A) General Provisions Applicable to All Customers
§ 1 Scope of Application
These General Terms and Conditions (“GTC”) of i3 Membrane GmbH, Christoph-Seydel-Str. 1, 01454 Radeberg (“i3 Membrane” or “we”) apply to all our business relationships with our customers (“Buyer” or “you”), irrespective of whether the contract of sale is concluded via our online shop, by e-mail, by telephone or by any other means. The GTC apply in particular to contracts for the sale and/or delivery of moveable goods (“Goods”), regardless of whether we manufacture the Goods ourselves or source them from suppliers (sections 433, 650 of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”)).
§ 2 Customer Categories; Structure of the GTC; Definitions
(1) Customer categories. The GTC apply to both consumers and entrepreneurs.
(2) Structure of the GTC. Part A) (General Provisions) applies to all customers. Part B) (Special Provisions for Consumers) applies exclusively to consumers. Part C) (Special Provisions for Entrepreneurs) applies exclusively to entrepreneurs. Unless otherwise provided in Parts B) and C) below, the provisions of the General Provisions (Part A) apply to both customer categories. In the event of conflict, the special provisions of Parts B) and C) respectively take precedence over the general provisions of Part A). Where a provision in Part A) is ineffective as against consumers, the applicable statutory rules shall apply directly to consumers, without the need for a separate provision in Part B).
(3) Definitions. A consumer is any natural person who enters into a legal transaction for a purpose that is attributable neither to their commercial activity nor to their self-employed professional activity (section 13 BGB).
An entrepreneur is any natural or legal person or any partnership with legal capacity that, when entering into a legal transaction, is acting in the exercise of their commercial or self-employed professional activity (section 14 BGB).
§ 3 Precedence of Individual Agreements
Individual agreements with the Buyer (including collateral agreements, supplements and amendments) shall at all times take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation (section 126 BGB).
§ 4 Form Requirements
Legally significant declarations and notices by the Buyer in relation to the contract (e.g. the setting of deadlines, notices of defects, withdrawal or price reduction) must be made in writing, i.e. in written form (section 126 BGB) or in text form (section 126b BGB, e.g. letter, e-mail, facsimile). Statutory formal requirements and further requirements of proof, in particular where there is doubt as to the authority of the person making the declaration, remain unaffected.
§ 5 Statutory Provisions
References to the applicability of statutory provisions are for clarification purposes only. Accordingly, even without any such clarification, statutory provisions shall apply to the extent that they are not directly modified or expressly excluded in these GTC.
§ 6 Specifications of the Goods; Conclusion of Contract
(1) Subjective requirements as to the Goods. Without prejudice to the provisions contained in these GTC, the subjective requirements as to the Goods (“Specifications”) shall be agreed between i3 Membrane and the Buyer individually for each contract. In the course of determining the Specifications, the Buyer shall disclose to i3 Membrane (a) a complete definition of the expected Goods in terms of type, quantity, quality, functionality, compatibility, interoperability and all other relevant characteristics of the Goods, as well as (b) all further information material to the use of the Goods intended by the Buyer under the relevant contract. Notwithstanding the foregoing, only those subjective requirements that the parties agree upon in the Specifications shall be binding for determining the subject matter of performance. Where and to the extent that the Goods constitute a medical device, the statutory requirements to be satisfied by i3 Membrane as manufacturer, importer and/or distributor of medical devices within the meaning of Regulation (EU) 2017/745 upon placing the Goods on the market or putting them into service shall form part of the Specifications, unless otherwise agreed in a specific case.
(2) Orders via the online shop. For orders placed via the online shop, the agreed characteristics shall be as set out in the order confirmation (Part A), Section 8 para. 4 of these GTC), unless otherwise agreed.
(3) Online shop descriptions; catalogues; data sheets. Product descriptions, images, technical data, labelling and other representations in our online shop, in catalogues, price lists, data sheets or other documents shall not constitute a binding agreement as to specifications unless they are expressly designated as binding or expressly incorporated into the contract; they are provided for information and illustrative purposes only.
(4) Quality guarantees. Statements as to characteristics, durability and other specifications shall constitute a guarantee only where they are expressly designated as such and agreed in writing.
(5) Changes in the course of technical and regulatory development. i3 Membrane reserves the right to modify products to a reasonable extent in the course of technical progress and in order to comply with statutory, regulatory or normative requirements. Where material changes are made to the agreed Specifications, any adjustment shall be made only on the basis of an express agreement with the Buyer.
(6) Samples and specimens. Samples or specimens of the Goods made available to the Buyer prior to conclusion of the contract by i3 Membrane or by third parties (e.g. distributors of i3 Membrane), including drawings, plans, calculations, costings and references to DIN or other standards, shall be binding as to the contractually compliant Specifications of the Goods in place of, or in addition to, the Specifications only where i3 Membrane expressly notifies the Buyer to that effect at or after the time of providing the sample or specimen, at least in text form (section 126b BGB); otherwise such samples or specimens constitute non-binding examples of possible Specifications only. Public statements made by i3 Membrane or its suppliers or on their behalf that go beyond the characteristics set out in the Specifications shall be corrected by a specific or contrary determination in the Specifications.
§ 7 Ordering of Goods; Conclusion of Contract (General)
(1) Order as an offer. An order for Goods placed by the Buyer shall constitute a binding contractual offer.
(2) Acceptance of the offer. i3 Membrane shall accept the offer either in writing or in text form within the meaning of section 126b of the BGB (e.g. by order confirmation) or by delivering the Goods to the Buyer, unless otherwise provided in Parts B) or C).
§ 8 Conclusion of Contract via the Online Shop
(1) Online shop presentation does not constitute a binding offer. The presentation of goods in our online shop does not constitute a binding offer to conclude a contract of sale, but an invitation to the Buyer to make an offer (i.e. to place an order).
(2) Ordering process; shopping basket; correction options. The Buyer may add goods to the shopping basket on a non-binding basis and may correct their entries at any time prior to submitting the order using the functions available in the user interface. Where the Buyer holds a customer account, they may log in to place the order. Where the Buyer wishes to place an order without a customer account, they must provide their name and contact details and select a method of delivery. Mandatory fields requiring information necessary for processing the order are marked with an asterisk (*). Before submitting a binding order, all order details may be reviewed and corrected as required.
(3) Binding offer. By clicking the button “Order with obligation to pay” (or a comparable, clearly labelled button), the Buyer submits a binding offer to conclude a contract of sale in respect of the goods contained in the shopping basket, subject to these GTC.
(4) Formation of contract. We shall confirm the order without undue delay by e-mail (“Order Confirmation”). The contract of sale between the Buyer and us in respect of the ordered Goods shall be formed upon receipt of the Order Confirmation. The Order Confirmation shall incorporate these GTC and the contract details.
(5) Storage of the GTC. The order data and these GTC shall be made available to the customer during the ordering process. The customer may access, save and print these GTC during the ordering process via the relevant link. The full text of the contract (order data including the GTC) shall be stored by us for the period prescribed by law.
§ 9 Language of Contract
The language of contract for all contracts shall be German.
§ 10 Special Provisions for Medical Devices
(1) Compliance with statutory provisions. Within their respective sphere of responsibility, the parties shall ensure compliance with the requirements of product liability law, in particular Regulation (EU) 2017/745 read in conjunction with the provisions of the German Medical Devices Implementation Act (Medizinprodukterecht-Durchführungsgesetz) and other applicable legislation in the field of medical devices law.
(2) Reporting obligations of the Buyer. The Buyer undertakes to report to us any suspected incidents within the meaning of Article 2 para. 64 of the Regulation (EU) 2017/745 to the extent that they are connected with the Goods sold by us, even where such incidents do not at the same time give rise to a warranty claim.
(3) Information obligations. The parties shall inform each other of any recalls or safety measures in respect of the Goods as soon as they become aware of them. The Buyer shall comply with requests made by i3 Membrane in relation to the destruction, return or other measures in respect of the Goods sold by i3 Membrane, to the extent that such requests are consistent with Regulation (EU) 2017/745 and other applicable laws or instructions issued by the competent authority.
§ 11 Delivery; Delivery Period; Risk; Passing of Risk
(1) Delivery. Delivery of the Goods shall be made in accordance with the individual agreement of the parties either (a) by i3 Membrane delivering the Goods to the Buyer, or (b) at the Buyer’s cost, by dispatch to the destination specified by the Buyer. The specific shipping costs shall be displayed separately to the Buyer during the ordering process prior to the submission of the order. Any costs for transport insurance requested by the Buyer, as well as any customs duties, charges, taxes and other public levies, shall be borne by the Buyer.
(2) Delivery period. The delivery period shall be agreed individually or shall be specified by us upon acceptance of the order.
(3) Passing of risk. The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer upon delivery.
§ 12 Payment Terms; Set-Off and Rights of Retention
(1) Payment period. The purchase price shall be due and payable within 14 days of invoicing and delivery of the Goods, unless a different method of payment or payment period is specified in the ordering process, the order confirmation or the invoice. In the online shop, payments may be made by credit card only. Payment shall become due immediately upon successful completion of the transaction by the credit card provider at the time the order is placed.
(2) Default in payment. Upon expiry of the above payment period, the Buyer shall be in default and we shall be entitled to charge consumers default interest at a rate of 5 percentage points above the base interest rate of the European Central Bank as applicable from time to time. Where the Buyer is an entrepreneur, we shall be entitled to charge default interest at a rate of 9 percentage points above the base interest rate of the European Central Bank as applicable from time to time, together with a flat-rate default fee of EUR 40.00. We reserve the right to claim further losses arising from default. Our entitlement to commercial maturity interest as against merchants (section 353 of the German Commercial Code (Handelsgesetzbuch, “HGB”)) remains unaffected.
§ 13 Rights in Respect of Defects
(1) Statutory rights in respect of defects. The Buyer’s rights in the event of material defects and defects of title (including incorrect delivery and short delivery) shall be governed by the applicable statutory provisions, save as otherwise provided below.
(2) Basis of liability for defects. The basis of our liability for defects shall be the agreed Specifications and, further, the objective requirements applicable to the relevant Goods.
(3) Obligations in connection with subsequent performance. The Buyer shall afford us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the Goods complained of for inspection purposes. In the event of replacement delivery, the Buyer shall return the defective Goods to us in accordance with the applicable statutory provisions. We shall bear or reimburse the costs and expenses necessary for the purpose of inspection and subsequent performance in particular transport, travel, labour and material costs in accordance with the applicable statutory provisions, where a defect is in fact established.
(4) Further rights in respect of defects. Where subsequent performance has failed, or where a reasonable period set by the Buyer for subsequent performance has expired without result, or where such a period is unnecessary under the applicable statutory provisions, the Buyer may withdraw from the contract of sale or reduce the purchase price. There shall, however, be no right of withdrawal in respect of a minor defect.
§ 14 Liability
We shall be liable without limitation for losses arising from injury to life, body or health. In all other respects, we shall be liable without limitation in cases of wilful misconduct and gross negligence. In cases of ordinary negligence, we shall be liable only for losses arising from breach of a material contractual obligation (cardinal obligation); such liability shall be limited to compensation for the foreseeable loss typically arising in such circumstances. This shall not apply to claims under the German Product Liability Act (Produkthaftungsgesetz) or in cases of fraudulently concealed defects or where a guarantee has been given. The exclusions and limitations of liability set out in Section 14 of Part A) of these GTC shall apply equally for the benefit of our corporate bodies, statutory representatives, employees and other vicarious agents.
§ 15 Copyright
We hold the copyright in all images, films and texts published in our online shop or contained in our catalogues, price lists, data sheets or other materials. Use of such images, films and texts without our express consent is not permitted.
§ 16 Data Protection
We process personal data in accordance with applicable data protection law. Further information on data protection is contained in our Privacy Notice. The Privacy Notice forms part of these GTC.
§ 17 Governing Law
These GTC and the contractual relationship between i3 Membrane and the Buyer shall be governed by the law of the Federal Republic of Germany, to the exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG), and any provisions of German law that would refer the matter to a different legal system.
§ 18 Severability
Should any individual provision of these GTC be or become invalid or unenforceable, the remaining provisions of these GTC shall remain unaffected and shall continue in full force and effect.
§ 19 Contact Information
Buyers wishing to contact us, in particular in relation to a contract concluded with us or Goods sold by us, may do so using the contact details set out below. The Buyer shall bear only those costs payable to their telecommunications provider for the mere use of the telecommunications service.
i3 Membrane GmbH
Christoph-Seydel-Str. 1
DE-01454 Radeberg, Germany
Phone: +49 40 2576748-0
Fax:+49 40 2576748-48
E-Mail: info@i3membrane.de