§ 1 – Binding Effect of the Terms and Conditions
1.1 Our
Terms and Conditions shall be part of all offers and contracts for the
supply of our goods and services in ongoing and future business
relationships.
1.2 Clauses deviating from our Terms and Conditions as
well as potential general conditions of purchase of our Customer shall
be binding only if and to the extent that these have been expressly confirmed by us in writing.
§ 2 – Offers
2.1
Our offers shall be non-binding unless they are expressly marked as
binding. Oral or written orders shall be deemed to be accepted by us
upon the issuance of our written order confirmation or upon our delivery within an appropriate period.
2.2
Statements in advertisements, catalogues and other types of marketing
materials as well as appendices to our offers, such as photos, drawings,
statements of weight or dimension, description of performance or
qualities, as well as other information regarding our products and
services shall be understood to be approximate, unless we have declared
them specifically in our offer to be agreed-upon qualities of or
products and services. The descriptions in our offers of the contract
products and/or services shall not constitute a guarantied quality
unless they have been expressly identified as a contractual guaranty.
2.3
We shall remain the owner of preliminary estimates of cost, drawings
and other documents, and our copyright is expressly reserved. They must
not be made accessible to third parties.
§ 3 – Scope and Specification of Supplies
3.1
The scope of our supplies shall be determined in accordance with our
written order confirmation, in the event of a binding offer with timely
acceptance of said offer. Additional clauses and modifications shall be valid only upon our written confirmation.
3.2
The Customer shall warrant and be liable for the accuracy of the
factual information and drawings which it may provide, as well as for
the right to use these. We shall be under no obligation to examine or verify these.
§ 4 – Prices
4.1
Unless expressly agreed otherwise (e.g. within the context of a
framework distributorship agreement), price lists and other general
statements of prices shall be non-binding.
4.2 Unless expressly
agreed otherwise, all prices shall be understood to be ex works (EXW) as
defined in INCOTERMS 2000. Such prices shall hence be net of value
added tax, other indirect taxes, customs duties and other charges,
which shall be added and borne by the Customer, who shall likewise be
responsible for the cost and organization of transport.
§ 5 – Terms and Conditions of Payment
5.1
Unless expressly agreed otherwise (e.g. within the context of a
framework distributorship agreement), all invoices shall be due and
payable with their full amount within 30 days from the date of the
invoice. The deduction of discounts, rebates and the like shall be
permissible only in the event of an express written agreement to this
effect.
5.2 When exceeding the payment term, the Customer shall be
deemed in default. If and when the Customer defaults on any payment
and/or cessation of payments, all pending claims, whether or not due,
shall become payable immediately without any deductions. This shall
apply even if we have granted an extension in prior cases. We shall have
the right to claim from the due date default interest at 8 (eight)
percentage points per year above the base rate of the European Central
Bank.
5.3
Our Customer shall not have the right to withhold payments or to
set-off payment with counter-claims unless and to the extent that such
counter-claims are not contested by us or have been upheld by a final and binding judgment not subject to any appeals.
§ 6 – Time of Delivery
6.1
Periods of time and dates shall be binding only if we have expressly
confirmed them as binding. They shall commence only upon receipt by us
of all information and/or services to be supplied by the Customer.
6.2
In consequence of the ex works (EXW, Incoterms 2000) clause, the period
is deemed to have been respected if we have advised the Customer of the
contract products’ readiness for shipment or collection within the
agreed performance or delivery period. If the delivery is delayed for
reasons for which the Customer is responsible, the period/date shall be
deemed kept if we have advised the Customer of the goods’ readiness for shipment within that period/before that date.
6.3
If non-compliance with the time of delivery is due to events of force
majeure such as e.g. mobilisation, war, riot, industrial action (strike,
lockout) or the occurrence of unforeseen events, which are beyond our
reasonable control, the time and date of delivery shall be adequately
extended.
6.4
If the time and date has been exceeded due to our fault, the Customer
shall have the right to compensation of proven damage up to the maximum
amount of 25% of the EXW purchase price of the individual delivery or
service concerned. This shall not affect the Customer’s right to
rescind the agreement. Other damage claims and/or rights of the Customer
shall be excluded in all cases of delay, even upon expiry of any
extension granted to us by the Customer.
§ 7 – Passage of Risk and Acceptance
7.1
In accordance with the ex works (EXW, Incoterms 2000) clause, risk
shall pass to Customer at the latest upon the tender of the goods to be
delivered to the transporting company; this shall also apply if
partial deliveries are conducted or if we have assumed additional
cost-items such as cost of shipment or delivery.
7.2 If a delivery is
delayed due to circumstances for which Customer is responsible, risk
shall pass to Customer from the day of readiness for shipment; we shall
however upon the request and at the cost of Customer underwrite the insurance demanded by Customer.
7.3 Delivered goods must be accepted by Customer even in case of minor defects, notwithstanding the rights under § 8.1.
7.4 Partial deliveries shall be permissible.
§ 8 – Warranty, liability for defects
Subject
to the limitations of § 10.1, we shall be liable for material and legal
defects only according to the following provisions:
8.1 All those
goods and/or services shall at our discretion and at no cost be
repaired, newly delivered or newly performed which, within 12 months
from the date of passage of risk and due to circumstances prior to
passage of risk – which shall be proven by competent evidence – are
unfit for use or substantially impaired in their usability, in
particular owing to defective construction, bad materials or
inadequate performance. Customer shall advise us without delay in
writing of any defects which Customer becomes aware of.
8.2 To the
extent that for a specific product item supplied hereunder a maximum
number of uses has been agreed (e.g. surgical procedure followed by
reprocessing, sterilization and the like) and that number has been
reached prior to the end of the period stipulated in §§ 8.1, 8.4 hereof,
the liability for breach of warranty shall end on the date when the
agreed maximum number of uses has been reached.
8.3 Customer shall
allow the necessary time and opportunity required at our reasonable
discretion to remedy any defects. If this is refused to us we shall be
exempt from liability.
8.4 The statute of limitations for claims arising from defects shall be 12 months from the date of passage of risk.
8.5
The warranty period shall run anew for replaced or repaired parts and
shall last 6 (six) months from the date of replacement, completion of
repair and/or from acceptance.
8.6 No warranty shall be provided for
unsuitable and/or improper use, defective and/or improper installation
and/or dismantling and/or commissioning by Customer and/or third
parties, natural wear and tear due to ageing or waste, defective or
negligent treatment, in particular due to the omission of the required
regular maintenance, defective preliminary work of all kinds,
chemical, electrochemical and/or electric influences. However, this
warranty shall apply if any of the foregoing is due to our fault.
8.7
For claims of Customer due to inaccurate advice and the like, or due to
violation of any accessory obligations, we shall be liable only in case
of intent or gross negligence.
8.8 CUSTOMER SHALL HAVE NO RIGHTS AND
CLAIMS EXCEPT FOR THOSE EXPLICITLY MENTIONED IN §§ 8.1 TO 8.7 HEREOF
AND SUBJECT TO THE LIMITATION IN § 10.1 HEREOF FOR DEFECTS IN MATERIALS,
CONSTRUCTION OR PERFORMANCE AS WELL AS FOR THE ABSENCE OF GUARANTIED
QUALITIES.
§ 9 – Failure to perform, defective performance and their consequences
9.1
In all cases of defective performance or failure to perform at all not
explicitly addressed in these Standard Terms, in particular if we start
the performance of deliveries and/or services without reason so late
that a punctual completion can no longer be anticipated and/or an
execution in breach of contract attributable to our fault must be
anticipated with certainty, and/or if deliveries and/or services have
been performed by us in breach of contract, Customer shall have the
right with regard to the goods and/or services concerned to grant us a
reasonable extension combined with a warning to rescind the agreement
in the event that the defects are not cured within the extension period.
In case this extension expires without the defect having been cured
due to our fault, Customer shall have the right as regards deliveries
and services executed in breach of contract, or whose execution in
breach of contract must be anticipated with certainty, to rescind the
agreement and to claim the restitution of payments already made which
are attributable to this.
9.2 In this event the provisions of § 10.2
shall apply as regards a potential claim for damages by Customer to the
exclusion of additional liability. The claim for damages shall be
limited to 25% of the ex works purchase price of the deliveries and/or services for which the rescision is made.
§ 10 – Exclusion of additional liabilities
10.1
All claims by Customer shall be excluded except for those explicitly
mentioned in these Standard Terms, regardless of their legal basis, in
particular any claims for damages, reduction of the purchase
price/service fee or rescission of the agreement. There shall in no
event be any claims by Customer for compensation of damages which have
not arisen in the delivered item itself, such as loss or production,
losses of usage, loss of orders, lost profits as well as other direct or
indirect damages. These limitations shall not apply in case of intent
or gross negligence of those persons whom we use to discharge our
obligations.
10.2
In the event of delay a lump sum penalty of 0.5% of the ex works
invoiced price shall be due per full week of delay unless we prove that
Customer has suffered no damage at all or lesser damages. No penalty shall be due for the first three full weeks of delay.
§ 11 – Title reserve
11.1 We shall retain title to the goods delivered until the purchase price has been paid in full.
§ 12 – Final Provisions
12.1
The contractual relationship between ourselves and the customer shall
be subject to Swiss law. The United Nations Convention on the
International Sale of Goods (CISG) and choice of law rules shall not apply.
12.2
In the event that one or several of the provisions contained herein are
invalid, this shall not affect the validity of the remaining
provisions.
12.3 Place of execution for all supplies of goods (even
in the event when we bear all cost of transport, insurance and the like)
shall be our place of business at Alzenau, Germany.
12.4 Place of
jurisdiction shall be the court of our statutory seat at Alzenau,
Germany. We shall however have the right to take legal action at the
statutory seat of the Customer.