Pina - GTCT

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY of PINA Medizintechnik Vertriebs AG - Langrietstrasse 17 A - CH-8212 Neuhausen 2/SH

PREAMBLE

Our deliveries and services shall exclusively be on the basis of the following terms and conditions, even if we do not make specific reference to them in individual cases. Their validity can only be partly or totally excluded by express writing agreement for an individual transaction. General business terms and conditions, in particular purchasing terms of Orderer, shall not apply for our deliveries and services. They shall also not obligate us if we fail to contradict them in individual cases, we hereby contradict them. Our general terms and conditions of sale and delivery shall be deemed accepted with receipt of the goods or the service at the latest.

SCOPE OF THE OBLIGATION TO DELIVERY
1. Our quotations shall be subject to change without notice, even if they are given upon inquiry by Orderer. A legally binding legal relationship with Orderer shall only exist as a matter of principle if we have confirmed the order in writing, which can also be done by telefax or written by computer and not bearing a signature; the same shall apply for amendments or supplements to the contract. Our written order confirmation shall be decisive for the scope, nature and time of the delivery.
2. We reserve the right to alterations in construction. Our catalogues are permanently reviewed. Illustrations and diagrams contained therein shall be non-binding and shall not have the character of assurances.
3. Call orders shall be called and accepted in good time and in agreed part amounts. For call orders without an agreement of a term, production batch size and acceptance dates, we can demand a binding stipulation thereof no later than 3 months after order confirmation. If Orderer fails to comply with this request within 3 weeks, we shall be entitled to set a subsequent period of two weeks and to withdraw from the contract or reject delivery and demand damages following its fruitless expiry.
PRICE
1. The prices shall be in EURO as a matter of principle to the extent that no other currencies have been agreed. The statutory Value Added Tax shall be charged at the amount applicable at the time.
2. The prices shall apply ex warehouse including packaging.
3. Surcharges and subsequent calculations on the agreed payment shall be admissible if circumstances such as material costs or wage increases, increases in public charges etc. force us to do so and the delivery or service is to be later than 4 months after conclusion of the contract. In the event of other price increases, Orderer shall have a right of withdrawal for the event of the list price increasing considerably more strongly than the general costs of living. Delivery from subsequent orders made after the time of an alteration in price shall be charged at new prices without a right of withdrawal accruing to Orderer.
DELIVERY
1. The delivery period shall commence with the dispatch of the order confirmation, albeit not before clarification of all the details of the implementation of the order and also not before receipt of any agreed down-payment. The delivery period shall be deemed complied with if the object of delivery is dispatched or collected before the expiry of the period or readiness for dispatch has been notified in the event of dispatch not being done through no fault of our own.
2. Force majeure and other incidents not caused by us and making unproblematic handling of the order questionable, in particular delays in delivery on the part of our suppliers, disturbances in transport and operation, industrial disputes, lacks of workshops or energy, shall entitle us to withdraw from the contract partly or totally or to postpone delivery, without claims to damages accruing to Orderer therefrom. Orderer can demand a declaration from us whether we wish to withdraw from the contract or whether we wish to perform the contract within a suitable period. If we fail to make a declaration, Orderer can withdraw from the contract. The aforementioned incidents or circumstances shall also not be answered for by us if they occur during default in delivery which has already started.
3. In the event of a default in delivery through our fault, we shall be granted a suitable subsequent period. After expiry of this period, Orderer can withdraw from the contract to the extent that the goods have not been reported ready for dispatch or delivered by the expiry of the period.
4. If Orderer suffers damages as a result of our default, it shall be entitled to demand reimbursement. For each complete week of delay, it shall amount to 0.5%, albeit no more than 5% all told of the value of the part of the overall delivery which cannot be utilised in good time or contractually as a result of the delay. Claims to damages on account of non-performance shall only accrue to Orderer if the cause of the damages is based on malice aforethought or gross negligence on our part. This shall not apply to the extent that a fixed transaction has been agreed.
5. Delivery obligations and delivery periods shall be suspended as long as Orderer is in default with acceptance or other obligations without our rights from Orderer's defaults being affected thereby or if Orderer has exceeded the credit limit granted by us. In such a case, risk of chance destruction or chance deterioration shall pass to Orderer at the time at which it gets into arrears.
6. The originally agreed delivery period shall be cancelled if there is an alteration to the order.
7. Suitable part deliveries shall be admissible insofar as they can be reasonably expected of Orderer, taking its interests into due consideration.
8. Weight and number of the commodities delivered as determined by us shall be decisive for the calculation.
DISPATCH
1. As a matter of principle, dispatch shall be at Orderer's expense and risk from a place to be stipulated by us.
2. Packaging, form of dispatch and dispatch route shall be selected by us at our free discretion if we have no specific wishes from Orderer. Additional costs for Orderer's specific wishes shall be charged to it. We shall not assume any obligation for the cheapest dispatch.
3. If dispatch or service is delayed upon Orderer's request, we shall be entitled to set a suitable acceptance period for Orderer and to demand acceptance without delay and reimbursement of our default damage after its fruitless expiry.
PAYMENT TERMS
1. The terms and conditions stated in our order confirmation shall apply for payment. Payment for deliveries abroad shall be by irrevocable confirmed letter of credit as a matter of principle.
2. Cheques shall only be accepted with the customary reservation, bills only by specific agreement. Discount costs shall be charged to Orderer. They shall be paid to us upon negotiation of the bill. The day on which we can dispose of the amount shall be deemed date of performance for payments of any kind.
3. If payments are stayed or made later than agreed, interest to the amount of 5% above the discount rate of the German Federal Bank at the time shall be charged for the interim period without a reminder being necessary. We reserve the right to claim further default damage. Orderer shall have the right to prove lower default damage.
4. Orderer shall only be entitled to offset with counterclaims if its claims have been acknowledged by us, are undisputed or legally effective. No right of retention shall accrue to Orderer on account of disputed counterclaims.
5. Regardless of the term of any accepted and credited bills, all our claims shall be due for payment immediately if the payment terms are not complied with or we obtain knowledge of circumstances suited to reduce Orderer's creditworthiness. We shall then also be entitled only to implement outstanding orders against pre-payment or provision of a security or to withdraw from the contract or to claim damages from non-performance following a suitable subsequent period. In addition, we can also forbid the resale and processing of the commodities delivered and demand their return or the transfer of indirect possession of the commodities delivered at Orderer's expense and revoke the entitlement to collection pursuant to Section IX. 5. Orderer empowers us here and now to enter its premises and to take away the commodities delivered in the said cases.
6. Payment shall be offset against the oldest due invoice as a matter of principle. As long as an older invoice is still open, Orderer shall not be entitled to claim discount in the payment of later invoices.
COMPLAINTS AND NOTIFICATIONS OF DEFECTS
1. Complaints on account of incomplete or incorrect delivery or notifications of recognisable defects shall be made to us in writing without delay, albeit no later than 2 weeks after receipt of the commodities. Other defects shall be notified in writing without delay, albeit no later than 2 weeks after discovery. If complaints or notifications of defects are not made in good time, warranty claims shall be ruled out. If the notification is in good time, we shall be obliged to warranty according to Section VII.
2. In the event of transport damage, Orderer shall procure an establishment of damage from the railways or the post office or also from the transporter for us.
3. Defects in a part of the delivered commodities shall not entitle Orderer to complain about the entire delivery unless the part delivery is of no interest to Orderer.
WARRANTY
1. In the event of defects of the objects of delivery, we shall be entitled to remedy the defects or provide a replacement at our option within a warranty period of 6 months from passage of risk. In the event of remedy of defects, we shall be obliged to bear in particular transport, labour and material costs to the extent that these are not increased by the fact that the objects of delivery have been taken to a place other than the place of performance.
2. For the remedy of the defects, Orderer shall give us the time and opportunity necessary in our fair discretion. Replaced parts shall pass to our ownership.
3. If the reworking or the replacement delivery fails, if we allow a suitable subsequent period set for this purpose to expire without a new delivery or remedy of the defect or if the reworking or new delivery is impossible or is rejected by us, Orderer shall have the right to withdraw or to reduction of the price, as is also the case in inability to rework or replacement delivery by us.
4. The warranty shall not refer to natural wear and tear, further not to damage caused as a result of faulty or negligent treatment, excessive strain, unsuitable use, wrong handling etc..
5. The claim to warranty cannot be transferred to third parties without our approval.
6. In the event of alterations and repair work done improperly by Orderer or third parties, we shall not be liable for the consequences resulting therefrom.
7. For essential outside products, our liability shall be limited to the assignment of the warranty claims accruing to us against the supplier of the outside product, unless satisfaction from the assigned right fails or the assigned claim cannot be asserted for other reasons.
8. Further claims of Orderer - for whatever legal reason - against us shall be ruled out if not regulated to the contrary below, in particular a claim to reimbursement of damage not caused to and/or existing on the commodities delivered themselves (e.g. loss of profits, subsequent damage, other economic losses); this release from liability shall not apply insofar as we have mandatory liability on the basis of malice aforethought, gross negligence or in cases of a lack of assured properties. If we have negligently, but not grossly negligently breached essential contractual obligations, our liability shall be limited to reimbursement of typical, foreseeable damage.
9. The aforementioned provisions shall apply accordingly for the delivery of other commodities than the contractual ones.
LIABILITY, LIMITATION
1. The exclusion and limitation of our obligation to damages as regulated in Section VII. 8, shall also apply accordingly for all cases of our contractual and extra-contractual liability for culpability, in particular culpa in contrahendo, default, breach of subsidiary obligations, tort. Claims pursuant to §§ 1, 4, Product Liability Act, as well as on account of initial inability or impossibility for which we are answerable shall remain unaffected.
2. If our obligation to damages has been ruled out or limited, this shall also apply for the personal liability of our employees and vicarious agents and assistants.
3. The claims of Orderer mentioned in sub-section 1 shall be barred by limitation in 24 months, starting from the end of the year of the passage of risk, as a matter of principle. If the statutory period of limitation is shorter than 24 months, this period shall apply for Orderer's claims in question. Curtailment of the period of limitation shall not apply to claims from tort.
RETENTION OF TITLE
1. All the commodities supplied shall remain our property (conditional commodities) until all claims have been fulfilled, in particular the balance claims in question accruing to us against Orderer from the business connection. This shall also apply if payments are made for claims specifically designated.
2. Orderer may only sell the conditional commodities in the course of customary business dealings at its own business terms, which shall contain a retention of title corresponding to the present provisions, and as long as it is not in default, provided that the claims from the resale pursuant to sub-sections 3 and 4 pass to us. It shall not be entitled to other disposals of the conditional commodities, in particular the entitlement to dispose of the conditional commodities shall be deemed revoked without further ado if insolvency proceedings are applied for against Orderer's assets or if liquidation is initiated.
3. Orderer's claims from the resale of the conditional commodities are assigned to us here and now. They shall be used for securing to the same extent as the conditional commodities. We hereby accept this assignment.
4. If the conditional commodities are sold by Orderer together with other commodities not purchased from us, the assignment of the claim from the further sale of the commodities shall only apply to the amount of our invoice value of the conditional commodities resold in each case.
5. Orderer shall be entitled to collect claims from the sale pursuant to sub-sections 2 and 4 until revocation by us, which shall be admissible at any time. We shall only make use of the right of revocation in the cases of sub-section 2 and of Section V. 5. Orderer shall not be empowered to other cession of the claims in any cases. Upon our request, it shall be obliged to inform its buyers of the assignment to us without delay - insofar as we do not do this ourselves - and to give us the information and documents necessary for the collection. Pledging or transfer of the conditional commodities by way of securing shall not be permitted for Orderer.
6. Our retention of title shall be conditional in such a way that ownership of the conditional commodities shall pass to Orderer without further ado and the assigned claims shall accrue to it unrestrictedly upon complete payment of all claims. If the value of the securities existent exceeds the secured claims by more than 20%, we shall be obliged to release securities at our option upon request by Orderer. The realisable value of the securities shall be decisive as a securing value in their assessment.
7. Orderer shall inform us immediately of a pledging or any other jeopardy or impairment of our rights of ownership and claim by third parties, forwarding the pledging records or other documents, and shall do everything to protect our interests.
8. We shall be entitled at any time to access to Orderer's warehouse and business rooms in order to remove, separate or mark the conditional commodities. Upon request, Orderer shall give us all helpful information about the conditional commodities and hand over necessary documents. Orderer shall be obliged to insure the conditional commodities extensively at its own expense and in our favour and to prove the insurance to us upon request. It here and now assigns all the insurance claims resulting therefrom to us, which we hereby accept.
9. A claim of our right of retention shall not be deemed a withdrawal from the contract. Orderer's right to possession of the conditional commodities shall expire if it fails to perform its obligations from the present or any other contract. We shall then be entitled to take possession of the conditional commodities ourselves and to utilise them as well as possible, notwithstanding Orderer's obligations to payment and sundry obligations towards us, by private contract or by means of an auction. The yield from the utilisation shall be offset against Orderer's liabilities after deduction of the costs. Any surplus shall be disbursed to it.
10. If the retention of title or the assignment is not effective according to the law in the area of which the goods are to be found, the security corresponding to the right of retention of the assignment in this area shall be seemed agreed. If involvement of Orderer is necessary for this, it shall take all measures necessary to substantiate and maintain such rights.
MISCELLANEOUS TERMS
1. Place of performance shall be Neuhausen, Switzerland. The venue for both parties shall be Konstanz, also for proceedings on bills of exchange and cheques. We shall also be entitled to sue Orderer at its general venue.
2. All legal relationships between ourselves and Orderer shall be exclusively governed by the law of the Federal Republic of Germany. The application of the United Nations Convention on International Sale of Goods (CISG) shall be ruled out.
3. Should individual terms and conditions or contractual provisions be or become ineffective, the validity of the remaining provisions shall not be affected. The ineffective provisions shall be reinterpreted in such a way that the legal and economic purpose intended with them is achieved. The same shall apply if a loophole becomes apparent in the implementation of the contract. The parties engage to replace the ineffective provisions without delay by legally effective agreements or to plug the loophole.
4. Orderer's data shall be stored by us within the framework of the purpose of the contractual relationship.