KARL STORZ General Conditions for the Sale and Supply of Goods
- All our offers are made based on these general conditions for the sale and supply of goods. Only in accordance with these conditions do we accept orders. General terms and conditions of the customer differing in part or completely from these conditions will not be accepted, unless expressively consented. Even if we perform without making reservations and knowing that the customer has opposing or differing general terms and conditions, our general conditions for the sale and supply of goods will exclusively apply.
- Our general conditions for the sale and supply of goods will also apply to all future transactions with the customer.
- Contracts are based on these general conditions for the sale and supply of goods and on our written offers/our written confirmation of orders. All agreements for performance of the contract are made in writing within the contract.
- All our offers are made without obligation. No contract is established before we accept and confirm the order in writing.
- Our title and copyright of all pictures, drawings, calculations and other documents are retained. This includes such written documents that are marked "confidential". The customer may not hand such documents to any other third person without our prior expressive consent in writing.
- Our prices are ex Tuttlingen and do not include freight, packing, insurance, customs and other additional costs. Packing is charged separately and is not to be returned.
- Prices do not include VAT. The amount of VAT is separately shown in the invoice according to the legal provisions on the day of the invoice.
- Agreed prices are based on the costs of wages, material and electricity at the time of the agreement. If such costs change between the time of agreement and performance, we may adjust our prices accordingly. This entitlement is cancelled if the changes in costs were culpably not taken into account in our calculation of prices. Upon request we will substantiate the changes of costs to the customer.
- All payments are to be made in full and directly to us within the agreed period. There will be no discounts if there is a due balance in our favour.
- The customer has to pay the legal interests on payments in arrears regardless of fault. In case of default, the legal rights to claim damages and to withdraw from the contract are reserved. In case of default, EURO 4,00 will be charged for each reminder, if no higher costs accrued.
- Bills of exchange (including customer's bills), cheques and assignments will only be accepted as securities on account of performance. Upon request, discount, bill of exchange charges and similar costs will without undue delay be reimbursed by the customer.
- If after the conclusion of the contract information becomes known, that justifies reasonable doubts as to the customer's ability to pay when payments are due, we are entitled to make any further performance and supply conditional upon provision of adequate securities. The realizable value of claims assigned as securities and of equitable lien received has to be taken into consideration. The customer will in writing be given adequate time to provide securities. If the customer fails to provide securities within the set period, or if he is in default with payments, we will be entitled to accelerate all outstanding claims against the customer (including claims that have been granted deferment).
- Against our claims the customer may only set off claims that have been recognized by declaratory judgement, are undisputed or are ready for decision. The same applies to the enforcement of a right of retention or a right to refuse performance. Under these conditions, retention based on a complaint in respect of a defect of goods is only permitted to the extent that it is in adequate proportion to the defect.
- We retain the right to appropriate payments to the oldest due debts and interests and other costs that have accrued for this debt in the following order: costs, interest rates, main claim.
V. Passing of Risk, Shipping
- The risk of perishing, loss or damage of goods passes to the customer at the time the goods leave our premises for shipment, in case the customer picks up the goods at the time they are made available to the customer.
- If shipping is delayed because of the customer's fault, the risk will pass to the customer on the day the goods were ready for shipping.
- Unless the customer gives instructions for shipping of the goods, we are entitled to freely decide on the method of shipping after a due assessment of the circumstances.
- Upon written request by the customer and at the customer's costs we will insure the goods against theft, breakage, transport damage, fire and water as well as other insurable risks.
- The customer bears all costs for shipping of the goods.
VI. Time for Delivery
- Times for delivery are only valid if confirmed by us. Confirmed time for delivery may not be considered a transaction for delivery by a fixed date, unless expressively agreed differently.
- Confirmed times for delivery are only binding if the customer duly and in time meets his contractual obligations to assist and cooperate as well as his other contractual obligations.
- The beginning of the period for delivery requires all necessary technical questions to be discussed and reception of the agreed deposit.
- Delivery is timely if within the set period the goods are handed to the person chosen by us to perform the shipping. In case the contract stipulates that the goods are not to be shipped, delivery is timely if within the set period the customer receives notice that the goods are ready for delivery.
- If delivery is delayed for reasons we are not responsible for, the time period for delivery is prolonged for the time the obstacle remains. In particular, this applies to interruptions of operation that neither we nor our suppliers are responsible for, e.g. strike, lockout, or interference of authorities not due to our fault as well as force majeure. If for such an obstacle the binding delivery date is delayed for more than three months and it is not foreseeable if the delivery problems will end within another four weeks, each party has the right to withdraw from the contract.
- In case of delay of the delivery the customer must in writing grant a reasonable additional period for delivery of at least four weeks.
- If the customer is in delay in accepting delivery, we will be entitled to charge all additional costs accruing during the time of delay, including regular costs of storage, even for storage in our factory. After having granted additional reasonable time to accept delivery we will also be entitled to dispose freely of the goods and to re-deliver to the customer in reasonable time. Further existing claims remain reserved.
- It is the customer's obligation to inspect the goods after delivery without undue delay and to look for defects, variation in quantity or false deliveries. Without undue delay after discovery the customer has to notify us in writing about deliveries that are in part or completely irregular. For irregularities that could be discovered by properly examining the goods, the period for notification is 14 days at the most, beginning on the day the customer receives the goods. Other irregularities must be reported without undue delay after their discovery.
- If the defect is due to our fault we are entitled to choose between removal of the defect and substitute delivery.
- If the attempt to remove the defect fails, the customer may alternatively choose between rescission of the contract and depreciation (reducing the purchase price accordingly).
- Excluded from this warranty are defects due to improper use of the goods, improper installation or operation by the customer or by any third person ordered by the customer, wear and tear and defects due to improper maintenance or service.
- The period of limitation for warranty claims is twenty-four months beginning on the passing of risks.
- Should the goods end up not to have the guaranteed quality, we will be liable for damages according to statutory law. This does not apply if the prevailing guarantee only has the purpose of ensuring conformity with the contract and does not cover the risk of harm resulting from a defect. Stipulations under item VIII. remain unaffected.
VIII. Liability for other Breaches of Duty and other Damages
- Customer's claims for damages - including non- and pre-contractual claims for damages - caused by slight negligence of us or our statutory representatives and by persons employed in the performance of our duties are excluded. This does not apply to material breaches of contract due to slight negligence. In this case, liability is limited to foreseeable and typical damages.
- In other respects we are only liable for material breaches of contract due to our own gross negligence, gross negligence of our executive officers and gross negligence of persons employed in the performance of our duties.
- Liability under the Product Liability Act (Produkthaftungsgesetz) as well as for personal injuries and gross negligence remains unaffected by item VII. and this item VIII.
- Personal liability of our employees, our statutory representatives and persons employed in the performance of our duties is excluded or limited to the same extent that our own liability is excluded or limited.
IX. Additional Obligations of the Customer
In his sphere of control, the customer will take care that provisions and requirements of the Product Liability Act, and the Medical Products Act (Medizinproduktegesetz - MPG) in particular, are met. The customer will ensure that only persons with proper technical training, experience and required licences will handle and operate our products. The customer will take care that none of our products are combined with products of other manufacturers without our expressive consent. We draw the customer's
attention to § 43 MPG, under which the disregard of these duties is liable to criminal prosecution. If the customer resells the goods in his ordinary course of business, he will take care that the buyer is properly instructed. He will ensure that only qualified persons according to § 32 MPG will perform such instructions. The customer binds himself to participate in the system for monitoring and reporting of medical products under § 29 MPG and will obey his duty to inform resulting from this participation. Even without request, the customer will provide all news and relevant information about any incident leading to the death or to serious worsening of the health condition of a patient, user or of any other person and about any incident that might have caused such a condition if no action has been taken to prevent this. This duty to inform includes the type of product involved, its cataloguenumber, series- or delivery-number (if such a number exists), information about machinery or accessories used together with the product and further details about the incident including the date, consequences for the patient or user, etc.
X. Reservation of Title
- We retain ownership of the goods delivered until all claims resulting from the business connection are settled and all payments are received including accessory claims, claims for damages, honouring of cheques and bills of exchange. (The reservation will remain if individual claims are entered on the current account, and will then cover the confirmed balance.) Payments made against a bill of exchange issued by us and accepted by the customer will only be effective after the bill of exchange is honoured by the customer and we are discharged from liability of the bill of exchange.
- The customer has the obligation to carefully hold the preserved property in safe custody and to keep it in good order and repair at his own costs. As diligence of a prudent businessman requires, he has to insure the goods adequately against theft, breakage, fire, water and other damages at replacement value at his own costs and upon request furnish proof hereof. He assigns all future claims resulting from the insurance agreement to us.
- If the customer commits a breach of contract, in particular, if he fails to pay on due date, we are entitled to take back the delivered goods without granting an additional period of time for payment. Unless expressively stated in writing, taking back of goods does not imply revocation of the contract. When revoking the contract, we are entitled to an adequate compensation for the time we permitted the customer the usage of the goods. The loss of value occurring during that time has to be taken into account. The customer will grant access to all his business facilities to the extent necessary for pikking up the goods. Further legal claims resulting from the revocation remain unaffected.
- We may seize the delivered goods. This does not imply waiving the reservation of title. In case of refusing the seizure the customer looses his claims of performance of the contract.
- Seizure of the goods or any other encroachment by a third party or encroachment of assigned claims (in case of extended reservation of title) must be reported to us immediately, in written form, enabling us to institute a legal action in accordance with § 771 ZPO. The customer will meet all uncollectable costs arising from this action and other appropriate measures, in particular all court fees and out-of-court costs.
- If the customer is not a reseller, he may not charge the goods nor may he dispose of the goods until full payment is received.
- If the customer is a reseller, the following additional stipulations apply:
a. The customer is entitled to sell the goods in the ordinary course of business. This does not apply, if the customer and his buyer agree on a prohibition of assignment of the purchase price claim. The customer is not entitled to pledge the goods or to transfer ownership of the goods as security or to charge the goods in any other way. When selling the goods, the customer must make the transfer of property conditional on full payment of the purchase price by his buyer.
b. As security for all our claims resulting from our business connection with the customer, the customer assigns all future claims resulting from reselling of the goods, including all ancillary rights and security interests including bills and cheques, to us. If our goods are sold together with goods of the customer at an all-round price, the assignment will only cover the sum due to our invoice for the sold goods.
c. The customer may collect claims resulting from reselling of the goods. Our right to collect these claims ourselves remains unaffected. We will waive our right to collect as long as the customer does not fail to pay on due date and no motion for initiation of insolvency proceedings against the customer is filed. If the customer's right to collect expires, he will upon request inform us about all assigned claims and their debtors and about all information necessary for collection of these claims. He will hand to us all documents regarding these claims and will notify the debtors about the assignment.
d. If requested by the customer, we will be obliged to release securities of our choice to the extent that their value not only temporarily exceeds the value of the claims they provide security for by more than 20%.
XI. Additional Provisions
- Place of fulfilment for the delivery is the place where the goods are being shipped or made available to the customer in case he picks the goods up. Place of performance regarding payment - including bills of exchange - is Tuttlingen.
- Place of jurisdiction is Tuttlingen. The parties may also bring claims at the defendant's place of
- This agreement is governed by German law to the exclusion of the uniform law on sale of goods.
- Upon placement of orders the supplier assumes that the customer agrees to his personal and other
data being stored and further processed. On request we will inform the customer about the consequences of refusal to consent to the above.