General Terms and Conditions of Business (“GTC”)
of Hematris Wound Care GmbH (“Hematris”) for business transactions with companies and legal entities under public law.
§1 Scope and conflicting GTC
(1) These GTC apply to all agreements, deliveries and other services concluded between Hematris and its Contracting Partners (“Customers”). This also applies to all future agreements, deliveries and other services even if they are not agreed again separately.
(2) Any GTC of the Customer which differ from this and which Hematris does not expressly recognise shall not apply even if Hematris does not expressly oppose them.
§2 Offers, conclusion and content of the Contract
(1) All offers from Hematris are subject to confirmation and non-binding unless they are expressly identified as binding or contain a specific deadline for acceptance.
(2) Orders from the Customer are binding offers within the meaning of Section 145 BGB (German Civil Code) which Hematris at its own discretion may accept within 30 days from receipt by sending an order confirmation or the goods ordered.
(3) Verbal additional agreements made prior to the concluding of a Contract are not legally binding and will be replaced by the Contract unless it is expressly stated therein that they will continue to be binding. Any addenda, amendments or other additional agreements must be recorded in writing. The possibility of additional verbal agreements is not excluded as a result of this.
(4) Any information given by Hematris regarding the delivery or service does not constitute a guarantee of quality, but is a description or identification of the delivery or service.
§3 Prices and billing
(1) Unless stated otherwise in the respective Hematris order confirmations, all prices are understood to be quoted in euros ex works including packaging plus the statutory Value Added Tax applicable at the time of invoicing and postage, freight or other shipping costs as well as - inasmuch as this is part of the commission - insurance, in the case of export deliveries, additionally customs duty, fees and other public charges.
(2) The invoiced amounts are payable within 14 calendar days from receipt of invoice without any deduction unless agreed otherwise. Compliance with the deadline for payment is contingent on receipt of the payment in the business account of Hematris. Cheques and other securities are only regarded as payment after being cashed by Hematris. If the Customer fails to make the payment when due, default interest of 8 percentage points per annum above the applicable base rate stipulated by the ECB will be payable for the outstanding amounts from the due date onwards. The assertion of claims for further damage in the event of delayed payment shall remain unaffected.
(3) The offsetting of the Customer’s counter-claims or retention of payments on account of such claims is only permitted to the extent that the counter-claims are undisputed or have become res judicata.
(4) Hematris shall be entitled to make any deliveries or provide any services still outstanding only against prepayment or payment of security if, after concluding the Contract, circumstances should come to light which are likely to substantially reduce the Customer’s credit standing and as a result of which payment of the outstanding claims of Hematris on the part of the Customer from the respective contractual relationship (including from other individual contracts to which the same framework agreement applies) is jeopardised.
§4 Delivery and time of delivery
(1) Deliveries are effected from the Hematris logistics site in Germany.
(2) Estimated delivery dates for supplies and services by Hematris are always only to be regarded as approximate unless a fixed period or deadline has been explicitly assured or agreed. Deliveries are subject to the correct and punctual delivery of our own supplies. The term of delivery will be extended by the amount of additional time which is expended as the result of a necessary subsequent change to the scope of supply at the Customer’s request or which is necessary as the result of taking technical changes into account. Insofar as dispatch has been agreed, the delivery periods and delivery dates refer to the date of transfer to the forwarder, freight carrier or other third parties commissioned with the transportation.
(3) Hematris may - notwithstanding its rights from the Customer’s delay in payment - demand that the Customer extends the delivery and performance periods or postpones the delivery and performance dates by a period of time equivalent to the period in which the Customer fails to fulfil his contractual obligations vis-à-vis Hematris.
(4) Hematris shall not be held responsible for deliveries that are not possible or for delays to deliveries to the extent that these are as a result of Force Majeure or other events that were not foreseeable at the time of concluding the Contract (e.g. disruptions to operations of any kind, difficulties with the supply of materials or energy, delays to transportation, strikes, legitimate lock-outs, manpower shortage, shortage of energy or raw materials, difficulties in acquiring the necessary official permits, measures imposed by official bodies, failure to deliver or failure to deliver punctually or incorrect deliveries by suppliers) for which Hematris is not responsible. Inasmuch as such events render the delivery or performance substantially more difficult or impossible for Hematris and the obstruction is not only of temporary duration, Hematris will be entitled to withdraw from the Contract. In the case of obstructions of temporary duration, the delivery and performance periods will be extended or the delivery and performance dates postponed by the period of obstruction plus a reasonable start-up period. To the extent that the Customer cannot reasonably be expected to accept the delivery or performance due to the delay, he may withdraw from the Contract by giving Hematris immediate notice in writing. In the event of withdrawal, Hematris will refund any payments made immediately.
(5) Hematris shall be entitled to make part-deliveries if
- the part-delivery can be used by the Customer within the scope of the contractual intended use, and
- the delivery of the remaining goods is ensured and
- the Customer incurs no major additional expenditure or additional costs (unless Hematris declares itself willing to assume these costs).
If Hematris falls into arrears with a delivery or performance or if a delivery or performance becomes impossible for any reason whatsoever, the liability of Hematris shall be limited in accordance with Clause 8 of these GTC.
§5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) Place of performance for all obligations arising from the contractual relationship is the seat of Hematris, unless agreed otherwise.
(2) The mode of dispatch and packaging are subject to the discretion of Hematris after due assessment of the circumstances.
(3) The risk of any accidental loss or accidental deterioration passes to the Customer upon delivery of the goods to the dispatching agent, at the latest, however, upon leaving the Hematris works/warehouse, in fact even in the event of part-deliveries or if Hematris has assumed other performances such as shipping costs or delivery.
(4) Hematris will, exclusively at the Customer’s request and at the latter’s expense, insure the shipment against theft, breakage, damage in transit, fire and water damage, and other insurable risks.
(5) If the Customer falls into default of acceptance, the risk of any accidental loss or accidental deterioration passes to him on commencement of the delay in acceptance. In this event the costs of storage shall be borne by the Customer.
6 Resale and transfer
(1) The Customer shall assume sole responsibility for the placing on the market of the goods as of the point of transfer of risk. Clause 8 of these GTC shall remain unaffected.
(2) The Customer must only sell or transfer the goods supplied in complete units (i.e. including the original packaging and original package leaflet etc.).
(3) As the goods supplied are medical devices within the meaning of Section 3 Medical Devices Act (MPG) the Customer must observe the provisions of the Medical Devices Act in the event of their resale or any instance of transfer.
§7 Warranty, material defects:
(1) The warranty period is one year from delivery.
(2) The objects supplied must be examined carefully immediately following delivery to the Customer or to the third party appointed by him and the goods must be properly stored in accordance with the instructions on the packaging. The objects delivered shall be regarded as approved if Hematris has not received a written complaint regarding obvious defects or other defects which were not evident in an immediate, careful inspection, within seven working days from delivery of the delivered goods or otherwise within seven working days following identification of the damages for defect or any earlier point in time when the defect was evident to the Customer during normal use of the delivered goods without closer inspection. At the request of Hematris the contested delivered goods must be returned to Hematris carriage paid. In the event of a justified complaint, Hematris will reimburse the costs of the most cost-efficient dispatch method; this shall not apply if the costs increase because the delivered goods are located somewhere other than the place of intended use.
§8 Liability and compensation and damages due to fault
(1) Hematris’ liability to pay damages, on any legal grounds whatsoever, in particular in the event of delivery being impossible, delayed, defective or incorrect, breach of contract, breach of duties during contractual negotiations and tort to the extent that this involves culpability, shall be subjected to this Clause 8. The limitations of Clause 8 here do not apply, however, to the liability of Hematris for gross negligence or wilful intent, for guaranteed characteristics, injury to life, body or health, or under the Product Liability Act or Medical Devices Act.
(2) Hematris shall not be liable in the event of simple negligence on the part of its managing bodies, legal representatives, employees or other agents to the extent that no violation of fundamental contractual obligations is involved. A fundamental obligation is one whose fulfilment makes proper execution of the contract possible in the first place and the breach of which would jeopardise achievement of the purpose of the Contract and compliance with which the Customer may normally rely on.
(3) To the extent that Hematris is liable pursuant to the Clauses 1 and 2 above for compensation for this reason, this liability shall be limited to damage which Hematris has foreseen on conclusion of the Contract as the possible consequence of a breach of contract or which it should have foreseen using due diligence. Indirect and consequential damage which is due to defects in the delivered goods is, moreover, only recoverable damage to the extent that such damage can typically be expected with the intended use of the delivered goods.
(4) The exclusions from liability above and limitations of liability, where applicable, apply to the same extent in favour of the managing bodies, legal representatives, employees and other agents of Hematris.
(5) To the extent that Hematris provides technical or medical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is provided free of charge and is excluded from any liability.
§9 Retention of title
(1) Hematris reserves the right to retain title to the goods supplied until all claims arising from the business relations with the Customer have been satisfied. The retention of title extends also to the acknowledged account balance to the extent that Hematris posts receivables due from the Customer on an all-accounts basis (Extended Reservation of Title).
(2) In the event of seizure or other intervention by third parties with regard to items owned by Hematris, the Customer must inform Hematris immediately in writing so that Hematris can, if necessary, file an action in opposition to execution of a judgment brought by a third party pursuant to Section 771 ZPO (Code of Civil Procedure). Where the third party is unable to reimburse the legal and out-of-court costs of an action pursuant to Section 771 ZPO, the Customer will be liable for the loss incurred by Hematris.
(3) The Customer shall be entitled to resell the goods in the ordinary course of business provided he is not in default of payment vis-à-vis Hematris. The Customer hereby assigns to Hematris all claims accruing to him from further disposal against his buyers or against third parties in an amount equivalent to the agreed supply prices for the goods sold subject to retention of title (including Value Added Tax). The Customer is authorised to collect this account receivable even after assignment. The authority of Hematris to collect the receivable itself will remain unaffected by this; however Hematris undertakes not to collect the receivable provided the Customer properly fulfils his payment obligations and is not in default of payment. If the Customer does not fulfil his payment obligations or falls into default, Hematris may demand that the Customer discloses the receivables assigned to Hematris and its debtors, provides all the information required for collection, surrenders the associated documentation and notifies the debtors (third parties) of the assignment.
(4) Hematris undertakes to release the securities due to it at the Customer’s request, should Hematris so choose, insofar as their value exceeds the receivables to be secured by more than 10%, where these have not yet been settled, or insofar as the estimated value of the collateral exceeds 150%.
§10 Place of jurisdiction, applicable law
(1) Place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship, also from cheques and bills of exchange, is the seat of Hematris. The statutory place of jurisdiction for default proceedings remains unaffected.
(2) This Contract is subject to the law of the Federal Republic of Germany to the exclusion of its conflict of law provisions and of the United Nations Convention on the International Sale of Goods (CISG).
§11 Severability Clause
(1) If any individual term of these GTC in part or in its entirety is not or becomes no longer an integral part of the Contract, or in part or in its entirety is or becomes invalid, void or voidable, the validity of the remaining terms or of the other parts of such terms or of the Contract itself shall not be affected. The term concerned must then, taking account of the imperative provisions of law, be replaced with a valid term which most closely approximates the desired economic aim and purpose of the invalid, void or voidable term.
(2) Paragraph 1 above applies mutatis mutandis to any regulatory gap.
Version as at: 12 April 2012