General Terms and Conditions of HumanTech Spine GmbH
I. General – Scope of applicability
1. Only our terms of business apply; conditions of the Customer that contradict or vary from ours do not form part of the contract, unless we have explicitly agreed to them in writing. In particular, our terms of business also apply if we are aware of conditions of the Customer that contradict or vary from ours and carry out the delivery without expressing any reservation.
2. All agreements made between us and the Customer with a view to carrying out the contract are recorded in the contract. Deviations, side-agreements and verbal agreements as well as agreements that may be made with travelling or other salespersons or representatives are only valid if confirmed by us in writing.
3. Our business conditions apply only to businesses or legal persons as defined in law, pursuant to § 310 Section 1 BGB (German Civil Code).
4. Our business conditions also apply to all future transactions with the Customer in the then applicable version.
II. Conclusion of contract – documentation
1. Our offers are subject to confirmation and non-binding.
2. The contract only comes into effect when we confirm the order – at the latest, however, when we carry out the contractually specified order. Our delivery note also constitutes acceptance of the order.
3. We retain the ownership rights and copyright for diagrams, drawings, calculations and any other documents; they may not be passed to third parties without our explicit written permission and must be kept secret from third parties.
III. Prices – conditions of payment
1. Our prices are unless otherwise stated “ex works” and subject to the addition of Value Added Tax on the day of invoicing. The net invoice amount (without deductions) must be paid within 20 days of receipt of the invoice. If payment is made within 10 days of receipt of the invoice, we allow a 3 % discount on the invoiced amount. A discount on new invoices is not permitted if older invoices are due for payment. If the Customer’s payment is overdue, we are entitled to charge late payment interest of 4 % over base rate. If we are able to show that the delay has resulted in greater costs, we are entitled to reclaim them. The customer can only set off a counter-claim if the claim has been legally confirmed, is undisputed or has been accepted by us. He/she is further only entitled to exercise a right to retain payment insofar as the counter-claim relates to the same contractual relationship.
IV. Delivery time
1. Delivery dates are non-binding unless otherwise agreed.
2. The delivery period starts on the confirmation of order, though not until any necessary questions for the completion of the order have been resolved. The delivery deadline has been met if the goods have left the factory by that date or the Customer has been informed that it is ready to dispatch.
3. In case of force majeure or other unforeseeable acts for which we are not responsible – e.g. industrial action, operational disruption, disruption to energy or raw material supplies, transport disruption, official actions – the deadlines are extended accordingly, if we are prevented from fulfilling the order on time. If the delivery becomes impossible or unreasonable due to these circumstances, we are not bound to deliver. If the delay lasts more than four weeks, the Customer is entitled to cancel that part of the order that has not yet been fulfilled. If the delivery is delayed or if we are freed from the obligation to deliver under the circumstances described above, the Customer does not have the right to claim damages. We are only allowed in invoke these circumstances if we have informed the Customer promptly.
4. The right ourselves to deliver the correct order on time is reserved.
V. Transfer of risk – packaging costs
1. Unless otherwise agreed, delivery is agreed to be “ex works”.
2. We assume the cost of packaging at our expense. Transport and other packaging in accordance with the packaging arrangements will not be taken back, the exception being pallets.
3. If the Customer wishes, we will insure the delivery with transport insurance; the resulting costs are to be paid by the Customer.
VI. Rights in the case of defects -returns
1. The Customer cannot base a claim on public statements by us or – if we are not the manufacturer – the manufacturer or his suppliers, if and insofar as he is not able to show that these statements influenced his decision to purchase, if we were unaware of the statements and were not obliged to be aware of them or if the statement had already been corrected at the time when the decision to purchase was made.
2. Evident defects must be notified to us in writing within 3 days of receipt. If the Customer does not make this notification within this time, he is deemed to have accepted the goods without reservation. In commercial transaction, the Customer must examine the goods immediately, and at the latest within three days after receipt and inform us at once in writing of any complaints. If the Customer does not make this notification, he is deemed to have accepted the goods without reservation.
3. Responsibility for undiscovered defects that were not seen despite careful examination within the three-day deadline cannot be accepted if the Customer does not complain in writing immediately they are discovered.
4. In the case of well-founded complaints made in the correct time and form, we have the initial right to choose between repairing the defect and delivery of a defect-free item (supplementary performance), excluding all other rights of the Customer. If the defect is to be repaired, we are responsible for all costs required, in particular transport, infrastructure, labour and material costs, so long as these have not been increased by the item having been transferred to a different location from the point of delivery. If the
5. If the supplementary performance fails, the Customer is entitled to choose between cancelling the order or demanding a reduction in the sale price. The right to compensation for damage or costs due to a defect are not affected by this, if they are not limited or excluded by section VII of these terms and conditions.
6. A guarantee is only extended if an explicit corresponding agreement has been made. A detailed description of the purchased item and its function do not in themselves constitute a guarantee.
7. All rights relating to a defect lapse one year after delivery of the item. Responsibility for intent is not affected.
8. The rights of the Customer under §§ 478, 479 BGB (German Civil Code) are not affected.
9. Goods from correctly undertaken deliveries will only be taken back with our agreement, within 90 days of the invoice date. Returns will be credited based on the invoice price.
1. The Customer can only apply for compensation instead of delivery, under § 284 BGB (German Civil Code), if he has previously given us a reasonable deadline for delivery or supplementary performance, stating that he will not accept delivery or supplementary performance after this deadline and the delivery or supplementary performance has not taken place by this deadline; § 281 Section 2 BGB is not affected.
2. Legal responsibility for damages due to a guaranteed delivery is not restricted by this contract, subject to section VII 1 above. However, we are only responsible to the extent covered by the following sections VII 3 to VII 7. v
3. Subject to section VII 4, we assume unlimited liability only in the following cases:
a) Deliberate action by our legal representatives, leading staff and others assisting with the delivery;
b) Gross negligence by our legal representatives and leading staff.
c) Culpable breach of duty by our legal representatives and leading staff that lead to the loss of life or bodily damage or damage to health. In the above cases under III b) and c), we are only responsible for the fault of other assistants to the extent that damage can be anticipated as typical for this type of contract. We are only responsible for minor negligence by our legal representatives, leading staff and other assistants under section VII 3 above or if a duty of cardinal importance to the achievement of the objective of the contract is infringed (cardinal duty). If a cardinal duty is infringed, liability is limited to the extent that damage can be anticipated as typical for this type of contract.
4. Exclusions and imitations of liability under sections VII 2 to VII 4 above also apply to liability outside the scope of the contract and for our staff, subcontractors, representatives and other assistants.
5. Claims for costs are subject to the corresponding limitations of liability above.
6. Liability according to the law on product liability is not affected by the above stipulations.
VIII. Reservation of title
1. We reserve title to the item until all payments due under the contract have been received.
2. The Customer is responsible to handle the item carefully until the transfer of title; in particular, he is required to insure them at their value as new at his expense against fire, water and theft damage and to provide evidence of such insurance. To the extent that maintenance and inspection work is required, this must be done at the cost of the Customer.
3. In the case of attachment or other intervention by third parties, the Customer must immediately inform us in writing so that we can object pursuant to § 771 ZPO (Code of Civil Procedure). If the third party is not able to refund to us the court and non-court costs of an objection pursuant to § 771 ZPO, the Customer is responsible for the balance still due to us.
4. The purchaser has the right to resell the item in the course of normal business; however, he already assigns us all amounts due according to the final sum in our invoice, including VAT, that he receives from further sale to his customers or third parties, independently of whether the item was resold with or without further processing. The Customer is entitled to collect this claim even after assignation. Our right to collect it ourselves is not affected by this. However, we undertake not to collect the claim so long as the Customer meets his payment commitments from the said proceeds, is not overdue in payments and in particular does not enter insolvency proceedings or suspend payments. Should this be the case, we can require that the Customer informs us of all the assigned claims and debtors and all the information needed to collect them, and passes us the relevant documentation and informs the debtors (third parties) that he has done so.
5. We undertake to release securities that we hold to the Customer to the extent that the realisable value of our securities exceeds the claims being secured by more than 10 %; the selection of the securities to be release is decided by us.
6. Processing and finishing of reserved goods is done on our behalf as the manufacturer in terms of § 950 BGB (German Civil Code), without, however, our incurring obligations. The processed goods are considered as reserved in the terms of these conditions. If the reserved good are inseparably combined or mixed with other goods that are not our property, then we shall be entitled to co-ownership of the new goods according to the proportion of the invoice value of the reserved goods to that of the other processed goods at the time of said processing or combination/mixing. If our goods are merged, inseparably mingled or mixed with other movable objects into a single entity and if this entity is to be seen as the main entity, then the Customer shall transfer us a proportionate share, insofar as the main entity belongs to him.
7. If the Customer breaches the terms of the contract, in particular in the case of late payment, we have the right to recover the goods. The recovery of the goods does not imply that we are withdrawing from the contract unless we explicitly say this in writing. The attachment of the purchased items by us always represents withdrawal from the contract. We are entitled to sell the item after recovering it. The value of the sale is to be credited against the commitments of the Customer, after subtraction of appropriate costs of sale.
IX. Recycling or repeated use of single-use products
1. Products identified by us as single-use are not suitable for recycling or multiple uses in the clinic. We therefore take no responsibility for defects that may arise in the recycling or multiple uses of our single-use products. This applies in particular for any functional deficiencies that may appear in single-use products that are recycled or used repeatedly.
2. If the Customer has recycled products identified as for single use himself or had this done by third parties – in particular, by resterilising – and/or if the Customer has used single-use products in the clinic repeatedly and third parties make claims against us, in particular product liability claims, where the cause is the recycling or multiple use of the single-use product by the Customer, then the Customer shall indemnify us at the first written request for these possible claims by third parties, in particular product liability claims, and will refund us the cost of our legal defence.
Our liability under the product liability law remains unaffected.
1. Information on the possibilities for processing and use of our products, technical advice and other information is provided to the best of our knowledge, but excluding any liability.
2. We accept no liability if one of our products is modified by the Customer or third parties, in particular in its labelling and/or its sterile packaging and storage.
3. The Customer is responsible for ensuring that the storage space for our products is clean and the storehouse temperatures, unless there are particular factors affecting the storage, are not under 10 grd C or over 30 grd C for long periods and that the relative humidity does not exceed 90 %.
4. The Customer must ensure the chain of custody of the products is recorded, and must create and maintain a system which on the basis of Customer records of code number, amount, delivery date and charge number is able without delay to identify the recipients of a product, in order to be able to carry out recalls of products according to instructions from us or the authorities responsible.
5. The buyer is obliged to refrain from applications which are not defined as typical indications.
XI. Court of jurisdiction – place of performance – data protection
1. If the Customer is a trader or legal person, our place of registration is the court of jurisdiction; we are however also entitled to take legal action against the Customer in his place of residence or business.
2. The place of performance is our place of registration, unless otherwise agreed.
3. The basis for these terms and conditions and the entire contractual relationship between the Customer and us is exclusive the applicable law of the Federal Republic of Germany for two internal entities. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
4. Personal data of the Customer will be stored by us and/or enterprises associated with us to the extent necessary to carry out the business relationship.
Revision Status June 2019