GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT
of SMI – Medical Instruments GmbH & Co. KG
– Export –
1.1. These General Terms and Conditions of Delivery and Payment for Export (hereinaf-ter referred to as “Export GTCs”) shall apply to all purchase contracts of SMI – Med-ical Instruments GmbH & Co. KG (“SMI”) with any Purchaser (hereinafter referred to as “Contract”) whose principal place of business is outside the Federal Republic of Germany. The branch office which concludes the Contract in its own name shall be applicable in each case.
1.2. These Export GTCs shall not apply if the Purchaser acquires the goods for personal, family or household use and SMI was aware or this or should have been aware of this at the time the Contract was concluded.
1.3. These Export GTCs shall apply to all offers and deliveries made by SMI. They are al-so valid for all future Contracts with the Purchaser, even if they are not expressly agreed upon once again.
1.4. Any provisions in the Purchaser’s terms and conditions that are contrary to or deviate from the provisions of these Export GTCs shall only apply if SMI expressly agrees to their validity in text form (e.g. in writing or by e-mail).
1.5. In the event that SMI and the Purchaser agree upon provisions deviating from individ-ual terms and conditions of these Export GTCs, this shall not affect the validity of the remaining provisions of these Export GTCs.
2. Conclusion of contract, offer documentation, disclosure obligation on the part of the Purchaser
2.1. Any offer made by SMI shall be non-binding, unless otherwise expressly indicated.
2.2. SMI reserves the right of ownership and copyright to all documents, especially draw-ings, plans, sketches, and product descriptions that SMI provides to the Purchaser. Any disclosure or transfer to third parties requires the prior consent of SMI in text form. If an order is not placed, all documentation shall, at the request of SMI, immedi-ately be returned, destroyed, or permanently and irretrievably deleted from electronic data storage.
2.3. SMI reserves the right to make changes and correct any errors in illustrations and drawings relating to the goods in brochures, advertising material and price lists as well as the data contained therein, e.g. on materials, dimensions and forms, unless these are expressly designated as binding.
2.4. The Purchaser shall be obligated to inform SMI prior to the conclusion of a contract if the goods to be delivered are not intended to be exclusively used for standard pur-poses, will be used under conditions that are unusual or pose a particular health, safety or environmental risk, are employed under conditions involving increased stress, or if the Contract may potentially entail untypical damage potential or unusual amounts of damage of which the Purchaser is aware or should be aware.
3. Contractual content
3.1. The content of the Contract is based on the order confirmation and the specifications agreed between the parties.
3.2. The goods are tested on the test material specified by the Purchaser.
3.3. SMI is entitled to deliver +/- 10% of the agreed delivery quantity, as is customary in the industry. The Purchaser shall pay the agreed unit price for the quantity delivered.
3.4. SMI shall not provide any guarantees that go beyond the statutory provisions and these Export GTCs. .
4. Cancellation and return
4.1. Cancellation of orders after the conclusion of the Contract is only possible with SMI’s consent and against reimbursement of expenses, if the Purchaser is not entitled to withdraw from the Contract due to legal regulations.
4.2. Customized products, i.e. products that are manufactured or labeled according to the Purchaser’s specific wishes, cannot be returned and cancellation is not permitted.
5. Delivery periods and non-availability of products
5.1. The delivery period shall be agreed upon individually or specified by SMI upon confir-mation of an order.
5.2. Subject to the Clause 5.3 hereinafter, the delivery period shall commence once SMI sends the order confirmation.
5.3. If the Purchaser, for its part, is obligated to procure certain documents, such as per-mits, releases, etc., or to make a down payment or advance payment, the delivery period shall commence at the earliest at the time when all documents to be procured by the Purchaser have been received by SMI or when any required down payment or advance payment has been received by SMI.
5.4. The contractually agreed delivery period shall be deemed met if – depending on the agreed mode of delivery – the goods have left the warehouse or SMI has made the goods available for the Purchaser and notified the Purchaser that the goods are ready for delivery.
5.5. In the event that SMI is unable to meet binding delivery periods for reasons beyond SMI’s control and which SMI could not foresee, avoid, or overcome at the time that the Contract was concluded (impediment), SMI shall inform the Purchaser of this without delay and simultaneously inform the Purchaser of the expected new delivery period. If the goods remain unavailable within the new delivery period, SMI shall be entitled to withdraw from the Contract in whole or in part; SMI shall immediately reim-burse any compensation previously provided by the Purchaser. Impediments in this sense shall include, in particular,
a) delayed delivery to SMI itself if SMI has itself placed an order in due time, or if neither SMI nor its suppliers have any influence on the impediment;
b) force majeure (Clause 6); and
c) viral and other attacks by third parties on SMI’s IT system, provided that such attacks have occurred in spite of compliance with the usual diligence required for appropriate protective measures.
5.6. The existence of a breach of contract on the grounds of delayed delivery shall be de-termined in accordance with the statutory provisions. However, in all cases a remind-er with an appropriate deadline set by the Purchaser is mandatory.
5.7. In the event of a breach of contract due to delayed delivery, SMI’s liability for damag-es due to the delayed delivery shall be limited to 0.75% of the net order value for each completed week of delay, up to a maximum of 5% of the net order value; the order value of goods not delivered on time shall be applicable. If the Purchaser asserts a claim for damages instead of delivery in the aforementioned cases, this claim for damages shall be limited to 10% of the net order value. Liability limitations in accord-ance with the aforementioned sentences 1 and 2 shall not apply in the event of an in-tentional delay or one involving gross negligence, nor in the event of injury to life, limb or health, nor in the event of a transaction for delivery by a fixed date, i.e. a transac-tion in which the transaction is to stand or fall based on compliance with a fixed period of performance.
6. Force majeure
6.1. Force majeure implies the occurrence of an event or circumstance that prevents a party from performing a contractual obligation if and to the extent that the party af-fected by the impediment (hereinafter the “Affected Party”) proves (a) that such im-pediment is beyond its reasonable control and (b) that the effects of the impediment could not reasonably have been avoided or overcome by the Affected Party. Obsta-cles in the meaning of point (a) include wars, civil wars, riots, acts of terrorism, pira-cy, currency and trade restrictions, embargoes, sanctions, official measures and or-ders, expropriation, epidemic, pandemic, natural disasters, and fire, unless the party not affected proves otherwise.
6.2. If one party fails to perform its contractual obligation due to the failure of a third party (including subcontractors) which it has engaged to perform the entirety or part of the contract, the party may invoke force majeure only to the extent that the conditions set out in Clause 6.1 are applicable to both the party and the third party.
6.3. If Clause 6.1 or 6.2 is fulfilled, the Affected Party shall be released from the contrac-tual obligation and from any liability for its breach from the time when the impediment resulted in its inability to render service and to the extent to which the impediment prevents rendering of service, provided it notifies the other party without delay. If such notification is not made without delay, the exemption shall only become effective from the time when the notification is received by the other party. The other party may suspend fulfillment of its obligations, if applicable, from the date of notification.
6.4. If the effect of the asserted impediment or event is temporary, Clause 6.3 shall apply only as long as the asserted impediment prevents the affected party from fulfilling its contractual obligation. The Affected Party must notify the other party as soon as the obstacle in question ceases to exist.
6.5. The Affected Party is obliged to remedy the force majeure – as far as possible – and to limit its effects as far as possible.
7. Partial deliveries
7.1. Partial deliveries are permissible and may be invoiced separately.
7.2. If a partial delivery is delayed or a delivery is partially impossible, the Purchaser may only cancel the entire contract or claim damages on such grounds if partial perfor-mance of the contract is deemed to be of no interest to the Purchaser.
7.3. In all other respects, the provisions of Clause 5 above shall apply accordingly.
8. Delivery and transfer of risk
8.1. Incoterms 2020 FCA from the warehouse in Neuhausen ob Eck shall apply to the de-livery and transfer of risk.
8.2. If dispatch is delayed due to circumstances beyond the Purchaser’s control, in par-ticular at the request of the Purchaser, the risk shall pass to the Purchaser at the time of provision of goods and the Purchaser shall be responsible for notification of its readiness for dispatch; however, SMI shall be obligated, if requested by the Purchas-er and at the Purchaser’s expense, to arrange for the insurance as requested by the Purchaser. The Purchaser’s financial obligations shall remain unaffected by this.
8.3. If the goods are dispatched at the Purchaser’s request, SMI shall, in the event of un-certainty, be free to select the route and means of delivery with no obligation on the part of SMI to choose the cheapest delivery modality.
8.4. Packaging shall be charged at cost.
9. Prices, surcharges, terms of payment
9.1. All prices are calculated as per EURO FCA (Incoterms 2020) ex warehouse in Neu-hausen ob Eck plus applicable sales tax, import and export duties, and packaging.
9.2. The purchase price shall be paid to the account specified in the invoice without de-ductions and costs within 8 days of receipt of the invoice; the credit entry on the ac-count specified in the invoice shall prevail.
9.3. Offset claims against counterclaims shall only be permissible if they are based on the same contractual relationship, have been legally established or are undisputed.
9.4. The Purchaser shall only be entitled to withhold payments on the basis of effective and due counterclaims from the same contractual relationship.
10. Transfer of ownership, security for the purchase price claim
10.1. In the event that cash payment or advance payment has been agreed, ownership shall pass in full to the Purchaser upon delivery.
10.2. In the absence of a retention of title at the place of delivery according to the follow-ing provisions, the Purchaser shall provide SMI with another functionally equivalent means of security (e.g. a letter of credit or bank guarantee).
10.3. If a retention of title is acknowledged at the place of delivery, SMI shall retain title to the goods until the purchase price has been paid in full in accordance with Clauses 9.1 and 9.2 (hereinafter referred to as “Reserved Goods”).
10.4. The Purchaser shall be obliged to treat the Reserved Goods with care, in particu-lar to insure them adequately at its own expense against damage by fire, water and theft and at replacement value.
10.5. In the event of seizure, expropriation, damage and/or loss of the delivered goods, the Purchaser shall notify SMI immediately; any violation of this obligation shall entitle SMI to terminate the contract. The Purchaser shall bear all costs incurred for the successful lifting of any seizure and, if applicable, for the successful replacement of the Reserved Goods, if they cannot be recovered from third parties.
10.6. If SMI has effectively rescinded the contract, SMI shall be entitled to repossess the Reserved Goods, if prior notification is issued in good time of such repossession. The Purchaser shall bear the costs incurred by such repossession, in particular the costs of transportation. SMI shall be entitled to utilize the repossessed Reserved Goods and to satisfy its claims from the proceeds, provided reasonable notice of such utilization has been previously issued. If the proceeds exceed the outstanding claims from the contractual relationship, this surplus shall be returned to the custom-er.
11. Inspection and notification of non-conformity
11.1. The Purchaser must inspect the goods and any documents sent immediately after their receipt or have them inspected. An appropriate random sample of the delivery shall be examined within 14 days.
11.2. SMI’s liability for non-conformity of the goods and/or documents shall lapse, with no recourse to exculpation on the part of the Purchaser, if the Purchaser does not notify SMI of such non-conformity in text form 7 days after the non-conformity has been or should have been detected, specifying the nature of the non-conformity in detail, irrespective of the reasons given by the Purchaser for not complying with these requirements. The notification of non-conformity must have been sent by the Purchaser within the aforementioned period; moreover, notification of non-conformity dispatched in due time must have actually been received by SMI.
11.3. By entering into negotiations regarding a notification of non-compliance, this shall in no way indicate a waiver of the right of the Purchaser to assert that a complaint has been filed too late, is insufficient or unfounded.
11.4. If non-conformity of the goods cannot be determined after a notification of non-conformity, the Purchaser shall reimburse SMI for the costs incurred by inspection of the goods.
11.5. In any event, the Purchaser shall forfeit the right to invoke non-conformity of the goods if the Purchaser does not notify SMI of the non-conformity of the goods within 12 months at the latest after the goods have been physically transferred.
12. Presence of non-conformity
12.1. In the event of non-conformity of the goods or documentation, SMI shall be entitled to remedy such non-conformity even after the agreed delivery time either by remedy-ing the non-conformity or – in case of a material breach of contract – by delivering a replacement. The right to reject performance under the statutory conditions remains hereby unaffected.
12.2. The Purchaser has the duty to provide SMI the time and occasion for the subse-quent performance owed, in particular to surrender the rejected goods for inspection purposes. Should a replacement delivery be made, the Purchaser shall return the de-fective goods to SMI in accordance with the statutory provisions.
12.3. Replacement delivery or remedy of non-conformity shall not result in a recom-mencement of the aforementioned period in Clause 11.5.
12.4. If the Purchaser has granted SMI a reasonable grace period to fulfill the contract, and the contract has not been fulfilled within this period or has been unjustifiably de-nied by SMI, the Purchaser shall be entitled to reduce the purchase price or – in case of a material breach of contract – to demand cancellation of the contract. No material breach of contract shall be deemed to exist if SMI remedies the non-conformity within a reasonable grace period set by the Purchaser.
12.5. Complaints regarding partial performance shall not entitle the Purchaser to reject remaining performance, unless the Purchaser has a right to cancel the contract on the grounds of defective partial performance.
12.6. SMI shall only be liable for damages due to non-conformity of the goods within the limits specified in Clause 13.
13. Scope of liability
13.1. SMI shall be liable without limitation for all damages caused by injury to life, body, or health resulting from a negligent breach of duty by SMI or from a deliberate or neg-ligent breach of duty by SMI’s legal representatives or vicarious agents; SMI shall likewise be liable in the case of statutory liability without fault, in particular as per the Product Liability Act and in the case of guarantee liability.
13.2. SMI shall be liable for other damages resulting from intentional or grossly negligent breach of duty by SMI or intentional or grossly negligent breach of duty by SMI’s legal representatives or vicarious agents. In such a case, liability shall be limited to such foreseeable damage that could typically arise at the time of conclusion of the contract.
13.3. In all other cases of liability, claims for damages due to violation of a contractual obligation shall be limited to the amount covered by SMI’s insurance in the amount of EUR 5 million. Should the Purchaser foresee that damages may exceed this amount (Clause 2.4), SMI may, at the Purchaser’s request and expense, arrange for a higher insurance coverage.
13.4. In all other cases, SMI shall not be held liable. In no event shall SMI be liable for additional expenses, loss of profit, or other financial losses of the Purchaser.
13.5. In the event of late delivery, the limitation of liability in accordance with Clause 5.7 shall remain unaffected
13.6. Insofar as the liability of SMI is excluded or limited, this shall also apply to the per-sonal liability of SMI’s employees, representatives, and vicarious agents.
14. Limitation period
14.1. The statutory periods of limitation shall apply for damages resulting from injury to life, body, or health due to a negligent breach of duty by SMI or an intentional or negli-gent breach of duty by SMI’s legal representatives or vicarious agents, for other damages resulting from an intentional or grossly negligent breach of duty by SMI or an intentional or grossly negligent breach of duty by SMI’s legal representatives or vi-carious agents, or for damages resulting from an intentional or negligent material breach of contract by SMI or its legal representatives or vicarious agents.
14.2. In all other cases the period of limitation is one year.
15. Claim assignment
15.1. Any assignment of claims shall require the consent of SMI.
16. Deterioration in assets and creditworthiness
16.1. If the Purchaser’s assets deteriorate after conclusion of a contract, the statutory provisions shall apply.
16.2. The same shall apply if, after the contract is concluded, SMI becomes aware of facts that give rise to justified doubts regarding the Purchaser’s solvency or credit-worthiness, unless the Purchaser can prove that these facts were already known to SMI at the time the contract was concluded.
17. Industrial property rights
17.1. If SMI delivers goods manufactured according to designs, models, or other infor-mation provided by the Purchaser, SMI shall not be liable for infringement of third-party property rights. The Purchaser shall indemnify SMI against claims by third par-ties.
17.2. SMI shall warrant that the goods do not infringe any third-party industrial property rights in Germany. SMI shall only be liable for the infringement of third party industrial property rights to the extent permitted by law. The Purchaser shall immediately give notice of any identified defect of title. In no event shall breaches of third-party industri-al property rights result in SMI compensating the Purchaser for lost profits.
18. Place of performance, choice of law and place of jurisdiction
18.1. The place of performance for deliveries and payments is the registered office of SMI.
18.2. The United Nations Convention on Contracts for the International Sale of Goods (UN Sales Law/CISG) in its English language version shall apply exclusively to these Export GTCs and the entire legal relationship between SMI and the Purchaser. Legal issues that are not regulated by this convention or that cannot be decided in accord-ance with its principles are subject to German law.
18.3. The place of jurisdiction for all disputes arising from the contractual relationship is the registered office of SMI. However, SMI may also assert claims at the legal place of jurisdiction of the Purchaser.
19. Severability clause
19.1. The invalidity of one or more provisions of these Export GTCs shall not affect the validity of the remainder of the contract.
19.2. The parties are obliged to replace the invalid provision by a provision that most closely reflects the commercial purpose of the contract. The same shall apply to any gaps that might arise.