GENRAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT
Should any provision of the present General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions thereof.
2. Formation of contracts, documents, industrial property rights
- Our offers are not binding. A contract shall only come into force upon our order confirmation in writing or text form. Solely our order confirmation in writing or text form is relevant for the date, kind and quantity of the delivery. If the order is not confirmed by us in writing or in text form the contract shall come into force upon performance of the order at the latest. Statements made orally or by phone by our representatives shall be legally binding only if confirmed in writing or in text form.
- We reserve all proprietary rights and copyrights to cost estimates, concepts, designs, drafts, drawings and other documents, in particular applied process and coating technology (“Proprietary Materials”); Proprietary Materials may be modified, saved or copied, and made available to third parties only with our explicit approval. Drawings and other documents provided as part of an offer must be returned to us upon request at any time and in any event if the order is not placed with us.
- No Proprietary Materials created by us in connection with or pursuant to this contract shall be considered works made for hire. To the extent that customer owns any rights in such Proprietary Materials, customer hereby irrevocably assigns to us all rights, title and interest, including all intellectual property rights, in and to such Proprietary Materials.
- In case we deliver items according to drawings, models, samples or other documents provided by the customer, the customer shall ensure that: (i) industrial property rights of third parties are not infringed, and (ii) products made or coated based on such customer information are in compliance with all applicable laws and regulations, in particular such related to products safety. If a third party, by invoking proprietary rights, prohibits in particular the manufacturing and delivery of such items, we shall be entitled to suspend all relevant activities and to claim damages without being obliged to analyse the legal situation (see also clause 8.3). In addition, the customer shall immediately indemnify us and hold us harmless from any costs and third-party claims related to design or other documents provided to us by the customer.
- We reserve the right to charge the costs for samples and testing parts as well as for tools required for their manufacturing. In case of doubt, payment shall be due and payable after acceptance of the first sample, test component or tool.
- We shall be entitled to procure the materials for the entire order and to manufacture the total order quantity immediately. Any customer requests for changes after order placement can, therefore, not be taken into consideration, unless explicitly agreed otherwise.
- To the extent necessary for manufacturing or planning related reasons, our deliveries may exceed or fall short of the agreed.
3. Performance description; Limited Warranties
- The quality of the delivered goods or services is finally described by the explicitly agreed features (e.g. specifications, labels, approvals, and other information). Any other qualities of goods and services are subject to a further explicit written agreement. Therefore, any warranty for a special application purpose or particular suitability, life period or durability after passing of risk requires an explicit written agreement; otherwise the risk of suitability and use shall be borne by the customer. We reserve the right to implement any legally required, customary or technically unavoidable deviations from physical and chemical quantities, including colours, recipes, chemical contamination, processes and the use of raw materials as well as order sizes and reasonable quantity variances, as far as this is not unreasonable towards the customer.
- To the extent the design, information, data, specifications, practices and techniques have been provided by the customer, or the deliveries are based on active pharmaceutical ingredients or parts and components selected or provided by customer or sterilized by a third party selected by customer we make no warranty whatsoever and the customer shall immediately indemnify us and hold us harmless from any related costs and third-party claims. Generally, solely customer shall be responsible for risks related to the use of customer products and all customer product related compliance requirements, including but not limited CE certifications or FDA approvals such as 510k or PMA requirements.
- Details of the delivery item (e.g. as provided in product information, electronic media or on labels) are based on our general experience and knowledge and are for purposes of reference value or labelling only. These product details as well as expressly agreed features or application purposes shall not relieve the customer from the obligation to test the product for the intended purpose and to take the respective measures for careful storage. In particular, but without limitation, it is acknowledged by the customer that no technical schedule, shall be deemed to constitute or contain any representation, warranty or condition relating to the deliveries.
- FURTHERMORE, UNLESS SPECIFICALLY AGREED OTHERWISE IN WRITING, DELIVERABLES ARE MERELY MADE TO CUSTOMERS REQUIREMENTS AND GENERALLY NOT VERIFIED; TESTED OR WARRANTED BY US TO BE BIOCOMPATIBLE, IMPLANTABLE OR IN COMPLIANCE WITH RELATED REGULATORY REQUIREMENTS (“BIOCOMPATABLITY REQUIREMENTS”); THE CUSTOMER IS THEREFORE SOLELY RESPONSIBLE FOR THE APPROPRIATE DEFINITIONS OF THE RESPECTIVE BIOCOMPATABILITY REQUIREMENTS AND WILL FULLY HOLD HARMLESS AND INDEMNIFY US FROM COSTS AND CLAIMS RELATED TO THE IMPROPER USE OF DELIVERIES OR PRODUCTS CONTAINING DELIVERIES INSIDE THE HUMAN BODY.
- THE WARRANTIES AND ANY ASSOCIATED REMEDIES SET OUT OR REFERENCED HEREIN ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY US OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT ALLOWED BY LOCAL LAW WE DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF NON-INFRINGEMENT.
- Details of quality, durability and possible uses of our products do not include any guarantees, in particular as stipulated in Sec. 443 German Civil Code (BGB), unless such details are explicitly specified as guarantee in writing.
4. Delivery and delivery time
- Lead times are provided for information purposes only and shall be non-binding, unless it is explicitly agreed that the delivery date shall be fixed, i.e. it is put in writing that the customer has no further interest in the delivery after the agreed date. Confirmed delivery dates are subject to the correct, complete and timely receipt of supplies by us. Delivery deadlines shall be considered as met if prior to deadline expiry the delivery item has left our facility or if we have informed the customer that the order is ready for shipment. Delivery periods shall not start to run until the customer has properly fulfilled its respective obligations and contractual duties, such as furnishing technical data, product acceptance notifications in accordance with the agreed initial sampling processes and documents, approvals, making a down payment or providing a payment guarantee.
- We are entitled to make partial deliveries.
- Events of force majeure or other circumstances beyond our control that render the timely execution of accepted orders impossible shall relieve us from our delivery commitment as long as these events continue to exist. This means we do not assume the risk of procurement. Furthermore, we reserve the right to withdraw from the contract in case we do not receive the relevant products ourselves in spite of a respective prior procurement contract with our supplier; our responsibility for damages caused intentionally or negligently according to clause 8 remains unaffected. We will inform the customer without undue delay that the delivery item will not be available in time, and in case we withdraw from the contract we will return any consideration already received without undue delay.
- It is generally not possible to return any sold and non-defective products.
- In case the customer becomes subject to insolvency proceedings, or comparable proceedings under foreign law, provides a formal information of financial status (Vermögensauskunft) according to Sec. 807 German Code of Civil Procedure (ZPO), experiences payment difficulties or in case we become aware of a significant deterioration of the customer’s financial situation, we shall be entitled to suspend deliveries immediately and to refuse the fulfilment of current contracts unless the customer provides the respective consideration in advance or, upon our request, provides appropriate securities.
- In case the customer is in default of acceptance or payment or does culpable breach of any primary or accessory obligations, the customer shall indemnify us for any damages caused and any additional costs related thereto. Further claims and rights shall remain unaffected. In case of the customer’s default of acceptance or payment, the risk of accidental loss and damage of the products shall pass to the customer.
- In case the products are sent to the customer or a third party at the customer’s request, the risk of accidental loss or accidental damage of the products shall pass to the customer once the products have left our facility/warehouse at the latest, irrespective of the agreed dispatch place and irrespective of which party bears the transport costs.
- Unless explicitly stated otherwise, any use of Incoterms shall be deemed as a reference to the INCOTERMS 2010 as published by the International Chamber of Commerce (ICC).
- Unless agreed otherwise, the information we provide under export law is limited to the non-preferential origin under Art. 59 et seq. of the European Union Customs Code Regulation (EU) 952/2013.
- We reserve title to all delivered products until all our existing claims, including conditional and accessory claims against the customer resulting from our business relation have been satisfied; for this purpose, all deliveries shall be considered as one single delivery transaction. In case of a current account, the reservation of title shall serve as security for our outstanding balance claim. All aforementioned provisions shall also apply to future claims. In case of a material breach of contractual obligations by the customer, we may immediately retrieve the products without further notice, reasonably taking into account the legitimate interests of the customer; the customer hereby consents in advance to return the products in such instances. Retrieving the products shall only be deemed a withdrawal from the contract if explicitly so stated by us. All costs resulting from retrieving the products (in particular transport costs) shall be borne by the customer. To the extent we do not explicitly declare our withdrawal from the contract the customer may request delivery of the products only once the purchase price and all costs have been paid in full.
- The customer may resell or process the delivered products or mix or combine it with other items in the course of ordinary business only; however, the customer hereby assigns to us in advance all claims resulting from the resale, processing, mixing, combining or other legal grounds related to the delivered product (in particular from insurance contracts or unlawful acts) in the amount of the agreed final invoice total (incl. VAT). The same applies if a product is not resold but used by the customer for purposes of a contract for work and services or a contract for work and materials (Werk- oder Werklieferungsvertrag).
- The reservation of title shall also apply to new products resulting from the processing of the initially delivered items, or their mixing or combining with other items, in each case at the full value of the respective new product. These processes shall be performed on our behalf so that we shall be deemed to be the manufacturer. If third-party ownership rights remain after processing of our products or their mixing or combining with third party products, we shall acquire joint ownership in the new product at the ratio of the objective value of the processed, mixed or combined products. If our ownership ceases as a result of the processing, combining or mixing, the customer hereby already transfers to us his title and any expectant rights in the new product in the amount of the invoice value of the products delivered by us, and shall store it on our behalf free of charge.
- The customer shall be authorised to collect debt claims from the resale assigned to us under clause 5.2 as long as we have not revoked this authorisation. We will not collect such debt claims ourselves, as long as the customer properly fulfils its payment obligations towards us. Upon our first written demand the customer shall inform us about the debtors of the assigned claims and shall notify the debtors of the assignment.
- We may revoke the customer’s authorisation under clauses 5.2 and 5.4 to resell the products and to collect the debt claims assigned to us with immediate effect if the customer is in default of payment to us, experiences payment difficulties due to a significant deterioration of its financial situation or does not fulfil other material contractual obligations properly. In case the customer becomes subject to insolvency proceedings, or comparable proceedings under foreign law, discontinues payments, provides formal information of its financial status (Vermögensauskunft) according to Sec. 807 German Code of Civil Procedure (ZPO), or if a change of ownership occurs in the customer’s business due to payment difficulties, the authorisation to resell products and to collect the debt claims assigned to us shall cease automatically.
- The customer shall store our (jointly) owned materials on our behalf free of charge and with the due care and diligence of a prudent businessman and shall insure them against fire, burglary and other usual risks. Any required maintenance and inspection services have to be timely performed at the customer’s expense.
- The customer must not pledge or assign as security any products delivered under reservation of title or any products processed or manufactured on our behalf. The customer shall notify us immediately of any pledge or any other interference with our ownership rights by third parties and shall confirm our title in the respective product in writing, both to us and the third party. Any costs arising from resulting legal action shall be borne by the customer.
- In case the actual value of the securities exceeds the nominal amount of the secured claims by more than 10%, we will release selected securities upon the customer’s request.
- In case the reservation of title under clause 5.1 needs to be publicly registered or requires any other kind of cooperation by the customer in order to be valid, the customer hereby irrevocably consents to such registration and agrees to take all necessary actions at its own cost.
6. Prices and payment
- Our prices are in EUR and are valid for delivery FCA (agreed place of delivery); statutory VAT, transport and packing costs are not included.
- Unforeseen changes in costs beyond our control, such as costs for raw materials, wages, energy and other costs shall entitle us to adjust prices accordingly. For partial deliveries each delivery may be invoiced separately. If no specific prices have been agreed in the contract, our prices valid at the respective delivery date shall apply.
- Our invoices are due immediately and payable without discount. Any discount has to be specifically agreed in writing.
- We are not obliged to accept bills, cheques or other promises to pay, their acceptance shall not be considered a replacement of the underlying obligation (Leistung an Erfüllungs statt) but only as an additional possibility for us to receive payment (Leistung erfüllungshalber).
- The date of receipt of payment shall be the day on which the amount is in our possession or has been credited to our bank account. In case the customer is in default of payment we may charge interest at the rate of 9 percentage points above the base interest rate published by the Federal Bank of Germany (Bundesbank) for the duration of the default, plus a lump sum of EUR 40. This shall not restrict our right to claim additional damages or costs.
- In addition, in case the customer is in default of payment, we may choose to call due any outstanding purchase price instalments or other existing claims against the customer as well as to make future deliveries under this or other contracts subject to provision of a security in advance or simultaneous (Zug-um-Zug) payment against delivery.
- No interest will be paid on advance or partial payments.
- The customer may set off or withhold payments only if his counterclaim is undisputed or res judicata. This restriction shall not apply to claims of the customer for corrective measures in relation to a defective product or completion of an unfinished product.
- Upon request, the customer shall provide us with any documentary evidence for tax purposes (i. a. entry certificates (Gelangensbestätigung)), which we consider necessary under the applicable statutory provisions to prove our exemption from VAT for cross-border deliveries. In case of non-compliance the customer shall, after receipt of a corrected invoice, cover any VAT claims and interest imposed on us by the tax authorities. The customer shall inform us about the invalidity or any changes in its VAT identification number without undue delay.
- In case the purchase price is paid by way of the credit note procedure for VAT purposes, the customer shall be solely responsible for compliance with the VAT related provisions on invoices. We shall not be liable for damages resulting from the credit note procedure, e.g. any refunds of input tax and payment of interest by the customer to the competent tax authorities.
7. Claims for defects; Remedies
- We shall be liable for defects of products delivered by us only according to the following provisions.
- The customer shall properly fulfil its duties regarding inspection and lodging complaints under Sec. 377 German Commercial Code (HGB), i.e. the customer shall inspect the products without undue delay and shall notify us of any defects without undue delay, and, if a defect is discovered later in the ordinary course of business, shall notify us of such defect without undue delay after discovery.
- If defective products are delivered, we shall be given the opportunity, prior to the start of manufacturing (processing or installing), to sort out such products and to remedy the defect or to make a substitute delivery, unless this cannot reasonably be expected from the customer. In case we are unable to accomplish this or fail to comply in due course, the customer may withdraw from the contract to this extent and may return the products at our risk. In case of urgency, the customer may, following consultation with us, remedy the defects himself or instruct a third party to do so. Expenses incurred by such remedial activities shall be reimbursed by us according to clause 8.
- If the defect is discovered only after the start of manufacturing or initial operation, despite the fulfilment of all duties according to clause 7.2, the customer may demand subsequent performance (rework or substitute delivery at our discretion). The delivery of defective products results in a right of retention only insofar as it is in due proportion to the respective defect and the expected costs of the subsequent performance, and provided that the customer’s counterclaim is based on the same contractual relationship.
- Any claims for damages for defective products shall be subject to two useless attempts of subsequent performance. In case of substitute delivery the customer is obliged to return the defective products upon request.
- A withdrawal from the contract or a claim for reduction of purchase price shall be granted only if the defect cannot be remedied within an appropriate period, if subsequent performance will incur disproportionate costs, is unreasonable or must be considered as failed for other reasons. The customer shall, however, have no right to withdraw from the contract in case of minor defects.
- The customer shall allow us to inspect any rejected products without undue delay; in particular these products shall be made available to us upon request and at our cost. If complaints are unfounded, we may charge the transport costs and inspection expenses to the customer.
- No claims for defects may be raised in case of merely insubstantial deviations from the agreed quality, insubstantial impairment of serviceability, or if the defect can be put down to a violation of operating, maintenance or installation instructions, unsuitable or improper use or storage. This also apply in case of faulty or negligent handling or assembly, normal wear and tear or tampering with the delivery item by the customer or a third party.
- No costs may be claimed regarding the subsequent performance, the withdrawal from the contract or damage-repair because of defective products, in particular costs for de- and reinstallation, testing, validation, shipment, transportation, labour and material, insofar as: (i) these claims and costs result from the fact that the products have been transferred to a place different from the agreed place of performance after passing of risk, or (ii) at the time the costs were incurred, which means generally at the time of deliver but at latest during installation or processing, the customer knew or reasonably should have known of the defect. However, this does not apply in case such transfer corresponds with the normal use of the products known to us.
- Damages and reimbursement of expenses may only be claimed according to clause 8.
- The customer may not make the aforementioned claims for any products, which, according to mutual agreement, we do not deliver as new products.
- Costs regarding the subsequent performance, the withdrawal from the contract or damage-repair because of defective products, in particular costs for de- and reinstallation, testing, validation, shipment, transportation, labour and material shall not exceed the total value of the respective order. We shall be liable for any damages, in particular resulting from a breach of duty of care when entering into a contract (culpa in contrahendo), from a breach of obligations or from unlawful acts (Sec. 823 et seq. German Civil Code (BGB)), only to the extent that we, our employees or vicarious agents (Erfüllungsgehilfen) have acted intentionally or grossly negligent.
- For damages resulting from death or bodily harm or a violation of material contractual obligations, we shall also be liable for ordinary negligence. Contractual obligations shall be deemed as “material” if their fulfilment is a prerequisite for proper performance of the contract and the customer regularly trusts in their fulfilment and also may do so. In case of a violation of a material contractual obligation our liability shall be limited to the direct average damage, predictable and typical for the respective type of product. This shall also apply to a breach of obligations by our employees or vicarious agents (Verrichtungsgehilfen or Erfüllungsgehilfen).
- We shall be liable for the infringement of third parties’ industrial property rights in connection with the sale of our products under the foregoing provisions only if the infringement results from the proper use of our product, and only to the extent such third parties’ industrial property rights are valid in the Federal Republic of Germany and have been published at the time of delivery. This shall not apply if we have manufactured the product according to designs, drawings, models, or other descriptions or data provided by the customer or based on active pharmaceutical ingredients or parts and components selected or provided by customer or sterilized by a third party selected by customer and/or if we did not know or did not have to know of any infringement of industrial property rights in connection with the developed product. In this case our customer is liable for any current or future infringement of third parties’ industrial property rights. The customer undertakes to inform us without undue delay of any potential and alleged cases of infringement of third parties’ industrial property rights he may become aware of, and to indemnify us from any third parties’ claims, costs and expenses incurred.
- Claims for defects of delivered products, including any damages relating to such defects – irrespective of the legal grounds – shall become time-barred one (1) year after delivery.
- Claims for price reduction and rights to withdraw from the contract shall be excluded insofar as the primary claim for performance or the secondary claim for subsequent performance has become time-barred.
- Our mandatory liability pursuant to the provisions of the German Product Liability Act (Produkthaftungsgesetz) towards harmed third parties and mandatory elements of Sec. 478, 479 German Civil Code (Letztverkäuferregress) shall remain unaffected by the foregoing provisions.
- We shall only be liable for claims of recourse by the customer if and to the extent the customer has not accepted obligations towards his own customer beyond the mandatory statutory provisions on remedies for defects and liability. Unless agreed otherwise in writing, clauses 7 and 8 shall apply accordingly to any claims of recourse raised by the customer.
- WE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE OBLIGATIONS UNDER THIS CONTRACT. THE TERM “CONSEQUENTIAL DAMAGES” INCLUDES, BUT IS NOT LIMITED TO, PATIENT’S MEDICAL EXPENSES, LOSS OF USE, LOSS OF INCOME, REVENUE AND COST OF CAPITAL OR PAIN AND SUFFERING. EXCEPT FOR PERSONAL INJURY OR DEATH DUE TO OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OUR AGGREGATE LIABILITY RELATING TO OUR OBLIGATIONS UNDER THIS CONTRACT (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE SHALL IN NO EVENT EXCEED: (I) ON AN AGGREGATED CLAIM BASIS, THE AMOUNT PAID TO US UNDER THIS CONTRACT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY (“THE COMBINED TOTAL”), OR (II) 10% OF THE COMBINED TOTAL ON A PER CLAIM BASIS. WE DO NOT ACCEPT ANY FURTHER LIABILITY.
- Customer shall keep any knowledge and information of a technical or economical nature it has received from us in connection with the business relationship (“Confidential Information”) strictly confidential towards third parties at any time, even after the end of the business relationship, unless the customer proves that the Confidential Information is (i) already known to the customer or in the public domain at the time of disclosure or subsequently becomes public knowledge other than through a fault of the customer, (ii) subsequently developed by the customer completely independent from the Confidential Information, or (iii) received by the customer from a third party without breach of a confidentiality obligation.
- We remain the sole owner of any documents, in particular drawings, containing Confidential Information, which are disclosed in the course of the business relationship. Any such documents must be returned to us upon our request but at the latest at the end of the business relationship. The customer has no right of retention regarding Confidential Information or documents or materials containing Confidential Information.
- The disclosure of Confidential Information does not establish any industrial property rights, rights to knowhow or copyrights of the customer and does not constitute a prior publication or right of prior use according to the applicable patent, design and utility model laws. Any kind of license is subject to a written agreement.
10. Compliance; Recalls
- The customer shall comply with foreign trade law provisions, in particular with any applicable export control regulations under German, EU and US law and hereby agrees that we can reasonably review, save, process and reasonably share with professional service providers customer data, including personal data, for compliance purposes in each case subject to the applicable data privacy laws and limited in extent and scope to the extent necessary to ensure legal and regulatory compliance. The customer will not engage in any business related to ABC weapons or military application, and he undertakes not to deal with or otherwise cooperate, neither directly nor indirectly, with any terrorist or terrorist organizations or any other criminal or anti-constitutional organizations. The customer will in particular establish reasonable organizational measures to implement applicable embargoes, the European regulations against terroristic and criminal acts and the respective requirements under US law or any other law applicable to the business relationship, in particular by implementing adequate software systems. Once a product has left our facilities, the customer shall be solely responsible for compliance with the abovementioned provisions and shall indemnify us from any and all claims or related costs resulting from the violation of the respective laws or regulations by the customer, its affiliates, employees, representatives or any of its vicarious agents (Erfüllungsgehilfen), including reasonable attorney or consultant fees, administrative fees and penalties.
- We will reasonably comply with the obligations resulting from the European Chemicals Regulation No. 1907/2006 (“REACH”) that are directly applicable to us and will be liable for breaches according to clause 8. The customer shall, however, be solely liable for any negative consequences resulting from the provision of insufficient information by the customer, including any incorrect or incomplete information relating to the use of products within the supply chain. Outside of Europe, solely the customer is responsible for regulatory chemical compliance.
- In the event in the reasonable opinion of one party a voluntary or government-mandated recall, field correction, market withdrawal, stock recovery, or other similar action with respect to the deliveries (“Recall”) is required the customer will consult with us without delay, however the final decision for handling any Recall shall rest with us. Customer will immediately (i.e., within 24 hours or less) notify us if the customer learns that a potential Recall implicates the deliveries, and if a complaint alleges that a death or serious deterioration in the state of health has occurred. In other cases, the customer will notify us of complaints within two (2) calendar days without any delay that could not be justified. Customer will provide all reasonable assistance requested by us in the conduct of a Recall, and will: (a) provide us with available performance evaluations, accident reports, engineering investigations, and other data relating to the potential Recall; (b) provide us a reasonable opportunity to participate in inquiries and discussions among customer, its end-customer and governmental agencies regarding the need for and scope of the Recall; and (c) consult with us about the most cost-effective method of modifying or replacing systems or component parts, including the deliveries, in order to remedy the alleged defect or non-compliance. Unless agreed otherwise on a case by case basis, we shall be solely responsible for notifying governmental or regulatory authorities regarding any such matters specifically related to our deliveries, and customer will cooperate with us in reporting any requirements or other follow-up activities (including but not limited to, corrective action) relating thereto. Each party will designate a representative responsible for the exchange of such information and for all other regulatory information. In the event of a Recall, customer will not make any statement to the press or public concerning the Recall without first notifying us and obtaining our prior approval of any such statement. If a Recall arises from any other reason, including customer’s design, specifications, or mandated suppliers, active pharmaceutical ingredient or parts provided or selected by customer, customer mandated sterilizers, customer acts or omissions in the marketing, distribution, storage, or handling of the deliveries or a product containing the deliveries, the costs and responsibilities of the Recall will be borne by the customer. The parties will maintain records of all sales of deliveries and products containing deliveries sufficient to adequately administer a Recall for the period required by applicable law.
11. Place of performance and jurisdiction, miscellaneous
- For all claims resulting from our business relationship with the customer, in particular regarding our deliveries, the site from which the delivery originates shall be deemed the place of performance.
- The customer may assign its claims arising from the contractual relationship only with our prior written approval.
- For all claims resulting from our business relationship with the customer, in particular regarding our deliveries, the exclusive place of jurisdiction shall be Weinheim/Bergstraße, Germany. This shall also apply to disputes concerning the formation and validity of a contractual relationship. We shall, however, also have the option to sue the customer in the courts competent for the customer’s place of business.
- If a customer’s place of business is located outside of Germany, we shall be entitled to have all disputes arising out of or in connection with our business relationship with the customer, including disputes about the validity of contracts, finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Frankfurt a. M., Germany. Upon request, we shall exercise our right to choose arbitration before proceedings are initiated. The arbitration proceedings shall be conducted in German, unless the customer requests them to be held in English.
- The business relationship with the customer shall be exclusively governed by the laws of Germany, excluding its rules of private international law, the UN Convention on the International Sale of Goods (C.I.S.G.) and other bilateral or multilateral conventions on the harmonisation of law regarding the international sale of goods.
This is a convenience translation of our German Conditions of Delivery and Payment (Allgemeine Liefer- und Zahlungsbedingungen). In case of discrepancies between the German and the English version, the German version shall prevail.
Freudenberg Medical Europe GmbH
Phone: +49 (0)631 5341 7500
Fax: +49 (0) 631 5341 7600
Registered Office: 67661 Kaiserslautern
Company Registration Number: AG Kaiserslautern, HRB 31563