General Terms and Conditions for orders by fax, telephone or e-mail

General Terms and Conditions for orders by fax, telephone or e-mail
Tomed GmbH (version: 05. January 2022)

1. Scope of application
The following General Terms and Conditions for orders by fax, telephone or e-mail apply to orders placed by consumers as well as by entrepreneurs, unless otherwise stipulated in the individual terms and conditions.
A consumer is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor self-employed. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his or her commercial or self-employed professional activity.
These General Terms and Conditions shall also apply to future business relations with entrepreneurs without our having to refer to them again. If the entrepreneur uses conflicting or supplementary General Terms and Conditions, their validity is hereby objected to; they shall only become part of the contract if we have expressly agreed to them.

2. Contracting party, conclusion of contract, correction options
The contract of sale is concluded with Tomed GmbH.
We accept your order by
– sending a declaration of acceptance (order confirmation) by e-mail or fax or
– delivering the goods or
– executing the payment transaction through our service provider or the selected payment service provider, if applicable. The time of execution of the payment transaction depends on the respective selected payment method (see under “Prices and payment”).
The relevant alternative for you depends on which of the listed events occurs first.

3. Contract language, contract text storage
The languages available for the conclusion of the contract are German and English. We store the text of the contract and send you the order data and our General Terms and Conditions in text form.

4. Delivery conditions
Partial deliveries are permissible unless the customer has no recognisable interest in them or they are recognisably unreasonable for him. In the event of partial deliveries, postage and packaging costs shall only be charged once. Events of force majeure, supply difficulties and operational disruptions at suppliers, traffic disruptions as well as the consequences thereof shall release us and, accordingly, the buyer from the fulfilment of the contract in whole or in part without the possibility of claiming damages.
Shipping costs are added to the product prices. The shipping costs within Germany amount to a net flat rate of € 3.95 plus VAT (DHL parcel) or net € 5.00 plus VAT (UPS). Shipping costs will be charged in full at cost for orders from outside Germany.
We deliver only in the dispatch way. Unfortunately, it is not possible to collect the goods yourself.

5. Prices and payment
The prices stated or quoted at the time of the order shall apply. All prices include the legally valid value added tax.
In principle, we offer the following payment methods for orders by fax, telephone or e-mail: prepayment, PayPal, invoice and SEPA direct debit. For each order, we reserve the right not to offer certain payment methods and to refer to other payment methods.

Prepayment:
If you choose payment in advance, we will provide you with our bank details, e.g. by e-mail or fax, and deliver the goods after receipt of payment.

PayPal:
In order to pay the invoice amount via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A, 22-24 Boulevard Royal, L-2449 Luxembourg (“PayPal”), you must be registered with PayPal, legitimise yourself with your access data and confirm the payment instruction. We will deliver the goods after receipt of payment.

Invoice:
When purchasing on invoice, you undertake to transfer the invoice amount to the bank account specified in the invoice within 14 days of receipt of the invoice and the goods. With commercial customers, the regulations agreed individually in each case apply. We reserve the right to offer purchase on account only after a successful credit check.
For reminders, we have the right to charge you reminder costs of EUR 5.00 per reminder for the second and all subsequent reminders, unless the buyer proves that the seller has incurred significantly lower or no reminder costs. In the event of default in payment, you undertake to reimburse all costs, expenses and cash outlays incurred by us in pursuing our claims. This includes, without prejudice to any obligation to reimburse costs under procedural law, all extrajudicial costs of a collection agency or lawyer commissioned.

SEPA direct debit procedure:
By placing an order, you grant us a SEPA direct debit mandate. We will inform you about the date of the account debit at least one bank business day in advance (so-called prenotification). A bank business day is any working day with the exception of Saturdays, national public holidays and the 24th and 31st of December each year. The account will be debited after you have received the goods.

6. Right of withdrawal
Consumers are entitled to the statutory right of cancellation as described in the cancellation policy. Entrepreneurs are not granted a voluntary right of withdrawal.

7. Retention of title
The goods remain our property until full payment has been made.
For entrepreneurs, the following shall apply in addition: We shall retain title to the goods until all claims arising from an ongoing business relationship have been settled in full. You may resell the goods subject to retention of title in the ordinary course of business; you assign to us in advance all claims arising from this resale – irrespective of any combination or mixing of the goods subject to retention of title with a new item – in the amount of the invoice amount, and we accept this assignment. You remain authorised to collect the claims, but we may also collect claims ourselves insofar as you do not meet your payment obligations. We shall release the securities to which we are entitled at your request insofar as the realisable value of the securities exceeds the value of the outstanding claims by more than 10 %.

8. Transport damages
The following applies to consumers:
If goods are delivered with obvious transport damage, please complain about such defects to the delivery company as soon as possible and contact us immediately. Failure to make a complaint or contact us has no consequences for your legal claims and their enforcement, in particular your warranty rights. However, they help us to be able to assert our own claims against the carrier or the transport insurance.

The following applies to entrepreneurs:
The risk of accidental loss and accidental deterioration shall pass to you as soon as we have delivered the item to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. Among merchants, the obligation to inspect and give notice of defects regulated in § 377 of the German Commercial Code (HGB) applies. If you fail to give notice as regulated therein, the goods shall be deemed to have been approved, unless the defect was not recognisable during the inspection. This does not apply if we have fraudulently concealed a defect.

9. Warranty and guarantees
9.1 Liability for defects
Unless expressly agreed otherwise below, the statutory law on liability for defects shall apply.
The following restrictions and shortening of time limits shall not apply to claims based on damage caused by us, our legal representatives or vicarious agents
– in the event of injury to life, limb or health
– in case of intentional or grossly negligent breach of duty as well as fraudulent intent
– in the event of a breach of essential contractual obligations, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner may regularly rely (cardinal obligations)
– within the scope of a guarantee promise, if agreed, or
– insofar as the scope of application of the Product Liability Act is opened.

Restrictions with entrepreneurs:
With respect to entrepreneurs, only our own information and the manufacturer’s product descriptions included in the contract shall be deemed to be an agreement on the quality of the goods; we shall not assume any liability for public statements made by the manufacturer or other advertising statements. For entrepreneurs, the limitation period for claims for defects in newly manufactured goods is one year from the transfer of risk.
The statutory limitation periods for the right of recourse according to § 445a BGB remain unaffected.

Regulations with merchants:
Among merchants, the obligation to examine and give notice of defects regulated in § 377 HGB (German Commercial Code) applies. If you fail to give notice as regulated therein, the goods shall be deemed to have been approved, unless the defect was not recognisable during the inspection. This does not apply if we have fraudulently concealed a defect.

9.2 Customer service
Customer service: You can reach our customer service Monday to Friday from 9:00 a.m. to 2:00 p.m. by telephone on +49 221 17067206 or by e-mail at info@tomed.com.

10. Liability
For claims based on damage caused by us, our legal representatives or vicarious agents, we shall always be liable without limitation
– in the event of injury to life, limb or health,
– in the event of intentional or grossly negligent breach of duty,
– in the case of warranty promises, insofar as agreed, or
– insofar as the scope of application of the Product Liability Act is opened.
In the event of a breach of material contractual obligations, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner may regularly rely (cardinal obligations), due to slight negligence on our part, on the part of our legal representatives or vicarious agents, the amount of liability shall be limited to the damage foreseeable at the time of conclusion of the contract, the occurrence of which must typically be expected. Otherwise, claims for damages are excluded.

11. Dispute resolution
The European Commission provides a platform for online dispute resolution (OS), which you can find here: http://ec.europa.eu/consumers/odr/.
We are not obliged or willing to participate in a dispute resolution procedure in a consumer arbitration board.

12. Final provisions
If you are an entrepreneur, German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
If you are a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from contractual relationships between you and us shall be our registered office.

Cancellation policy
Consumers have a fourteen-day right of withdrawal.
Right of withdrawal:
You have the right to cancel this contract within fourteen days without giving any reason. The revocation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, has or has taken possession of the last goods.
In order to exercise your right of withdrawal, you must inform us (Tomed GmbH, Im Rapsfeld 57, 50933 Köln (Cologne), Germany, info@tomed.com, Tel.: +49 221 17067206, Fax: +49 221 17067207) by means of a clear declaration (e.g. a letter sent by post, fax or e-mail) of your decision to withdraw from this contract. You can use the model withdrawal form (see below), which is not mandatory.
In order to comply with the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the expiry of the revocation period.
Consequences of withdrawal:
If you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the cheapest standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment. We may refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.
You must return or hand over the goods to us without delay and in any case no later than fourteen days from the day on which you notify us of the cancellation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days. You shall bear the direct costs of returning the goods. You will only have to pay for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for testing the condition, properties and functioning of the goods.
Model withdrawal form:
(If you wish to revoke the contract, please complete and return this form).
– To Tomed GmbH, Im Rapsfeld 57, 50933 Köln (Cologne), Germany, info@tomed.com, Fax: +49 221 17067207
– I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)
– Ordered on (*)/received on (*)
– Name of the consumer(s)
– Address of the consumer(s)
– Signature of consumer(s) (only in case of paper communication)
– Date(s)
(*) Delete where not applicable.
Special information:
If you finance this contract by means of a loan and revoke it later, you are also no longer bound by the loan contract, provided that both contracts form an economic unit. This is to be assumed in particular if we are your lender at the same time or if your lender makes use of our cooperation with regard to the financing. If the loan has already accrued to us when the revocation takes effect, your lender shall enter into our rights and obligations under the financed contract in relation to you with regard to the legal consequences of the revocation or return. The latter does not apply if the subject of this contract is the acquisition of financial instruments (e.g. securities, foreign exchange or derivatives).
If you want to avoid a contractual obligation as much as possible, make use of your right of revocation and also revoke the loan agreement if you are also entitled to a right of revocation for this.
Legal text created with the Trusted Shops legal text editor in cooperation with FÖHLISCH Rechtsanwälte.