General Terms and Conditions Aesculap Suhl GmbH
General Purchasing Terms
1.1 Our Conditions of Purchase shall apply exclusively. We do not acknowledge any conflicting or deviating terms and conditions of our contractual partner („SUPPLIER“) unless we have expressly agreed in writing to their application.
1.2 These Conditions shall be binding for all future business dealings of the same nature. Our Terms and Conditions of Purchase shall only apply in relation to entrepreneurs according to Section 310, paragraph 1 German Civil Code (Bürgerliches Gesetzbuch).
1.3 These Conditions are an integral part of our orders. Orders and all related representations shall be made in writing. Deviations of the Conditions of Purchase shall be made in writing. This shall also apply to this written form clause.
2. Offer and Acceptance
2.1 Offers and price quotes of SUPPLIER shall not be remunerated.
2.2 SUPPLIER shall confirm in writing any order with binding representation of prices and delivery time. If we do not receive such confirmation within 8 days, we shall be entitled to cancel the order.
3.1 Delivery of 90% to 110% of the ordered goods with price adjustment pro rata shall be deemed as contractual fulfillment.
3.2 Place of fulfillment shall be Suhl, if not otherwise agreed between the Parties.
3.3 Agreed delivery period shall be binding. For observance of this period, receipt of goods by our receiving center shall be relevant. We 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 SUPPLIER must request in due time our documents required to carry out the order.
3.5 As soon as SUPPLIER recognizes that he/she is not able to fulfill his/her contractual obligations within the timeframe given, he/she must report this to us without hesitation. 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 us related to late delivery. This shall apply until final payment is made. Further claims for compensation of damages shall remain unaffected.
3.6 SUPPLIER shall upon our request 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 our respective material number and the agreed receiving department at AESCULAP SUHL GMBH. In case of incorrect or incomplete delivery notes, we shall not bear the risk of any delay caused by such notes.
4. Contract Penalty
In case SUPPLIER does not deliver goods within the agreed upon delivery periods and/or within the delivery period as confirmed by SUPPLIER, SUPPLIER agrees to pay beside any damages claims of AESCULAP SUHL GMBH due to such delivery delay, a contractual default penalty in the amount of 1% of the value of the delayed delivery of Products per working day, such penalty not exceed 10 % of the value of such delivery. This shall not apply for late delivery SUPPLIER 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. Further claims for compensation of damages shall remain unaffected.
5.1 Any written information we provide under or in connection with the order shall be deemed as our property. We shall be entitled in any copyright regarding these documents. SUPPLIER may not disclose such information to third parties without our prior written consent. Such information shall solely be used as required or necessary for SUPPLIER’s performance of his/her duties hereunder and SUPPLIER 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 SUPPLIER according to Sec. 2. SUPPLIER shall destroy any copies of such information.
5.2 SUPPLIER is obligated to keep confidential all our technical, scientific, business related or other information even after contractual relationships between us and SUPPLIER 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 AESCULAP SUHL GMBH’s written approval.
5.3 SUPPLIER shall not give reference to the business relationship with AESCULAP SUHL GMBH in its advertising without our prior written approval.
6. Prices and Payment
6.1 The price as stated in the order shall be binding.
6.2 Payment shall be done within 30 days after delivery and receipt of the invoice.
7. Retention, setoff
7.1 AESCLUAP SUHL GMBH shall hold the title to goods with delivery, any reservation of ownership shall herby be waived.
7.2 SUPPLIER is only permitted to offset claims that are undisputed or determined by law.
8. Defects, representations and warranties
8.1 SUPPLIER shall be responsible for delivering goods free of defects and, additionally, for ensuring that guaranteed features are present. In particular, SUPPLIER 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 Our incoming inspection is restricted to identity, short quantities and recognizable outside damage. AESCULAP SUHL GMBH shall inform SUPPLIER within 5 calendar days since the receipt of any obvious defect discovered during the incoming inspection. Any other defect discovered later will be reported by AESCULAP SUHL GMBH to SUPPLIER within 5 calendar days since the discovery. Such defects shall be subject to the controls performed by SUPPLIER. SUPPLIER hereby expressly waives any objection to file a complaint in respect of a defect of goods.
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, we are entitled to demand cure according to legal regulations; the mode of cure shall be at our discretion, SUPPLIER shall bear the costs incurred for cure. During the execution of the cure, SUPPLIER is required to adhere to our business requirements. If cure is omitted due to legal provisions, further claims shall remain unaffected. We are entitled to claim further legal or contractual rights in the event of defects.
8.5 If SUPPLIER does not fulfill his duty to rectify defects as specified without rightfully refusing to cure within legal or contractual limitation periods, we shall be entitled to remedy the defects ourselves at the cost and liability of SUPPLIER, or allow this work to be undertaken by third parties. We are entitled to claim advance payment for the performance of measures necessary.
8.6 SUPPLIER shall bear all reasonable costs for additional incoming inspections of AESCULAP SUHL GMBH in case of late delivery or delivery of non-conforming Products.
8.7 In case of a cure, SUPPLIER’s legal liability for such goods where a defect has been remedied or a thing free of defects has been supplied, shall be reinstated.
9. Product Liability
9.1 SUPPLIER agrees to indemnify and hold harmless us 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 SUPPLIER’s control.
9.2 Furthermore SUPPLIER shall bear the costs for required corrective measures including but not limited to public warnings or recalls. We will inform SUPPLIER about execution of such measures without delay. Further legal claims shall remain unaffected.
9.3 SUPPLIER undertakes to effect and maintain for the duration of the agreement including its limitation periods a liability insurance with a limit not less than €10,000,000 EUR per occurrence and not less than 20,000,000 EUR per annum. SUPPLIER shall be obliged to prove the existence of such insurance coverage upon request by AESCULAP SUHL GMBH. Further claims for damages and compensation remain unaffected.
9.4 Sec. 9.1 and 9.2 shall also be applicable for legal liability based on German Pharmaceuticals Act (Arzneimittelgesetz).
10. Proprietary Rights
10.1 SUPPLIER warrants that the performance by SUPPLIER of its obligations under this Agreement does not and will not violate any agreements between SUPPLIER and any third parties and that the manufacture and sale of the Product by SUPPLIER 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 AESCULAP SUHL GMBH due to third party’s proprietary rights, SUPPLIER shall either acquire all approvals of the respective third parties at his 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, SUPPLIER shall be responsible for compliance of changed product with all applicable contractual specifications and understandings.
10.3 SUPPLIER agrees to defend, indemnify and hold harmless AESCULAP SUHL GMBH from and against all claims, losses, liabilities, damages, costs or expenses of any nature AESCULAP SUHL GMBH 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 SUPPLIER. Such claims shall prescribe at the earliest 3 calendar years after delivery of Products.
11. Force Majeur
If circumstances which became the basis of a contract have significantly changed since the contract was entered into, we are entitled to withdraw from the contract, to the extent our needs have decreased caused by such circumstances. Respective legal rights shall remain unaffected.
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 Suhl, Germany. Nevertheless AESCULAP SUHL GMBH shall be entitled to sue SUPPLIER at the competent court for SUPPLIER’s place of business.
Status: July 2012
General Terms and Conditions of Sale
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 sec. 310, para. 1 BGB (German Civil Code). The Seller does not accept any terms and conditions of it’s contractual partner („Purchaser“) unless Seller has expressly agreed in writing to their application. This shall also apply to this written form clause.
1.2 These General Terms and Conditions of Sales 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 Sales 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 sec. 145 BGB Seller is entitled to accept the offer within 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.
Purchaser is obligated to keep confidential all our technical, scientific, business related or other information 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.
4.1 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.
5. Delivery and passing of risk
5.1 The delivery dates require specific written confirmation by the Seller. 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 supply 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 cannot be delivered as a result of instructions given by the Purchaser, 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 delivery documents.
6.1 The purchase price is due and payable in Euro (€) 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 acknowledged, 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, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods. 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 10%, 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 saleability of the products. 8.2 Any products ordered that deviate from the Seller’s delivery programme and/or were made to the Purchaser’s specific order, 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 under www.bbraun.com.
9. Warranty and liability
9.1 Purchaser shall assert apparent defects on products within 7 days after receipt of the products in written form. Latent defects on products shall be reported within 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 Purchaser 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 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 shall in any case be limited to foreseeable losses.
10.1 Shipment and services (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 restrictions. 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 cannot 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 Incoterms shall apply in their current version.
10.4 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 Suhl, Germany. Nevertheless the Seller shall be entitled to sue the Purchaser at the competent court for Purchaser’s place of business.