General Terms of Delivery and Payment of Medicon eG, Gänsäcker 15, 78532 Tuttlingen relating to international business transactions

I.    Scope

  1. The following General Terms of Delivery and Payment apply exclusively to all – including future – deliveries of goods and services (hereinafter referred to together as "Deliveries") by Medicon eG, Gänsäcker 15, 78532 Tuttlingen (hereinafter "Supplier") to Customers within the meaning of Clause I.2., unless otherwise expressly agreed in writing. The Customer's terms and conditions shall not become part of the contract, even where the inclusion of such conditions has not been expressly rejected by the Supplier.
  2. These General Terms of Delivery and Payment only apply to businesspersons acting in their professional or commercial capacity (hereinafter "Customer").


II.    Conclusion and content of the contract

  1. The Supplier's offers are non-binding. Unless otherwise indicated in the order, the Customer is bound by its order for a period of 14 days as from the date of the order. Contracts only come into effect by way of the Supplier's written order confirmation or delivery.
  2. Insofar as they are not expressly identified as binding, documents such as illustrations, drawings, weight specifications and measurements, provided by the Supplier in connection with the contract, only represent approximate values and, insofar as it is permitted by law, all liability in connection with such documents is hereby expressly excluded. The Supplier reserves all rights of ownership and copyright over cost estimates, drawings and other documentation which the Supplier makes available to the Customer; such documents shall not be disclosed to third parties without the prior written consent of the Supplier.

 

III.    Price and Payment

  1. Unless otherwise agreed, the prices are in EURO and apply FCA Supplier's distribution warehouse pursuant to Incoterms? 2010 not including any applicable value added tax. The distribution warehouse is specified in the Supplier's order confirmation.
  2. Where the delivery period is longer than 2 months, the Supplier is entitled to increase the agreed prices accordingly where, following conclusion of the contract, there are major changes in the cost of salaries, materials, energy or raw materials and the Supplier is not responsible for these changes. Where the price increase exceeds 10  %, the Customer is entitled to rescind the contract, in writing, within two weeks of receipt of notification of the price increase, insofar as the Customer did not approve the cost overrun.
  3. In the absence of any special agreement, payment shall be made within 30 days of the invoice date, without deduction, into the Supplier's bank account. In the case of first-time orders and custom-made items, the Supplier reserves the right to require payment in advance. Payments are only deemed to have been made to the extent that the Supplier has free disposal over them at its bank. Cheques are only accepted on account of payment and only subject to prior written agreement; bank charges are borne by the Customer. They are due immediately.
  4. The Parties can agree that the Customer must open an irrevocable and non-transferable documentary credit, via its bank or another bank, which is acceptable to the Supplier. In this particular case it is stipulated that the opening of a documentary credit is carried out in accordance with the ICC Uniform Customs and Practice for Documentary Credits UCP 600.
  5. The Customer is only entitled to withhold payments or to a set-off against the Customer's counter-claims insofar as the counter-claims are undisputed or have been upheld by a final court judgement and provided the statutory requirements under Art. 120 et seq. Swiss Code of Obligations have been fulfilled.
  6. In the case of delays in payment, the Supplier is entitled - without prejudice to any other rights and claims to which it is entitled - to charge interest at a rate of 18 % p.a. until full and final payment has been made. The Supplier is entitled to assert a claim for a higher level of damages incurred as a result of the delay in payment, subject to provision of the corresponding proof thereof. The Customer is entitled to prove that there has been no loss incurred as a result of the delay in payment or that the loss was lower.


IV.    Delivery, delivery time

  1. Unless otherwise agreed, delivery takes place FCA Supplier's distribution warehouse pursuant to Incoterms? 2010. The distribution warehouse is specified in the Supplier's order confirmation.
  2. Delivery periods or delivery times, specified in the order confirmation, or otherwise agreed, are approximate and therefore non-binding.
  3. The delivery period commences on dispatch of the order confirmation but not before the submission of any documents, permits and clearances necessary for delivery, which must be obtained by the Customer; and not before the receipt of any agreed down payment or payment security, and also not before confirmation of an agreed letter of credit. The delivery period is complied with where, prior to its expiry, the goods have been handed over to the carrier at the Supplier's distributing warehouse designated in the order confirmation.
  4. It is not necessary to notify the Customer of successful delivery.
  5. Unforeseen and unavoidable events, for which the Supplier cannot be held responsible (e.g. force majeure, strikes or lockouts, operational breakdown, problems in the procurement of material or energy, transport delays, shortages in staff, energy or raw materials, official measures as well as difficulties in obtaining authorisations particularly import or export licences), shall extend the delivery time by a reasonable period. This shall also apply in the event that such obstacles affect its own suppliers. Where the obstruction is not purely temporary, both parties to the contract are entitled to declare the contract avoided. In this case, the claims for damages by the Customer are excluded.
  6. Requests made by the Customer for changes shall extend the delivery time until the Supplier has examined their feasibility and, where the Supplier gives its consent, by the period required for implementing the new requirements into production. Where ongoing production is suspended due to the request for changes, the Supplier may bring forward and finish other orders. The Supplier is not obliged to keep production capacity free during the period of the delay.
  7. Where dispatch is delayed at the Customer's request, or as a result of circumstances for which the Supplier cannot be held responsible, the Customer shall be charged for the costs of storage, and in any case a minimum of 0.5% of the net invoice amount, for each month of storage, as from one month after notification of readiness for shipping. This shall be without prejudice to the Supplier's additional statutory rights.
  8. Compliance with the delivery period requires performance of the Customer's contractual obligations.
  9. Partial deliveries are permitted and must be accepted by the Customer.
  10. The Supplier is entitled to comply with its contractual obligations, even after expiry of the agreed delivery time, provided it has notified the Customer of the overrun and specified a new delivery date. The Customer is entitled, within a reasonable period, to reject delayed performance of the delivery provided it can show that delayed delivery is of no use to it. The Supplier shall only be liable in accordance with Clause IV.11. for any necessary additional expenditure incurred by the Customer as a result of late delivery.
  11. The Supplier shall only be liable for the consequences of late delivery in cases of intent or gross negligence. In all other cases, liability on the part of the Supplier is excluded insofar as this is permitted by law.


V.    Right of retention

  1. The Supplier may suspend performance of its contractual obligations, in whole or in part, if after conclusion of the contract it becomes evident that the Customer will not fulfil its contractual obligations, whether in whole or in part. This applies in particular where the Customer fails to comply, fails to comply in full or delays in complying with its payment obligations towards the Supplier or a third party.
  2. The Supplier is also under no obligation to continue with performance where the Customer provides security, as guarantee for the consideration, which can be contested under the applicable insolvency provisions.


VI.    Passing of risk, reservation of delivery by own suppliers


  1. The risk to price and performance shall pass to the Customer FCA Supplier's distribution warehouse pursuant to Incoterms? 2010 as soon as the goods are made available to the first carrier. This also applies where partial deliveries take place or where the Supplier agrees to provide other services, e.g. conclusion of the shipping contract, shipping - including by way of its own shipping personnel -, shipping costs or delivery and installation.
  2. The Supplier's delivery obligation is subject to the proviso that it receives on-time and correct delivery from its own suppliers unless incorrect or delayed delivery by its own suppliers has been caused by the Supplier, at least as a result of gross negligence. The Supplier shall not be liable for the consequences of non-performance or defective performance by its own suppliers and, in the absence of any gross negligence or intent on the part of the Supplier, the latter may by declaration release itself from its delivery obligation towards the Customer.


VII.    Reservation of Title


  1. The Supplier reserves title to the delivery item until full payment of the purchase price and any ancillary claims. This also applies where individual or all claims by the Supplier have been recorded on a running account and the balance has been drawn and acknowledged. The Customer shall sufficiently insure the delivery item, at the replacement value, against loss and damage. The insurance policy and evidence of payment of the premiums must be submitted to the Supplier on request. The Customer hereby assigns to the Supplier any claims under the insurance policy, subject to the condition subsequent that title passes to the Customer. The Supplier hereby accepts the assignment.
  2. Where a third party substantiates or asserts a right to the goods which are subject to retention of title, the Customer shall notify the Supplier of this without delay. The costs arising as a result of any defense against a take hold by a third party of the goods which are subject to retention shall be borne by the Customer insofar as they cannot be recovered from the third party.


VIII.    Liability for delivery of goods which do not comply with the contract

    1. Within a short time after delivery pursuant to Clause IV.1. , the Supplier shall examine the goods for lacks of conformity with the contract and give the Supplier notice in writing by no later than 14 days after becoming aware of the lack of conformity or after the lack of conformity becomes recognizable. In this regard, the Customer must precisely specify the lack of conformity.
    2. In the case of a notification of a lack of conformity which does not comply with these requirements, the Customer may only rely on the remedies to which it is entitled under these provisions if the Supplier positively knew of the facts substantiating the lack of conformity and fraudulently failed to disclose them to the Customer.
    3. In the case of a lack of conformity of the goods (material defects and defects in title), the Supplier provides the Customer with a warranty in accordance with the following provisions. Clause VIII para 4. and 5. apply with respect to guarantees and assured characteristics additionally conferred by the Supplier.
      1. A customary deviation in quantity of up to 10% and technical improvements to the goods shall not constitute a lack of conformity with the contract.
      2. The Supplier accepts liability under Art. 42 CISG for the fact that the goods are free from any third-party right based on industrial or other intellectual property, only with regard to infringements in the Federal Republic of Germany. The Supplier declares, however, that (without specific investigation) it is unaware of any infringements of intellectual property rights in other countries.
      3. In the case of a legitimate complaint, the Customer may exclusively demand that the goods be repaired or, if this is not possible, delivery of substitute goods conforming to the contract.
      4. The rights to declare a contract avoided, reduce the purchase price and to claim for damages are excluded insofar as this is permitted by law.
      5. Statements by the Supplier on the lack of conformity notified by the Customer serve only to clarify the situation and shall not constitute any acknowledgement that there has been a lack of conformity or that there has been a proper notification of it.
      6. Insofar as the lack of conformity arises from an essential third-party product, the Supplier is initially entitled to restrict its liability to the assignment of the rights of recourse to which it is entitled as against the supplier of the third-party product, unless satisfaction by way of the assigned right fails or cannot be obtained for some other reason.
      7. In the case of improper modifications or repair work to the delivery item, carried out by the Customer or a third party without the prior consent of the Supplier, the Supplier shall not be liable for any resulting consequences.
    4. Where a guarantee has been given, the Supplier shall be liable for the existence of the guaranteed characteristics of the goods within the scope of the guarantee.
    5. Assured characteristics are only those which are expressly designated as such by the Supplier. The Supplier's liability for the lack of assured characteristics is excluded insofar as this is permitted by law.
    6. Claims by the Customer for the delivery of goods which do not comply with the contract, shall lapse 12 months after passing of risk (cf. Clause IV.1.) unless the Supplier has fraudulently concealed a lack of conformity or has caused it intentionally or by gross negligence, or the Supplier is liable under a guarantee, or for death, personal injury or damage to health caused by a lack of conformity.


    IX.    Damages

    1. Unless otherwise specified in Clause VIII and IX.2, the Supplier shall be liable, irrespective of the legal basis, for loss incurred by the Customer only where such loss is the result of intentional or grossly negligent conduct on the part of the Supplier. In all other cases, liability on the part of the Supplier is excluded insofar as this is permitted by law.
    2. The Supplier's liability for death, personal injury, damage to health, and under guarantee, remains unaffected.
    3. Claims for damages against the Supplier under Clause IV.11 and Clause IX.1 shall lapse 12 months after statutory commencement of the limitation period.


    X.    Liability for vicarious agents
    Contractual liability for vicarious agents shall be excluded insofar as this is permitted by law. This applies in particular in connection with guarantees, assured characteristics, other defects, transportation and delay.

    XI.    Samples and consigned goods

    1. Samples supplied to the Customer and goods which the Customer resells in its own name for the account of the Supplier (consigned goods), are stored at the Customer's risk. The Customer must notify the Supplier, in writing and without delay, of any damage to, or loss of, the samples or consigned goods as well as events which could be detrimental to the Supplier's property. In the case of damage to the samples or consigned goods, which is accidental or caused by the Customer, the Customer shall bear the cost of repair or, where this is not possible, the cost of the delivery of substitute goods at the Supplier's prices applicable at the time.
    2. The Supplier will accept return of samples and consigned goods within 3 months from the delivery date. The Customer shall bear the cost and risk of return to the Supplier. Any reductions in value shall be borne by the Customer. Unless otherwise agreed with the Customer, goods which are kept by the Customer for longer than 3 months from the delivery date are deemed to have been sold to the Customer and the Supplier will not accept the return of the goods. This shall be without prejudice to any claims by the Customer pursuant to Clause VIII. in respect of goods which do not comply with the Contract. These General Terms and Conditions of Delivery and Payment apply to such a sale contract subject to the proviso that the purchase price is due immediately without deductions.


    XII.    Full product range for implantations

    1. On request, the Supplier shall provide the Customer with the full range of the Supplier's product systems for implantations, consisting of varying sizes and makes of instruments and implants from which the Customer can choose the size required. Unless otherwise agreed with the Customer, the Supplier delivers the full range for the purpose of selection; by selecting an implant from the full range, a purchase contract relating to the selected implant comes into effect which is governed by these General Terms and Conditions. The instruments are provided by way of lending; special lending conditions apply which are attached to the delivery and which the Customer can also request from the Supplier at any time.
    2. The full product range is stored by the Customer at the Customer's own risk. The implants and instruments that are not required must be returned to the Supplier by the Customer, without delay, at the Customer's own expense and risk, or kept in storage by the Customer in accordance with a contract to be concluded separately with the Supplier.
    3. Implants which remain in storage for longer than 3 months after delivery and are not subject to a separate consignment storage contract or a separate lending agreement or - even if only briefly or in part - have been in contact with patients and/or contaminated by bodily fluids, are deemed to have been selected and will be invoiced at the Supplier's prices applicable at the time, in accordance with these General Terms and Conditions.
    4. Instruments which have been in storage for longer than 3 months after delivery or which cannot be processed without risk of compromising hygiene standards, are deemed to have been selected and will be invoiced at the Supplier's prices applicable at the time, in accordance with these General Terms and Conditions.


    XIII.    Conditions for accepting return (other than in the case of liability for goods which do not conform to the contract)


    1. Acceptance of return of the goods, other than in the case of the Supplier's liability for goods which do not conform to the contract, requires the express written consent of the Supplier. The Customer must provide proof of the delivery date of the goods to be returned.
    2. In the following cases in particular, return is generally prohibited:
    • products which have been tailor-made for the Customer, or have been modified or which do not fall within the Supplier's standard product range;
    • packaging units which have been damaged, opened or marked;
    • used and damaged products;
    • products which are past their use-by or expiry date;
    • implants where the packaging has been opened;
    • products which risk compromising hygiene standards.
    1. The value to be refunded to the Customer on return of the goods depends on their age, condition and the capacity for resale. Where the Supplier is not responsible for the reason for returning the goods, the Supplier is entitled, in addition to the cost of removing unwanted labelling, to charge a handling fee of up to 20% of the original value of the goods.
    2. The Customer bears the cost and risk of transport of the returned goods.


    XIV.    Written form, contract language, place of performance, jurisdiction, applicable law

    1. Where any provision of these General Terms of Delivery and Payment are or become invalid, or where the General Terms of Delivery and Payment contain an omission, this shall not affect the legal validity of the remaining provisions. In place of the invalid or missing provision, a valid provision is deemed to have been agreed which comes closest to the meaning and purpose intended by the Parties.
    2. Amendments, additions and any agreement to cancel the contract must be in writing in order to be valid. The same applies to other declarations of the contracting partners which are necessary for the substantiation, safeguarding or exercise of their rights, particularly notifications of defects, setting of deadlines or unilateral declarations to declare the contract avoided. Fax, remote data transmission (RDT) and email are also deemed to constitute the written form. The sender can only invoke notifications which have been received by the recipient. Where a notification, which has been sent by registered post or by way of an international, recognised courier service, is delivered late, it shall be deemed to have been received on the date that it would have been delivered under normal circumstances.
    3. Any communication between the Parties and any declaration by the Parties must be in German or English.
    4. Unless otherwise agreed, for all obligations arising under the contractual relationship with the Customer, the place of performance is the Supplier's head office.
    5. Any disputes, controversy, or claim arising out of, or in relation to the contractual relationship with the Customer, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The seat of the arbitration shall be Zurich. The arbitral proceedings shall be conducted in English.
    6. Swiss law applies including the provisions of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).


    Valid as of: February 2016