For use in relation to companies, legal entities under public law or public fundsThe following terms and conditions shall apply to all future deliveries, services and quotationsin relation to the buyer, even if no express reference to these terms and conditions hasbeen made. Any contrary terms and conditions of purchase of the buyer shall not apply, andshall be binding upon frasaco only if they have been expressly accepted by frasaco. Evenif frasaco makes reference to any letter containing, or referring to, terms and conditions ofthe customer or any third party, this shall not constitute consent to the application of suchterms and conditions. If any individual provisions are or become ineffective, the other termsand conditions shall not be affected hereby.Insofar as the products marketed by frasaco are medical devices under Section 3 (1) Medizinproduktegesetz[Medical Devices Act], the buyer shall comply with all applicable statutoryprovisions and secondary provisions (statutory orders, directives) relating to theinstallation, operation and use of medical devices and relating to the recording, assessmentand prevention of risks in respect of medical devices in circulation or operation.
1. Quotation and Conclusion of Contract
a) Quotations shall be subject to change without notice, to availability and to prior sale.
b) Orders shall become binding only upon frasaco‘s written acknowledgement of the order.
c) Amendments and supplements to the agreement made, including these General Termsand Conditions of Business, shall only be effective in writing.
a) The selling prices quoted in the respective latest version of the price list shall apply.Prices shall be subject to change without prior notice. However, a minimum order valueof € 50.00 net shall be charged even if the purchase order is below this value
b) Selling prices shall be in € net, ex works Tettnang and exclude packaging, insurance,freight charges, customs duty and incidental import levies. Value-added tax shall beadded at the respective statutory rate, insofar as applicable.
c) In addition to the aforementioned amounts, a handling fee of € 10.00 net shall be chargedin the case of any order value below € 200.00 net. This handling fee shall not applyto order values above € 200.00 net.
3. Obligation to deliver/take delivery
a) Periods and deadlines promised by frasaco in respect of delivery or performance shallalways only be approximate, unless a fixed period or deadline has been expressly guaranteedor agreed upon. Compliance with such deadlines and periods shall alwaysbe conditional upon the timely receipt of all documents essential for carrying out theorder, as well as any down payment agreed upon. Otherwise, the deadlines and periodsfor delivery or performance shall be appropriately extended. Section 10 shall apply asregards the provision of material by the buyer.In cases where shipment has been agreed upon, the periods and deadlines shall relate tothe time of hand-over to the forwarder, carrier or any other third party appointed to carryout transportation.
b) If frasaco defaults on delivery or performance, or if for whatever reason it becomesimpossible for frasaco to deliver or perform, frasaco‘s liability shall be limited to compensatorydamages under the terms of Section 7.
c) frasaco shall be entitled to make sub-deliveries, if such sub-delivery can be used by thebuyer for the purpose intended under the contract, if it has been ensured that the residualgoods ordered will be delivered, and if this does not involve any substantial extrawork or cost for the buyer, unless frasaco agrees to assume such extra cost. Moreover,deviations of up to +/- 10 % from the quantities ordered shall be permissible.d) If the buyer fails to fulfil its obligation to take delivery despite a reminder, frasaco shallbe entitled, without prejudice to its other rights, to sell the delivery item on the openmarket.
e) Except where a special agreement has been made, shipments of samples shall be invoicedafter 30 days, calculated from the date of the delivery note.
f) Goods returned for reasons not imputable to frasaco shall be accepted only by prior arrangementand only if the goods are in faultless condition and in their original packaging,and if postage has been paid. frasaco hereby reserves the right to decide in any individualcase whether to accept returned goods. There shall be no entitlement to return custommadegoods or goods delivered more than 3 months previously. Section 6 shall remainunaffected by this provision.Credit notes shall be issued only if the original invoice and the original delivery note have beenenclosed with the goods returned. In the case of a credit note, a handling fee of € 50.00 net andan additional resorting fee of 20 % of the order value shall be charged.
g) Any events of force majeure shall entitle frasaco to postpone delivery by the duration ofthe hindrance plus a reasonable start-up period, or to wholly or partly rescind the orderon account of the part of the order not performed, provided that such disruptions are oftemporary duration. Strike, lockout or unforeseeable circumstances, e.g. business disruptions,that make it impossible for frasaco to deliver on time despite reasonable effortsshall be deemed to be equivalent to force majeure. Insofar as any aforementioned eventsmake it materially more difficult or impossible for frasaco to deliver or perform, and suchhindrance is not of temporary duration, frasaco shall be entitled to rescind the contract. If,as a result of such delay, it would be unreasonable to expect the buyer to accept delivery orperformance, the buyer may rescind the contract by written declaration to frasaco forthwith.
4. Packaging, Shipment, Passage of Risk
a) frasaco shall choose the packaging, mode of shipment and method of shipment atits dutiful discretion and in accordance with any and all applicable legal provisions.Packaging material shall be charged at cost price.
b) frasaco shall effect transportation insurance for all deliveries. In any event, insurancecosts shall be borne by the buyer. If any damage occurs in transit, confirmation from therelevant post office or forwarder shall be sent to frasaco.
c) Even in the case of delivery carriage paid, the risk shall pass to the buyer as soon asthe goods leave the premises of frasaco‘s supplier. If dispatch is delayed through thefault of the buyer, the risk of accidental destruction shall already pass to the buyer uponnotification of readiness for shipment.
5. Retention of Title
a) The goods delivered (goods under retention of title) shall remain frasaco‘s propertyuntil all claims existing now or in future against the buyer have been satisfied. In thecase of a running account, such retention of title shall be deemed to be security for thebalance owed by the buyer. During the period of retention of title, the buyer shall not beentitled to pledge the goods or to assign the same to third parties as security.
b) In case the goods are on-sold, the buyer hereby assigns to frasaco, until all frasaco‘sclaims have been satisfied, the proceeds receivable from such on-selling, as well asany other claims that the buyer is entitled to against its customers as result of suchon-selling (particularly tort claims and claims to insurance benefits). frasaco herebyaccepts this assignment. At frasaco‘s request, the buyer shall provide frasaco with allinformation and documents necessary for asserting frasaco‘s rights against the buyer‘scustomers. frasaco hereby revocably authorises the buyer to collect in the buyer‘s ownname the claims assigned to the seller. frasaco shall revoke such authorisation to collectonly in the event that the goods are realised as security.
c) Any attachment or seizure of goods under retention of title by third parties shall be reportedto frasaco forthwith. All intervention costs ensuing therefrom shall, in any event,be borne by the buyer.
d) frasaco shall release goods under retention of title, if and insofar as their value exceedsby more than 20 % the sum of the claims secured. In this respect, frasaco shall be freeto choose which goods to release.
6. Alterations, Liability for Defects
a) frasaco hereby reserves the right to alter the design or manufacture of its products inkeeping with technical progress, or to completely remove products from its productrange, without prior notice. Information provided in prospectuses, advertising mail,advertisements or demonstration items shall not constitute agreed qualities. This shallapply also to illustrations, drawings and size- or weight-related data enclosed withquotations, unless these are expressly referred to as binding.
b) Any agreement on certain features of the goods or on the production of moulds must bein writing. Any reference to technical standards shall serve as a performance specification.
c) Any notification of obvious defects shall be made forthwith upon receipt of the delivery.
d) If a quality-related defect exists, such defect shall be eliminated, or a replacement shallbe provided free of charge, at frasaco‘s option. If such replacement or rectification failstwice, the buyer may assert the statutory warranty claims under these General Termsand Conditions of Business. Parts replaced shall be returned at frasaco‘s request. Inany event, warranty claims shall become statute-barred one year after the buyer hasreceived the goods.
7. General Limitations of Liability
a) In cases where fault is relevant, frasaco‘s liability for compensatory damages on whateverlegal basis, particularly on the basis of impossibility, default, defective or incorrectdelivery, breach of contract, culpa in contrahendo and tort, shall be limited in accordancewith this Section 7.
b) frasaco shall not be liable in cases of ordinary negligence on the part of its organs,statutory representatives, employees or other authorised agents, except where dutiesmaterial to the contract have been breached. Duties material to the contract are definedas duties that ensue from the nature of the contract and that, if breached, would jeopardiseattainment of the purpose of the contract.
c) Insofar as frasaco is liable in principle under Item 7 (b), such liability shall be limitedto the loss that was, at the time of contract closure, foreseen by frasaco as being a possibleconsequence of any breach of contract, or that frasaco ought to have foreseen atsuch time by applying the diligence customary in the trade. Additionally, any collateralloss and consequential loss incurred as a result of defects in the item delivered shallbe compensatable only insofar as such loss is to be typically expected when the itemdelivered is used as intended.
d) In cases of liability for ordinary negligence, frasaco‘s obligation to compensate for propertydamage and any further pecuniary loss resulting therefrom shall be limited to anamount of € 5,000,000.00 per occurrence of damage or loss, even if duties material tothe contract have been breached.
e) The above exclusions and limitations of liability shall apply to the same extent in favourof frasaco‘s organs, statutory representatives, employees and other authorised agents.f) The limitations under this Section 7 shall not apply to any liability of frasaco based onintentional misconduct, qualities guaranteed, mortal injury, physical harm or healthdamage or claims under the Produkthaftungsgesetz [Product Liability Act].
8. Payment Terms
a) All payments shall be made in € (euros) exclusively to frasaco. A cash discount shall beallowed only if all invoices due earlier have been settled.
b) Invoices from frasaco shall be due and payable within 30 days of the invoice date, ifnothing to the contrary has been agreed upon in writing, and the invoicee is based inthe Federal Republic of Germany.
c) If the invoicee is based outside of the Federal Republic of Germany, delivery shall besubject to advance payment, unless otherwise agreed upon in writing. Payments inforeign currency shall be credited at the respective current € exchange rate. In thisrespect, the buyer shall bear the exchange rate risk. Exchange rate differences, bankcharges and the like shall be passed on to the buyer, and shall be settled forthwith.
d) If the agreed payment deadline is exceeded, interest at the rate of 8 % above the respectivevalid base interest rate shall be charged per annum in accordance with Section 247BGB [German Civil Code].
e) frasaco hereby reserves the right to refuse to accept cheques and bills of exchange.Checks and rediscountable bills of exchange shall be accepted only on account ofperformance. All costs in connection therewith, particularly discounting charges, shallbe borne by the buyer.
f) The buyer shall not be entitled to set off against claims of frasaco or assert a right ofretention, unless the buyer‘s claims are undisputed, have been determined by a finaland non-appealable court judgement or are at the final judgement stage.
g) Any culpable non-compliance with payment terms, such as default in payment forexample, or any circumstances giving rise to serious doubts about the buyer‘s creditworthiness,shall cause all frasaco‘s claims to fall due immediately.
9. Moulds and Tools
a) The price for moulds shall also include the costs for one single supply of samples, nothowever the costs for testing and machining devices, nor for alterations requested bythe buyer. Costs for any further supply of samples that are imputable to frasaco shall beborne by frasaco.
b) frasaco is and shall remain the owner of all moulds made for the buyer by frasaco itselfor by any third party contracted by frasaco. As long as the buyer meets its obligationsto pay and take delivery, moulds shall be used only for orders placed by the buyer.frasaco shall be obliged to replace such moulds free of charge only if such moulds areessential for fulfilling an output quantity guaranteed to the buyer. frasaco‘s obligationto retain such moulds shall lapse two years after the last delivery of parts made out ofsuch mould, and after prior notification of the buyer.
c) If it is agreed that the buyer shall become the owner of such moulds, title shall passto the buyer upon payment of the purchase price for the moulds. Instead of handingover the moulds to the buyer, frasaco shall be under an obligation to retain the moulds.frasaco shall mark the moulds as externally owned property, and shall, at the buyer‘srequest, insure such moulds at the buyer‘s expense.
d) In the case of moulds owned by the buyer and/or made available by the buyer on loan,frasaco‘s liability as regards retention and care shall be limited to the level of diligencethat it applies in its own affairs. Costs for servicing and insurance shall be borne bythe buyer. frasaco‘s obligations shall lapse, if the moulds have not been collected bythe buyer within a reasonable period after completion of the order and a correspondingrequest to the buyer. As long as the buyer has not fully met its contractual obligations,frasaco shall, in any event, be entitled to retain the moulds.
10. Material Provided by the Buyer
a) If material is to be provided by the buyer, such material shall, at the buyer‘s own expenseand risk, be supplied to frasaco in due time and faultless condition with anappropriate quantity surplus of at least 5 %.
b) If these prerequisites are not met, or not met in due time, the delivery period shallbe reasonably extended. Except in cases of force majeure under Item 3 (g), the buyershall bear all resulting extra costs, including costs in connection with interruptions inmanufacture.
c) frasaco shall assume no responsibility for the quality or composition of material providedby the customer. The customer shall be solely responsible for ensuring that theraw materials provided are absolutely suitable for production, and that they satisfy thestatutory provisions. frasaco shall not carry out any examination or analysis of the materialprovided by the customer, unless this has been expressly agreed upon in writing.
11. Property Rights
a) If frasaco is required to deliver on the basis of drawings, models or samples, or usingparts provided by the buyer, the buyer shall be accountable that no third-party propertyrights are infringed as a result thereof. frasaco shall point out to the buyer all such rightsknown to it. The buyer shall indemnify frasaco against all third-party claims, and shallcompensate for any loss incurred. frasaco shall be entitled, without this requiring anyexamination of the legal position, to temporarily discontinue work, if a third party pleadinga property right belonging to it prohibits frasaco from manufacturing or delivering.
b) All drawings and samples sent to frasaco for the purpose of submission of a quotationshall be returned to the buyer at the buyer‘s request, or shall otherwise be destroyedthree months after the submission of a quotation, if the buyer has not accepted thequotation in due time.
c) frasaco shall be entitled to copyrights and any industrial property rights in the models,moulds, devices, drafts and drawings made by frasaco or by third parties on its behalf.12. Principle of SeparabilityIf the buyer is a medical institution or a member of a healthcare profession, frasaco andthe buyer hereby affirm that the decision to purchase is based solely on quality and price.The procurement and the marketing of the goods by frasaco shall be subject to generalcompetition in terms of price and performance. The buyer hereby affirms that no otherconsiderations have been relevant, and that there are no other reasons for its decision topurchase (e.g. gratuities to the buyer).
13. Place of Performance, Place of Jurisdiction and Applicable Law
a) For both Parties hereto, Tettnang shall be the place of performance for delivery andpayment. Tettnang shall be the place of jurisdiction for both Parties hereto. However,frasaco hereby reserves the right to bring an action before the court having jurisdictionover the buyer‘s registered office, where necessary.
b) The laws of the Federal Republic of Germany shall exclusively apply. The UnitedNations Convention on Contracts for the International Sale of Goods of 11 April 1980(CISG) shall not apply.