General terms and conditions for repairs, maintenance, safety inspections and metrological inspections
of the HEYER Medical company, Bad Ems
Last updated 20/08/2020
1. General information
The following terms and conditions apply to contractors (hereinafter “Customer”) for all repairs, maintenance, safety inspections and metrological inspections (hereinafter “Services”) carried out by us on products sent to us. “Contractors” means natural and legal persons or partnerships with legal capacity, insofar as they act in the exercise of their commercial or independent professional activity, even if these are attributable to the public law sector. All Services are carried out according to these conditions, unless otherwise stated in the general terms and conditions of sale and delivery and/or the warranty conditions of HEYER Medical AG (hereinafter “Heyer”) in the version valid at the time of purchase of the product. The Customer accepts our terms and conditions when placing the order, but at the latest when accepting the first Service, and they shall apply in the respective valid version for the entire duration of the business relationship. Any deviating conditions of Customers are not accepted by Heyer. Sections 2 and 3 of these terms and conditions do not apply to Mobilservice Services.
2. Order, prices, quotation
2.1. Sending a product to us shall not automatically constitute an order to perform the Services deemed necessary. In case of non-pre-registered products and products that were not sent in the validated packaging (packaging in which the product was delivered to the Customer), Heyer reserves the right to return them carriage forward. The Customer must send us the pre-registered product together with the “RMA slip” completed and signed by the Customer.
2.2. Furthermore, Heyer shall not issue a quotation if Heyer receives the order to perform Services in accordance with our price list valid at the time of the return and no additional repair costs are incurred or the total order value is below the upper limit approved in advance by the Customer.
2.3. Should the expected costs of the Services exceed the amount specified in Section 2.2, Heyer shall issue a quotation and send it to the Customer.
2.4. Quotations are only issued on the basis of a device that has not been dismantled or has only been partially dismantled. Should additional expenses arise in the course of the processes that exceed 10 % of the originally estimated amount, Heyer shall issue a new quotation.
3. Forward and return shipment / scrapping / insurance / installation in Mobilservice
3.1. Should Heyer refuse a repair (see Section 2.2–2.4), the Customer may choose between a chargeable return or scrapping of the product. The costs incurred for the return or scrapping of the product can be found in our price list valid at the time of return.
3.2. To issue a quotation, it is necessary to carry out work on the product sent to us. Consequently, Heyer may not be able to return the product in its original condition should the Customer reject the Services after a quotation has been issued. Should the Services not be performed at the Customer’s request, Heyer shall not be required to restore the inspected product to its original condition if this is not technically or economically possible or justifiable, unless the Customer bears the associated costs.
3.3. Should the Customer have been notified of the completion of the Services, the risk shall pass to the Customer. The transport of the product to and from our factory in Schwerin shall be the responsibility of our Customer, who shall also bear the risk of loss or damage during transport. Should Heyer carry out a return transport of the product at the request of the Customer – including any packaging and/or loading – the transport is performed at the expense and risk of the Customer. This shall also apply to products sent by the Customer to the company headquarters in Bad Ems instead of to the factory in Schwerin. Should the product be shipped to the Customer, the risk shall pass to the Customer at the latest upon delivery of the product to the forwarding agent, the carrier or the third party appointed to carry out the shipment; the provisions of Clause 1 shall remain unaffected. The shipment shall be made at the Customer’s expense by freight, forwarding agent, post or by other means of our choice from our factory in Schwerin. The products handed over to us by our Customer for the performance of Services are not insured against fire, theft, transport and storage damage, etc. Where necessary, these risks shall be insured by our Customer himself.
3.4. As part of the Mobilservice, the Customer provides the devices at the agreed time for the required maintenance period of the product. Disassembly and reassembly of the devices to be serviced as part of the Mobilservice is not part of Heyer’s responsibilities. The labour time for removal and/or installation shall be invoiced separately to the Customer.
4. Notification of defects, warranty
4.1. Apparent defects must be reported to us in writing immediately after receipt of the product by the Customer and visible defects immediately after the immediate inspection of the product.
Hidden defects shall also be reported in writing immediately after their discovery.
4.2. Should Services be found inadequate, Heyer may choose to either repair the Services or replace them with faultless ones, notwithstanding the right to refuse subsequent fulfilment altogether due to disproportionately high costs. In this case, the Customer’s rights shall be determined in accordance with Sections 4.3 and 4.4. Heyer shall not be liable for the costs of remedying defects that arise due to the product being moved to a location other than the place of fulfilment.
4.3. Should the rectification of defects or replacement Services ultimately prove unsuccessful, or should subsequent fulfilment be refused due to disproportionate costs in accordance with Section 4.2, or should a reasonable deadline set by the Customer for subsequent fulfilment expire unsuccessfully, or should subsequent fulfilment be unreasonable for the Customer, the Customer may choose between rectifying the defect himself in return for reimbursement of the necessary expenses (self-performance), reducing the remuneration (reduction) or withdrawing from the contract. In case of only minor defects, the Customer shall not be entitled to withdraw from the contract.
4.4. Should the Customer choose to withdraw from the contract due to a defect after subsequent fulfilment was unsuccessful, the Customer shall not be entitled to any additional claims for damages due to the defect, notwithstanding the provisions in Sections 5.1 and 5.2.
5. Liability
5.1. Heyer shall only be liable for damages to the Customer in case of intent or gross negligence. Should an essential contractual obligation be violated by us, Heyer shall also be liable if we are only guilty of slight negligence. Significant are all contractual obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely. Our liability for slight negligence shall be limited to the foreseeable damage typical for the type of Service and product. The above provisions shall also apply in case of fault on the part of our legal representatives or vicarious agents.
5.2. The above limitations of liability shall not apply to claims arising from product liability. They shall also not apply in case of physical injury or damage to health attributable to us, in case of loss of life, fraudulent concealment of a defect or if a guarantee of quality has been given.
6. Extended right of lien on the products, retention of title, use of reconditioned spare parts or components
6.1. Based on our claim arising from the Services, we are entitled to a contractual right of lien on the product that has come into our possession on the basis of the contract. The contractual right of lien may also be asserted in respect of claims arising from Services performed earlier, insofar as they are related to the product. For other claims arising from the business relationship, the contractual right of lien shall only apply insofar as these claims are undisputed or legally binding.
6.2. Should the spare parts or similar components installed as part of Services not become essential components of the product, Heyer shall retain ownership of these items until all our claims under the contract with the Customer have been settled. Should the Customer be in default of payment, Heyer may demand that the Customer return the product for the purpose of removing the installed components. The Customer shall bear the costs incurred for this. Should the repair have been performed at the Customer’s premises, the Customer must provide us with the opportunity to perform the removal at the Customer’s premises. The Customer shall bear the corresponding travel costs.
7. Place of fulfilment, place of jurisdiction and applicable law
The place of fulfilment for delivery is Schwerin, the place of fulfilment for payment is Bad Ems. The laws of the Federal Republic of Germany shall apply with the exception of conflict of laws. Any application of the UN Convention on Contracts for the International Sale of Goods is excluded. Exclusive place of jurisdiction in dealings with merchants, legal entities under public law or special funds under public law is Bad Ems. Nevertheless, Heyer is also entitled to file suit at any other legal place of jurisdiction.
8. Final provisions
Should any individual provisions of these terms and conditions be or become void, invalid and/or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. Void, ineffective and/or unenforceable provisions shall be substituted by such effective and enforceable provisions coming closest to the intended business purpose. The same applies if these terms and conditions contain a loophole. Only the German version of these terms and conditions is definitive. Versions in other languages are merely translations.