General terms and conditions

Terms and Conditions (T&C) of medacom GmbH, R.-Samesreuther-Str. 25, 35510 Butzbach (as of May 2018)

§ 1 Applicability

(1) All deliveries, services, and offers made by medacom GmbH are exclusively based on these general terms of delivery. These terms are an integral part of all contracts concluded between medacom GmbH and the purchaser concerning the deliveries or services it offers. They also apply to all future deliveries, services, or offers to the purchaser, even if they are not explicitly agreed upon again. Deviating, conflicting, or supplementary general terms of delivery do not become part of the contract unless their validity is explicitly agreed upon in writing.

(2) Terms and conditions of the purchaser or third parties are not applicable, even if medacom GmbH does not explicitly object to their applicability in individual cases. If medacom GmbH references a letter containing the terms and conditions of the purchaser or a third party or makes reference to such conditions, this does not constitute consent to their applicability.

§ 2 Offer and Contract Conclusion

(1) All offers from medacom GmbH are non-binding and subject to change unless they are explicitly stated as binding or contain a specific acceptance period. The illustrations of our product range on the internet do not constitute a binding offer in accordance with §§ 145 ff. BGB (German Civil Code). By placing an order via email, fax, or telephone, the customer declares their binding intent to purchase the ordered goods. When ordering electronically, medacom GmbH will promptly confirm receipt of the order. This acknowledgment of receipt does not yet constitute a binding acceptance of the order. medacom GmbH may accept orders within fourteen days of receipt, either in writing or by delivering the goods to the customer.

(2) Acceptance of the order is subject to the availability of the goods, particularly the correct and timely delivery to medacom GmbH by its suppliers, provided that medacom GmbH is not responsible for non-delivery. The purchaser will be informed immediately of the unavailability of the goods. Any payments already made will be refunded promptly.

(3) Information provided by medacom GmbH about the subject matter of the delivery or service (e.g., weights, dimensions, usage values, durability, tolerances, and technical data) as well as depictions thereof (e.g., drawings and illustrations) are only approximate unless the usability for the contractually intended purpose requires exact conformity. They do not represent guaranteed characteristics but descriptions or designations of the delivery or service. Customary deviations and deviations due to legal requirements or constituting technical improvements are permissible, as well as the replacement of components with equivalent parts, as long as they do not impair the usability for the contractually intended purpose.

§ 3 Prices and Payment

(1) The prices apply to the scope of services and deliveries specified in the order confirmations. Additional or special services will be charged separately. The prices are ex works plus packaging and the applicable statutory VAT. For web shops that exclusively target consumers within the meaning of §13 BGB, the prices are ex works plus packaging and shipping costs.

(2) If the agreed prices are based on the price lists of medacom GmbH and the delivery is to take place more than four months after the conclusion of the contract, the price lists of medacom GmbH valid at the time of delivery shall apply (each minus an agreed percentage or fixed discount).

(3) Invoice amounts are payable within thirty days without any deductions, unless otherwise agreed in writing. The date of payment is determined by the receipt at medacom GmbH. Checks are only considered as payment after they have been cashed. If the purchaser does not pay by the due date, the outstanding amounts shall bear interest at a rate of 5% per annum from the due date; the assertion of higher interest rates and further damages in the event of default remains unaffected.

(4) Offsetting against counterclaims of the purchaser or withholding payments due to such claims is only permissible insofar as the counterclaims are undisputed or legally established.

(5) medacom GmbH is entitled to execute or provide outstanding deliveries or services only against advance payment or security deposit if circumstances become known to the company after the conclusion of the contract that are likely to significantly reduce the creditworthiness of the purchaser and endanger the payment of open claims of medacom GmbH by the purchaser from the respective contractual relationship (including from other individual orders falling under the same framework agreement).

(6) Purchase on account via our external partner Billpay

For purchases on account, the invoice amount is due for payment to our external partner Billpay GmbH [Further information at https://www.billpay.de/endkunden/] on the calendar day specified in the invoice (20 or 30 calendar days after the invoice date). The payment method purchase on account via Billpay is not available for all offers and requires, among other things, a successful credit check by Billpay GmbH. If the customer is allowed to purchase on account via Billpay after checking the creditworthiness, the payment is processed in cooperation with Billpay GmbH to which we assign our payment claim. The customer can only make payments with debt-discharging effect to Billpay GmbH in this case. We remain responsible for general customer inquiries (e.g., regarding goods, delivery time, dispatch), returns, complaints, cancellation declarations, and credits even when purchasing on account via Billpay. The General Terms and Conditions [Further information at https://www.billpay.de/allgemein/datenschutz/] of Billpay GmbH apply.

(7) Purchase by direct debit via Billpay; direct debit authorization; handling fee for chargebacks

(a) For purchases by direct debit via Billpay, the payment amount is immediately due for direct debit by our external partner Billpay GmbH [Further information at https://www.billpay.de/endkunden/] from the checking account specified in the ordering process at the bank indicated (the checking account). You hereby authorize Billpay GmbH to withdraw payments to be made by you via the purchase by direct debit over Billpay from the checking account via direct debit. If the checking account does not have sufficient funds, the account-holding bank is not obligated to honor the payment. Partial payments are not made as part of the direct debit process.

(b) The payment method purchase by direct debit via Billpay is not available for all offers and requires, among other things, a successful credit check by Billpay GmbH and a checking account maintained in Germany. If the customer is allowed to purchase by direct debit via Billpay after reviewing their creditworthiness, the payment is processed in cooperation with Billpay GmbH, to which we assign our claims. The customer can only pay with debt-discharging effect to Billpay GmbH in this case. We remain responsible for general customer inquiries (e.g., regarding goods, delivery time, shipping), returns, complaints, cancellation declarations, and credits even in the case of a purchase by direct debit via Billpay. The General Terms and Conditions [Further information at https://www.billpay.de/allgemein/datenschutz/] of Billpay GmbH apply.

(c) By providing the checking account, you confirm that you are authorized to carry out direct debits via the respective checking account and will ensure sufficient funds will be available. Chargebacks are associated with substantial effort and costs for us and Billpay GmbH. In the event of a chargeback (due to insufficient funds in the checking account, closure of the account, or unauthorized objections by the account holder), you authorize Billpay GmbH to resubmit the direct debit for the respective payment obligation. You are required to pay the costs incurred by the chargeback in such cases. Further claims remain reserved. You have the right to prove that lower or no costs were incurred as a result of the chargeback. Considering the efforts and costs associated with chargebacks and to avoid handling fees, we request that you refrain from objecting to the debit in the event of a withdrawal or cancellation of the purchase agreement, a return, or a complaint. The reversal of the payment is handled through a refund of the corresponding amount or a credit after coordination with us.

(8) If the agreed prices are based on the price lists of medacom GmbH and the delivery is to take place more than four months after the conclusion of the contract, the price lists of medacom GmbH valid at the time of delivery shall apply (each minus an agreed percentage or fixed discount).

§ 4 Delivery and Delivery Time

(1) Deliveries are made ex works.

(2) Deadlines and dates for deliveries and services indicated by medacom GmbH are always approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the carrier, freight forwarder, or any other third party entrusted with the transport.

(3) Notwithstanding its rights arising from the customer’s default, medacom GmbH may demand an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the customer fails to meet their contractual obligations towards medacom GmbH.

(4) medacom GmbH is not liable for impossibility of delivery or for delivery delays caused by force majeure or other events unforeseeable at the time of the contract conclusion (e.g., operational disruptions of all kinds, transport delays, or a failure to receive, incorrect or delayed delivery by suppliers) that are not the responsibility of medacom GmbH. If such events substantially complicate or render impossible the delivery or service by medacom GmbH and the hindrance is not merely of temporary duration, medacom GmbH is entitled to withdraw from the contract. For impediments of a temporary nature, the delivery or service deadlines will be extended or postponed by the duration of the impediment plus a reasonable startup period. If the delay renders the acceptance of the delivery or service unreasonable for the customer, they may withdraw from the contract by promptly submitting a written declaration to medacom GmbH.

(5) medacom GmbH is only entitled to make partial deliveries if the partial delivery can be used by the customer within the context of the contractual purpose, the delivery of the remaining ordered goods is ensured, and the customer incurs no significant additional expense or costs (unless medacom GmbH agrees to bear these costs).

(6) If medacom GmbH is in default with a delivery or service or if a delivery or service becomes impossible for any reason, medacom GmbH’s liability for damages is limited in accordance with § 8 of these General Terms and Conditions of Delivery.

§ 5 Place of Performance, Shipping, Packaging, Transfer of Risk, Acceptance

(1) The place of performance for all obligations arising from the contractual relationship is Butzbach, unless otherwise stipulated. If medacom GmbH is also responsible for installation, the place of performance is the location where the installation is to take place.

(2) The mode of shipping and the packaging are determined at the reasonable discretion of medacom GmbH.

(3) The risk transfers to the customer no later than upon the handover of the goods to the carrier, freight forwarder, or any other third party designated for shipment (with the commencement of the loading process being decisive). This also applies if partial deliveries are made or if medacom GmbH has taken on additional services (e.g., shipping or installation). If the shipping or handover is delayed due to a circumstance caused by the customer, the risk transfers to the customer from the day medacom GmbH is ready for shipment and has notified the customer of this.

(4) Storage costs after the transfer of risk are borne by the customer. If stored by medacom GmbH, the storage costs amount to 0.25% of the invoice amount of the stored goods per completed week. The assertion and proof of higher or lower storage costs remain reserved.

(5) Shipments will only be insured by medacom GmbH against theft, breakage, transport, fire, and water damage, or other insurable risks at the express request and expense of the customer.

§ 6 Warranty

(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. For buyers who do not meet the requirements of an entrepreneur (§14, BGB), the warranty period is two years.

(2) The delivered items must be carefully examined immediately after delivery to the buyer or the third party designated by them. They are considered approved unless medacom GmbH receives a written notice of defects regarding obvious defects or other defects that were recognizable upon immediate and careful inspection within seven working days after delivery of the delivery item or otherwise within seven working days after the discovery of the defect or the point in time at which the defect was recognizable to the buyer under normal use of the delivery item without further inspection. At the request of medacom GmbH, the complained delivery item must be returned freight-free to the buyer. In the case of a justified notice of defects, medacom GmbH will reimburse the costs of the most economical shipping method; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.

(3) For defects in the delivered items, medacom GmbH is initially obliged and entitled to either rectify the defect or deliver a replacement at its discretion within a reasonable period. If the rectification or replacement delivery fails, i.e., is impossible, unreasonable, refused, or unreasonably delayed, the buyer may withdraw from the contract or reduce the purchase price appropriately.

(4) If a defect is due to the fault of medacom GmbH, the buyer may claim damages under the conditions specified in § 8.

(5) For defects in components from other manufacturers that medacom GmbH cannot remedy due to licensing or factual reasons, medacom GmbH will, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the buyer or assign them to the buyer. Warranty claims against medacom GmbH for such defects exist under the other conditions and in accordance with these General Terms and Conditions of Delivery only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, is futile due to insolvency. During the duration of the legal dispute, the limitation period for the relevant warranty claims of the buyer against medacom GmbH is suspended.

(6) The warranty lapses if the buyer modifies the delivery item without the consent of medacom GmbH or has it modified by third parties, thereby making the elimination of the defect impossible or unreasonably difficult. In any case, the buyer must bear the additional costs of remedying the defect resulting from the modification.

(7) A delivery of used items individually agreed upon with the buyer is made under the exclusion of any warranty, provided that the buyer is not a consumer per §13, BGB.

§ 7 Proprietary Rights

(1) medacom GmbH ensures, in accordance with the provisions of this § 7, that the delivery item is free from third-party industrial property rights or copyrights. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against them due to the infringement of such rights.

(2) In the event that the delivery item infringes on an industrial property right or copyright of a third party, medacom GmbH will, at its discretion and expense, modify or replace the delivery item in such a way that no third-party rights are violated while ensuring that the delivery item continues to fulfill the agreed contractual functions. Alternatively, medacom GmbH may secure the right of use for the buyer by concluding a license agreement. If this cannot be achieved within a reasonable period of time, the buyer is entitled to withdraw from the contract or appropriately reduce the purchase price. Any damages claims by the buyer are subject to the limitations set forth in § 8 of these General Terms and Conditions of Delivery.

(3) For infringements of rights caused by products delivered by medacom GmbH but manufactured by other suppliers, medacom GmbH will either assert its claims against the manufacturers and upstream suppliers on behalf of the buyer or assign these claims to the buyer at its own discretion. Claims against medacom GmbH in such cases exist under the provisions of this § 7 only if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is, for instance, futile due to insolvency.

§ 8 Liability for Damages Due to Fault

1. The liability of medacom GmbH for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and tort, is limited in accordance with the provisions of this § 8, insofar as fault is relevant in each case.
2. medacom GmbH shall not be liable in cases of simple negligence by its executive bodies, legal representatives, employees, or other vicarious agents, provided that it does not involve a breach of essential contractual obligations. Essential contractual obligations are those obligations to deliver and install on time and free of defects as well as consulting, protection, and care obligations intended to enable the customer to use the delivery item in compliance with the contract or to protect the life and limb of the customer’s personnel or third parties or the property of the customer from substantial damage.
3. To the extent that medacom GmbH is liable for damages pursuant to § 8 (2), this liability is limited to damages which medacom GmbH foresaw as a possible consequence of a contractual breach at the time the contract was concluded or which medacom GmbH should have foreseen by exercising due care and attention in accordance with the circumstances known to it or that it should have known. Indirect damages and consequential damages resulting from defects in the delivered item are only compensable if such damages are typically to be expected when the delivered item is used as intended.
4. The above exclusions and limitations of liability apply to the same extent in favor of the executive bodies, legal representatives, employees, and other vicarious agents of medacom GmbH.
5. To the extent that medacom GmbH provides technical information or advisory services, and this information or advice is not part of the scope of services owed and contractually agreed upon, this is provided free of charge and to the exclusion of any liability.
6. The limitations of this § 8 do not apply to the liability of medacom GmbH due to intentional conduct, for guaranteed quality characteristics, due to injury to life, body, or health, or under the Product Liability Act.

§ 9 Retention of Title

1. The goods delivered by medacom GmbH to the purchaser (retention goods) remain the property of medacom GmbH until full payment of all secured claims is made.
2. The purchaser shall store the retention goods free of charge for medacom GmbH.
3. If the retention goods are combined with other items and one of these other items is to be regarded as the main item, it is agreed that medacom GmbH shall acquire co-ownership (shared ownership) of the newly created item in proportion to the value of the retention goods to the value of the newly created item.
4. In the event of resale of the retention goods, the purchaser hereby assigns to medacom GmbH, by way of security, the resulting claim against the buyer – in the case of co-ownership of medacom GmbH in the retention goods, proportionate to the co-ownership share –. The same applies to other claims that replace the retention goods or otherwise arise with respect to the retention goods, such as insurance claims or claims arising from unlawful acts in the event of loss or destruction. medacom GmbH revocably authorizes the purchaser to collect the claims assigned to medacom GmbH in their own name on behalf of medacom GmbH. medacom GmbH may revoke this authorization only in the event of realization.
5. If third parties access the retention goods, in particular through seizure, the purchaser shall immediately inform them of medacom GmbH’s ownership and notify medacom GmbH to enable it to enforce its ownership rights. If the third party is not able to reimburse medacom GmbH for the judicial and extrajudicial costs incurred in this context, the purchaser shall be liable for these costs to medacom GmbH.
6. Upon request, medacom GmbH will release the retention goods or items or claims replacing them at its discretion, provided their value exceeds the amount of the secured claims by more than 50%.
7. If medacom GmbH withdraws from the contract due to a contractual breach by the purchaser – in particular for payment default – (realization case), it is entitled to demand the return of the retention goods.

§ 10 Software Usage Rights

1. If the delivery transaction also involves the permanent transfer of software, the purchaser acquires a non-exclusive, geographically, and temporally unlimited usage right to use the software on one device. The program may only be copied for the purpose of creating a backup copy unless a backup copy is included in the scope of delivery. When changing hardware, the software on the previously used hardware must be deleted.
2. The purchaser is entitled to sell or gift the software permanently to third parties, provided that the acquiring third party agrees to the continued applicability of the conditions of § 10 para. 1 toward them.
3. Upon transfer of the software, it must be deleted from the hardware previously used by the purchaser, and all program copies, including any backup copies, must be handed over to the third party, or non-transferred data carriers must be destroyed.

§ 11 Notes on Data Protection

(1) medacom GmbH collects data from the customer as part of the contract processing. It complies with the provisions of the European General Data Protection Regulation (GDPR) and the German Federal Data Protection Act, as well as, where applicable, the German Telemedia Data Protection Act. Without the consent of the customer, medacom GmbH will only process inventory and usage data to the extent necessary for the processing of the contractual relationship and, if applicable, for the handling and billing required for order processing. The legality of processing is derived for us from Art. 6 (1) a, b, c, and f of the GDPR. Data will only be disclosed to third parties as described in (2) – (4). There is no transfer of data to third countries.

(2) Identity and credit check when selecting Billpay payment options

If you choose one of the payment options offered by our partner Billpay GmbH [More information at https://www.billpay.de/endkunden/], you will be asked during the ordering process to consent to the transfer of the data required for payment processing and identity and credit checks to Billpay. If you provide your consent, your data (first and last name, street, house number, postal code, city, date of birth, phone number, and in the case of a purchase by direct debit, the specified account details) as well as order-related data will be transmitted to Billpay. For its identity and creditworthiness check, Billpay or its assigned partner companies transmit data to credit agencies (credit bureaus) and receive information, as well as creditworthiness data based on mathematical-statistical procedures, in which address data, among other things, is incorporated. Detailed information on this and the utilized credit bureaus can be found in the data protection regulations [More information at https://www.billpay.de/allgemein/datenschutz/] of Billpay GmbH. Furthermore, Billpay uses tools from third parties to detect and prevent fraud. Data obtained using these tools may be stored in encrypted form with third parties and are only readable by Billpay. These data are used exclusively if you choose a payment method from our cooperation partner Billpay; otherwise, the data automatically expire after 30 minutes.

(3) Klarna Data Protection Notice

If you decide to use Klarna’s payment services, we kindly ask for your consent to transfer the data necessary for payment processing and identity and credit checks to Klarna. In Germany, the credit bureaus specified in Klarna’s privacy policy may be used for identity and credit checks. You can revoke your consent to this use of personal data at any time by contacting Klarna.

(4a) Data Protection Provisions for DPD as Shipping Method

As part of the shipping process, based on Article 6(1f) of the GDPR, we transmit your data (name, address, and if applicable, email address and/or mobile phone number, as well as other shipment-related data) to our shipping partner DPD Deutschland GmbH. You can object to the transmission of additional information such as email or mobile phone numbers at any time, either by contacting us at datenschutz@medacom.de, DPD at predictwiderspruch@dpd.com, or via the respective parcel information link.

(4b) Data Protection Provisions for Dachser/Forwarding as Shipping Method

As part of the shipping process, based on Article 6(1f) of the GDPR, we transmit your data (name, address, and if applicable, email address and/or mobile phone number, as well as other shipment-related data) to our shipping partner Dachser Group SE & Co. KG. You can object to the transmission of additional information such as email or mobile phone numbers at any time, either by contacting us at datenschutz@medacom.de or Dachser at data.protection@dachser.com.

(5) Data Subject Rights

You generally have the right to request information about the personal data stored about you, free of charge. Furthermore, you have the right to correct inaccurate data, as well as to block, transfer, restrict, or delete data, provided no other legal regulations conflict with this. For inquiries and data access requests, please contact our central information office. We have appointed a data protection officer whose contact details we will gladly provide upon request. Our competent data protection supervisory authority is the Hessian Commissioner for Data Protection and Freedom of Information, Wiesbaden.

§ 12 Final Provisions

1. The place of jurisdiction for any disputes arising from the business relationship between medacom GmbH and the purchaser shall, at the discretion of medacom GmbH, be either Butzbach or the purchaser’s registered address. For lawsuits against medacom GmbH, the exclusive place of jurisdiction is Butzbach. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this regulation.
2. The relations between medacom GmbH and the purchaser are exclusively subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
3. If the contract or these General Terms and Conditions of Delivery contain any gaps, those legally effective provisions shall be deemed agreed to fill these gaps, which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery, had they been aware of the gap.