General Terms and Conditions of sfm swiss medical AG
Status: November 2018
1. GENERAL REGULATIONS, SCOPE OF VALIDITY
1.1 These General Terms and Conditions ("GTC") of sfm swiss medical AG ("we" or "us") apply to business relations with our clients ("Client"), no matter if the Client is an individual, an entity or a public law institution.
1.2 The subject matter of the business relation is, in particular, the sale and delivery of products ("Products") produced by us or by sfm medical devices GmbH, Germany, and/or the provision of other agreed services ("Services").
1.3 The GTC apply in their respectively valid version. We reserve the right to adapt the GTC if necessary. Adaptations occur, in particular, in case of respective invalidity or ineffectiveness of existing provisions or adaptations of laws or standards. We will inform the Client about the respective adaptations in writing. If the Client does not reject the new GTC within 30 days from reception of the adaptation notice, the adapted GTC are deemed accepted. The respectively current version of our GTC can be accessed via our website [www.sfm.de].
1.4 Only these GTC are relevant for our deliveries and Services. Any deviating, contradicting or complementary General Terms and Conditions of the Client will only become a part of the contract if and as far as we have expressively consented to their validity. This consent requirement also applies if we execute the delivery and/or Service to him without reservation, being aware of the General Terms and Conditions of the Client.
1.5 Any individual agreements with the Client concluded in the individual case, including side agreements, amendments and/or modifications, prevail over these GTC in each case. A written contract or our written confirmation is decisive for the content of such individual agreements.
1.6 Legally valid declarations and notifications to be provided to us by the Client after contract conclusion (e.g. setting deadlines, notices of defects), require the written form to be effective.
2. CONTRACT CONCLUSION
2.1 Our proposals are always nonbinding and without obligation.
2.2 The Client’s order is deemed a binding contract proposal ("Order").
2.3 To accept the Order, a written confirmation (e.g. order confirmation) by us ("Order Ac-ceptance") is necessary. With the acceptance of the Order, a contract is established between us and the Client ("Contract").
2.4 The written confirmation is decisive for the content of the Contract, even if it shows minor or customary deviations from the Order. Such deviations are deemed accepted by the Client if we do not receive a written objection of the Client within two (2) weeks from his reception of the written confirmation. In case of congruence of the Order and the written confirmation, the Client has no right to claim any objections.
3. RELEASE OF PRODUCTION FOR THE PRODUCTS, MEANS OF PRODUCTION, ACCEPTANCE
3.1 As far as the Product is produced according to the specifications and requirements of the Client, an acceptance is required before the beginning of the production of the Product with respect to the production process for the respective Product and the re-spective sample of the Product ("Acceptance"). An Acceptance is also required as far as we manufacture the tools necessary for the production of the Product.
3.2 The details with respect to such Acceptance(s) and to the manufacturing of the means of production will be separately agreed by the parties.
4. DELIVERY, DEADLINES, DELIVERY DELAY, RISK ASSUMPTION
4.1 As far as nothing else has been agreed in writing, we send the Product directly to the Client (sales shipment). In doing this, in particular, we are entitled – subject to any dif-ferent written agreement – to determine the mode of shipment ourselves (in particular the carrier and transport route). Due to the product characteristics, the packaging is de-fined in advance and cannot be modified. Subject to any different written agreement, the risk of accidental loss and accidental degradation of the Product and of any delays is transferred to the Client upon the handover of the Product to the carrier, the for-warder or any other person charged with the execution of the transport within the meaning of art. 185 par. 2 OR (Code of Obligations). In modification of art. 185 par. 2 OR, this also applies if the Product is transported by a helper or by our employees. If the Client is in default of acceptance, this is equivalent to a delivery. If the Client falls into default of acceptance or fails to cooperate or if our delivery is delayed for other reasons attributable to the Client, we are entitled to claim compensation of the damage resulting therefrom, including additional expenses (e.g. storage costs, cost of preserva-tion and protection of the Product).
4.2 The agreement of any delivery/service deadlines will be made individually and is only binding if we confirm the respective delivery/service deadline in writing when accepting the Order. A bindingly agreed delivery/service period does not start running until the reception of our written confirmation by the Client.
4.3 As far as we cannot keep a binding deadline for reasons not attributable to us (so-called non-availability of Service), we will inform the Client thereof immediately and in-dicate the expected new deadline. If the delivery and/or Service is still unavailable within the new period, we are entitled to withdraw from the respective Contract wholly or partially; we will immediately restitute any consideration provided by the Client. A case of non-availability of the Service within this meaning is given, in particular, if we have not been supplied on time by our supplier if we have concluded a congruent cov-ering transaction (binding and sufficient ordering of the Product on time).
4.4 The occurrence of our default is subject to the legal provisions. In any case, however, a written reminder by the Client is required.
4.5 In principle, we are entitled to provide partial deliveries if this is necessary for logistic reasons and reasonable for the client.
Unless otherwise agreed, we additionally reserve the right to deliver quantities within a tolerance of ±10% of the ordered quantity for orders of customer specific products.
5. PRICES, PAYMENT
5.1 Unless anything different has been agreed in writing in the individual case, our prices valid at the moment of the Order according to the proposal sent to the Client in writing apply, plus legal VAT, if applicable. The costs for the packaging required for transport will be listed separately unless otherwise agreed in writing. The other costs for trans-port, dispatch and fees, taxes (except for VAT) and other public duties are included in the respectively valid prices unless otherwise agreed. As far as the Product is delivered on pallets and/or in containers and these loading aids are not exchanged, we will charge the Client for these pallets and/or containers.
5.2 Payments must be made in Swiss francs. The price is due and payable net within thirty (30) days from the invoice date. In case of cheque payments, the date of redemption of the cheque is decisive, in case of bank transfers the day of crediting on our account.
5.3 The client only has any rights of setoff or retention as far as his claim is legally con-firmed or undisputed. In case of defects of the delivered Product, the counter-rights of the client, in particular according to n° 9 of these GTC, remain unaffected.
5.4 We reserve the ownership of the delivered Product until the reception of all payments from the business relation with the Client.
6. DEFAULT OF PAYMENT, PAYMENT DIFFICULTIES
6.1 At the expiry of the above-mentioned (cf. n° 5.2 of these GTC) payment deadline, the Client falls into default without a reminder (Expiration Day). During the period of default, the price to be paid is subject to the respectively applicable legal default interest rate. We reserve the claim of any additional default damage incurred.
6.2 If an essential deterioration of the financial situation of the Client occurs after conclu-sion of the Contract, within the meaning of art. 83 OR, which is given, in particular, in case of an application for insolvency proceedings or the cessation of payments to us, we are entitled, according to the legal provisions, to exercise a right to refuse perform-ance for all outstanding deliveries and/or, after setting a grace period without success, immediately withdraw from the contract (art. 83 par. 2 OR). This also applies if the Cli-ent is in default with an essential part of the payment obligations towards us. Any fur-ther legal rights to claim damages instead of performance or compensation for ex-penses remain unaffected.
7. PRODUCT SAFETY
7.1 We make efforts to guarantee the best possible safety with respect to our Product. To do this, the Client will support us to the best of his knowledge, in particular as de-scribed below.
7.2 In relation to the execution of the contract and the subsequent use of the Product (in particular storage/transport, further processing, release to customers), the Client might have to bear certain obligations on his own with respect to product safety law or certain regulations, in particular on medical devices. In particular, the Client is obliged to pro-vide the necessary instructions to his customers, to monitor the Product marketed by him and, if applicable, initiate required measures of risk prevention. The Client will re-spect such legal obligations without exception.
7.3 The Client will follow any instructions given by us concerning the respective Product without exception and immediately forward to his customers any instructions, applica-tion notes, warnings and risk descriptions transmitted to him. In addition, the Client agrees to impose respective obligations to his customers to forward the respective in-formation. If the Client – e.g. on the occasion of any complaints from his customers – gains any knowledge of product risks, side effects or other safety problems, he will for-ward the respective information to us immediately.
7.4 The Client shall ensure an appropriate storage and, if applicable, an appropriate further transport of the Product – in particular in compliance with our instructions. The Client will document the conditions for storage and, if applicable, transport in a conclusive form and grant us access to the respective documents on request.
8. EXAMINATION OF THE PRODUCT
8.1 The precondition for any claims for defects of the Client is that he has fulfilled his legal obligations of inspection and complaint (art. 201 OR). For this sake, the Client will care-fully inspect the delivered Product immediately after its reception. If the inspection shows a defect of the delivered Product, the Client will notify this defect to us immedi-ately, but at the latest within five (5) working days from reception of the Product, in writ-ing. The Client will notify any hidden defects to us immediately, but at the latest within five (5) working days from detection of the hidden defect, in writing. To keep the dead-line, it is sufficient to send off the notification of defects in time. If the Client fails to no-tify the defect or if the notification of defects is late, the Product is deemed approved. Our liability for any defect which has not been notified on time is excluded.
8.2 If the Client detects a defect of the Product, he will stop any processing or further treatment of the Product immediately after the detection of the defect.
9. DEFECT RIGHTS
9.1 The Client’s rights in case of defects of quality and title are subject to the legal provi-sions, as far as nothing else is provided for below.
9.2 Any deviations of the delivered from the purchased Product with respect to external appearance, weight and/or dimensions of the Product are negligible if and as far as these deviations (i) are customary or technically unavoidable if the norm provisions are still fulfilled, (ii) represent a further technical development if the norm provisions are still fulfilled, or (iii) are caused by a change of the legal provisions or other regulations. The Client is free to prove that such deviations are significant for him. Insignificant devia-tions do not represent a defect.
9.3 If the delivered Product and/or the provided Service is defective, we can first choose whether we provide supplementary performance by correcting the defect (rework) or by delivering an object free from defects (replacement). Our right to refuse supplementary performance subject to the legal preconditions remains unaffected.
9.4 If the supplementary performance has failed or an appropriate grace period to be set by the Client for the supplementary performance has expired without success or is not necessary according to the legal provisions, the Client can withdraw from the contract or reduce the remuneration. Claims for damages and/or compensation for wasted ex-penses of the Client only exist according to n° 11 of these GTC, apart from that, they are excluded.
9.5 The expenses necessary for examination and supplementary performance, in particular transport, route, labour and material costs, will be borne by us if a defect really exists. If, however, the Client’s demand for correction of a defect turns out to be unjustified, we can claim compensation by the Client for the costs therefore incurred.
9.6 The Client is not entitled to claim defect rights if and as far as he or any third party commissioned by him (i) has assembled, handled or used the Product improperly or in-correctly, or (ii) has otherwise altered the Product if this has caused the defect.
10. DISPOSABLE PRODUCTS
10.1 As far as the Product is sterilized Product, it is only destined to be used once and is correspondingly marked by us as a disposable product ("Disposable Product"). These Disposable Products are not suitable for reuse. In light of these risks, we explicitly is-sue a warning of the reuse of Disposable Products.
10.2 As far as the Client reuses the Disposable Products despite our warning, this reuse occurs at his own risk.
10.3 The Client is not entitled to claim any defect rights if and as far he has reused a Dis-posable Product and that product shows any defects related to its reuse deviating from the agreed specifications.
10.4 The Client’s obligation to forward information to his customers (cf. n° 7.3 of these GTC) also holds for our notices related to Disposable Products.
11.1 As far as nothing else can be inferred from these GTC including the subsequent provi-sions, we are liable according to the applicable legal provisions in case of a breach of contractual and non-contractual obligations.
11.2 We are liable for compensation – no matter on which legal grounds – in case of intent and gross negligence. Any liability for slight negligence is excluded.
11.3 The limitations of liability resulting from n° 11.2 of this regulation do not apply as far as we have fraudulently concealed a defect or assumed a quality guarantee. The limita-tions of liability do not apply either to any claims of the Client according to the Product Liability Act nor in case of any other compulsive provisions.
11.4 As far as our liability is excluded or limited, this also applies to the personal liability of or employees, representatives and other agents.
12. STATUTE OF LIMITATION
12.1 By derogation from art. 210 OR / art. 371 par. 1 OR, the general limitation period for claims for defects of quality and title is one (1) year from delivery.
12.2 The above-mentioned reduction of the limitation period does not apply to third-party in rem claims for return (art. 192 par. 1 in connection with art. 127 OR), to cases of fraudulent intent by us (art. 210 par. 6 OR) and breach of any quality guarantee. The limitation periods of the Product Liability Act also remain unaffected in each case.
12.3 The above-mentioned limitation periods also apply to contractual and non-contractual damage claims of the Client based on a defect of the Product, unless the application of the regular legal statute of limitations (in particular art. 60 OR) would lead to a shorter limitation period in the individual case.
13. RIGHT OF WITHDRAWAL
In case of a breach of contract by the Client, in particular in case of a failure to pay the due purchase price, we are entitled to withdraw from the Contract according to the le-gal provisions and to claim a return of the Product on the basis of the retention of title and the withdrawal. If the Client does not pay the due purchase price, we may exercise these rights only if we have already granted the Client an appropriate grace period for payment without success or if such a grace period is not necessary according to the legal provisions.
As far as the Client gains access to our illustrations, drawings, calculations and/or other company and/or trade secrets ("Confidential Information"), the Client will treat them confidentially. The Client is not entitled to disclose this Confidential Information to any third parties without our explicit written consent. In case of consent, the Client will make Confidential Information accessible to any third parties only as far as this is absolutely necessary. Information which is known or accessible to the public does not represent Confidential Information. Confidential Information the Client is obliged to disclose due to legal provisions or instructions by authorities/courts is exempted from the confidenti-ality obligation.
15. PLACE OF JURISDICTION, APPLICABLE LAW
15.1 The exclusive – also international – place of jurisdiction for all disputes directly or indi-rectly arising from or in relation to the GTC or the legal relations between us and the Client is the Canton Court of Zug, Switzerland, as far as no other places of jurisdiction are mandatory. We are also entitled, however, to file a suit at the general place of juris-diction of the Client.
15.2 Swiss law applies to these GTC and all legal relations between us and the Client. The UN Sales Law (CISG) is explicitly excluded.
If any individual clauses of these GTC are or become wholly or partially invalid, unen-forceable or void, this does not affect the validity of the remaining clauses. As far as any individual clauses have not become part of the Contract or are invalid, unenforce-able or void, the legal provisions apply. As far as there is no corresponding legal provi-sion, the clause which has not become part of the Contract or is invalid, unenforceable or void is replaced by a clause which the parties would have included if they had con-sidered this issue in advance; in doing that, the mutual economic interests must be taken into account in an appropriate, reasonable manner. The preceding phrase ap-plies analogously in case of regulation gaps.
These general terms and conditions are valid without signature.
sfm swiss medical AG