1. General

(1)
The concluded Contract shall be governed exclusively by our General Terms and Conditions (hereinafter: GTC); we will not accept any terms and conditions of the Client that conflict with or differ from our GTC, unless we have expressly approved their validity in writing. Our GTC shall also apply when we unconditionally perform our contractual obligation in the knowledge of any terms and conditions of the Client that conflict with or differ from our GTC.
(2)
Our GTC are solely applicable to an entrepreneur (Sections 310 I, 14 of the German Civil Code [BGB]), a public-law corporation or a special fund under public law. If our offer is submitted for the purposes of a tender under the Construction Tendering and Contract Regulations (VOB/A) or other public competitive tendering procedure, our GTC shall be subordinate to the terms and conditions that govern the tender or the award of the contract; in the event of discrepancies, the terms and conditions that govern the tender or the award of the contract shall prevail.
(3)
All agreements that are made between us and the Client for the purpose of amending or performing this Contract shall be set out in writing. This shall also apply to additions. The written form requirement may only be rescinded in writing on a case-by-case basis.
(4)
Our GTC shall also apply to all future transactions with the Client.
(5)
Unless stated otherwise in the order confirmation, our registered office shall be the place of performance.

2. Offer

(1)
Our offer is without obligation and is subject to prior sale and delivery by our suppliers.
(2)
Documents, such as advertising brochures and similar documents, submitted prior to the offer as well as documents that form an integral part of the offer, such as illustrations, drawings, indications of weight and dimensions are subordinate to the performance specifications in our offer, unless they are expressly stated to be binding and prevailing. In the event of discrepancies between the performance specifications and the aforementioned documents, the performance specifications in the offer shall prevail. The same shall apply to advertising information.
(3)
If the order has to be qualified as an offer pursuant to Section 145 of the German Civil Code, we may accept such an offer within 3 weeks, unless a shorter or longer acceptance deadline is agreed in writing.
(4)
We reserve title to and copyrights in quotations, drawings and other documents, which shall not be made accessible to third parties. This particularly applies to written documents that are marked “confidential”; the Client requires our express written approval to forward such documents to third parties. We agree to obtain the approval of the Client before making accessible to third parties those plans that are marked confidential by the Client.

3. Prices – Terms of Payment – Offsetting/Retention – Price Adjustment

(1)
Unless stated otherwise in the order confirmation, our prices are quoted “ex works” (EXW Incoterms 2010), and are exclusive of packaging and transport, which shall be paid separately. The minimum order value is € 100.00 net. If the value of the order is below € 100.00 net, we will calculate a minimum quantity surcharge of € 20.00 plus statutory value added tax.
(2)
Unless stated otherwise in the order confirmation, the purchase price, including the price of additional services and costs incurred, is payable within 30 days from the invoice date. Invoices for services are payable within 14 days. If the Client falls into arrears, Section 288 of the German Civil Code shall apply.
(3)
Our prices are exclusive of statutory value added tax; the statutory amount is shown separately on the invoice on the billing date.
(4)
The Client only has set-off rights when his counterclaims are legally established, undisputed or are acknowledged by us. The Client is moreover only permitted to exercise a right of set-off under the above-mentioned conditions if and to the extent that his counterclaim is based on the same contractual relationship.
(5)
Our prior agreement is required for the return by the Client of goods that we have supplied under the Contract and that are returned for reasons that fall exclusively within his area of responsibility. In general disposables and sterile products are excluded from return. If goods are returned, a lump sum of 15% of the value of the goods, but at least € 50.00, shall be payable for each item that is returned to cover the administration costs and the loss of value of the goods.
(6)
In the event of increases in our staff costs, the market prices of the materials that we require or our other acquisition costs, we are entitled to increase our offer price reasonably, provided there is a period of more than 6 weeks between the conclusion of the Contract and our delivery. In the event of an increase that significantly exceeds (over 10%) the increase in the general cost of living pursuant to the index for a 4-person household, the Client is entitled to rescind the Contract if we do not wish to perform the Contract under the old terms. The Client is not entitled to claim damages in this case, unless the increase was foreseeable upon conclusion of the Contract and was not taken into consideration due to gross negligence.

4. Damages for Undue Rejection

(1)
If the Client unduly rescinds the Contract or fails to take charge of the goods within the agreed deadline or other reasonable deadline specified in the notice of readiness for dispatch, we may in turn rescind the Contract and claim damages. In this case, the risk of accidental destruction or accidental deterioration of the goods shall pass to the Client when the Client falls into default of acceptance.
(2)
The Client shall pay 20% of the net invoice amount as damages; if we are able to prove a greater loss, damages shall be paid in respect of such loss. The Client is entitled to prove that we did not sustain any loss or that our loss was lower.

5. Delivery Period
(1)
Unless binding delivery periods are expressly agreed, the specified delivery periods are not binding. The delivery period shall commence upon receipt of the order confirmation by the Client. The commencement of the delivery period specified by us presupposes clarification of all technical questions, insofar as notifications and explanations by the Client are necessary.
(2)
The delivery period shall be extended by the period in which we are affected by industrial action, in particular strikes and lockouts, including delayed delivery by a supplier of parts that are necessary for manufacturing the goods as a consequence of the aforementioned industrial action. The same shall apply to other unforeseen exceptional events over which we have no control, such as in particular a significant extraneous interruption of our operations or of the operations of a supplier of necessary parts.
(3)
If our deliveries are delayed for reasons for which we are responsible, a potential claim for damages arising from such delay shall be limited to a maximum of 10% of the net delivery value. If the delay is caused by willful intent or gross negligence or by the breach of a fundamental term of the Contract, the statutory provisions concerning liability shall apply; the same shall apply to damages for injury to life, body or health.
(4)
If, after we have defaulted, the Client sets a reasonable deadline for fulfilment or subsequent performance, the Client is entitled to rescind the Contract upon the expiry of this deadline without result; the Client is only entitled to claims for damages instead of performance in the amount of the foreseeable loss if the delay is caused by willful intent, gross negligence or a fundamental breach of the Contract or is related to injury to life, body or health.
(5)
Compliance with our delivery obligation requires timely and proper performance of the duties of the Client to cooperate.
(6)
If the Client gets into arrears or breaches other duties to cooperate, we are entitled to rescind the Contract upon the expiry without result of a reasonable deadline we have set or to claim the losses that we have sustained, including any additional expenditure. Damages of 30% of the net value of the goods plus the statutory value added tax shall be payable. We may claim higher damages in individual cases if we provide evidence of greater loss. The Client has the right to provide evidence that no loss or a lower level of loss has occurred.
(7)
Part deliveries may also be made before the agreed delivery date subject to prior notification, unless the Client raises an objection to the delivery immediately upon receipt of the notice of part delivery.

6. Changes to the Design

Changes to the design or form of the goods, which are based on a technical improvement that becomes known after the conclusion of the Contract or on a statutory regulation or on DIN/EN standardization that comes into effect after the conclusion of the Contract, shall also be permitted after the conclusion of the Contract, provided the delivery item is not fundamentally changed as a result and the Client can reasonably be expected to accept the changes. Otherwise both Parties may rescind the Contract without being allowed to claim damages.

7. Transfer of Risk

(1)
Unless stated otherwise in the order confirmation, delivery “ex works” (EXW Incoterms 2010) is agreed.

(2)
If, notwithstanding the above, “carriage-free” delivery was expressly agreed, this will not affect the transfer of risk upon delivery of the goods to the forwarding agent. In order to protect his rights under the forwarding contract, the Client is obliged to inspect the goods immediately upon receipt and to notify any damage in transit immediately, but at the latest within one week from receipt of the goods. At the request of the Client, we will insure the goods in transit; the costs of such insurance shall be payable by the Client.

8. Retention of Title

(1)
We shall retain title to the goods until all of our claims against the Purchaser from the business relationship are settled, including future claims arising from contracts that were concluded simultaneously or subsequently. This shall also apply when individual claims or all our claims have been consolidated in one current account and the balance is drawn and acknowledged. In the event of a breach of contract by the Client, in particular in the event of late payment, we are entitled to take back the goods. Taking back the goods is not tantamount to rescinding the Contract, unless we have expressly stated this in writing. Distraint upon the goods by us always shall be deemed to constitute a rescission of the Contract. We are permitted to dispose of the goods when we take them back; the proceeds from disposing of the goods shall be offset against the liabilities of the Client – less reasonable costs of disposal.
(2)
The Client is obliged to handle the goods with care and is specifically obliged to take out adequate replacement value insurance cover for fire, water and theft at his own expense. If maintenance work and inspections are required, the Client shall undertake such work and inspections in a timely manner at his own expense.
(3)
In the event of distraint or other encroachments by third parties, the Client shall notify us immediately to enable us to institute legal proceedings pursuant to Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse our court and out-of-court expenses in respect of legal proceedings instituted under Section 771 of the German Code of Civil Procedure, the Client shall be liable for the loss we have incurred.
(4)
The Client is entitled to resell the goods in the ordinary course of business; he hereby assigns to us all claims for the total amount of the invoice (including VAT) agreed with us, which accrue to the Client from reselling to his customers or to third parties, namely irrespective of whether the goods have been resold without or after processing. The Client remains entitled to collect this debt after assignment. This shall not affect our right to collect the debt ourselves. However, we agree not to collect the debt as long as the Client fulfils his payment obligations from the proceeds generated, is not in arrears and in particular as long as an application to commence insolvency proceedings has not been made or payments have not been suspended. However, if this is the case, we may ask the Client to disclose the assigned debts and their debtors to us, provide all the information that is required for collection, surrender the relevant documents and inform the debtor (third party) of the assignment.
(5)
Any processing or remodeling of the goods by the Client is always deemed being made for us. The Client’s vested right to the goods shall extend to the remodelled goods. If the goods are processed with other items that do not belong to us, we will acquire joint ownership of the new item in proportion to the objective value of our goods compared to the other processed items at the time of processing. The same shall also apply to the item that is the result of processing as it does to goods that are subject to retention of title.
(6)
If the goods are inseparably mixed with other items that do not belong to us, we will acquire joint ownership of the new item in proportion to the objective value of our goods compared to the other mixed items at the time of mixing. If the mixing takes place in such a manner that the item owned by the Client must be regarded as the principal item, it is agreed that the Client will transfer joint ownership to us pro rata. The Client shall safeguard the resultant sole or joint ownership for us.
(7)
To secure our claims against him, the Client also assigns to us such claims as arise against a third party as a result of goods being incorporated into real estate.
(8)
We agree to release securities to which we are entitled, at the request of the Client, provided and to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10% or their nominal amount by more than 50%; we are at liberty to choose the securities to be released.

9. Assignment Clause

We are entitled to assign the claims from our business relationships.

10. Maturity of the Claims of the Factor against the Debtor

If the Purchaser is in arrears with any payment obligations towards us, all existing claims shall be payable immediately.

11. Warranty

(1)
Only the description of the service stated in the order confirmation or in the Contract is relevant for determining the contractual quality of the goods. We only assume a guarantee when this has been expressly agreed in writing and the commitment is designated as a “guarantee”.
(2)
The warranty rights of the Client are contingent upon the latter having duly fulfilled his obligations to inspect the goods and notify defects pursuant to Section 377 of the German Commercial Code (HGB). Apparent defects shall be notified within one week from receipt of the goods by the purchaser and not apparent defects within one week from their detection.
(3)
If and to the extent that the goods are defective, we are entitled to effect subsequent performance (we have the option of remedying the defect or supplying an item that is free of defects). The Client may not without our prior approval undertake work to remedy the defects himself or by third parties; we will not assume the costs of such work. If we remedy the defects, we are obliged to pay all the expenditure that is necessary to remedy the defects, in particular the costs of transport, travel, labor and material, if and to the extent that they are not increased by bringing the goods to a place that is not the place to which we delivered the goods or which was specified in the Contract as the destination.
(4)
If it is not possible or if we refuse to remedy the defects or if we refuse to deliver an item that is free of defects, the Client has the option of either rescinding the Contract or demanding a corresponding decrease in the purchase price (reduction).
(5)
Unless stated otherwise below (sub-clause 6), further claims by the Client – regardless of the legal reasons – are excluded. We are consequently not liable for financial loss that is not sustained to the delivery item itself; we are in particular not liable for lost profit or other financial loss sustained by the Client.
(6)
If the loss is caused by willful intent or gross negligence, we are liable under the statutory provisions. If we culpably breach a fundamental contractual obligation or a “cardinal obligation”, liability is limited to the loss that is typical for the contract; liability is excluded in all other respects under sub-clause (5).
(7)
The warranty is valid for 1 year from the transfer of risk, for used parts the warranty is valid for 6 months. This shall not apply to a delivery that has been installed in a building as intended and has given rise to a defect.

12. Impossibility

To the extent that delivery is impossible for reasons for which we are responsible, the Client may only claim damages in the amount of up to 20% of the net price of the delivery item having become impossible without prejudice to his right to rescind the contract; this limitation shall not apply in the event of willful intent, gross negligence or is related to injury to life, body or health. This provision does not imply any shift of the onus of proof to the detriment of the Client.

13. Other Claims to Compensation of Damage

(1)
Claims to damages and reimbursement of expenditure of the Client, regardless of the legal reason, in particular due to breach of duties from a contractual relationship, which are not considered warranty claims, are excluded.

(2)
This shall not apply to the extent that we are cogently liable pursuant to the mandatory regulations, in particular according to the German Product Liability Act (ProdHaftG), in cases of willful intent, gross negligence or related to injury of life, body or health or by a breach of a fundamental term of the Contract. In the case of a breach of a fundamental term of the Contract compensation claims are limited to the foreseeable loss or damage typical for such contracts, except in cases where it can be shown that it was attributable to willful intent or gross negligence or related to injury of life, body or health. This provision does not imply any shift of the onus of proof to the detriment of the Client.

14. Place of Jurisdiction and Applicable Law

(1)
The place of jurisdiction for all parties is Montabaur or Stuttgart.
(2)
The legal relationship of the parties shall be governed by German law under exclusion of United Nations Convention of April 11, 1980 on Contracts for the International Sale of Goods.

15. Severability Clause

If a regulation of this Contract is or becomes invalid, the validity of the rest of the Contract remains unaffected. To the extent that any term in the individual part of the Contract or other provision is invalid, the Parties hereto shall negotiate to replace the invalid provision by a valid provision that comes as close as possible to the original intent of the Parties pursued with the invalid provision. This shall also apply if the Contract contains an unintended loophole in regulations.

11/2018

1. General

(1)
The concluded Contract shall be governed exclusively by our General Terms and Conditions (hereinafter: GTC); we will not accept any terms and conditions of the Client that conflict with or differ from our GTC, unless we have expressly approved their validity in writing. Our GTC shall also apply when we unconditionally perform our contractual obligation in the knowledge of any terms and conditions of the Client that conflict with or differ from our GTC.
(2)
Our GTC are solely applicable to an entrepreneur, a public-law corporation or a special fund under public law.
(3)
All agreements that are made between us and the Client for the purpose of amending or performing this Contract shall be set out in writing. This shall also apply to additions. The written form requirement may only be rescinded in writing on a case-by-case basis.
(4)
Our GTC shall also apply to all future transactions with the Client.
(5)
Unless stated otherwise in the order confirmation, our registered office shall be the place of performance.

2. Offer

(1)
Our offer is without obligation and is subject to prior sale and delivery by our suppliers.
(2)
Documents, such as advertising brochures and similar documents, submitted prior to the offer as well as documents that form an integral part of the offer, such as illustrations, drawings, indications of weight and dimensions are subordinate to the performance specifications in our offer, unless they are expressly stated to be binding and prevailing. In the event of discrepancies between the performance specifications and the aforementioned documents, the performance specifications in the offer shall prevail. The same shall apply to advertising information.
(3)
We reserve title to and copyrights in quotations, drawings and other documents, which shall not be made accessible to third parties. This particularly applies to written documents that are marked “confidential”; the Client requires our express written approval to forward such documents to third parties. We agree to obtain the approval of the Client before making accessible to third parties those plans that are marked confidential by the Client.

3. Prices – Terms of Payment – Offsetting/Retention – Price Adjustment

(1)
Unless stated otherwise in the order confirmation, our prices are quoted “ex works” (EXW Incoterms 2010), and are exclusive of packaging and transport, which shall be paid separately. The minimum order value is RM 500.00 net. If the value of the order is below RM 500.00 net, we will calculate a minimum quantity surcharge of RM 100.00 plus statutory value added tax.
(2)
Unless stated otherwise in the order confirmation, the purchase price, including the price of additional services and costs incurred, is payable within 30 days from the invoice date.
(3)
Our prices are exclusive of statutory value added tax; the statutory amount is shown separately on the invoice on the billing date.
(4)
The Client only has set-off rights when his counterclaims are legally established, undisputed or are acknowledged by us. The Client is moreover only permitted to exercise a right of set-off under the above-mentioned conditions if and to the extent that his counterclaim is based on the same contractual relationship.
(5)
Our prior agreement is required for the return by the Client of goods that we have supplied under the Contract and that are returned for reasons that fall exclusively within his area of responsibility. In general disposables and sterile products are excluded from return. If goods are returned, a lump sum of 15% of the value of the goods, but at least RM 250.00, shall be payable for each item that is returned to cover the administration costs and the loss of value of the goods.
(6)
In case of late payment further deliveries and services can be suspended.

4. Damages for Undue Rejection

(1)
If the Client unduly rescinds the Contract or fails to take charge of the goods within the agreed deadline or other reasonable deadline specified in the notice of readiness for dispatch, we may in turn rescind the Contract and claim damages. In this case, the risk of accidental destruction or accidental deterioration of the goods shall pass to the Client when the Client falls into default of acceptance.
(2)
The Client shall pay 20% of the net invoice amount as damages; if we are able to prove a greater loss, damages shall be paid in respect of such loss. The Client is entitled to prove that we did not sustain any loss or that our loss was lower.

5. Delivery Period
(1)
Unless binding delivery periods are expressly agreed, the specified delivery periods are not binding. The delivery period shall commence upon receipt of the order confirmation by the Client. The commencement of the delivery period specified by us presupposes clarification of all technical questions, insofar as notifications and explanations by the Client are necessary.

(2)
The delivery period shall be extended by the period in which we are affected by industrial action, in particular strikes and lockouts, including delayed delivery by a supplier of parts that are necessary for manufacturing the goods as a consequence of the aforementioned industrial action. The same shall apply to other unforeseen exceptional events over which we have no control, such as in particular a significant extraneous interruption of our operations or of the operations of a supplier of necessary parts.
(3)
If our deliveries are delayed for reasons for which we are responsible, a potential claim for damages arising from such delay shall be limited to a maximum of 10% of the net delivery value. If the delay is caused by willful intent or gross negligence or by the breach of a fundamental term of the Contract, the statutory provisions concerning liability shall apply; the same shall apply to damages for injury to life, body or health.
(4)
If, after we have defaulted, the Client sets a reasonable deadline for fulfilment or subsequent performance, the Client is entitled to rescind the Contract upon the expiry of this deadline without result; the Client is only entitled to claims for damages instead of performance in the amount of the foreseeable loss if the delay is caused by willful intent, gross negligence or a fundamental breach of the Contract or is related to injury to life, body or health.
(5)
Compliance with our delivery obligation requires timely and proper performance of the duties of the Client to cooperate.
(6)
If the Client gets into arrears or breaches other duties to cooperate, we are entitled to rescind the Contract upon the expiry without result of a reasonable deadline we have set or to claim the losses that we have sustained, including any additional expenditure. Damages of 30% of the net value of the goods plus the statutory value added tax shall be payable. We may claim higher damages in individual cases if we provide evidence of greater loss. The Client has the right to provide evidence that no loss or a lower level of loss has occurred.
(7)
Part deliveries may also be made before the agreed delivery date subject to prior notification, unless the Client raises an objection to the delivery immediately upon receipt of the notice of part delivery.

6. Changes to the Design

hanges to the design or form of the goods, which are based on a technical improvement that becomes known after the conclusion of the Contract or on a statutory regulation or on DIN/EN ISO standardization that comes into effect after the conclusion of the Contract, shall also be permitted after the conclusion of the Contract, provided the delivery item is not fundamentally changed as a result and the Client can reasonably be expected to accept the changes. Otherwise both Parties may rescind the Contract without being allowed to claim damages.

7. Transfer of Risk

(1)
Unless stated otherwise in the order confirmation, delivery “ex works” (EXW Incoterms 2010) is agreed.

8. Retention of Title

(1)
We shall retain title to the goods until all of our claims against the Purchaser from the business relationship are settled, including future claims arising from contracts that were concluded simultaneously or subsequently. This shall also apply when individual claims or all our claims have been consolidated in one current account and the balance is drawn and acknowledged. In the event of a breach of contract by the Client, in particular in the event of late payment, we are entitled to take back the goods. Taking back the goods is not tantamount to rescinding the Contract, unless we have expressly stated this in writing. Distraint upon the goods by us always shall be deemed to constitute a rescission of the Contract. We are permitted to dispose of the goods when we take them back; the proceeds from disposing of the goods shall be offset against the liabilities of the Client – less reasonable costs of disposal.
(2)
The Client is obliged to handle the goods with care and is specifically obliged to take out adequate replacement value insurance cover for fire, water and theft at his own expense. If maintenance work and inspections are required, the Client shall undertake such work and inspections in a timely manner at his own expense.
(3)
The Client is entitled to resell the goods in the ordinary course of business; he hereby assigns to us all claims for the total amount of the invoice (including VAT) agreed with us, which accrue to the Client from reselling to his customers or to third parties, namely irrespective of whether the goods have been resold without or after processing. The Client remains entitled to collect this debt after assignment. This shall not affect our right to collect the debt ourselves. However, we agree not to collect the debt as long as the Client fulfils his payment obligations from the proceeds generated, is not in arrears and in particular as long as an application to commence insolvency proceedings has not been made or payments have not been suspended. However, if this is the case, we may ask the Client to disclose the assigned debts and their debtors to us, provide all the information that is required for collection, surrender the relevant documents and inform the debtor (third party) of the assignment.
(4)
Any processing or remodeling of the goods by the Client is always deemed being made for us. The Client’s vested right to the goods shall extend to the remodelled goods. If the goods are processed with other items that do not belong to us, we will acquire joint ownership of the new item in proportion to the objective value of our goods compared to the other processed items at the time of processing. The same shall also apply to the item that is the result of processing as it does to goods that are subject to retention of title.
(5)
If the goods are inseparably mixed with other items that do not belong to us, we will acquire joint ownership of the new item in proportion to the objective value of our goods compared to the other mixed items at the time of mixing. If the mixing takes place in such a manner that the item owned by the Client must be regarded as the principal item, it is agreed that the Client will transfer joint ownership to us pro rata. The Client shall safeguard the resultant sole or joint ownership for us.

9. Assignment Clause

We are entitled to assign the claims from our business relationships.

10. Maturity of the Claims of the Factor against the Debtor

If the Purchaser is in arrears with any payment obligations towards us, all existing claims shall be payable immediately.

11. Warranty

(1)
Only the description of the service stated in the order confirmation or in the Contract is relevant for determining the contractual quality of the goods. We only assume a guarantee when this has been expressly agreed in writing and the commitment is designated as a “guarantee”.
(2)
The warranty rights of the Client assume apparent defects shall be notified within one week from receipt of the goods by the purchaser.
(3)
If and to the extent that the goods are defective, we are entitled to effect subsequent performance (we have the option of remedying the defect or supplying an item that is free of defects). The Client may not without our prior approval undertake work to remedy the defects himself or by third parties; we will not assume the costs of such work. If we remedy the defects, we are obliged to pay all the expenditure that is necessary to remedy the defects, in particular the costs of transport, travel, labor and material, if and to the extent that they are not increased by bringing the goods to a place that is not the place to which we delivered the goods or which was specified in the Contract as the destination.
(4)
If it is not possible or if we refuse to remedy the defects or if we refuse to deliver an item that is free of defects, the Client has the option of either rescinding the Contract or demanding a corresponding decrease in the purchase price (reduction).
(5)
Unless stated otherwise below (sub-clause 6), further claims by the Client – regardless of the legal reasons – are excluded. We are consequently not liable for financial loss that is not sustained to the delivery item itself; we are in particular not liable for lost profit or other financial loss sustained by the Client.
(6)
If the loss is caused by willful intent or gross negligence, we are liable under the statutory provisions. If we culpably breach a fundamental contractual obligation or a “cardinal obligation”, liability is limited to the loss that is typical for the contract; liability is excluded in all other respects under sub-clause (5).
(7)
The warranty is valid for 1 year from the transfer of risk, for used parts the warranty is valid for 6 months. This shall not apply to a delivery that has been installed in a building as intended and has given rise to a defect.

12. Impossibility

To the extent that delivery is impossible for reasons for which we are responsible, the Client may only claim damages in the amount of up to 20% of the net price of the delivery item having become impossible without prejudice to his right to rescind the contract; this limitation shall not apply in the event of willful intent, gross negligence or is related to injury to life, body or health. This provision does not imply any shift of the onus of proof to the detriment of the Client.

13. Other Claims to Compensation of Damage

(1)
Claims to damages and reimbursement of expenditure of the Client, regardless of the legal reason, in particular due to breach of duties from a contractual relationship, which are not considered warranty claims, are excluded.
(2)
This shall not apply to the extent that we are cogently liable pursuant to the mandatory regulations, in particular according to the German Product Liability Act (ProdHaftG), in cases of willful intent, gross negligence or related to injury of life, body or health or by a breach of a fundamental term of the Contract. In the case of a breach of a fundamental term of the Contract compensation claims are limited to the foreseeable loss or damage typical for such contracts, except in cases where it can be shown that it was attributable to willful intent or gross negligence or related to injury of life, body or health. This provision does not imply any shift of the onus of proof to the detriment of the Client.

14. Place of Jurisdiction and Applicable Law

The place of jurisdiction for all parties is Kuala Lumpur.

15. Severability Clause

If a regulation of this Contract is or becomes invalid, the validity of the rest of the Contract remains unaffected. To the extent that any term in the individual part of the Contract or other provision is invalid, the Parties hereto shall negotiate to replace the invalid provision by a valid provision that comes as close as possible to the original intent of the Parties pursued with the invalid provision. This shall also apply if the Contract contains an unintended loophole in regulations.

01/2019

1. General

(1)
The conclusion of the contract shall be subject exclusively to our General Service Contract Conditions (hereinafter referred to as GSC) and our General Terms and Conditions (hereinafter referred to as GTC); we shall not recognize any terms and conditions of the Client which conflict with or deviate from our GSC and GTC unless we have expressly agreed to their validity in writing. Our GSC and GTC shall also apply if we unconditionally fulfil our contractual obligation while being aware of Client’s conditions which conflict with or deviate from our GSC and/or GTC. Deviating or contradictory terms and conditions shall therefore only apply if they have been acknowledged by us in writing.
(2)
In the event of contradictions between the provisions of an individual maintenance contract and the GSC and/or GTC, the following order of priority shall apply (the indication of the highest priority shall be given first): 1. the provisions of the individual maintenance contract, 2. the GSC, 3. the GTC.
(3)
Our GSC and GTC are solely applicable to an entrepreneur (Sections 310 I, 14 of the German Civil Code), a legal entity under public law or a special fund under public law. If our offer is submitted for the purposes of a tender under the Construction Tendering and Contract Regulations or other public competitive tendering procedure, our GSC and GTC shall be subordinate to the terms and conditions that govern the tender or the award of the contract; in the event of discrepancies, the terms and conditions that govern the tender or the award of the contract shall prevail.
(4)
Our GSC and GTC shall also apply to all future transactions with the Client.

2. Contractual Object

(1)
Fritz Stephan GmbH (Stephan) undertakes to provide all devices/systems/patient components (hereinafter referred to as “Devices”) specified and defined within the framework of the agreed maintenance contract in a proper and professional manner and in accordance with the current state of the art. Stephan takes over maintenance services for the devices listed in the maintenance contract provided that spare parts are available on the market. Maintenance services are intended to maintain the operational condition of the equipment without, however, ruling out any interruption of operational condition.
(2)
Upon request, Stephan will carry out repairs and maintenance services without a maintenance contract. These are calculated and invoiced according to Stephan’s current price list.
(3)
We reserve ownership rights and copyrights to cost estimates, drawings and other documents; they shall not be made accessible to third parties. This applies in particular to written documents designated as “confidential”; the Client must obtain our express written consent prior to disclosure to third parties. We undertake to disclose any plans designated by the Client as confidential to third parties only with the Client’s consent.

3. Scope

(1)
Maintenance services include management and updating of the Client’s maintenance schedule, scheduling of maintenance work including coordination with the Client by telephone or in writing, and maintenance documentation. The maintenance fee includes expenses and inspection of the respective device, while the travel allowance includes mileage and travel time. Repairs are not part of the maintenance fee.
(2)
All inspections to establish the actual condition in accordance with the manufacturer’s specifications and the statutory regulations are carried out. If it is determined during maintenance that additional parts are required, these will be invoiced at the prices valid at the time of execution.
(3)
Repairs include telephone consultation with the Client in the event of malfunctions; repair and testing of defective mechanical/electronic parts; scheduling of repair work including consultation with the Client by telephone or in writing and documentation of the repair work.
(4)
The Client is provided with all necessary data for documentation in the Medical Device Books.
(5)
Stephan is entitled to use new or replacement parts at their own discretion. Exchanged parts will become property of Stephan. The Client affirms that the rights of third parties do not conflict with this exchange.

4. Working time / Place of Performance / Ancillary Services

(1)
Maintenance and repair work is carried out at the Client’s premises from Monday through Thursday between 8 am and 5 pm and on Fridays between 8 am and 3 pm.
(2)
Should the Client require services outside these defined times (e.g. emergency services), these shall be charged separately at the hourly rates applicable at the time.

5. Client’s obligations
(1)
Maintenance and repair work is carried out at the Client’s premises. If maintenance and repairs are carried out at Stephan’s premises, the Client shall bear all transportation costs.
(2)
The Client undertakes to make all devices to be maintained listed in the Client Maintenance Overview available on the date agreed with Stephan.
(3)
A free parking space shall be provided on-site for the service. Possible parking costs incurred may be charged to the Client.
(4)
The Client shall provide the technical equipment required for maintenance or repair and a suitable room for the time required free of charge.
(5)
The devices are to be transported in-house to and from the technician by the Client.
(6)
Possible waiting times due to unavailable devices may be invoiced to the Client at the applicable hourly rate. If not all devices are available on the agreed date despite the appointment, travel costs and working hours will be charged separately for any new maintenance appointment.
(7)
All work performed is documented in the Medical Device Book.

6. Compensation
(1)
Invoices are issued after completion of the work based on the respective service report. Terms of payment for services are generally 14 days net. All prices are net prices and do not include the applicable statutory value-added tax. In the event of delayed payment by the Client, § 288 BGB (German Civil Code) shall apply.
(2)
In the event of increased labor costs, market prices for materials required or other cost prices, we shall be entitled to increase our quotation accordingly, provided that the period between placement of the order and our performance exceeds 6 weeks. The Client is entitled to withdraw from the contract in the event of an increase considerably exceeding (more than 10%) the general cost of living increase according to the index of a 4-person household, if the contract is not to be fulfilled under the old conditions. In such a case, claims for damages are not possible, unless the increase could have been foreseen by us at the time the contract was concluded and was not taken into account due to gross negligence.
(3)
If devices or patient components are decommissioned by the Client in the current contract year, Stephan will be informed in writing of this decommissioning by the Client. From the date of receipt of the decommissioning notification, no further charges shall apply.

7. Warranty
(1)
Maintenance work and repairs are carried out by qualified personnel. If Stephan is proven to have carried out work incorrectly, repairs will be carried out within a reasonable period of time. We will only accept a liability if this was expressly agreed in writing and the confirmation is referred to as a “warranty”.
(2)
Obvious defects are to be reported to Stephan within two weeks after provision of the service. All other defects which could not be discovered after careful examination must be reported within two weeks after discovery of the defect. Warranty claims due to defects which were not reported by the Client in due time are precluded. This excludes claims due to defects that were caused intentionally or through gross negligence on the part of Stephan.
(3)
Warranty claims are subject to a limitation period of 12 months. The period of limitation commences upon completion of the respective maintenance work in the case of recognizable defects, and with the discovery of the defect in the case of other defects.
(4)
Further claims on the part of the Client, in particular claims seeking compensation for damage not caused to the device itself, are excluded.

8. Liability
(1)
Insofar as nothing to the contrary arises from these GSC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2)
We shall be liable for damages – irrespective of the legal basis – within the framework of liability for culpability in cases of intent and gross negligence. In cases of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. due care in our own affairs; minor breach of duty), only in the following cases:

a) for damages resulting from injury to life, body or health,

b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3)
The limitations of liability resulting from paragraph 2 shall also apply in the event of breaches of duty by or for the benefit of persons whose faults we are responsible for in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for Client’s claims under the Product Liability Act.
(4)
Stephan does not assume any guarantee or liability for devices which were not serviced regularly in accordance with the manufacturer’s specifications and statutory regulations. If the Client excludes devices from maintenance because they were not used for a longer period of time, it is the Client’s own responsibility to take this into consideration before recommissioning.
(5)
Maintenance and repairs carried out shall be deemed accepted even without the Client’s signature.

9. Final clauses
(1)
All agreements between us and the customer regarding the amendment of the contract or the execution of this contract must be made in writing. This shall also apply to supplements. The written form agreement can only be cancelled in writing in individual cases.
(2)
If the Client is an entrepreneur, legal entity under public law or special fund under public law, the place of jurisdiction shall be Montabaur. However, at our discretion, we shall also be entitled to bring an action before the court responsible for the Client’s place of residence.
(3)
The law of the Federal Republic of Germany shall apply to these GSC to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(4)
Should any provision of this contract be invalid, this shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision with a valid provision that most closely approximates this provision.

06/2019