T&C 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