded on expiry of the two months period. This shall not apply in the case of fraudulent concealment of defects by us.
- For Entrepreneurs, the statutory obligations to give notice of defects under § 377 German Commercial Code (HGB) shall apply, whereby a period for making a claim of 2 weeks shall be deemed agreed.
- Claims from Entrepreneurs arising from the statutory liability for defects shall become statute-barred at the end of 12 months from receipt of the goods, except in the case of fraudulent intent by us.
- If the buyer is an Entrepreneur, the agreed composition of the goods, subject to any other express agreement, shall be deemed to be solely the product description from the manufacturer, and public comments, praise or advertisements from the manufacturer shall not constitute any contractual statement regarding the composition of the goods.
- The customer does not receive any guarantees within the meaning of German law from us. This shall not affect manufacturers’ guarantees.
- In other respects, the statutory legal provisions concerning liability for defects shall apply.
§ 7 Limitations of liability
- We shall be fully liable for all damages caused by us or our legal representatives or agents through intent or gross negligence.
- In the case of a slightly negligent infringement of insignificant contractual obligations, we shall not be liable. In other respects, our liability for damages caused as a result of slight negligence shall be limited to damages that could reasonably be foreseen due to the nature of the relevant contractual relationship (vertragstypisch vorhersehbare Schäden). This shall also apply in the event of slightly negligent infringement of obligations by our legal representatives or agents.
- The aforementioned limitation of liability shall not apply in the case of fraudulent intent, in the event of physical or personal injury and to claims from the customer arising under product liability.
§ 8 Data protection
- The personal information provided to us in connection with the business relationship will be collected, stored and processed by us only as far as instructed or permitted under the relevant legal provisions.
- Further information on data protection can be found in our Information on data protection.
§ 9 Final provisions
- The legal relationships between the customer and us are subject to the law of the Federal Republic of Germany. The Uniform Law on the International Sale of Goods shall be excluded.
- If the customer is a businessman, legal entity under public law or statutory special fund, the sole place of jurisdiction for any disputes arising from this contract shall be our registered office. The same shall apply if the customer does not have a general place of jurisdiction in Germany, or if the domicile or usual residence is not known at the time an action is filed.