1.1 The General Terms and Conditions of Sale issued by Aesculap AG (“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.
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.
4.1 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.
6.1 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.
10.1 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