GENERAL CONDITIONS OF SUPPLY
OF POLYMEDICS INNOVATIONS GMBH
Status: July 2020
- Our relationship to our customer outside of the USA, Germany, Austria and Switzerland is governed exclusively by these General Conditions of Supply. These Conditions also apply to all future transactions and in all cases in which contact is taken up with a customer for business purposes, as for example the entry into contractual negotiations or in the preliminary stage before conclusion of a contract, even if these Conditions are not expressly agreed again or if no express reference is made to them again. Objection is expressly made to the application of general conditions of the customer relating to orders or purchases.
- The order of our supplies by the customer is deemed to constitute acknowledgement of the application of these General Conditions of Supply.
Conclusion of a contract
- Unless otherwise agreed, our offers are binding for four weeks from the date our offer is made.
- An order first becomes binding upon us, if it has been confirmed by us in writing or if we start to carry it out.
- If the customer´s order is made in a face-to-face meeting or per telephone, the customer is obliged, on our request, to give us written confirmation of receipt of our written acceptance of the customer´s order. If, following the customer´s receipt of our request to that effect, the customer does not provide the relevant declaration of confirmation to us within five working days, then we are no longer bound to the order and are entitled, within a term of another five working days after the end of the terms set forth above for the customer, to withdraw from the contract.
Extent of supplies, time for performance
- The extent and time for performance of the supplies to be made by us is determined by our written offer or, as appropriate, by our confirmation of order. Modifications and alterations require our written confirmation. If a product is not deliverable in the size ordered by the customer, we reserve the right to deliver the product in a different size that is closest to the ordered product. If, after conclusion of the contract, it turns out that the order cannot be carried out in accordance with the information provided by the customer, then we are entitled to withdraw from the contract, if and so far as the customer is not prepared to accept the alternative solution which is suggested by us and, if necessary, to assume the additional costs actually necessary.
- We are entitled to undertake acts of part performance in respect of all orders to such an extent as is fair and reasonable. Further, we are entitled to engage sub-contractors for the purpose of the performance of our contractual obligations.
- Time-periods and dates for supplies and services always represent best possible particulars, but are not generally legally binding. The start of the period for supply and compliance with supply dates are subject to the following prerequisites: that the customer punctually and properly performs the acts of cooperation which are incumbent on the customer; that the customer makes available all necessary documentation and that the customer makes all prepayments which may have been agreed.
- We do not come into delay in cases of force majeure or in situations which arise without blame on our part or in extraordinary circumstances. In such cases, we are also entitled to withdraw from the contract if we were already in delay at the time. Especially, we do not come into delay if default of supply is caused by non-delivery or late delivery by our suppliers. In case of temporary problems in supply, the timelines for our supply are extended for a term equal to the time of the temporary problems plus a reasonable term for catching up with supply.
- If we are under a contractual obligation to undertake an act of performance in advance, then we can decline to carry out the act of performance, which is incumbent on us, if, after conclusion of the contract, it becomes apparent that our claims for payment are endangered by the customer´s inability to perform. In particular, this is the case if the payment to which we are entitled is endangered due to the customer´s bad commercial circumstances or actual or projected sales performance or if other impediments to performance threaten, such as, for example, export- or import bans, armed conflicts, insolvency of suppliers or non-availability of necessary members of staff due to illness.
- Our prices are net prices. With regard to supplies, the prices are to be understood as always being “free carrier” (FCA Denkendorf, INCOTERMS 2020). When an invoice is issued, Value Added Tax, if applicable, will be added to the price at the statutory rate respectively applicable.
- If a delivery-period of more than four months between the time of the confirmation of the order and the delivery time is agreed, then, if in the meantime we have incurred any increases in costs due to increases in prices, we are entitled to pass these on to the customer to a corresponding extent. The same applies if a delivery period of less than four months was agreed, but, due to circumstances for which the customer is responsible, the relevant delivery can only be performed by us later than four months after the confirmation of the order.
- The risk of destruction or of deterioration of the goods passes to the customer upon delivery FCA Denkendorf INCOTERMS 2020; this is also the case, if part-deliveries are made. If dispatch is delayed due to reasons based on personal factors relating to the customer, then risk already passes to the customer at the time of the notice of readiness for dispatch.
Terms of payment
- Deliveries to the customer are made after we received full payment in advance or according to the payment terms as stipulated in the agreement or its annex.
- The customer is not entitled to make any deductions without an express agreement to that effect.
- Payment by bill of exchange or acceptance is only permitted if expressly agreed and, even then, is only on account of payment. In such a case, our reservation of title first expires when the sum payable has been credited to us on a final basis and without any possibility for it to be re-debited.
- Set-off against our claims to remuneration is only possible with claims which are undisputed or which have been established with the force of law. The same applies with regard to the exercise of a right of retention. Moreover, the customer is only authorized to exercise a right of retention insofar as the right is based on the same contractual relationship.
- The assignment of claims against us by the customer requires our prior consent, which we will only refuse for an important reason.
- If we make delivery before the price for the goods is paid in full, title to goods remains with us until the customer has paid the remuneration which is due for these goods in full and, until our claims existing against that customer at that time for delivery of other goods are also paid in full (extended reservation of title). Insofar as the effectiveness of this reservation of title is dependent on its registration, for example in public registers in the country of the customer, then we are entitled, and are so authorized by the customer, to effect such registration at the cost of the customer. The customer is obliged, on its part, to provide all such cooperation as is necessary for the purpose of such registration free of charge. During this reservation of title, the customer is not entitled to transfer title of the things to third parties nor to create liens on such things. The customer has to immediately inform us if the things or rights which are subject to this reservation of title are suffering damage or defects or if they are getting lost or if measures of execution are taken in respect to those things or rights. The customer has to do its best to assist us in all measures of defense to avoid losses.
- Returns only be accepted by us if we accept that the product is defective.
- In case we accept the return of a non-defective product, the customer has to comply with our returns policy and will be responsible for all costs of delivery. We reserve the right to charge a restocking fee on the products returned at a rate of 15% of invoiced costs.
Liability for defects and general liability
- The customer only has a claim to repair or replacement, reduction in price, withdrawal from the contract and damages in accordance with the following provisions:
- If we supply or send goods to the customer, then the customer must examine the goods for obvious defects within three working days after receipt. Obvious defects must be complained of by the customer within three working days after such examination. In respect of defects which are not obvious, any complaints must also be made to us within three working days after the defects are discovered. If the customer fails to send off the notices of complaint within the deadline-periods provided in the previous sentences, then the goods delivered are deemed to be approved, even if they are defective.
- If goods delivered by us are defective, then, for a period of one year from delivery, the customer can demand that we cure that defect which will, at our choice be made either by rectification of the defect (repair) or by delivery of a good free of defects (replacement). The warranty period for our supplies is one year from delivery.
- If the supply which is due from us is not performed at all or is performed late or badly, then, for a period of one year from passage of risk, the customer can only demand damages:
a. in respect of loss arising from injury to life, body or health, if such loss is based on an intentional or negligent breach of duty by us or if it is based on an intentional or negligent breach of duty by one of our statutory representatives or assistants in performance;
b. in respect of other losses:
– if such losses are based on an intentional or grossly negligent breach of duty by us or by one of our statutory representatives, senior members of staff or assistants in performance; or
– if such losses are based on the intentional or negligent breach of essential contractual duties (cardinal obligations) by us or by one of our statutory representatives, senior members of staff or assistants in performance (essential contractual duties – cardinal obligations – are understood as duties which have to be observed to allow correct fulfilment of the contract and in respect to which the customer can trust in observation of those duties);
c. in respect of losses which fall within the protective scope of a guarantee (warranty) given by us or within the protective scope of a guarantee of condition or durability.
- In the event that a breach of a significant contractual obligation is caused by simple negligence, liability is limited in amount to the loss, which is typically to be expected in applying reasonable care.
- Claims for damages against us which are founded on mandatory statutory liability, for example under the Product Liability Act, and claims for damages because of injury to life, body or health shall be unaffected by the provisions in this section 7 and shall exist as provided by law.
- Total liability is limited to the product value of goods supplied. Losses due to the inability to supply and penalties for late supplies are excluded. Under no circumstances will we be liable for any consequential or indirect loss, direct or indirect loss of profits, loss of business or any special or exemplary damages suffered or incurred in connection with the product or any party’s actions or omissions under the contract.
- Other than as specifically set out in these General Conditions of Supply, all warranties implied by statute or law are excluded to the full extent permitted by law.
- If, in the countries in which our products are to be sold on to other persons by the customer, provisions regarding product liability or, as applicable, product-safety are in force which diverge from, or are stricter than, equivalent provisions of German law, then the customer must point this out to us when the order is placed. In this case, we are entitled to withdraw from the contract within one month. If the customer omits to give the necessary clarification to us as stated above, then, within one month after we become aware of the relevant legal position, we can withdraw from the contract. In the latter situation, the customer is obliged to indemnify us against claims made by third parties which extend beyond our liability in a comparable case of product liability in Germany. The same also applies, if we adhere to the contract.
- The customer and we (“the parties”) undertake as follows:
- that, during the time between an order and supply of the goods concerned, each party (“the receiving party”) shall keep secret information which was disclosed to it by the other party (“the disclosing party”) in connection with business negotiations and/or with that respective order or other contracts between the parties and which is described as confidential or which, for other reasons, is recognizable as constituting a business- or company secret; and
- that, the abovementioned information will, by the receiving party, not be recorded, passed on to third parties or used by itself in any way, except insofar as express written consent by the disclosing party has been obtained beforehand or except insofar as any such conduct is necessary in order to achieve the purpose of the contract.
- This obligation to maintain secrecy shall continue to apply for another five years after the order has been performed in full or has come to an end.
- The following information is excepted herefrom:
- information which was already known to a receiving party before the contractual negotiations commenced or which is disclosed to the receiving party by third parties as not being confidential, provided that disclosure by those third parties is not a breach of confidentiality obligations of such third parties;
- information which has been developed by the receiving party, acting independent from the disclosure by the disclosing party;
- information which is, or which will become public knowledge other than through breach of the receiving party of its confidentiality obligations hereunder;
- information in respect of which a duty of disclosure exists by virtue of statute or which a public authority or court has ordered to be disclosed. However, in this case, the receiving party is obliged to inform the disclosing party without delay before disclosure.
- Statutory duties of confidentiality which go beyond those referred to above remain unaffected.
Duties under Medical Device Laws
- The customer shall support us in respect to all medical device regulatory matters. Especially, the Distributor will, during and after the term of this Agreement, notify us of all events, adverse effects, notifications by its customers etc. that we need to be aware of to fulfil our regulatory obligations. The Customer will fully support us, free of charge, in all regulatory matters related to the Territory. Even after the term of this Agreement, the Customer shall support us in respect to all regulatory obligations and Customer shall in individual cases, if demanded by us and reasonably necessary for us, to fulfil tracking obligations, disclose to us details of the End-Customer of a certain identified Product.
- The customer shall retain its records in reference to the goods supplied by us and in reference to their sale or use by the customer, (including names of its customers and exactly identified products concerned per customer: (Product name, Lot-number, expiry date) for a period of at least 12 years after our supply of the goods to the customer. The customer must assist us to comply with Medical Device Laws, and in case of reasonable requests by us the customer shall support us with all information (his respective customers, lot number, date of delivery to its customers) that is required for us to comply with our obligations under Medical Device Laws. At our request the customer shall store such information at a lawyer`s office at our costs to ensure access in case of requests from regulators. If a recall occurs, the Distributor is committed to assist us, as best as they can, in the recall of the Products sold by them.
- The place of performance is D-73770 Denkendorf, Germany.
- For customers within the European Union and in Norway and Liechtenstein, the exclusive jurisdiction for all disputes between us and such customers shall be at the courts which have jurisdiction for Denkendorf, Germany. For all other customers, all disputes arising in connection with the offering, marketing, supply of goods and/or in connection with the quality of such goods shall be exclusively referred to and finally resolved by binding arbitration administered by the International Chamber of Commerce and conducted pursuant to its Rules of Arbitration by three arbitrators appointed in accordance with said Rules. The place of arbitration shall be Stuttgart, Germany, and the language to be used in the arbitral proceedings shall be English
- The contractual and other legal relations between ourselves and our customers are governed by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) dated 11th April 1980.