§ 1. General
These general terms and conditions apply to all business relationships between Baldus Medizintechnik GmbH and Baldus Sedation GmbH & Co. KG (hereinafter referred to as Baldus) and the customer in the version valid at the time the contract was concluded. Conflicting general terms and conditions of the customer are hereby expressly contradicted.
b) Contract Agreement
The contract language is German. The display option in other languages only serves as an aid. Customers within the meaning of these terms and conditions are exclusively entrepreneurs within the meaning of § 14 BGB. There are no cancellation rights because the customers are not consumers.
c) Conclusion of contract
aa) Shop order
The presentation of the range in the Baldus online shop is initially subject to change and non-binding. The ordering process then consists of a total of four steps. In the first step, the customer selects the desired goods or services. In the second step, he enters his data including the billing address and, if applicable, a different delivery address, if he has not already stored this in his account. In the third step, he then selects the desired payment method. In the fourth step, he has the opportunity to check all the information (e.g. name, address, method of payment, ordered items or services) again and to correct any input errors before he confirms his order by clicking on the "Order with obligation to pay" button. With the order, he declares his contractual offer in a binding manner. Baldus will immediately confirm receipt of the order to the customer. The confirmation of receipt does not constitute a binding acceptance of the order. Baldus is entitled to accept the contract offer contained in the order within two days of receipt of the order by email, fax, telephone, post or by notification of the dispatch of the goods or notification of the bindingly accept the provision of the service. The contract only comes into existence upon acceptance.
The contract text is saved by Baldus and sent to the customer in text form (e.g. e-mail, fax or post) together with these General Terms and Conditions and customer information after the order has been sent. However, the text of the contract can no longer be accessed by the customer via the website after the order has been sent. The customer can use the print function of the browser to print out the relevant website with the text of the contract.
bb) Individual conclusion of contract (e.g. by e-mail)
Alternatively, the conclusion of the contract takes place individually through offer and acceptance. Unless otherwise agreed, the usual procedure is that the customer sends an inquiry to Baldus and then receives a binding offer from Baldus, which he can then accept within the period specified in the offer. The contract comes into existence upon acceptance. A separate storage of the contract text by Baldus does not take place, but the content of the contract results individually from the agreement made.
d) Registration on the website
In order to use the full scope of the Baldus website, it is first possible to create an account. The data required for Baldus to provide the service will be requested. The entries are confirmed by clicking on the "Create new customer account" button. The customer then receives a confirmation email with the information required for logging in. Registration is not complete until the customer has logged on to the Baldus website for the first time with this information.
The password that gives the customer access to the personal area must be treated as strictly confidential and may under no circumstances be passed on to third parties. The customer takes suitable and appropriate measures to prevent third parties from gaining knowledge of his password. An account cannot be transferred to other users/customers or other third parties. Baldus is not liable for damage caused by misuse of the password.
e) Subsequent changes to the terms and conditions
Baldus is entitled to subsequently adapt and supplement the General Terms and Conditions in relation to existing business relationships, insofar as changes in legislation or case law require it or other circumstances lead to the contractual equivalence relationship being disturbed in a more than insignificant manner. A subsequent change to the terms and conditions becomes effective if the customer does not object within six weeks of notification of the change. At the beginning of the period, Baldus will expressly point out to the customer that his silence will have the effect of acceptance of the contract change and give the customer the opportunity to submit an express declaration during the period. If the customer objects within the deadline, both Baldus and the customer can terminate the contractual relationship extraordinarily
§ 2 Performance and Delivery
Baldus offers its customers a wide range of services and goods in the field of nitrous oxide sedation. In addition to purchasing the products, the customer can also take part in Baldus training courses, advanced training courses and e-learning units. In addition, Baldus also offers other services and maintenance to selected companies. The customer can find the exact range of services on the website or in the relevant Baldus offer.
Baldus is entitled to have the contract or parts of the contract performed by third parties.
In particular, the customer has no right to a specific teacher as part of the training, further education, training and e-learning units, unless this has been expressly agreed.
c) partial deliveries
Baldus is also entitled to make partial deliveries if this is reasonable for the customer. In the case of partial deliveries, however, the customer does not incur any additional shipping costs.
d) Delivery and service delaysn
Delays in delivery and performance due to force majeure and due to extraordinary and unforeseeable events, which Baldus cannot prevent even with the utmost care and for which Baldus is not responsible (this includes in particular strikes, official or court orders, e.g. in the case of pandemics and cases of incorrect or improper self-delivery despite corresponding hedging transaction), entitle Baldus to postpone the delivery for the duration of the impeding event.
e) exclusion of delivery
Post office box addresses are not supplied.
f) delay of acceptance
If the customer defaults on accepting the ordered goods, Baldus is entitled to withdraw from the contract after setting a reasonable grace period and to claim damages for default or non-performance. During the delay in acceptance, the customer bears the risk of accidental loss or accidental deterioration.
G) performance time
The dates for training courses, advanced training, education and e-learning units are agreed individually with the customer or can be found in the Baldus offers.
For goods orders, the customer will find the delivery times for the respective product or also for the offer.
Unless otherwise expressly agreed, Baldus will perform the service/delivery within six weeks. The start of the period for the service/delivery is the day after the payment order has been issued to the transferring bank in the case of advance payment or the day after the conclusion of the contract in the case of payment by purchase on account. The period ends six weeks later at the end of the weekday that corresponds to the weekday on which the period began. If the last day of the period falls on a Saturday, Sunday or a public holiday recognized by the state at the place of delivery, the period ends on the next working day.
H) implementation and instruction
Part of Baldus' range of services is the implementation of instruction in the operation of medical devices according to MPG for the fee shown in the respective offer. The instruction is carried out after an appointment has been made between Baldus and the customer, with the proviso that the instruction should always take place on the day of delivery and assembly of the medical device. Due to unforeseeable events (e.g. illness, accident, traffic disruption, etc.), Baldus or the customer may have to cancel the appointment. Both Baldus and the customer are obliged to contact the other party immediately after occurrence of such a reason for being prevented from attending and to cancel the appointment. A cancellation on the part of Baldus does not entitle the customer to withdraw from the contractual relationship or to claim damages. In the event of a cancellation, Baldus and the customer will agree on an alternative date that is as close as possible.
§ 3 payment
a) prices and shipping costs
All prices are exclusive of sales tax and plus the costs for packaging and shipping, unless collection by the customer at Baldus' place of business has been agreed. The minimum order value is € 25.00 net plus the costs for packaging and shipping.
Accommodation, travel and subsistence costs etc. for training, further education and training, unless otherwise agreed, are to be borne or booked by the customer himself and are not part of the Baldus offer.
b) ride costs
In the case of delivery by Baldus, EUR 0.75 net per kilometer driven and a flat rate of EUR 61.00 net for the travel time plus EUR 61.00 net per hour for the travel time in excess of one hour will be charged.
c) assembly costs
For assembly or work on site, Baldus will charge €59.00 for a fitter and €75.00 for a technician net per hour. If the customer requests telephone support from Baldus technicians outside of the warranty rights, Baldus will charge €1.99 net per minute or part thereof. Billing is on an invoice basis.
d) storage costs
If the customer is in default of acceptance or culpably violates other obligations to cooperate, Baldus is entitled to demand compensation for the damage incurred, including any additional expenses. If the customer defaults in acceptance, Baldus will store the goods at the customer's risk and expense. For storage, Baldus will charge the customer a fee of 20 % of the value of the goods, regardless of the storage period. The customer has the right to prove that Baldus suffered no damage or less damage.
e) late payment
The customer is in arrears with the payment if the payment is not received by Baldus within one week of receipt of the invoice. In the event of late payment, interest will be charged at 9% points above the base rate of the European Central Bank. If the customer is in arrears with his payments, Baldus reserves the right to charge reminder fees of 5 euros. The right to assert claims for damages that go beyond this, in particular the lump sum for delay in accordance with Section 288 Paragraph 5 Clause 1 of the German Civil Code, remains unaffected. After consultation with Baldus, the payment period can be extended to 8, 14 or 30 days.
f) right of retention
The customer is only entitled to assert a right of retention for counterclaims that are due and are based on the same legal relationship as the customer's obligation.
§ 4 Responsibility of the customer
The customer is solely responsible for the content and correctness of the data and information transmitted by the customer. He also undertakes not to transmit any data whose content infringes the rights of third parties or violates existing laws. By transferring data to Baldus, the customer confirms that he has complied with the copyright regulations.
The customer indemnifies Baldus against all claims asserted against Baldus by third parties due to such violations. This also includes reimbursement of the costs of necessary legal representation.
c) data backup
The customer is jointly responsible for securing the information sent. Baldus cannot be held responsible for the loss of information sent by the customer, since Baldus does not assume any general data backup guarantee.
d) Training, advanced training, education or e-learning
aa) No Show / Illness / Cancellation
If the customer is unable to take part in a unit due to illness or failure to attend, Baldus' entitlement to remuneration shall nevertheless remain. Deviating arrangements may be made in consultation with Baldus, but there is no entitlement to this. If a module or an individual service is canceled (e.g. because you do not like it), there is no right to a refund of the payment already made. This does not affect the customer's right of termination.
b) Duty to cooperate
The customer is obliged to provide the cooperation services necessary for the contract so that Baldus can carry out the contractual service. In particular in the context of self-employment, the customer must ensure that the content conveyed is also internalized in order to achieve the desired learning success. Baldus merely makes its content available to the customer, but does not owe any specific, eg economic success. The customer must be on site at the agreed times for the units or, in the case of online units, log in in good time.
c) health status
The customer is obliged to inform Baldus of any existing physical ailments and health disorders or limitations (this also includes mental illnesses such as depression, anxiety, etc.) that could impair the ability to participate in Baldus' services, even if he considers this to be minor.
Participation under alcohol, drugs or (impairing) medication is not permitted and can lead to exclusion. Fees already paid cannot be refunded in this case.
dd) course room
If Baldus uses its course room, the customer must handle this and the equipment provided with care. In the event of damage, the customer must compensate Baldus for the damage incurred.
Recording or recording during training, further education, training or e-learning units is not permitted and can lead to exclusion from them. Baldus reserves the right to exclude customers who endanger the well-being of other people and Baldus (e.g. through aggressive behavior). Fees already paid cannot be refunded in the named cases.
f) Special hint
An economic success resulting from the execution of the contract, for example, is not owed. Baldus merely makes its products or services available to the customer. Handling and implementation are the sole responsibility of the customer.
gg) Legal advice and audit
Legal advice or examination is not part of the service provided by Baldus. The customer must hire a specialist for this.
e) service and maintenance
As part of the service and maintenance offered by Baldus, the customer must make the products to be serviced available to Baldus at the agreed time without being asked and, if work is carried out on the customer's site, grant access to the property or the respective premises. The customer must also ensure that, if work is carried out on his premises, there is a sufficient power supply at the place of performance. Baldus is not responsible for delays that are due to a lack of cooperation on the part of the customer.
§ 5 License conditions for training courses, advanced training, education or e-learning units
The content and structure of the training courses, advanced training, education or e-learning units organized by Baldus and the related documents, including all authorized copies, are intellectual property of Baldus.
Upon payment of the participation fee, Baldus transfers to the customer all the rights to use the documents required for the customer to the extent agreed in the contract and required for the respective training, advanced training, education or e-learning unit. In case of doubt, Baldus fulfills this obligation by granting non-exclusive rights of use in the territory of the Federal Republic of Germany for the duration of the service. The granting of the license expires at the end of the contract. With regard to the copies provided to the customer for their own use, however, the right of use continues beyond the end of the contract.
c) License Terms
Any use beyond this requires the approval of Baldus. In particular, the materials may not be passed on to third parties (sublicensing or distribution), nor may they be copied, duplicated or stored on data carriers or other media. It is also forbidden to use the content, texts and exercises for one's own purposes in training, education, advanced training, seminars, e-learning units, courses, workshops, coaching or otherwise towards third parties without express written permission.
d) right of reference
Baldus grants itself the right to refer to the services offered by Baldus. Unless otherwise agreed, Baldus also reserves the right to take photos in the courses and to list these as references in brochures, prospectuses and the Baldus website if the customer cannot be identified on the photos. The customer has the right to object to this.
Baldus reserves the right to claim the damage incurred for any violation of the contractual license conditions, in particular in the case of copyright infringement.
§ 6 Retention of title in sales contracts
The delivered goods remain the property of Baldus until the purchase price has been paid in full. The customer must treat the goods that are subject to simple retention of title with care at all times. The customer assigns a claim or replacement that he receives for the damage, destruction or loss of the delivered goods to Baldus. If the customer acts in breach of contract, in particular in the event of default in payment, Baldus is entitled to take back the purchased item. This withdrawal of the purchased item constitutes a withdrawal from the contract.
b) Seizure and other impairments
If the item subject to retention of title is seized or otherwise impaired by third parties, the customer must notify Baldus immediately so that a lawsuit can be filed in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the customer is liable for the loss incurred by Baldus.
If the customer acts in breach of contract, in particular in the event of default in payment, but also in the case of filing for insolvency proceedings against the customer's assets, Baldus is entitled to take back the item. In this case, taking back the item does not constitute a withdrawal from the contract, unless Baldus expressly declares this in writing.
d) Extended retention of title regarding resale
The customer is entitled to sell the reserved goods in the course of business. As security for the purchase price, he assigns to Baldus his future purchase price claim against the third party arising from the resale of the item at the time of the conclusion of the contract in the amount of the final amount including VAT.
e) Extended retention of title regarding further processing
Any treatment, processing or transformation of the purchased item by the customer is always done in the name of and on behalf of Baldus. In this case, the customer's entitlement to the purchased item continues with the remodeled item. If the purchased item is processed with other items not belonging to Baldus, Baldus acquires joint ownership of the new item in the ratio of the objective value of the purchased item to Baldus to the other processed items at the time of processing. The same applies in the event of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer proportional co-ownership to Baldus and keep the resulting sole or co-ownership for Baldus. To secure the claims against the customer, the customer also assigns those claims to Baldus that the customer accrues against a third party through the connection of the reserved goods with a property; Baldus already accepts this assignment.
f) Release of Collateral
If the value of the collateral exceeds the value of the secured claims by more than 15 %, Baldus is obliged to release collateral at the customer's request.
§ 7 Warranties in the purchase contract
Statutory warranty rights exist. A warranty claim can only arise with regard to the properties of the goods, reasonable deviations in the aesthetic properties of the goods are not subject to the warranty claim. In particular with regard to the descriptions, representations and information in offers, brochures, catalogues, on the website and other documents, there may be technical and creative deviations (e.g. colour, weight, dimensions, design, scale, positioning, etc.), insofar as these changes are reasonable for the customer. Such reasonable reasons for changes can result from customary fluctuations and technical production processes. Insofar as guarantees are given in addition to the warranty claims, the customer will find their exact conditions with the product. Possible guarantees do not affect the warranty rights. The customer is obliged to make the defective goods available to Baldus for the purpose of supplementary performance.
b) warranty claimH
In the event of a defect, Baldus will choose to provide supplementary performance in the form of remedying the defect or delivering a new product. The risk of accidental loss or deterioration of the item is already transferred to the customer when it is handed over to the person responsible for transport. The customer must report obvious defects immediately and non-obvious defects immediately after discovery in text form; Otherwise the assertion of warranty claims is excluded. Deadline is sufficient for the timely dispatch. The customer bears the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time the defect was discovered and for the timeliness of the notice of defects.
c) Rights in Case of Minor Defects
If there is only an insignificant defect, the customer is only entitled to a reasonable reduction in the purchase price, excluding the right of withdrawal.
d) compensation for defects
No guarantee is given for damage caused by improper handling or use. We expressly refer to the following disclaimer.
e) statute of limitations
The warranty is excluded for used goods and 1 year for new goods. Excluded from this is the right of recourse according to § 478 BGB. The shortening of the limitation period expressly does not exclude liability for damage resulting from injury to life, limb or health or in the case of intent or gross negligence. The provisions of the Product Liability Act also remain unaffected.
§ 8 Warranty for work contracts
a) warranty claim
Statutory warranty rights exist. If the work is defective and the customer requests supplementary performance, Baldus can either remedy the defect or produce a new work at its own discretion. If defects are not remedied even after at least two attempts at rectification, the customer is entitled to withdrawal or a reduction in price.
b) Rights in Case of Minor Defects
If there is only an insignificant defect, the customer only has the right to an appropriate reduction in the agreed wages, excluding the right of withdrawal.
c) compensation for defects
No guarantee is given for damage caused by improper handling or use. We expressly refer to the following disclaimer.
d) transfer of risk
Within the scope of warranty processing, the risk of accidental loss or deterioration of the work only passes to the customer upon acceptance of the work.
e) Obligation to give notice of defects
In corresponding application of § 377 HGB, the customer must report obvious defects immediately and non-obvious defects immediately after discovery in text form; Otherwise the assertion of warranty claims is excluded. Deadline is sufficient for the timely dispatch. The customer bears the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time the defect was discovered and for the timeliness of the notice of defects.
f) statute of limitations
Warranty claims become statute-barred within one year after the transfer of risk, unless it concerns the construction of a building or a work, the success of which is the provision of planning or monitoring services for this. In these cases, the limitation period is five years. The shortening of the limitation period expressly does not exclude liability for damage resulting from injury to life, limb or health or in the case of intent or gross negligence. The provisions of the Product Liability Act also remain unaffected.
§ 9 Warranty right in the service contract
The statutory warranty rights exist.
§ 10 Usability of the online services (e.g. e-learning)
a) Further development of the service / availabilityt
Baldus endeavors to adapt its services to current technical developments. Baldus therefore reserves the right to make changes to the agreed services, provided such changes do not affect the core services and are reasonable for the contractual partner, taking into account the interests of the contractual partner. Baldus is also entitled to partially or completely interrupt website operation for the purpose of updating and maintenance within a reasonable framework. In this respect, Baldus does not guarantee the availability of the services offered at all times and does not guarantee that the services offered or parts thereof will be made available and can be used from any location. This does not affect the statutory warranty rights.
b) Technical requirements
The use of the website requires corresponding compatible devices. It is the customer's responsibility to put or maintain the device in a condition that enables the use of the website services (e.g. functioning Internet access).
§ 11 Term/Termination (e.g. for maintenance contracts)
The contracts with minimum contract terms can each be terminated in text form with a notice period of three months to the end of the respective term, without giving reasons. If the contract is not terminated in good time, the contract is automatically extended by the respective initial term, but by a maximum of one year. This does not affect the right to extraordinary termination for important reasons. An important reason exists in particular if
• the customer provided incorrect or incomplete information upon conclusion of the contract,
• the customer has repeatedly breached other contractual obligations and has not ceased to breach obligations even after being requested to do so by Baldus.
Section 12 Liability
Baldus and its legal representatives and vicarious agents are only liable for intent and gross negligence and, insofar as essential contractual obligations (and consequently those obligations whose compliance is of particular importance for the achievement of the purpose of the contract) are affected, also for slight negligence. The liability for gross and slight negligence is limited to the foreseeable, contract-typical damage.
b) reservation of liability
The above exclusion of liability does not apply to liability for damage resulting from injury to life, limb or health. The provisions of the Product Liability Act remain unaffected by the disclaimer.
c) Disclaimer for units (training, education, advanced training, e-learning)
The customer is responsible for ensuring that he meets the health requirements (including mental health) before and during the sessions. Baldus only provides his service in the form of conducting the units. However, Baldus is unable to continuously monitor the customer at the respective unit and to correct any erroneous execution behavior. Baldus therefore assumes no liability for damage that can be attributed to improper execution by the customer.
The customer is responsible for ensuring that his belongings are secured against theft or properly stowed away if units are held on site. Baldus may only make its premises available, but assumes no liability for theft.
e) application and implementation
Baldus is also not liable for the improper application and/or implementation of the recommendations contained within the scope of its services or in the documents provided, unless Baldus is responsible for this. The customer must find out for himself in advance whether Baldus' suggestions for action are suitable for him or whether they entail further risks. Baldus merely makes its services or learning content available. Handling and implementation is the sole responsibility of the customer. The remaining liability clauses are not affected by this.
§ 13 Final Provisions
a) place of jurisdiction
The registered office of Baldus is agreed as the exclusive place of jurisdiction for all legal disputes arising from this contract, provided that the customer is a merchant, a legal entity under public law or a special fund under public law.
b) choice of law
Insofar as there are no mandatory legal provisions according to the customer's home law, German law shall apply to the exclusion of the UN Sales Convention.
c) Severability Clause
The ineffectiveness of individual provisions does not affect the validity of the remaining general terms and conditions.