Terms and Conditions

BolusCare UG (limited liability)

§ 1 Scope/Form

1. These General Terms and Conditions (GTC) apply to all business relationships with customers (“Buyers”) of BolusCare UG (limited liability), Gewerbepark Grünewald 9, 58540 Meinerzhagen, Germany. The GTC apply only if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.
2. These Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), regardless of whether BolusCare manufactures the Goods itself or purchases them from suppliers (Sections 433 and 650 of the German Civil Code (BGB)). Unless otherwise agreed, the General Terms and Conditions, in the version valid at the time of the Buyer’s order or, in any event, in the version last communicated to the Buyer in writing, shall also apply as a framework agreement to similar future contracts, without BolusCare being required to refer to them again in each individual case.
3. These Terms and Conditions apply exclusively. Any deviating, conflicting or supplementary terms and conditions of the buyer shall only form part of the contract if and to the extent that BolusCare has expressly agreed to their validity. This requirement for consent applies in all cases, including, for example, where the buyer refers to their own terms and conditions in the order and BolusCare does not expressly object to this.
4. Individual agreements (e.g. framework supply contracts, quality assurance agreements) and details set out in BolusCare’s order confirmation take precedence over the General Terms and Conditions.
5. Any legally relevant declarations or notices from the buyer relating to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction of the purchase price) must be made in writing. For the purposes of these General Terms and Conditions, ‘in writing’ includes written and text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular where there are doubts as to the legitimacy of the person making the declaration, remain unaffected.
6. References to the applicability of statutory provisions are for clarification purposes only. Even in the absence of such clarification, the statutory provisions therefore apply insofar as they are not directly amended or expressly excluded in these Terms and Conditions.

§ 2 Conclusion of a contract

1. Offers are subject to change and non-binding. This also applies where the buyer has been provided with catalogues, technical documents or other product descriptions or materials – including in electronic form – to which BolusCare retains ownership and copyright.
2. The buyer’s order for the goods shall be deemed a binding offer. A contract is only concluded upon written confirmation of the order or upon delivery.

§ 3 Prices and payment

1. Unless otherwise agreed in individual cases, the current BolusCare prices applicable at the time the contract is concluded shall apply, ex warehouse, plus statutory VAT. Transport costs and any other costs, such as customs duties, fees, taxes or other public charges, shall be borne by the buyer.
2. The purchase price is payable in full within 14 days of the invoice date and delivery. However, BolusCare is entitled at any time, including in the course of ongoing business, to make a delivery, in whole or in part, only against advance payment. BolusCare shall state this reservation at the latest upon confirmation of the order.
3. Upon expiry of the above payment deadline, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory rate for late payments. BolusCare reserves the right to claim further damages arising from the default. In dealings with merchants, the right to commercial interest on overdue payments (Section 353 of the German Commercial Code (HGB)) remains unaffected.
4. The buyer shall only be entitled to set-off or retention rights to the extent that their claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer’s counterclaims shall remain unaffected, in particular in accordance with Section 7(6), second sentence, of these General Terms and Conditions.
5. If, after the conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that the buyer’s inability to pay is jeopardising the claim to the purchase price, BolusCare is entitled, in accordance with the statutory provisions, to withhold performance and – where applicable, after setting a deadline – to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of non-fungible goods (custom-made items), BolusCare may declare its withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.

§ 4 Delivery, transfer of risk, acceptance, default of acceptance

1. Delivery is ex works, which is also the place of performance for the delivery and any subsequent performance. Risk passes to the customer upon handover to the delivery service provider. At the buyer’s request and expense, the goods will be dispatched to a different destination (sale by delivery). Unless otherwise agreed, BolusCare is entitled to determine the method of dispatch (in particular the carrier, route and packaging) itself.
2. The risk of accidental loss and accidental deterioration of the goods passes to the buyer upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the buyer upon handover of the goods to the forwarding agent, the carrier or any other person or organisation designated to carry out the shipment. Where acceptance has been agreed, this shall be decisive for the passing of risk. In all other respects, the statutory provisions of the law governing contracts for work and services shall apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed to have taken place even if the buyer is in default of acceptance.
3. If the buyer is in default of acceptance, fails to cooperate, or if delivery is delayed for other reasons for which the buyer is responsible, BolusCare shall be entitled to claim compensation for the resulting loss, including additional expenses (e.g. storage costs).
   BolusCare’s right to prove higher damages and to assert statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remains unaffected; however, the lump sum shall be set off against any further monetary claims. The buyer is entitled to prove that BolusCare has incurred no damage at all or only significantly less damage than the aforementioned lump sum.

§ 5 Delivery time and delay in delivery

1. The delivery time will be agreed on a case-by-case basis or specified by BolusCare upon acceptance of the order.
2. If BolusCare is unable to meet binding delivery deadlines for reasons beyond its control (unavailability of the service), BolusCare shall inform the buyer of this without delay and, at the same time, notify them of the expected new delivery deadline. If the service remains unavailable even within the new delivery deadline, BolusCare is entitled to withdraw from the contract in whole or in part; BolusCare shall immediately refund any consideration already paid by the buyer. Unavailability of the service shall be deemed to exist, for example, in the event of late delivery by BolusCare’s suppliers, where BolusCare has entered into a corresponding covering transaction, in the event of other disruptions in the supply chain, such as due to force majeure, or where BolusCare is not obliged to procure the goods in individual cases.

§ 6 Retention of title

1. BolusCare retains title to the goods sold until all current and future claims arising from the sales contract and any ongoing business relationship (secured claims) have been paid in full.
2. Goods subject to retention of title may not be pledged to third parties or transferred as security until the secured claims have been paid in full. The buyer must notify BolusCare in writing without delay if an application is made to open insolvency proceedings or if third parties (e.g. through attachment) seek to seize goods belonging to BolusCare.
3. In the event of the buyer’s breach of contract, in particular failure to pay the purchase price when due, BolusCare is entitled, in accordance with statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not in itself constitute a declaration of withdrawal; rather, BolusCare is entitled merely to demand the return of the goods and to reserve the right to withdraw from the contract. If the buyer fails to pay the purchase price due, BolusCare may only exercise these rights if BolusCare has previously set the buyer a reasonable deadline for payment without success, or if setting such a deadline is not required under the statutory provisions.

§ 7 Product specifications and application

These products are medical devices and must only be used in accordance with the instructions for use. Their use is restricted to trained medical professionals.

§ 8 Defects/Warranty

1. Unless otherwise specified below, the statutory provisions apply to the buyer’s rights in the event of material defects and defects of title (including incorrect or incomplete deliveries and defective instructions). In all cases, the statutory provisions governing the sale of consumer goods (Sections 474 et seq. of the German Civil Code (BGB)) and the buyer’s rights arising from separately issued guarantees, in particular those provided by the manufacturer, remain unaffected.
2. The buyer is obliged to notify BolusCare of any defects without delay. Liability for defects is based primarily on the agreement reached regarding the quality and intended use of the goods (including accessories and instructions). In this context, the agreement regarding quality shall be deemed to include all product descriptions and manufacturer’s specifications that form part of the individual contract or were publicly disclosed by BolusCare (in particular in catalogues or on the website) at the time the contract was concluded. Where the quality has not been agreed, the existence of a defect shall be assessed in accordance with the statutory provisions (Section 434(3) of the German Civil Code (BGB)). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the product label, shall take precedence over statements made by other third parties.
3. BolusCare shall not be liable for defects of which the buyer was aware at the time of conclusion of the contract or of which the buyer was unaware due to gross negligence (Section 442 of the German Civil Code (BGB)). Furthermore, the buyer’s claims for defects are subject to the buyer having fulfilled their statutory obligations to inspect the goods and give notice of defects (Sections 377 and 381 of the German Commercial Code (HGB)). In the case of medical devices intended for further processing, the buyer must inspect the goods for defects immediately prior to processing in all cases. Should a defect become apparent upon delivery, during inspection or at any later point in time, BolusCare must be notified of this in writing without delay.
4. In any event, obvious defects must be reported in writing within three working days of delivery, and defects not detectable upon inspection must be reported within the same period from the date of discovery. If the buyer fails to carry out a proper inspection and/or to report defects, BolusCare’s liability for defects that have not been reported, or have not been reported in a timely or proper manner, is excluded in accordance with the statutory provisions.
5. If the goods delivered are defective, BolusCare may initially choose whether to remedy the defect by repairing it (repair) or by delivering goods free from defects (replacement). If the method of remedy chosen by BolusCare is unreasonable for the buyer in a particular case, the buyer may refuse it. BolusCare’s right to refuse subsequent performance under the statutory conditions remains unaffected.
6. BolusCare is entitled to make the provision of subsequent performance conditional upon the buyer paying the purchase price due. The buyer is, however, entitled to withhold a portion of the purchase price commensurate with the defect.
7. The buyer must give BolusCare the time and opportunity required to carry out the necessary remedial action, in particular by handing over the goods in question for inspection. In the event of a replacement delivery, the buyer must return the defective goods to BolusCare upon BolusCare’s request in accordance with the statutory provisions; however, the buyer has no right to return the goods.
8. BolusCare shall bear or reimburse the costs necessary for the purpose of inspection and rectification, in particular transport, travel, labour and material costs, in accordance with the statutory provisions and these General Terms and Conditions of Business, provided that a defect actually exists. Otherwise, BolusCare may claim reimbursement from the buyer for the costs incurred as a result of the unjustified request for rectification, if the buyer knew or should have realised that no defect actually existed.
9. If a reasonable period set by the buyer for the seller to remedy the defect has expired without result, or if such a period is not required under the law, the buyer may, in accordance with the law, withdraw from the contract of sale or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect.
10. The buyer’s claims for reimbursement of expenses pursuant to Section 445a(1) of the German Civil Code (BGB) are excluded.

§ 9 Other liability

1. Unless otherwise specified in these Terms and Conditions, including the provisions set out below, BolusCare shall only be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
2. BolusCare shall be liable for damages – regardless of the legal basis – under the principle of fault-based liability in cases of wilful misconduct and gross negligence. In cases of ordinary negligence, BolusCare shall be liable, subject to statutory limitations on liability (e.g. the standard of care required in one’s own affairs; minor breaches of duty), only
   a) for damages resulting from injury to life, limb or health,
   b) for damages arising from a breach of a fundamental contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the other party regularly relies and is entitled to rely); in such cases, however, BolusCare’s liability is limited to compensation for foreseeable, typically occurring damage.
3. BolusCare shall be liable for damages – regardless of the legal basis – under the principle of fault-based liability in cases of wilful misconduct and gross negligence. In cases of ordinary negligence, BolusCare shall be liable, subject to statutory limitations on liability (e.g. the standard of care required in one’s own affairs; minor breaches of duty), only
   a) for damages resulting from injury to life, limb or health,
   b) for damages arising from a breach of a fundamental contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the other party regularly relies and is entitled to rely); in such cases, however, BolusCare’s liability is limited to compensation for foreseeable, typically occurring damage.
4. The limitations of liability set out in paragraph 2 also apply in relation to third parties and in the event of breaches of duty by persons (including those acting on their behalf) for whose negligence BolusCare is liable under statutory provisions. They do not apply where a defect has been fraudulently concealed or a guarantee has been given as to the quality of the goods, nor do they apply to claims by the purchaser under the Product Liability Act.
5. In the event of a breach of duty that does not constitute a defect, the buyer may only withdraw from the contract or terminate it if we are responsible for the breach. Any discretionary right of termination on the part of the buyer (in particular pursuant to Sections 650 and 648 of the German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 10 Returns

There is no right of withdrawal. Opened products cannot be returned.

§ 11 Data protection

The processing of personal data is carried out in accordance with the GDPR.

§ 12 Governing law/jurisdiction

1. These Terms and Conditions and the contractual relationship between BolusCare and the purchaser are governed by the laws of the Federal Republic of Germany, to the exclusion of any international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
2. If the buyer is a trader within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of BolusCare. The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, BolusCare is also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement, or at the buyer’s general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.

§ 13 Final provisions

Should any provision of these Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions.