Terms of Trade

1. General

1.1 The following General Terms and Conditions (GTC) of KMT Külzer Medizintechnik GmbH (hereinafter referred to as KMT) apply exclusively to all business transactions with our customers; conflicting or deviating conditions of the customer are not accepted unless KMT has expressly agreed to their validity in writing. The General Terms and Conditions of KMT shall apply even if KMT performs the delivery or service to the customer without reservation in knowledge of conflicting or deviating terms and conditions of the customer. The General Terms and Conditions of KMT shall also apply to future business with the customer.

1.2 Customers in terms of these terms and conditions are both consumers (§13 BGB) and entrepreneurs (§14 BGB).

1.3 All agreements regarding deliveries and services as well as collateral agreements must be in writing to be effective (fax is sufficient).

2. Offer and conclusion of business, subject to change

2.1 Offers of KMT are subject to change without notice and subject to the reservation of self-supply. If an order qualifies as an offer according to § 145 BGB, KMT may accept this offer within four weeks after receipt. A contract is only concluded by our written or telex confirmation.

2.2 Our cost estimates/offers, drawings and other offer documents remain our property. We alone are entitled to the copyrighted exploitation rights to these.

2.3 KMT reserves the right to make changes in the execution of the service within the customary quantity and quality tolerances. In particular, a supplied peripheral device may deviate from the device specified in the contract, if this does not lead to a change in performance or quality of the main device.

3. deliveries, performance time, partial performance

3.1 Delivery deadlines are deemed to have been met if the subject matter of the contract has left the warehouse or the customer has been notified of readiness for dispatch by the time they expire. The customer may not refuse acceptance of the delivery due to minor defects or deviations in peripheral equipment in accordance with 2.3.

3.2 Events of force majeure shall entitle KMT to postpone the delivery or service for the duration of the hindrance, whereby KMT shall notify the customer immediately of the hindrance and its expected duration. Force majeure includes all circumstances for which KMT is not responsible and which make it impossible or unreasonably difficult for KMT to provide the delivery or service, as well as official measures and untimely self-supply for which KMT is not responsible. If the hindrance lasts longer than two months, the customer shall be entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the unfulfilled part, if he can prove that the outstanding fulfilment of the contract is no longer of interest to him due to the delay. If a partial performance has been effected, the customer can only withdraw from the contract as a whole if he can also prove that the partial performance of the contract is no longer of interest to him.

3.3 KMT’s compliance with its delivery and performance obligations requires the timely and proper fulfilment of all contractual obligations by the customer.

3.4 KMT shall be entitled to partial deliveries and partial services, as far as this is reasonable for the customer.

4. Prices, terms of payment, default, set-off, right of retention

4.1 Unless otherwise agreed, KMT’s prices are free domicile including installation and the costs for packaging and its disposal. The prices do not include the applicable statutory value added tax. In case of delivery of ultrasonic accessories above an order value of € 100.00 net, the packaging and shipping costs shall be borne by us. Excluded from this are goods over 10 kg (e.g. equipment trolleys, gel containers etc.). A reminder fee of 10.00 € per reminder will be charged for reminders required after the due date of the invoice.

4.2 The invoice amounts are due within ten days after receipt of the invoice without deduction. Service invoices are to be paid immediately upon receipt without deduction.

4.3 KMT is entitled to set off payments against older debts of the purchaser and will inform the purchaser about the type of set-off. If costs and interest have already been incurred, KMT shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.

4.4 A payment shall only be considered as effected when KMT can dispose of the amount. In case of cheques, payment shall only be deemed to have been made when the cheque is cashed.

4.5 If the customer is in default of payment, KMT is entitled to claim interest from the relevant date at a rate of 8 percentage points above the base interest rate as lump sum compensation. Such interest shall be set lower if the customer can prove a lower charge; proof of higher damages by KMT is permissible.

4.6 If KMT becomes aware of circumstances that call into question the creditworthiness of the purchaser, in particular if a cheque is not honoured or payments are stopped, or if KMT becomes aware of other circumstances that call into question the creditworthiness of the purchaser, KMT shall be entitled to demand payment of the entire remaining debt, even if it has accepted cheques. In this case KMT shall also be entitled to demand advance payments or security.

4.7 The customer shall only be entitled to set-off if his counterclaim is legally binding, undisputed or accepted by KMT.

4.8 The customer is only entitled to assert a right of retention if his counterclaim is legally binding, undisputed or accepted by KMT.

4.9 Only persons with written authorization from KMT are entitled to accept payments.

5. Reservation of title

5.1 KMT reserves the right of ownership of the subject matter of the contract until receipt of all payments under this contract. In case of culpable breach of contract by the customer, especially in case of default of payment, KMT is entitled to take back the subject matter of the contract. The taking back of the subject matter of the contract by KMT does not constitute a withdrawal from the contract, unless KMT has expressly declared so in writing.

5.2 The customer is obliged to handle the goods with care during the period of retention of title – as well as rental and demo equipment. If maintenance and inspection work is required, the consumer shall perform such work regularly at his own expense. In the case of demo and rental equipment, liability shall pass to the user.

5.3 The customer is obligated to handle the goods subject to retention of title with care, to protect them from blows, impacts and mechanical stress and to store them in closed rooms in a dry and dust-free place. In addition, the customer is obliged to insure the goods at his own expense against fire, water and theft sufficiently at replacement value. The customer hereby assigns all claims arising from the insurance contract to KMT. KMT is entitled to demand the submission of evidence of the existence of the insurance cover. If maintenance work is required, the company must carry out such work in good time at its own expense. Pledging, transfer of ownership by way of security and other dispositions by the entrepreneur are not permitted as long as the reservation of ownership exists.

5.4 In case of seizure or other interventions of third parties, the customer shall notify KMT immediately in writing so that KMT can file a suit according to § 771 ZPO (German Code of Civil Procedure). As far as the third party is not able to reimburse KMT for the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the customer is liable for the damage incurred by KMT.

5.5 If the goods subject to retention of title are sold to a third party, KMT shall become the owner of the contractual claims with all ancillary rights against the third party already now – due to the hereby expressly agreed assignment of claims. Assignments and pledging of these claims are subject to the prior consent of KMT.

5.6 The customer is not entitled to sell the goods subject to retention of title outside the ordinary course of business.

5.7 In case of breach of contract by the customer – in particular default of payment – KMT is entitled to withdraw from the contract and to demand return of the reserved goods.

6. Transfer of risk, transport insurance

6.1 Deliveries by KMT to contractors are ex warehouse Koblenz. In case of delivery without installation, the risk shall pass to the customer upon delivery. If the delivery is to be set up at the customer’s premises and a one-time instruction is required or agreed upon, the risk shall pass to the customer even if the customer delays the instruction or the set up for reasons for which he is responsible. The due date of the invoice amount is not suspended and is based on 4.2. of these GTC.

6.2 If the customer puts the delivery into operation before instruction, the risk is transferred to him at the beginning of use. In this case KMT shall not be liable.

6.3 In case of shipment to entrepreneurs KMT will take out a transport insurance in their favour at the request of the entrepreneur and at their expense. The risk shall pass to the entrepreneur when the subject matter of the contract is handed over to the person carrying out the transport; this also applies to transport by KMT. Transport damages have to be reported to KMT and the delivering carrier immediately in writing.

6.4 If the purchaser is a consumer, the risk of accidental loss and accidental deterioration of the sold item – also in case of mail order purchases – is transferred to the purchaser only after the item is handed over.

6.5 The handing over of the goods is the same if the buyer is in default of acceptance.

7. warranty

7.1 Warranty claims shall not exist in the case of only insignificant deviations from the agreed quality and software errors. This includes in particular deviations on peripheral devices according to 2.3.

7.2 If the purchaser is an entrepreneur, KMT shall initially provide warranty for defects of the goods by repair or replacement at its discretion. If the purchaser is a consumer, he first has the choice whether the supplementary performance shall be effected by repair or replacement. However, KMT is entitled to refuse the type of chosen supplementary performance if it is only possible at disproportionate costs and the other type of supplementary performance is without significant disadvantages for the consumer.

7.3 If the supplementary performance fails, the customer may, in principle, at his option, demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal). However, in the event of only a minor breach of contract, in particular in the case of minor defects, the customer shall not be entitled to withdraw from the contract.

7.4 Entrepreneurs must report obvious defects in writing without delay, but at the latest within a period of one week from receipt of the goods; otherwise the assertion of warranty claims is excluded. Timely dispatch suffices to comply with the deadline. The entrepreneur shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time of detection of the defect and for the timeliness of the notification of defects.

7.5 Consumers must notify us in writing of obvious defects within a period of two weeks after the time at which the condition of the goods contrary to the contract was determined. The date of receipt of the notification by KMT is decisive for the observance of the time limit. If the consumer fails to inform KMT, the warranty rights expire two months after the consumer has discovered the defect. This does not apply in case of fraudulent intent of KMT. The burden of proof for the time of detection of the defect is on the consumer. If the consumer was induced to purchase the goods by inaccurate manufacturer’s statements, the consumer shall bear the burden of proof for his purchase decision. In case of used goods the consumer has the burden of proof for the defectiveness of the goods.

7.6 If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he is not entitled to any additional claims for damages due to the defect. If the customer chooses to claim damages after a failed subsequent performance of the contract, the goods shall remain with the customer if this is reasonable. The compensation is limited to the difference between the purchase price and the value of the defective item. This shall not apply if KMT has maliciously caused the breach of contract.

7.7 The warranty period for entrepreneurs is one year from delivery of the goods. For consumers the limitation period is two years from delivery of the goods. This shall not apply if the customer has not notified the defect in due time (8.3. 8.4. of these GTC). The customer is not entitled to warranty claims for used goods.

7.8 If the customer is an entrepreneur, only the manufacturer’s product description is deemed to be agreed as the quality of the goods. Public statements, recommendations or advertising by the manufacturer do not constitute a contractual description of the quality of the goods.

7.9 If the customer receives a faulty device documentation, KMT is only obliged to deliver a faultless product manual and this only if the defect of the product manual prevents proper use.

7.10. For used equipment delivered by KMT, the customer receives a 6 month warranty in the legal sense for hidden defects. Manufacturer warranties remain unaffected and will be passed on by KMT in full.

7.11. Warranty claims of any kind against KMT are generally excluded if any components of the equipment are modified or exchanged without written approval of KMT. This also applies to wearing parts and in case of other – not previously mentioned – applications, which differ from the usual operational application.

7.12. Liability for normal wear and tear is excluded. Only the direct purchaser is entitled to claims for defects against KMT and these claims are not transferable.

8. Limitations of liability

8.1 In case of slightly negligent breaches of duty, the liability of KMT is limited to the foreseeable, direct average damage typical for the type of goods. This also applies to slightly negligent breaches of duty by legal representatives or vicarious agents. KMT shall not be liable to entrepreneurs for slightly negligent breach of minor contractual obligations.

8.2 The above limitations of liability do not affect claims of the customer arising from product liability. Furthermore, the limitations of liability do not apply in case of attributable bodily harm and damage to health or loss of life of the customer.

8.3 The customer’s claims for damages due to a defect become time-barred after one year from delivery of the goods. This does not apply if KMT can be accused of gross negligence or in case of attributable bodily harm and damage to health or loss of life of the customer.

8.4 If operating or maintenance instructions of KMT are not followed, changes are made to the products, parts are exchanged or consumables are used that do not comply with the original specifications, claims for defects of the products are not valid if the purchaser does not refute a corresponding substantiated claim that one of these circumstances caused the defect.

8.5 No liability is accepted for material defects in used equipment supplied to entrepreneurs.

8.6 KMT shall not be liable that the use of the hardware and software products does not infringe upon the property rights of third parties.

8.7 The customer is responsible for the data stored on the system. Prior to the start of work by Külzer Medizintechnik GmbH, this data must be properly backed up. The company Külzer Medizintechnik GmbH accepts no liability in the event of a loss of data. The customer confirms this with his signature.

If you commission the company Külzer Medizintechnik GmbH with the data backup, additional costs of 98 EUR per hour (calculated according to expenditure) will be incurred.

Spare parts

If necessary, KMT can also offer tested used parts as spare parts or other function-preserving technical solutions in their place.

10. Right of withdrawal
Only if KMT is responsible for a violation of contractual obligations, the customer is entitled to withdraw from the contract under the legal requirements. This shall not apply in the cases of clause 3.2, sentences 1 and 2 and for defects. In the case of defects, the customer is entitled to withdraw from the contract in accordance with the provisions in sections 7.1, 7.2 and 7.5, in the cases of section 3.2 sentences 1 and 2 the customer is entitled to withdraw from the contract in accordance with section 3.2 sentence 3.

11. User software

If application software is made available to the customer with our deliveries, the customer shall be granted the non-exclusive right to use the software on the products supplied, in unchanged form and for the purposes specified in the product description. A copy of the software may only be made for backup purposes; any changes to the software are prohibited. The usage fee for the software is included in the purchase price. Updates are charged separately.

12. Installation and customer service

12.1 Installation and after-sales service are carried out by KMT or by authorised specialist companies arranged by KMT.

12.2 Prior to delivery of the ultrasonic units, the customer must ensure that the installation site is easily accessible, that the structural conditions are met, that there is sufficient space, sufficient ventilation, a floor suitable for castors and the weight of the unit, sufficient load-bearing capacity of the floor and the necessary electrical connections are available, that it is adequately protected against moisture and brine, and that it is or are adequately shielded from the usual operating noise of the unit in relation to the rest of the practice area.

12.3 Difficulties in the delivery and installation of ultrasonic devices can be invoiced separately, as well as all additional costs which arise if the conditions mentioned under item 12.2 are not present on delivery on the day of the agreed installation date.

12.4 Spare parts and repairs which are outside the warranty must be paid for separately by the customer.

12.5 If, in the case of repairs, the cost estimate is exceeded by up to 8% (of the total amount), this is harmless and corresponds to standard commercial practice. If the costs exceed 8%, KMT will have to inform the customer and place a new order.

13. ElektroG

The customer is responsible for the disposal of the products delivered by us (ElektroG). In the event of disposal, the customer waives the plea of the statute of limitations. Likewise, our delivery releases the respective manufacturer of the product from the obligation to dispose of and take back the product.

14. Miscellaneous

14.1 Insofar as the purchaser is a merchant, legal entity under public law or special fund under public law, Koblenz shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

14.2 The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention (CISG) are excluded. The export of KMT goods to countries outside the European Union requires the consent of KMT, irrespective of the fact that the customer is responsible for obtaining any official import and export permits.

14.3 Should any provision of the above terms and conditions be or become invalid, this shall not affect the validity of all other provisions or agreements.

For more than 30 years we have been working for doctors in private practice and hospitals at our locations in Koblenz, Frankfurt, Dormagen and beyond. Every year, more than 500 customers place their trust in us and take advantage of our expertise as a specialist dealer and service provider. Thus, a considerable customer base has grown in three decades. We are also happy to be there for you!