1. General – Scope
We do not acknowledge contradicting or diverging terms and conditions of Customer, except of expressly having agreed upon hereto in writing. Our exclusive General Terms and Conditions shall apply, even in case of having delivered goods to Customer without reservation and us having full notice of Customer’s contradicting or diverging General Terms and Conditions. Our General Terms and Conditions shall apply in accordance with the most recent version and to all subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction. We hereby object to any counter confirmation, counter offer or other reference by the Customer to its own or foreign General Terms and Conditions; any dissenting Terms and Conditions of the Customer shall only apply, if we have confirmed the same or something additional in writing. Except of otherwise expressly provided herein, our exclusive General Terms and Conditions shall exclusively apply within direct business relationship with our business partners (b2b) and shall apply for future orders if and insofar there is an ongoing and sustainable business relationship.
2. Placing orders – documents
In case a placed order of Customer may be qualified as a Contractual offer, we are free to accept this offer within two weeks, beginning with the receipt of its placement. In case of non-rejection of the offer by Customer or having delivered goods to Customer without dissent, reservation or objection, the order shall be deemed accepted. Given the confirmation of order or deliverance having been modified, the contentment of the Customer shall be deemed given, insofar as Customer has not objected hereto immediately after receipt of deliverance. We fully reserve proprietary rights and copyright to all delivered pictures, drawings, calculations or other documents including all documents, marked as confidential. Before disclosing the afore-mentioned material to third parties, Customer needs our express written authorization therefore.
3. Delivery – terms of delivery
All information on term of delivery given is non-binding. Appropriate partial deliveries of goods shall be permitted. Hereby caused additional costs for transport and packaging shall be borne by us. Customer may claim damages for delayed delivery only in case of attributable gross negligence or willful misconduct. Outstanding deliveries shall be rebuked by Customer not later than four weeks after having placed orders and notification of objection of acceptance. Insofar as we are liable for delayed deliveries, such damage claims are limited in any case to the typical and foreseeable damage for the violation of essential contractual duties. Consequential damages are excluded. Without prejudice the limitation of overall liability stipulated, arising from or connected to this Contract shall be limited to 3% of the contractual value per week of the delayed delivery and to a maximum amount of 15% of the whole order-value. In case of non-availability of the ordered goods we reserve the right to rescind of the Contract, Customer will be informed immediately and consideration will then be refunded to Customer. In case of delayed acceptance or violation/failure to assist of Customer we are permitted, to claim all damages caused hereby, including extra costs and expenditures, arising from or connected with that delayed acceptance. Further claims and rights are reserved. As and insofar there is nothing otherwise agreed in writing within the confirmation of order, the delivery is EX WORKS OPED GmbH, Medizinpark 1, D-83626 Valley/Oberlaindern, Germany. (Incoterms 2010). The return of recyclable material shall only be permitted at OPED-designated stations within confirmed and accepted containers.
4. Payment – terms of payment
Except of otherwise agreed upon in writing, payment is due and shall be settled at the latest 30 days upon receipt of invoice by Customer, via bank-transfer, net cash amounts and free of any deduction. In case of additional bank-fees and charges, Customer shall bear such costs. We are authorised to direct debit, upon reasonable written pre-notification of customer. We are permitted to request for advance-payment from Customer in justified cases. The stipulated Contract price is exclusive of value added tax. Customer shall at our request provide us with the necessary documentation required by the competent tax authorities as evidence of an export tax exemption. Customer shall reimburse us for any value added taxes levied on us in the country of dispatch or the country of destination due to either the agreed terms of delivery, any failure to duly provide the requested documentation referred to the above or any other circumstances attributable to Customer. Any taxes, fees, duties and other charges which are levied on us in connection with the performance of the Contract shall be solely borne by Customer and Customer agrees to pay or reimburse us for any such taxes which we are required to pay. Deduction of cash discount requires prior written agreement. Our sales representatives are not permitted to the collection of debts. From the first day of delayed payment we are permitted to claim usual interest rates for current bank accounts irrespective of other claims for delayed payment. All outstanding payment is due and payable at once and we are permitted to rescission of contact. Irrespective of other legal provisions we are permitted to define the priority of Customer’s payments on due debts. Customer shall have no right to set off, retention or reduction unless the underlying counterclaims have been conclusively determined by the competent courts according to no. 8 of these terms and conditions or expressly acknowledged by us.
5. Warranty – limitation of liability
Warranty as to defects of the delivered goods are conditional upon the notice of defect, effectuated by Customer in writing no later than 8 working days upon receipt of goods. In case of undetected defects this notice has to be made immediately after detection, in any case not later than 6 months after receipt of delivery. This notice of defect has to be issued as detailed as possible by Customer. We are permitted at our sole discretion to cure defects either by replacement, substitution, repair, rectification or reduction. Additional costs or expenditures therefore will be borne by us, as far as this is the same place of performance for deliveries as agreed upon before in writing. Claims for warranty expire within one year after delivery. Information on the reutilization of delivered products are provided on a mere informative basis by us and do not in any case represent Contractual warranties. The Customer shall not be entitled to any further rights or remedies. In particular, we shall not be responsible for any compensation based on breach of Contract or default unless the delivered goods shall lack a characteristic that we shall have expressly guaranteed or in cases of wilfully misconduct or gross negligence on our part. Without prejudice but notwithstanding anything to the contrary elsewhere, we shall in no event and irrespective of the legal basis (Contract, tort, indemnity or any other area of law) be liable to the Customer for any damages, losses or expenditures, caused by defective products or otherwise, arising from or related to this Contract. This exclusion of liability applies regardless of whether any such damages, losses or expenditures have been directly caused by us or by any of our subcontractors, agents, advisers or employees acting on our behalf. This foregoing shall not apply in the following events for whose occurrence the burden of proof shall rest with the Customer: • Gross negligence or wilfully misconduct attributable to us. This does however apply in case of gross negligence of any other party, acting on behalf of us, including without limitation our subcontractors, agents, advisors and employees but excluding our legal representatives and executive staff. • In case of bodily injury culpably caused by an act or omission attributable to us, or • In so far as mandatory laws provide otherwise. This foregoing shall to the same extent apply for the benefit of our subcontractors, agents, advisors, directors and employees.
6. Retention of title
We shall retain full title of the goods that have been delivered until the Customer has discharged all claims arising from the business relationship, which shall include any account balance and claims from refinancing or reverse promissory notes. The Customer shall have the right to dispose goods delivered by us within the ordinary course of business. The authority granted hereunder shall cease in the following cases referred to below: • In the event of any third party action against our goods delivered under retention of title or any receivables assigned to us, the Customer shall notify such party of our property/our right and immediately inform us about such action. The Customer shall bear the costs of any intervention. • Moreover, we may withdraw the sales authority of the Customer through written notice if it shall be in breach of any obligation owed to us and shall in particular be in payment default or we shall become aware of other incidents that give rise to doubts about its creditworthiness. • If the above authority shall cease to exist or be withdrawn by us, then the Buyer shall upon our demand immediately specify to us its debtors in the claims assigned and provide us with all information and documentation necessary for collection. The transfer of risk to Customer shall remain unaffected by this retention of title and property. Until transfer of title and property, Customer shall not be entitled to pledge, transfer ownership as security, lease or otherwise dispose of the products without our prior written approval. If the relevant domestic property laws (i) do not recognize foreign law retention of title and property or (ii) provide for additional requirements such as but not limited to registration requirements etc. or (iii) let expire foreign law retention of title and property automatically, the Customer undertakes to inform and support us unrequested, in order to either fulfill any of these domestic requirements or to establish a comparable security interest for us in relation to the Contractual Products. Cost reasonably incurred by us in this regard shall be borne by the Customer.
7. Rental / Leasing
These General Terms and Conditions shall also apply for Rental and Lease Contracts and are expressly applicable for the supply to and usage of our therapeutic medical products by Patients as Customers. Business Customers ensure the applicability of this paragraph 7 towards Patients. Customer is liable for all damages, which leased/rented products occur by improper usage. Customer shall notify immediately defects of delivered goods in writing. Lease/Rental term begins with the term expressly stated within the estimate of costs/ the supply note or with the receipt of the delivered products and is ending with the term stated within the supply note or within the estimate of costs or within the medical prescription. The term of lease/rental ends without express termination and the products have to be returned thereafter immediately to us. In case of delayed return of products we are permitted to charge the Customer appropriately for the term of this delayed return according to the agreed lease payment. We hereby expressly object to prolongation of the lease term by implication.
8. Miscellaneous provisions
The laws of Germany shall apply. International Purchase Laws and Sales Terms shall not apply. This shall, in particular refer to The UN Convention (CISG) on the International Sale of Goods. The Venue for all claims arising from, or based on this Agreement shall be the competent state courts of Germany, Munich, if and insofar Business Customers are concerned. We reserve the right, to sue the Customer at the courts of its residence. The Business Customer ensures to observe and fulfill all national and international data protection provisions applicable to this contract, particularly with regard to the collection, storage, the processing and transfer of personal/medical data. The venue is our place of business, if a Patient-Customer changes the domicile or his usual place of residence to a foreign country different from Germany. The same applies, if the domicile or the usual place of residence of a Patient-Customer is not known at the time of the commencement of a legal action. Should any provision of this Agreement be or become invalid or unenforceable or should the Agreement contain an omission, the remaining provisions shall remain valid. In the place of the invalid provision, a valid provision is presumed to be agreed upon by the Parties which comes economically closest to the one actually agreed upon. The same shall apply in case of an omission.