1.1 The General Terms and Conditions of Purchase issued by Aesculap AG (“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.
3.1 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.
5.1 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.
12.1 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