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SOMATEX® Medical Technologies GmbH – General Terms and Conditions

Correct as of: 10 November  2015

I. General provisions

1. These general conditions of sale (GTCS) apply to all commercial relationships between SOMATEX® Medical Technologies GmbH (hereinafter “the Supplier”) and its customers (hereinafter “the Purchaser”). These GTCS apply only if the Purchaser is an entrepreneur (Unternehmer) within the meaning of § 14 BGB (German Civil Code), a legal person constituted under public law (juristische Person des öffentlichen Rechts) or a public law public sector funding company (öffentlich-rechtliches Sondervermögen).

2. These GTCS apply in particular to contracts for the sale and supply of movable items (hereinafter also referred to as the “Goods”) irrespective of whether the Supplier manufactures the Goods itself or purchases these from suppliers (§§ 433, 651 BGB). The GTCS, as amended from time to time, apply as a master agreement to future contracts with the same Purchaser for the sale and/or supply of movable property without any requirement on the part of the Supplier to make additional future reference to these GTCS in each individual case.

3. These GTCS apply exclusively. Any general terms and conditions of the Purchaser that deviate from, conflict with or supplement these GTCS are only accepted and form a part of the contract if the Supplier has expressly agreed to them and their validity. This requirement for agreement applies in each case, including, without limitation, in cases where the Supplier unconditionally delivers to the Purchaser in the knowledge of the Purchaser’s general terms and conditions.

II. Conclusion of the contract

1. The Supplier’s offers are subject to change and shall not constitute binding offers.

2. The placing of an order for the Goods by the Purchaser constitutes a binding offer to contract. Unless indicated otherwise in the order, the Supplier is entitled to accept this offer within four weeks of its receipt.

3. Acceptance can be made in writing (e.g. by an order confirmation) or by delivery of the Goods to the Purchaser.

III. Prices and payment terms

1. Prices are ex-works and subject to statutory value-added tax (if applicable). Insofar as turnover from intra-Community deliveries are not subject to value-added tax under German value-added tax legislation, the Purchaser is obliged, at the Supplier’s request and in accordance with the instructions issued by the Supplier, to contribute to the issuing of any proofs of delivery and other documents that may be required for this purpose under German value-added tax legislation. The Purchaser is subject to the same obligations if the delivery fulfils the qualifications for an intra-Community triangular transaction under § 25b UStG (German Value-Added Tax Act), and the Supplier therefore requires the necessary proofs of delivery under German value-added tax legislation.

2. If the Purchaser requests advance delivery from the Supplier (e.g. payment on invoice), the Supplier is authorized to use the Purchaser’s personal data to perform a creditworthiness check in accordance with Supplier’s privacy policy. To this end, the Purchaser’s name and address are disclosed to Bürgel Wirtschaftsinformationen GmbH & Co KG. Following the result of the creditworthiness check or if it is justified for any other reason on the part of the Purchaser (e.g. large order quantities), the Supplier reserves the right to demand a different method of payment from the Purchaser.

3. Any customs duties, fees, taxes and other public charges are to be borne by the Purchaser. The Supplier will not accept the return of any transport packaging and any other packaging in compliance with the German Packaging Ordinance (Verpackungsverordnung), and as such these will become the property of the Purchaser.

4. Payments are to be paid to the Supplier without any deduction for transaction charges.

5. Unless otherwise indicated therein, invoices are payable net with no discount within 14 days. The Purchaser shall be in default of payment upon expiry of such payment period. . Interest will be charged on the purchase price at a rate of 8% above the base rate while the Purchaser is in default, subject to a minimum rate of 12% p.a. The Supplier reserves the right to assert claims for damages caused by default in excess of this interest. Such will not prejudice the Supplier’s right to claim the standard commercial interest payable from the due date from business persons (Kaufleute) (§ 353 HGB, German Commercial Code).

6. The Purchaser is entitled to offset against claims only if its claim is undisputed or has been finally determined by a court of law. The same applies to the right of retention, the valid exercise of which will further require that the Purchaser’s counterclaim must arise under the same contractual relationship.

IV. Delivery deadlines; default in delivery and in acceptance of delivery

1. Deadlines set for deliveries can only be kept if all documents to be provided by the Purchaser and the required approvals and clearances, in particular plans, are received in time and if the agreed payment terms and other obligations are fulfilled by the Purchaser. If these conditions are not fulfilled in time, the Supplier is entitled to extend the deadlines within reason; although this does not apply if the Supplier is responsible for the delay.

2. If the failure to observe deadlines is due to force majeure such as mobilization, war, civil unrest or similar events, e.g. strike or lockouts, the Supplier is entitled to extend the deadlines within reason.

3. At the Supplier’s request, the Purchaser is obliged to state within a period of two weeks whether it wishes to rescind the contract in respect of the undelivered part of the delivery. If the Purchaser fails to give this notice within this period, its right of rescission is forfeited.

4. If the Purchaser requests a delay in the dispatch or delivery by more than one month after having received notice of readiness for dispatch, the Purchaser may be charged storage fees at the rate of 1% of the price of the items to be delivered for each week or part week after the expiry of the one-month period but no more in total than 100% of the price. It will be for the contracting parties to prove that the storage costs incurred were higher or lower; where the fixed-rate storage fee is to be offset against other financial claims.

5. Where a contractual right of return has been agreed, the delivery costs will be borne by the Purchaser. The Purchaser is exposed to the risk of deterioration and possible destruction of the Goods until receipt of the returned Goods.

V. Delivery, passing of risk

1. Deliveries are ex-works; this also constitutes the place of performance. At the Purchaser’s request and expense, the Goods may be dispatched to a different location (sale by delivery to a place other than the place of performance). Unless otherwise agreed, the Supplier is entitled to determine the type of delivery itself (in particular transport companies and dispatch route).

2. The risk of accidental destruction or accidental deterioration of the Goods and the risk of delay passes to the Purchaser as follows (including deliveries with freight paid):

Where the sale is completed with the Goods having been delivered to a place other than the place of performance, risk passes upon the handover of the Goods to the carrier or the freight company, or to another person or entity charged with the delivery. At the Purchaser’s request and expense, deliveries will be insured by the Supplier against the standard risks of transportation.

3. If the dispatch or delivery is delayed for reasons for which the Purchaser is liable or the Purchaser fails to accept the Goods for other reasons, risk passes to the Purchaser.

4. The Purchaser may not refuse a delivery due to minor defects. Deliveries in instalments are permissible insofar as it is reasonable for the Purchaser to accept them.

VI. Retention of title

1. The Supplier retains title to the Goods sold until full payment of all the Supplier’s current and future claims arising from the sales contract and an ongoing business relationship (secured claims).

2. Prior to full payment of the secured claims, the Goods subject to retention of title may neither be pledged to third parties nor assigned by way of security. The Purchaser shall inform the Supplier without delay and in writing if and to the extent third parties gain access to the Goods belonging to the Supplier.

3. The Purchaser is authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.

a) The retention of title extends to the products created by the processing, mixing or combining of the Supplier’s Goods to their total value whereby the Supplier is deemed to be their manufacturer.

b) If in the case of processing, mixing or combining with the goods of third parties, the proprietary right of a third party continues to exist, the Supplier will acquire a right of co-ownership in proportion to the invoice value of the processed, mixed or combined goods. In all other cases, the conditions applicable to the delivered Goods subject to retention of title also apply to the product created.

c) The Purchaser hereby assigns to the Supplier by way of security the claims against third parties arising from the resale of the Goods or the product in their total value in the case of (a) or in the amount of the Supplier’s share of co-ownership in the case of (b). The Supplier hereby accepts this assignment. The Purchaser’s obligations set forth in Paragraph 2 also apply with regard to the assigned claims.

d) The Purchaser, in addition to the Supplier, is authorized to recover claims. The Supplier undertakes to refrain from enforcing the third-party claim to the extent that the Purchaser continues to meet its payment obligations to the Supplier and does not default in payment and provided that no application for the commencement of insolvency proceedings over the Purchaser’s assets has been filed and the Purchaser’s ability to meet its obligations is not impaired in any other way. Should this be the case, however, the Supplier may demand that the Purchaser notify it of the assigned claims and their respective debtors, provide all other information required for their recovery, supply the related documents and inform the debtors (third parties) of the assignment.

e) In the event that the realizable value of the securities exceeds the value of the Supplier’s secured claims by more than 20%, the Supplier will release securities at its own discretion and at the Purchaser’s request.

VII. Quality defects

1. Deliveries in which a quality defect is present within the limitation period – irrespective of their service life – will, at the Supplier’s option, be repaired, replaced or supplied again free of charge to the extent that the cause of the defect was already present at the point in time when risk passed. Without prejudice to more extensive liability for damages as may arise under Art. X, the Supplier, in accordance with its duties to render supplementary performance, will not be required to remove a defective item from a different item (not supplied by the Supplier) in which the defective item has been installed, nor will the Supplier be required to cover the costs of the installation of a replacement or repaired item.

2. Claims resulting from quality defects are subject to a limitation period of 12 months. This does not apply where a longer period is prescribed by law pursuant to § 479 Para. 1 BGB (recourse claims), in the event of injury to life, limb or health or in the case of an intentional or grossly negligent breach of duty on the part of the Supplier or in the event that a defect was fraudulently concealed. The statutory provisions on the suspension, interruption and recommencement of the expiry of periods of limitation remain unaffected.

3. Where the Purchaser is a trader (Kaufmann), the Purchaser must have duly complied with its obligation to inspect and to give notice of a defect in accordance with § 377 HGB before warranty claims may be enforced. Non-traders must advise the Supplier of quality defects (including incorrect and short deliveries) in writing and without delay. Such notice will not be deemed to be “without delay” where it is not given within two weeks; with this deadline deemed to have been met if the notice is posted within this period.

4. Where the Supplier is under an obligation to render supplementary performance, it is entitled to make the fulfilment of this obligation conditional upon the payment by the Purchaser of the purchase price due. In this case, however, the Purchaser is entitled to withhold a reasonable portion of the purchase price in relation to the defect pursuant to Art. III Para. 6 Sentence 2. If the notification of a defect is unjustified, the Supplier is entitled to reimbursement from the Purchaser of the expenses incurred.

5. In the first instance, the Supplier is to be granted an opportunity to render supplementary performance within a reasonable period of time. If supplementary performance is not successful, the Purchaser is entitled to rescind the contract or to make a deduction from the remuneration.

6. There shall be no claims resulting from only minor deviations from the agreed quality, only minor impairment of usefulness, natural wear and tear or damage arising after risk has been passed due to incorrect or negligent handling, excessive use, unsuitable equipment or particular external influences that are not foreseen under the contract, and non-reproducible software defects. Improper modifications or repairs undertaken by the Purchaser or third parties and the consequences arising therefrom also do not constitute defect claims.

7. The Purchaser shall have no claim with respect to expenses incurred for the purpose of specific performance, including costs of travel and transport, labor and material, where expenses are increased because the items for delivery were subsequently brought to a location other than the Purchaser’s premises, unless doing so is consistent with its intended use

8. The Purchaser only has right of recourse against the Supplier pursuant to § 478 BGB (Rückgriff des Unternehmers) to the extent that Purchaser has not agreed with its customer any terms that go beyond the scope of statutory defect claims. Moreover, Art. VII Para. 7 applies accordingly to the scope of recourse taken by the Purchaser against the Supplier pursuant to § 478 Para. 2 BGB.

9. Without prejudice to the above, the provisions of Art. X (Other claims for damages) apply in respect of claims for damages. Any other claims of the Purchaser against the Supplier and its vicarious agents (Erfüllungsgehilfen) arising from a quality defect or any such claims other than those set forth in this Art. VII are hereby excluded.

VIII. Industrial property rights and copyright; legal defects

1. Unless agreed otherwise, the Supplier is obliged to perform its contractual services free from third-party industrial property rights and copyrights (hereinafter: “intellectual property rights”) solely in the country of the place of delivery. If a third party asserts justified claims against the Purchaser based on an infringement of intellectual property rights with respect of the delivery supplied by the Supplier and used in accordance with the contract, the Supplier is liable to the Purchaser within the period set forth in Art. VII Para. 2 as follows:

a) The Supplier, at its option and expense, shall either obtain a right of use for the deliveries in question, modify them such that they no longer infringe the intellectual property right or exchange them. If it would be unreasonable for the Supplier to do this, the Purchaser may rescind the contract or make a deduction from the remuneration in accordance with statutory provisions.

b) The Supplier’s liability to pay damages is governed by Art. X.

c) The above obligations of the Supplier only apply if the Purchaser notifies the Supplier of claims asserted by third parties without delay and in writing, does not acknowledge any infringement and leaves all defence measures and settlement negotiations to the Supplier’s discretion. If the Purchaser ceases to use the delivery to reduce damages or for any other significant reasons, it is obliged to inform the third party that no acknowledgement of infringement of an intellectual property right may be inferred from the fact that use has been discontinued.

2. The Purchaser’s claims will be denied if the Purchaser itself is responsible for the infringement of the intellectual property right.

3. The Purchaser’s claims will be denied if the infringement of the intellectual property right is caused by special stipulations made by the Purchaser, by a type of use that the Supplier could not have foreseen or due to the fact that the delivery was modified by the Purchaser or used in conjunction with products not supplied by the Supplier.

4. The Supplier hereby reserves without restriction its rights of use arising from its proprietary rights and/or copyrights with respect to quotations, drawings, manuals and other documents (hereinafter: the “Documents”). The Documents may not be made accessible to third parties without the Supplier’s prior consent and are to be returned without delay to the Supplier if the order is not awarded to the Supplier. Sentences 1 and 2 apply accordingly to the Purchaser’s documents; these may, however, be made accessible to those third parties to whom the Supplier has lawfully assigned deliveries.

5. Without prejudice to the above, the provisions of Art. VII Para. 4, 5 and 9 with regard to the Purchaser’s claims pursuant to Para. 1 a) apply accordingly in the event of an infringement of an intellectual property right.

6. In the case of any other legal defects, the provisions of Art. VII apply accordingly.

7. Any other claims of the Purchaser against the Supplier and its vicarious agents arising from legal defects or any such claims other than those set forth in this Art. VIII are excluded.

IX. Impossibility of performance, amendment of the contract

1. To the extent that delivery is not possible, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility.. The Purchaser’s claim for damages is, however, limited to 10% of the value of that part of the delivery that could not be put to the intended use owing to the impossibility. This limitation does not apply in cases of mandatory liability based on intent, gross negligence or in cases of injury to life, limb or health; this provision does not result in a change in the burden of proof to the detriment of the Purchaser. The Purchaser’s right to rescind the contract is not affected.

2. Where unforeseeable events within the meaning of Art. IV Para. 2 significantly change the commercial basis or the substance of the contractual performance or have a considerable effect on the Supplier’s operations, the contract is to be amended within reason and in good faith. Where the preceding provision is commercially unreasonable, the Supplier is entitled to rescind the contract. If the Supplier intends to exercise this right of rescission, it must inform the Purchaser within three weeks of its knowledge of the event. If the Purchaser fails to give this notice within this period, its right of rescission is forfeited.

X. Other claims for damages

1.  The liability of the Supplier for damages, irrespective of the legal basis of such liability, applies only in the event of intentional or grossly negligent conduct. In cases of ordinary negligence, the Supplier is only liable for injury to life, limb or health or for damages arising from a breach of a fundamental contractual obligation (an obligation that makes the proper performance of the contract possible in the first instance and on the fulfilment of which the contracting party ordinarily relies and is entitled to do); in this case, however, the Supplier’s liability is limited to compensation for foreseeable, typically occurring damage.

2. The limitations on liability set forth in Para. 1 do not apply if the Supplier has fraudulently concealed a defect or has provided a warranty as to the quality of the Goods. The manufacturer’s warranty does not constitute the provision of a warranty by the Supplier. The provisions of Sentence 1 apply accordingly to the Purchaser’s claims under the German Product Liability Act (Produkthaftungsgesetz).

3. To the extent that the Purchaser has valid claims for damages under this Art. X, such claims will lapse upon the expiry of the limitation period applicable to quality defects pursuant to Art. VII Para. 2. In the case of claims for damages under the German Product Liability Act, the statutory provisions on limitation periods apply.

XI. Export restrictions

The Purchaser may not export, re-export or transfer directly or indirectly the products or technical data received from the Supplier to any country or user where such export, re-export or transfer is restricted by the laws applicable to this contract in the Purchaser’s own country without first obtaining written approval from the authorities or a similar licence, authorization, certification or permit. If the Purchaser’s customer resells or otherwise disposes of the products or technical data purchased hereunder, it shall do so in compliance with any applicable export restrictions.

XII. Court of jurisdiction and applicable law

1. If the Purchaser is a trader (Kaufmann), a legal person constituted under public law (juristische Person des öffentlichen Rechts) or a or a public sector funding company (öffentlich-rechtliches Sondervermögen), the exclusive sole venue of jurisdiction for all disputes arising directly or indirectly from this contract will be the Supplier’s place of business. However, the Supplier is also entitled to bring an action at the Purchaser’s general place of jurisdiction.

2. Legal relations in connection with this contract will be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The requirements and effects of the retention of title agreed above will be governed by the law applicable at the place of storage of the Goods insofar as the choice of German law would not be permitted or would be ineffective under the applicable law.