ATMOS MedizinTechnik GmbH & Co. KG
in Lenzkirch HRA 320387,
Purchase-tax-ID-No. DE 142504272
Represented by the personal liable participator ATMOS MedizinTechnik
Beteiligungs GmbH, Ludwig-Kegel-Straße 16, 79853 Lenzkirch, GERMANY
Managing Director & Managing Partner:
Gerlinde Greiser, Maik Greiser, Frank Greiser
Tel: +49 7653 689 - 0
Fax: +49 7653 689 - 190
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General Standard Terms and Conditions
ATMOS MedizinTechnik GmbH & Co. KG
Our General Standard Terms and Conditions apply exclusively. Client’s terms and conditions which are contrary to or deviate from our General Standard Terms and Conditions are not recognised unless their validity is explicitly confirmed in writing. Our General Standard Terms and Conditions also apply even if we deliver to clients without reservation, in the knowledge of the client’s contrary terms and conditions. Our General Standard Terms and Conditions also apply to all future business with that client.
2. Proposal - Order Confirmation
Our proposals are subject to change without notice unless otherwise stated in our order confirmation. Each order is only accepted by us following our written order confirmation.
Every order requires an exact description of all of our product’s details. We assume no liability for errors and damage caused by inaccurate or incomplete ordering details.
Unless otherwise stated in the order confirmation, our prices in the order confirmation are ex factory prices and exclude packaging and value added tax. Packaging is charged separately at cost price in the invoice. Value added tax is charged separately in the invoice according to the legal rate on the invoice date. We reserve the right to change prices appropriately should price reductions or increases, especially due to wage settlements, changes in the price of materials or currency fluctuations, be incurred. Proof of such changes will be provided for the client on request.
5. Payment Conditions - Balancing
Unless otherwise stated in the order confirmation, our invoices are payable with a 3% discount within 10 days (except for repair and assembly services) or within 21 days from the invoice date net cash; money receipts is decisive for complying with this term. We are entitled to charge interest after the due date at a rate 2% above the relevant basic interest rate of the German Federal Bank. Should the client have payment arrears, we are entitled to charge interest on arrears at a rate 5% above the relevant basic interest rate of the German Federal Bank. Should we be able to prove higher damages due to arrears, we are also entitled to claim these. The client only has the right to balance invoices against its own claims should such claims be confirmed in a court of law or recognised by us. The client does not have the right of retention due to disputed counterclaims.
6. Delivery Periods
Fulfilment of our delivery duties requires the punctual and proper fulfilment of the client’s duties. The right to defense on the grounds of an unfulfilled contract is reserved.Should the client default in accepting the goods delivery or breach other cooperation duties, we are entitled either to withdraw from the contract or claim compensation for any increased costs incurred up to that time without setting a further deadline. The right to make further claims is reserved. Furthermore, in such cases, the risk of coin-cidental destruction or a coincidental deterioration in the quality of the delivered goods is transferred to the client in the case of default in accepting such goods or payment arrears. Acts of God or stoppages (due to insufficient supplies of material, industrial disputes etc.) entitle us either to demand an appropriate extension of delivery periods or to partly or entirely dissolve the delivery contract. This does not give the client the right to claim damages. We have fulfilled delivery periods if the delivery goods have left our factory or the client has been informed of the goods’ readiness for delivery within such delivery periods. Delivery periods stipulated by the client are not recognised by us unless they form part of our order confirmation. We adhere to legal terms and conditions in cases where, as a result of an undue delay in the delivery for which we are liable, the client is entitled to claim that his interests in a continued fulfilment of the contract have ceased. We also adhere to legal terms and conditions should a delay in delivery be caused by deliberate or grossly negligent action by us or our representatives for which we are responsible. We are also responsible for such actions by our representatives or agents. Should the delivery delay not be caused by our deliberate infringement of contractual duties for which we are responsible, our liability is limited to damage which is regarded as typical for that case. We are liable according to the legal terms and conditions if and in so far as the delivery delay for which we are responsible is caused by an infringement of a substantial contractual duty. In such cases, our liability is also limited to damage which is regarded as typical for that case. Should the delivery delay be caused by a culpable infringement of non-substantial contractual duties, our client is also entitled to claim a one-off damage compen-sation worth 3 percentage points of the delivery value of the goods for each week’s delay, up to a maximum which is no higher than 15 percentage points of the delivery value of the goods
7. Delivery - Familiarisation
In the case of the delivery of devices for the medico-technical industry which require assembly and/or familiarisation for the final customer using specialist trade personnel (such as Ear, Nose and Throat Apparatus and Suction Units), we reserve the right to deliver the goods exclusively to the relevant specialist traders. Should the trader not carry out assembly and/or familiarisation for the final customer, this is carried out by us. In such cases, we reserve the right to charge the client for the additionally created costs. Our specialist traders operate a recording system so that, if necessary, our products can be traced to the final customer. The specialist trader undertakes to immediately report to us all events and risks which must be reported in connection with our products.
8. Passage of Risk - Packaging
Unless otherwise stated in our order confirmation, delivery is agreed ex factory. The risk of the goods’ damage or loss is therefore transferred to the client as soon as the goods leave the factory or the client is in default of acceptance of the goods. This also applies to cases where we confirm prepaid carriage. Transport packaging and all other packaging according to the packaging regulations is not returnable. Our client is responsible for disposing the packaging at its own cost. Our deliveries are insured by us at the client’s expense unless explicitly otherwise agreed. No insurance is arranged in the case of goods which are collected by our clients. In the case of transport damage, claims are only handled if the client receives confirmation of any damage, reduced weight or loss by the shipping company before accepting the delivery.
The client is responsible for examining the delivered goods immediately after receiving them to determine any eventual deficiencies or delivery errors, and to report these immediately. Should the client fulfil this examining and reporting responsibility, and should payment conditions be fulfilled, we shall be liable to the client within the scope of legal regulations. Our period of warranty shall in all cases be two years. Our client can make use of the warranty as follows, so long as he can provide first buyer proof (in the form of an invoice or delivery note) and provided that the product still has the original, unchanged serial number:
a. We choose whether to fulfil our guarantee by providing repair services free of charge - either on the client’s premises or in our factory - or replacing the product. We can also provide these guarantee services through an authorised company;
b. Should a product be returned to us, the client agrees to send the product in its original or similar packaging, offering the same protection as the original packaging, to our address or any address notified by us.
c. Our guarantee ceases to apply if changes of any kind have been made to our product, unless such changes have been made by us or a company authorised by us, or have been previously agreed upon in writing by us. Our guarantee also ceases to apply if third parties have carried out repairs to our products or replaced parts thereof. This applies regardless of the fact whether these measures individually or collectively led to a deficiency of the product;
d. We accept no responsibility for damage defects caused by - operational wear and tear;
- incorrect installation or incorrect or insufficient maintenance;
- incorrect operation of the product (in contradiction to the handbook delivered with the product); - improper use or operating faults; - inappropriate or negligent handling and care, especially with respect to dirt, lime, suction of fluids, inappropriate cleaning and sterilisation; - using accessories and/or replacement parts which are not explicitly approved;
- incorrect assembly and/or initial operation by the client or third parties; - the client’s negligence in handling the product; -unacceptable operating conditions, such as humidity, temperatures, the power supply, vibrations.
-accidents, acts of God, especially lightening, water, fire, public unrest and insufficient ventilation. We are not liable for damage to other objects apart from our product itself, except in the case of any deliberate or grossly negligent actions by us or our representatives or agents. Should no deliberate breach of contract be claimed, our liability is limited to damage which is regarded as typical for tthat case. This also applies in the case of our culpable infringement of substantial contractual duties The indispensable conditions of German Liability Law remain unaffected thereby.
-For second-hand equipment, the period of warranty shall be reduced to a period of twelve months.
10. Reservation of Ownership
We retain ownership of our goods until the receipt of all payments arising from the business relationship, including all demands arising from installation orders, subsequent orders, repairs, accessory deliveries and replacement orders. Should we have agreed upon payment on the basis of cheque and bill transactions, the ownership reservation applies until the cheque received by us has paid in, and does not expire through our credit upon receiving client’s cheque. In the case of a breach of contract by the especially payment arrears, we are entitled to repossess our Repossession of our goods repre-sents a withdrawal contract, unless explicitly declared in writing by us. We have to utilise the product after its repossession, whilst the income such use is balanced against the client’s arrears, after deducting appropriate utilisation costs.The client is responsible for the goods with care. Should maintenance and inspection necessary, the client must carry these out punctually at his Our client is entitled to sell the goods he has bought from proper sale transaction. However, he must immediately assign outstanding claims to the value of the final invoice sum (including value added tax) of our claims to his customers or third parties. client is entitled to collect this claim even after such assignment. Our right to collect the claim ourselves remains unaffected We undertake to release the securities to which we are entitled requested to do so by the client should the realisable value our securities be more than 10 percentage points higher outstanding claims. We reserve the right to choose the securities to be released.
11. Plans and Illustrations
We retain ownership of and copyrights to all plans, illustrations, calculations and other documents which are attached proposals. The client must receive explicit written permission before passing these on to third parties. Imitating our legally products is forbidden and will be prosecuted.
12. Jurisdiction and Place of Performance
Our central office is the place of performance for all in connection with these General Standard Terms and Conditions and the contracts closed with clients under them. This jurisdiction excludes other jurisdiction relating to persons or subject-matter Furthermore, our client is not entitled to bring charges us in another court should he file counter-charges, carry counterbalancing or declare retention. We, however, are to bring charges against our client at their general place of jurisdiction or at another relevant court recognised by German or foreign Unless otherwise stated in the order confirmation, our central is the place of performance.
Lenzkirch, September 2008
ATMOS MedizinTechnik GmbH & Co. KG
General Terms and Conditions of Purchase
ATMOS Medizintechnik GmbH & Co. KG
The following terms and conditions shall apply exclusively to all orders, also future orders, unless we expressly confirm deviations in writing. Terms and conditions of the supplier are not accepted by us, unless we expressly agreed to their validity in writing. Our terms and conditions of purchase shall also apply if we accept the supplier’s delivery without reservations despite being aware of the terms and conditions of the supplier which conflict with or deviate from our terms and conditions of purchase.
(1) Only written orders are binding. All orders as well as their modification and amendment must be in writing. The supplier has to acknowledge the order in writing and without delay. Our employees are not authorised to make ancillary verbal agreements or to make commitments in addition to the order or to change these terms and conditions of purchase to our detriment.
(2) We reserve the right to cancel the order if we do not get an order confirmation within 7 days from the date of order, which contains prices and delivery time.
3. Prices / Payment
(1) Agreed prices are binding fixed prices, they are calculated free destination and any packing costs are included unless otherwise agreed in writing. Payment is made by arrangement. The time allowed for payment starts when the goods have been received as per agreement and are complete, when the documents as per clause 5 are available. We reserve the right to choose the means of payment.
(2) In case it is agreed that we bear the transport costs, the supplier is obliged to choose the most cost-effective dispatch route. Any additional costs for speeding up delivery in order to meet a delivery date will not be borne by us.
(3) We are entitled to set off right and retention rights within statutory regulations.
4. Payment terms
Unless otherwise expressly agreed, payment of the invoice will be effected within 14 days with a deduction of 3 % cash discount or within 30 days net. The period starts on receipt of invoice as well as goods, respectively when the entrusted service is performed. Payment is made subject to invoice verification.
In the case it is agreed that we bear the packing costs, the packaging shall be charged at cost price. The value of the packaging must be stated on the delivery note. We return packaging to the supplier, at our own option, carriage paid, or dispose of it at the expense of the supplier. For the disposal we charge two thirds of the value of the packaging.
6. Delivery time
(1) Agreed or confirmed delivery periods or dates are binding. Relevant for meeting the deadline shall be the receipt of goods at our premises. The supplier is not entitled to partial or overdelivery. The supplier is obliged to inform us immediately in writing if it is obvious that the agreed delivery dates and periods cannot be kept.
(2) In case of a delay in delivery we shall be entitled to statutory claims. Regardless of that we shall be entitled to claim for payment of a contract penalty of 1% per commenced week of the missed deadline, but at a maximum 5% of the agreed total price of the delivery. This contract penalty can be claimed up to the final payment.
(3) Our acceptance duty is prolonged in case of Force Majeure, labour disputes, interruption of operations, lack of energy and raw materials, civil commotions and other unforeseeable or inevitable events for which we are not liable for, for the duration of the incident and to the extent of its effects. The supplier shall immediately be informed on the beginning and end of the mentioned obstacles. In these cases we cannot be held liable for any default in acceptance or late payment.
7. Delivery notes and invoices
A delivery note must be included in every consignment, stating our order number, REF and the purchase order date. The invoice must be in line with the specification of our order and the delivery note, it must contain our order number and the purchase order date. Without the relevant accompanying documents the supplier has not fulfilled his delivery obligations regarding the order. We shall then be entitled to store the goods at the risk and expense of the supplier.
8. Notice of defects and liability for defects
(1) The supplier shall guarantee that when handing over the delivery item to us, it is free from defects of title or material defects and is state-of-the-art, for compliance with appropriate laws, protective regulations and accident prevention regulations as well as with the common and technical quality standards (e.g. DIN, VDE, VDI, TÜV). In case of different structuring of these standards, the German version shall be applicable.
(2) We examine incoming goods for apparent defects, identity, shortage and visible damage in transit. There is no further obligation to inspect the goods. Apparent defects are claimed within two weeks. For foreign transactions the period shall be prolonged to three weeks. Insofar the supplier shall abstain from raising an objection regarding delayed notice of defects. Hidden defects are claimed immediately after their discovery.
(3) Claims for defects become time-barred in 36 months.
(4) For deliveries from at home or abroad we have the choice to have claims satisfied by either rectification or subsequent delivery of goods free of defects, unless the subsequent delivery is, in the requested form, unacceptable for the supplier. In urgent cases we may remedy the deficiencies at supplier’s expense and, if this is not possible, we may buy the goods from an other subcontractor at supplier’s expense.
(5) The supplier has to bear all expenses for rectification or replacement at the relevant place of usage of the goods. On request we shall inform the supplier on the place of usage.
(6) In the case we take products back due to the deficiency of the supplier’s goods or the purchasing price was reduced or a claim was made on us in any other way, we reserve the right of recourse to the supplier. No otherwise necessary fixing of deadline is required. The supplier also has to bear the necessary expenses for it. Regardless of the agreed limitation period of 36 months, the above mentioned claims become time-barred at the earliest 2 months after the date when we have satisfied the claims from our customers, but at the latest after 5 years.
(7) If a material defect appears within 6 months from delivery, it is assumed that the deficiency already existed at handing over, unless this assumption is inconsistent with the kind of goods or the defect.
(8) The limitation period for claims regarding liability for defects begins anew for replaced or repaired parts.
(1) In the case where a claim is made on us by a customer or any other third person due to product liability, the supplier is obliged to indemnify us from such claims provided that and as far as the damage was caused or partly caused by a fault of the product supplied by the supplier. In cases of strict liability this is only applicable if the supplier is at fault. Provided that the cause of damage is in the responsibility of the supplier, it is sufficient to prove that the damage was caused by the fault. Apart from this the supplier bears the burden of proof.
(2) Our liability is limited to damages caused by gross negligence or premeditatedly. This shall not apply for bodily injuries or if essential contractual obligations were violated the way that they jeopardise the execution of the contract.
10. Protective rights
(1) The supplier is responsible that no protective rights or other rights from third parties are infringed in connection with his supply. If a third party claims against us because of that, the supplier is obliged to indemnify us from these claims after our first written request. We are not entitled to make any agreements with the third party, especially to come to a compromise without the consent of the supplier.
(2) The supplier’s obligation for indemnification is related to all expenditures which necessarily accrue from the claim of a third party.
(3) The limitation period is 10 years, calculated from the date of conclusion of the contract.
11. Provision of material, tooling
(1) Provisions of material remain our property – even if they are invoiced – and have to be stored separately, clearly marked and administered as our property. The supplier carries out processing or alteration for us. When our reserved goods are connected to, processed or mixed with other goods, we gain joint property in the newly manufactured goods in proportion to the value of the provided material to the other goods. If the connection or mixture is the way that the provided material can be considered as essential, it shall be agreed that the supplier transfers us joint property and the supplier keeps it for us. The provided material may only be used for our orders. In case of depreciation or loss the supplier provides replacement.
(2) Tooling like models, samples, tools, jigs, drawings are either provided from us or manufactured for us by the supplier as per our specifications. We reserve the property rights for these tooling. They have to be stored separately and clearly marked as our property and may neither be reproduced, sold, nor otherwise passed on. The same applies to the things which are manufactured with this tooling. Tooling must be insured against theft, destruction and damage at the supplier’s expense. The supplier already transfers any claims from the insurance to us and we do herewith accept the assignment. After placing the order the tooling must be returned to
us. Things, which we developed or enhanced in cooperation with the supplier, may only be supplied to us.
(3) The supplier has no right of retention to the provided material and tooling.
(4) The supplier is obliged to treat all the received images, drawings, calculations and other documents and information as strictly confidential. They may only be disclosed to third parties with our explicit consent. This secrecy agreement still remains valid after termination of the contract and ends when and so far as the manufacturing knowledge in the images, drawings, calculations and other documents became generally known.
12. Applicable law, place of performance, place of jurisdiction
(1) These terms and conditions shall be governed by and construed in accordance with the law of the Federal Republic of Germany.
(2) Place of performance for delivery and payment is Lenzkirch, Germany.
(3) For business transactions between fully-qualified traders the place of jurisdiction for all claims related to this contract shall be Freiburg i. Br. However, we are also entitled to go to the court in charge for the supplier.
Lenzkirch, February 2008