1.1. Aditus Medical GmbH deliveries, services and offers shall be effected exclusively on the basis of the following General Terms and Conditions of Business.
1.2. With the order or placing of the order the customer acknowledges these terms and conditions. They form an integral component of all offers and contracts between Aditus Medical GmbH and the customer. Any confirmations to the contrary by the customer, referring to its own Terms and Conditions of Business or Purchase are hereby contradicted.
1.3. Any alterations and informal agreements shall only be effective if they have been confirmed by Aditus Medical GmbH in writing.
2. Conclusion of the contract and contents of the contract
2.1. Aditus Medical GmbH offers are subject to confirmation.
2.2. A contract with the customer shall only come into force upon a written order confirmation being issued by Aditus Medical GmbH, by delivery or by sending an invoice to the customer.
2.3. Concerning the scope of the delivery, Aditus Medical GmbH written order confirmation shall be decisive. Any supple-mentary agreements and alterations require written confirmation. Should a contract have been concluded without a written order confirmation existing, Aditus Medical GmbH offer, or – in the event that this is not available – the customer’s written order shall be decisive.
2.4. Aditus Medical GmbH may accept an offer from the customer within four weeks.
2.5. Any drawings, illustrations, descriptions or details of weights and measurements shall only be binding if they have been expressly agreed in writing. Aditus Medical GmbH reserves the right to make alterations in so far as the subject of the contract is not thereby substantially altered or its quality is improved and the alterations are reasonable for the customer.
3. Price and payment modalities
3.1. The agreed prices shall apply net “ex works” or “ex warehouse” of Aditus Medical GmbH in Berlin. Freight, packaging, postage and any other shipping charges, as well as insurance and customs duty, shall be charged separately. The statutory Value Added Tax shall not be included in the price. It will be shown separately on the invoice, at the rate applicable at the time of invoicing. Should the goods be delivered without an order confir-mation, the price as at the date of delivery shall apply.
3.2. For small quantities under 250,00 € Aditus Medical GmbH shall charge a small quantity surcharge of 75,00 €.
3.3. In so far as nothing else is agreed, the purchase price is to be paid within 30 days net from the date of invoicing and without a cash discount. Non-adherence to the payment terms shall generate arrears, without a written reminder. In this case the customer shall
owe arrears interest in the amount of 5%, as well as reimbursement of all reminder and collection expenses. The right is reserved to assert further claims for damage.
3.4. Payments shall be offset taking into account all invoices due at the time of receipt of payment.
3.5. The customer shall not be permitted to retain or offset payments due to any counter-claims disputed by Aditus Medical GmbH and not established as being legally valid.
3.6. Aditus Medical GmbH shall only accept cheques for convenience of payment; the customer shall bear all extra costs incurred thereby. Aditus Medical GmbH shall only accept bills of exchange to the extent that this has expressly been agreed in writing.
4. Delivery deadlines
4.1. Deadlines for deliveries and services shall only be binding if they have expressly been confirmed by Aditus Medical GmbH in writing.
4.2. The deadline for deliveries shall begin with the despatch of the order confirmation, however not prior to the customer handing over to Aditus Medical GmbH all documents to be procured by it; paying any deposits and/or fulfilling any other prior obligations in an orderly manner.
4.3. The deliveries shall only be despatched on business days (explicitly excluded are Saturdays, Sundays and general public holidays) and shall only be delivered on the following business day.
4.4. The delivery deadline shall be deemed to have been adhered to if the items to be delivered have left the factory prior to its expiry or readiness for despatch has been notified.
4.5. The delivery deadline shall be reasonably extended if any hindrances bring about a delay for which Aditus Medical GmbH is not responsible (e.g. natural phenomena, accidents and illness, significant disruptions to business, delayed or defective supplies, official sanctions). This shall also apply if the circumstances occur at the premises of subcontractors. Aditus Medical GmbH shall also not be responsible for such circumstances if they arise during a delay which has already occurred. Aditus Medical GmbH shall notify the beginning and end of such hindrances to the customer as soon as possible.
4.6. The customer shall be entitled, upon non-adherence to the agreed delivery deadline, or extended delivery deadline in accordance with the clauses above, to assert a claim to compensation for delay in so far as the de-layed delivery is proven to be Aditus Medical GmbH fault and damage has occurred as a result of the delay. Should the customer be assisted with a replacement delivery, the claim shall lapse. The compensation for delay shall – independently of the damage suffered by the customer – amount to 0.5% for each full week of delay, however no more than 5% of the price of that portion of the total delivery which is not available on time, or as contractually agreed, in consequence of the delay.
4.7. Should despatch be delayed at the customer’s request, the costs incurred by storage shall be charged to it for each month – beginning one month after notification of readiness for despatch – however at least 0.5% of the amount of the invoice. Aditus Medical GmbH shall be entitled, following the setting and fruitless expiry of a reasonable deadline, to make use of
the items to be delivered elsewhere and/or to deliver them to the customer with a rea-sonably extended deadline.
4.8. Aditus Medical GmbH shall at any time be entitled to make partial deliveries or provide partial services, unless the partial delivery or partial service is not of interest to the customer.
5. On-call orders
5.1. All on-call orders are, to the extent that nothing else has been agreed, to be collected at the latest within 3 months following expiry of the contractual deadline, without collection having to be demanded. Should this deadline have expired, Aditus Medical GmbH shall at any time be entitled to invoice the goods, while simultaneously des-patching them.
5.2. Should no contractual deadline have been agreed, Aditus Medical GmbH shall be entitled to assert the rights specified following the expiry of a year since the contract was concluded.
6. Passing of risk, packaging, transportation insurance
6.1. Benefits and risks in the goods shall pass to the customer upon despatch of the items to be delivered.
6.2. Should despatch be delayed in consequence of circumstances for which the customer is responsible, the risk shall pass to the customer as from the day of readiness for despatch.
6.3. The packaging shall be that which is usual in the industry. It shall not be taken back.
6.4. Upon request, and at the customer’s expense, Aditus Medical GmbH shall insure individual consignments for transport against theft and any damage caused by breakage, transportation, fire and water, as well as any other insurable risks designated by the customer.
7. Obligation to provide information, product performance reporting
7.1. The parties shall inform one another mutually and in good time on particular technical prerequisites, as well as on any statutory, official and other regulations at the destination, in so far as they are of significance for the execution and/or use of the goods.
7.2. The customer undertakes to likewise pass on any instructions, notes on use or warnings or descriptions of risks received from Aditus Medical GmbH to its own customers when passing on the products supplied by Aditus Medical GmbH, and to impose a corresponding obligation upon them.
7.3. The customer shall check, test and monitor the goods delivered, in particular in regard to any damage by third parties, and shall inform Aditus Medical GmbH immediately on anything noticed in this regard.
7.4. The customer shall give Aditus Medical GmbH early notice of its training requirements.
7.5. In so far as the use of goods of Aditus Medical GmbH by the customer requires authorisations, their existence shall be examined upon taking up the business relationship.
The customer shall be obliged to inform Aditus Medical GmbH without delay on any circumstance which impairs the necessary authorisations.
8. Returns, consignments for viewing and selection
8.1. No returns shall be accepted without prior consultation. The amount of the redemption price is to be agreed in writing in each individual case.
8.2. Only goods in an impeccable, hygienic condition shall be redeemed. The customer must in particular attach a sterilisation certificate, or confirm in writing that the goods have not been used.
8.3. Implants with opened packaging or damaged labels shall be returned to the consignor and invoiced. The same shall apply to damaged implants and instruments (e.g. sterilisation, scratches, etc.). Goods specially prepared shall not, in any event, be redeemed.
8.4. As expenses for inspection and repackaging, Aditus Medical GmbH shall in each case charge 200,00 € however no more than the selling price of the product.
8.5. Consignments for viewing and selection shall be deemed to have been ordered and shall be invoiced if they have not been returned within 60 days of receipt by the customer or implants or instruments are damaged or used, or sterile implants have been returned with opened packaging.
8.6. The costs of returns (also of consignments for viewing and selection) shall be borne by the customer.
9. Defects, warranty
9.1. The customer shall be required to examine the goods immediately upon receipt and notify any deviations from the contractually agreed condition within five working days. Should no notification be received from the customer within this period, the goods shall be deemed to have been accepted as being in compliance with the contract.
9.2. Defects which are only recognisable later are to be notified immediately after they are recognised, at the latest prior to the expiry of one year of receipt of the goods.
9.3. For defects notified correctly and in good time, Aditus Medical GmbH shall provide a warranty to the extent that Aditus Medical GmbH will, at its option, repair or replace the goods. The customer is required to set a reasonable deadline within which the defect is to be remedied. In so far as no reasonable deadline, in the above sense, is set, Aditus Medical GmbH shall be freed from liability for the defect. The customer shall not be entitled to remedy the defect notified itself, or have it remedied by a third party. Should Aditus Medical GmbH not have remedied the contractual infringement within a reasonable period of time, the customer may demand a reduction in price, or, if it is impractical for it to keep the delivery, request cancellation of the contract.
9.4. Replaced parts shall become Aditus Medical GmbH property; they are to be returned by the customer carriage paid upon request.
10. Retention of Ownership
10.1. Aditus Medical GmbH shall retain ownership of the items purchased until payment of the purchase price, as well as any arrears interest and further expenses. Should the customer fall into arrears with payment, Aditus Medical GmbH shall be entitled, without the customer’s involvement, to have the retention of ownership registered in the Retention of Ownership Register at the customer’s expense and correspondingly indicate Aditus Medical GmbH ownership.
10.2. Aditus Medical GmbH shall be entitled to request from the customer an advance payment and/or an unconditional and unlimited bank guarantee of a bank having offices in Berlin.
11.1. Aditus Medical GmbH shall be liable for any intentional or grossly negligent direct damage to persons and property. Any further liability shall – in so far as legally admissible – be excluded; that particularly applies to purely pecuniary losses, indirect damage or consequential damage, such as lost profits.
11.2. Any general obligation to pay compensation for damage on the part of Aditus Medical
GmbH, its institutions, its em-ployees and any third parties assisting Aditus Medical GmbH shall – in so far as legally admissible, and independently of the legal grounds – in any event be restricted to a maximum amount in the amount of the price paid by the cus-tomer per damaging event.
11.3. In particular in the case of the goods not being used, stored or maintained by the customer in accordance with the regulations, any liability on the part of Aditus Medical GmbH is excluded. Any further processing of the goods delivered by Aditus Medical GmbH also lies out of the scope of influence of Aditus Medical GmbH and thus within the exclusive scope of liability of the customer, who shall, to that extent, also be obliged to continually monitor the product performance.
12. Health regulations
12.1. Goods of Aditus Medical GmbH may only be used in countries in which they have been approved, and there only within the scope of their approval in accordance with the provisions and by correspondingly trained persons.
13.1. The compatibility between the implants is only guaranteed if original products supplied by Aditus Medical GmbH are used.
14. Intellectual property
14.1. The customer acknowledges all trademarks, patent and design rights, as well as copyrights, of Aditus Medical GmbH in the goods supplied.
14.2. All illustrations, drawings, plans, instructions and other technical documentation concerning products of Aditus Medical GmbH drawn up and provided to the customer by Aditus Medical GmbH shall remain the property of Aditus Medical GmbH. All intellectual property rights existing therein, in particular copyrights shall exclusively belong to Aditus Medical GmbH. Such documentation may not be duplicated, published, delivered to third parties or made
accessible to third parties without Aditus Medical GmbH prior written consent.
14.3. The customer undertakes not to either itself oppose any intellectual property rights of Aditus Medical GmbH or assist third parties in opposing these rights.
15.1. The parties to the contract undertake to keep all information and data received in the course of this contrac-tual relationship which is neither obvious nor generally accessible confidential for an unlimited period of time. In addition to the company’s organisational procedures, this shall particularly apply to all information which is designated confidential or recognisably concerns company and trade secrets. The right to exercise all statutory dis-closure obligations is reserved. In so far as the contractual purpose does not require it, they shall not keep any records or notes for third parties. The parties to the contract shall adhere to the statutory provisions concerning data protection. Any third parties appointed shall have these obligations pointed out to them by the contractual partner.
15.2. Should one of the parties to the contract infringe the above confidentiality obligation, it shall be due to pay the other party a contractual penalty in the event that it does not prove that it is not at fault. The latter shall amount to 15.000,00 € per case of infringement. The payment of the contractual penalty shall not relieve either party from the confidentiality obligation. The right to make claims for compensation for damage which exceed the amount of the contractual penalty is reserved.
16. Severability clause
16.1. Should a provision of these conditions be or become invalid, or should the latter contain an omission, the legal validity of the remaining provisions shall remain unaffected thereby. Instead of the invalid provision, a valid provision which comes closest in its economic significance to that desired by the parties shall be deemed to have been agreed; the same shall be true in the case of an omission.
17. Place of jurisdiction
17.1. The exclusive place of jurisdiction shall be Berlin.
17.2. German Law shall apply to these contractual provisions and the entire legal relationships between Aditus Medical GmbH and the customer, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).