Terms & Conditions

Aesculap Suhl GmbH

Aesculap Suhl GmbH

1. General

1.1 The General Terms and Conditions of Purchase issued by Aesculap Suhl GmbH ("Purchaser") shall apply exclusively. The Purchaser does not acknowledge any conflicting or deviating terms and conditions of the contractual partner ("Seller") unless the Purchaser has expressly agreed in writing to their application.

1.2 These General Terms and Conditions of Purchase shall be binding for all future business dealings of the same nature. The General Terms and Conditions of Purchase of the Purchaser shall only apply in relation to entrepreneurs according to Section 310, paragraph 1 German Civil Code (Bürgerliches Gesetzbuch).

1.3 These General Terms and Conditions of Purchase are an integral part of the orders of the Purchaser. Orders and all related representations shall be made in writing. Deviations of the Conditions of Purchase shall be made in writing.

2. Offer and acceptance

2.1 Offers and price quotes of the Seller shall not be remunerated.

2.2 The Seller shall confirm in writing any order with binding representation of prices and delivery time. If the Purchaser does not receive such confirmation within eight (8) days, the Purchaser shall be entitled to cancel the order.

3. Delivery

3.1 Delivery of 90 percent to 110 percent of the ordered goods with price adjustment pro rata shall be deemed as contractual fulfillment.

3.2 Place of fulfillment shall be Tuttlingen, if not otherwise agreed between the Parties. In case the Seller or a subcontractor of the Seller undertakes unloading of goods or part or parts thereof, passing of the risk shall occur with completion of unloading. In case unloading equipment provided by the Seller or a subcontractor of the Seller is used for unloading of goods, passing of the risk shall occur when the goods have passed the unloading equipment.

3.3 Agreed delivery period shall be binding. For observance of this period, receipt of goods by the receiving center of the Purchaser shall be relevant. The Purchaser shall be entitled to interrupt delivery for a reasonable time. In this case period of delivery shall be prolonged by this interruption period.

3.4 The Seller must request in due time the documents of the Purchaser required to carry out the order.

3.5 As soon as the Seller recognizes that he/she is not able to fulfill his/her contractual obligations within the timeframe given, he/she must report this to the Purchaser without undue delay in written form. He/she must state the reason(s) for this delay and the predicted delay in delivery. Unconditional acceptance of delayed delivery shall by no means waive any rights of the Purchaser related to late delivery. This shall apply until final payment is made. Further claims for compensation of damages shall remain unaffected.

3.6 The Seller shall upon the request of the Purchaser pick up all outer packaging, transport packaging or sales packaging from place of delivery or have these items picked up by a third party.

3.7 The delivery shall be accompanied by two copies of the delivery note, including the reference number, identity of the goods including the respective material number and the agreed receiving department of the Purchaser. In case of incorrect or incomplete delivery notes, the Purchaser shall not bear the risk of any delay caused by such notes.

4. Contract penalty

In case the Seller does not deliver goods within the agreed upon delivery periods and/or within the delivery period as confirmed by the Seller, the Seller agrees to pay beside any damages claims of the Purchaser due to such delivery delay, a contractual default penalty in the amount of 0,2 percent of the value of the delayed delivery of Products per working day, such penalty not exceed five (5) percent of the value of such delivery. This shall not apply for late delivery the Seller is not responsible for. Receipt of goods as contractual fulfillment even without express reservation of rights shall not be deemed as waiver of claims for contractual penalties. Claims can be asserted until the final payment is made. Further claims for compensation of damages shall remain unaffected.

5. Confidentiality

5.1 Any written information the Purchaser provides under or in connection with the order shall be deemed as the property of the Purchaser. The Purchaser shall be entitled in any copyright regarding these documents. The Seller may not disclose such information to third parties without the prior written consent of the Purchaser. Such information shall solely be used as required or necessary for the Seller’s performance of his/her duties hereunder and the Seller shall return such Information without delay with the end of the term or with termination of the Agreement or in case order is not confirmed by the Seller according to Sec. 2.2 The Seller shall destroy any copies of such information without undue delay.

5.2 The Seller is obligated to keep confidential all business related, operational and technical information of the Purchaser which have become known or become known to the Seller in connection with the delivery even after contractual relationships between the Purchaser and the Seller have ended. This confidentiality obligation shall not include any information that is lawfully known to the public or to information which may be disclosed by the Purchaser’s written approval.

5.3 The Seller shall not give reference to the business relationship with the Purchaser in its advertising without the prior written approval of the Purchaser.

6. Prices and payment

6.1 The price as stated in the order shall be binding.

6.2 Payment shall be done within 60 days after delivery and receipt of the invoice.

6.3 If payment is made within 30 calendar days, the Seller grants a cash discount on the net amount of the invoice in the amount of three (3) percent.

7. Retention, setoff

7.1 The Purchaser shall hold the title to goods with delivery, any reservation of ownership shall herby be waived.

7.2 The Seller is only permitted to offset claims that are undisputed or determined by law.

8. Defects, representations and warranties

8.1 The Seller shall be responsible for delivering goods free of defects and, additionally, for ensuring that guaranteed features are present. In particular, the Seller guarantees that goods and services are compliant with state-of-the-art of science and technology and meet the current technical and occupational medicine standards as well as the most widely recognized applicable medical technical and pharmaceutical standards of administrations and industry. Goods and services delivered must also be in line with pertinent legal regulations. If machines, equipment or plants constitute delivery items, they shall meet the special safety requirements applicable to machinery, equipment and plants at the time of contractual fulfillment and shall be CE marked.

8.2 The incoming inspection of the Purchaser is restricted to recognizable outside damage, transport damage, short quantities and identity of goods. The Purchaser shall inform the Seller within eight (8) calendar days since the receipt of any obvious defect discovered during the incoming inspection. Any other defect discovered later will be reported by the Purchaser to the Seller within eight (8) calendar days since the discovery. Such defects shall be subject to the controls performed by the Seller. In that regard, the Seller shall waive any defense of late notification of defects.

8.3 Period of limitation related to defects of Products shall prescribe at the earliest 36 months after passing of the risk. However, longer legal or contractual terms shall remain unaffected.

8.4 In case defect occurs within the aforementioned period of limitation, there is a presumption that the defect was already existent at passing of the risk unless a presumption can be rebutted by the nature of defect. In the event of any defects, the Purchaser is entitled to demand cure according to legal regulations; the mode of cure shall be at the discretion of the Purchaser, the Seller shall bear the costs incurred for cure. During the execution of the cure, the Seller is required to adhere to the business requirements of the Purchaser. If cure is omitted due to legal provisions, further claims shall remain unaffected. The Purchaser is entitled to claim further legal or contractual rights in the event of defects.

8.5 If the Seller does not fulfill his/her duty to rectify defects as specified without rightfully refusing to cure within legal or contractual limitation periods, the Purchaser shall be entitled to remedy the defects her-/himself at the cost and liability of the Seller, or allow this work to be undertaken by third parties. The Purchaser is entitled to claim advance payment for the performance of measures necessary.

8.6 The Seller shall bear all reasonable costs for additional incoming inspections of the Purchaser in case of late delivery or delivery of non-conforming Products.

8.7 For in the way of subsequent performance by the Seller newly delivered or improved parts, the limitation period begins to run to a new extent, as far as the same deficiency cause is affected.

9. Product liability

9.1 The Seller agrees to indemnify and hold harmless the Purchaser from and against all claims, losses, liabilities, damages, costs or expenses of any nature and whether or not made by or involving third parties, arising out or resulting in any way from defects of goods, to the extent such defect is caused within the Seller’s control.

9.2 Furthermore the Seller shall bear the costs for required corrective measures referred to in Sec. 9.1 including but not limited to public warnings or recalls. The Purchaser will inform the Seller about execution of such measures without delay. Further legal claims shall remain unaffected.

9.3 Sec. 9.1 and 9.2 shall also be applicable for legal liability based on German Pharmaceuticals Act (Arzneimittelgesetz).

9.4 The Seller undertakes to effect and maintain for the duration of the course of business relation to the Purchaser including its limitation periods a business and product liability insurance with a limit not less than EUR 10,000,000 per occurrence and not less than EUR 20,000,000 per annum. The Seller shall be obliged to prove the existence of such insurance coverage upon request by the Purchaser. Further claims for damages and compensation remain unaffected.

10. Proprietary rights

10.1 The Seller warrants that the performance by the Seller of its obligations under this Agreement does not and will not violate any agreements between the Seller and any third parties and that the manufacture and sale of the Product by the Seller will not conflict with or infringe on patent rights or any other proprietary rights of any other person or entity.

10.2 To the extent utilization of Products is limited for the Purchaser due to third party’s proprietary rights, the Seller shall either acquire all approvals of the respective third parties at his/her own cost and in due time or change all concerned parts of Product to avoid any infringement of third party rights. In the latter case, the Seller shall be responsible for compliance of changed product with all applicable contractual specifications and understandings.

10.3 The Seller agrees to defend, indemnify and hold harmless the Purchaser from and against all claims, losses, liabilities, damages, costs or expenses of any nature the Purchaser or third parties may suffer arising out of claims resulting from infringement on patent or any of the proprietary rights to the extent such infringement is caused by negligence or fault of the Seller. Such claims shall prescribe at the earliest three (3) calendar years after delivery of Products.

11. Security Declaration for Authorized Economic Operators AEO

The Seller guarantees, that

11.1 goods, which are produced, stored, forwarded or carried by order of Authorized Economic Operators (AEO), which are delivered to AEO or which are taken for delivery from AEO
(a) are produced, stored, prepared and loaded in secure business premises and secure loading and shipping areas
(b) are protected against unauthorized interference during production, storage, preparation, loading and transport

11.2 reliable staff is employed for the production, storage, preparation, loading and transport of these goods

11.3 business partners who are acting on behalf of the Seller are informed that they also need to ensure the supply chain security as mentioned above.

12. Miscellaneous

12.1 The contractual relationship is subject to the laws of Germany.

12.2 Business terms shall be interpreted according to the Incoterms in their current version.

12.3 Parties shall use all reasonable endeavors to resolve such disputes as may arise between them in a professional and efficient manner. Any controversy or claim arising under, out of, in connection with, or relating to this Agreement which cannot be resolved amicably shall be subject to the jurisdiction of the competent ordinary courts of Tuttlingen, Germany. Nevertheless the Purchaser shall be entitled to sue the Seller at the competent court for the Seller’s place of business.

Status: August 2019

Aesculap Suhl GmbH

1. Application

1.1 The General Terms and Conditions of Sale issued by Aesculap Suhl GmbH (“Seller”) shall apply exclusively. These General Terms and Conditions of Sale shall only apply in relation to a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession in accordance with Section 310, Paragraph 1 German Civil Code (Bürgerliches Gesetzbuch). The Seller does not accept any terms and conditions of its contractual partner (“Purchaser”) unless Seller has expressly agreed in writing to their application. Orders and all other statements related thereto shall only be binding in a written form.

1.2 These General Terms and Conditions of Sale shall apply even if after receipt of the Purchaser’s terms and conditions the Seller does not expressly reject them but does perform its obligations under the contract.

1.3 These General Terms and Conditions of Sale shall also govern all future business dealings of the same nature, even if they are not agreed expressly between the Seller and the Purchaser in relation to each future dealing.

2. Offer and acceptance

2.1 Insofar as the order constitutes an offer within the meaning of Section 145 et seq. German Civil Code (Bürgerliches Gesetzbuch) Seller is entitled to accept the offer within two (2) weeks.

2.2 If the Purchaser’s financial circumstances and/or credit rating or reference change for the worse after signing of the agreement or in the event that such circumstances, already existing in the moment of signing, emerge retroactively, Seller is entitled to withdraw from the contract, if Purchaser is not willing to provide an advance payment or security at the Seller’s request.

3. Confidentiality

Purchaser is obligated to keep confidential all business related, operational and technical information of the Seller which have become known or become known to the Purchaser in connection with the delivery even after contractual relationships between Seller and Purchaser have ended. This confidentiality obligation shall not include any information that is lawfully known to the public or to information which may be disclosed by the Seller’s written approval.

4. Prices

4.1 The prices given in the current price list issued by the Seller are non-binding and quoted ex works (EXW) net. The applicable value added tax (VAT) shall be separately invoiced by the Seller to the Purchaser.

4.2 The Seller’s prices include a processing fee of EUR 15,00 on orders below a net order value of EUR 250,00.

5. Delivery and passing of risk

5.1 The information on deadlines and appointments provided by the Seller shall not be binding unless a fixed deal or special other delivery and service dates have been expressly agreed in writing. The products shall be deemed to have been delivered, if the Seller is willing and able to deliver but is prevented from doing so by the Purchaser on the agreed date.

5.2 The products are delivered ex works (EXW).

5.3 The shipping of products is made at the risk and expense of the Purchaser even if the Seller bears the costs of shipment.

5.4 If the products can not be shipped for reasons the Purchaser is responsible for, then the Seller is entitled to store the products at the risk and expense of the Purchaser. The date of storage is then deemed to be the delivery date and the warehouse receipt replaces the shipping documents.

5.5 If the Purchaser is in default of acceptance, the Seller shall be entitled to demand compensation for the resulting damage and any additional expenses.

6. Payment

6.1 The purchase price is due and payable in EUR (net) within 30 days from the date of the invoice.

6.2 Any cash discount or deductions applicable will be specified on the invoice. The payment shall be deemed to have been made on the date when the amount in question has been received by the Seller or has been booked to Seller’s bank account.

6.3 The Purchaser shall be entitled to withhold or to offset payment only insofar as the Purchaser’s counterclaim is undisputed or assessed in a legally binding judgement.

7. Retention of title

7.1 The products remain the property of the Seller until all its claims against the Purchaser have been satisfied.

7.2 To the extent necessary and/or possible in the relevant foreign legal system, the Purchaser shall register the retention of title.

7.3 As long as title in the goods has not passed, Purchaser shall handle the products with due care and maintain suitable insurance for the goods against loss, damage and destruction at replacement value at their own expense. Furthermore the Purchaser shall bear the costs for any necessary investment, for example maintenance work and inspections.

7.4 In the event the products supplied by the Seller are resold or transferred to a third party for any legal reason before payment has been effected in full, the Purchaser shall have been deemed to have assigned to the Seller all rights and claims, including all ancillary rights towards his customers, resulting from the sale of the products. In case of processing, combination or mixture of the goods as determined, the value of the assignment equals the amount of the invoice value of the goods of the Seller which have been used for this purpose.

7.5 Insofar as the value of any products which are subject to a retention of title exceed the value of any claims which the Seller has against the Purchaser by more than ten (10) percent, Seller is obligated, upon the Purchaser’s request, to release such securities. The Seller will decide at its discretion which securities to release.

7.6 Upon request of the Seller the Purchaser in default shall notify its debtors of the assignment and shall furnish the Seller with all information required for collection of the claim, including all necessary documents. Unless, otherwise stipulated by the Seller, the Purchaser is obligated to collect the proceeds of the goods resold becoming ipso jure property of the Seller and is obligated to hold in custody for the Seller any proceeds collected separately from other proceeds or payments received by Purchaser.

7.7 In case of any doubts, retention of title remains effective until the Purchaser proves in each single case that the goods have been paid for in full. In the event, goods delivered by the Seller under retention of title have been claimed by a third party by any means (e.g. attachment of the debt or a third party has put forward a claim on the receivables assigned to the Seller), the Purchaser shall inform the Seller without any delay and notify the third party of the retention of title the assignment.

8. Conditions of return (outside of warranty)

8.1 Returns of products require the explicit consent of the Seller in writing. The amount to be credited upon return of products shall depend upon the age, condition and resale ability of the products.

8.2 Any products were made to the Purchaser’s specific order and/or ordered that deviate from the Seller’s delivery programme, may not be returned.

8.3 The Purchaser shall bear the risk and cost for carriage of returned products.

8.4 Further requirements for returns are regulated by the Seller’s current guideline for returns.

9. Warranty and liability

9.1 Purchaser shall assert apparent defects on products within seven (7) days after receipt of the products in written form. Latent defects on products shall be reported within seven (7) days after their appearance. Obvious damage to products, which is apparent at the moment of delivery, shall be notified to the forwarding agent or carrier at the time of delivery.

9.2 In case of non-conformity of the goods the Seller is entitled at its discretion, to either a repair or replacement product at the Seller’s cost. If the repair or replacement product fails, the Purchaser is entitled to reduce the purchase price by the value of the failed product or to terminate the contract in relation to the failed product.

9.3 Warranty claims shall be time-barred after twelve (12) months of delivery of the products to the Purchaser (EXW).

9.4 The Seller’s liability shall be limited to intent, gross negligence and fundamental breach on the Seller’s part or by the Seller’s agents or representatives. The Seller’s liability for death and personal injury as well as under the Product Liability Act and the German Pharmaceuticals Act shall remain unaffected. Except for intent Seller’s liability for financial losses shall be limited to foreseeable losses.

10. Miscellaneous

10.1 The fulfillment of contract shall be under the condition that fulfillment is not being restricted by any national or international regulations, particularly export control regulations and embargoes or any other sanctions. The parties are required to provide all information and documentation needed for the export/domestic shipment/import. Delays caused by export checks or licensing procedures shall override any lead times or deadlines stipulated in this respect. If any required licenses for certain items can not be obtained, the contract shall be considered void to this extend.

10.2 The contractual relationship shall be governed by the laws of the Federal Republic of Germany including the Convention on Contracts for the International Sale of Goods (CISG).

10.3 Business terms shall be interpreted according to the Incoterms in their current version.

10.4 Any controversy or claim arising under, out of, in connection with, or relating to this Agreement which can not be resolved amicably shall be subject to the jurisdiction of the competent ordinary courts of Tuttlingen, Germany. Nevertheless the Seller shall be entitled to sue the Purchaser at the competent court for Purchaser’s place of business.

Status: August 2019