General Purchasing Terms Aesculap AG

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1. General

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. Delivery

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 Tuttlingen, 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. 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 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 5 % 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. Confidentiality

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’s written approval.

5.3 SUPPLIER shall not give reference to the business relationship with AESCULAP 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 60 days after delivery and receipt of the invoice.

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

7. Retention, setoff

7.1 AESCLUAP 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 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 to SUPPLIER within 5 calendar days since the discovery. Such defects shall be subject to the controls performed by SUPPLIER. In that regard, SUPPLIER 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, 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 in case of late delivery or delivery of non-conforming Products.

8.7  For in the way of subsequent perfomance by the SUPPLIER 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 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. 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 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 from and against all claims, losses, liabilities, damages, costs or expenses of any nature AESCULAP 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. 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 AESCULAP shall be entitled to sue SUPPLIER at the competent court for SUPPLIER’s place of business.


Status: May 2015