These General Terms and Conditions apply to all business relations between Alsanza Medizintechnik und Pharma GmbH (hereinafter referred to as "Alsanza") and customers who are entrepreneurs in the sense of § 14 BGB.
1. Applicable Law
These General Terms and Conditions of Sale and Delivery shall apply to all contracts concluded between Alsanza Medizintechnik und Pharma GmbH, Pfullingen, Germany (hereinafter referred to as "Alsanza") and the customer, as well as to all other deliveries and services. They shall also apply to all future business relations with the customer, even if they are not expressly agreed upon. With placing an order, at the latest with the receipt of the goods or the use of the service, the customer accepts the following conditions. Conditions of the customer, which ALSANZA does not expressly recognize, are not binding for ALSANZA, even if ALSANZA does not explicitly object. Only authorized signatories and managing directors of ALSANZA can change a contract or agreement deviating from these terms and conditions in writing.
2. Offers and Conclusion of Contract
Offers from ALSANZA are subject to change and non-binding. The customer is bound to his order (purchase order) 8 weeks from receipt of the same by ALSANZA. A contract is concluded when ALSANZA confirms acceptance of the offer in writing or executes the order. The issuance of the invoice is equivalent to the order confirmation. In the interest of further technical and medical development, ALSANZA reserves the right to make design and execution changes even after the acceptance of the order insofar as this is reasonable for the customer.
The price valid at the time of the conclusion of the contract shall apply, errors and misprints excepted, plus statutory value-added tax. Prices are shown in Euro. If ALSANZA has entered into a Fixed Price Agreement with the Buyer, ALSANZA shall be entitled to adjust the agreed price accordingly if there is a period of at least four months between the placing of the order and the date of delivery and if during this period there has been a significant change either in the cost of wages, transport and/or materials of ALSANZA or in the selling price of ALSANZA's suppliers or if there has been a significant change in the number of levies to be paid by ALSANZA due to statutory regulations or ordinances and these changes have resulted in a changed cost or levy burden for ALSANZA at the end of the 4 months. This calculation will mutually offset simultaneous increases and decreases in the various costs and charges. Only if a significant change occurred in the result is ALSANZA entitled to a corresponding price adjustment right with disclosure of the cost development. In this case, the customer can withdraw from the contract extraordinarily.
4. Payments/Delay in Payment/Offset
Our invoices are due within 30 days from the invoice date without deductions.
ALSANZA may refuse to accept payment instructions, checks, and bills of exchange at any time. If, then the acceptance is only on account of performance. The customer shall bear all related bank charges. Fulfillment occurs only when the debt amount is credited to the account of ALSANZA. Reductions for postage, transfer, or similar fees are excluded. ALSANZA is entitled to demand advance payment at any time, even for partial deliveries. If the customer is in arrears with payments, ALSANZA is entitled to charge interest on arrears of up to 10% above the base interest rate according to § 247 BGB. ALSANZA reserves the right to assert further rights and other claims for damages in this case. The customer is entitled to prove to ALSANZA lower damage caused by delay. If the customer defaults on a payment obligation that amounts to at least 15% of all ALSANZA's claims against the customer, including those that are not due, all ALSANZA's claims shall become due for payment in total. All payment deferrals - even in the case of acceptance of a bill of exchange - end. ALSANZA is entitled to make the delivery of goods dependent on advance payment in the amount of the respective value of the goods during the period of default in the aforementioned sense. ALSANZA may stop further processing of the order and make its continuation dependent on the customer providing security in the amount of the total order value. If the customer does not provide corresponding protection within a reasonable period to be set by ALSANZA, ALSANZA is entitled to withdraw from the contract and claim damages instead of performance. If the customer defaults on a payment obligation that does not reach the aforementioned amount, the statutory provisions alone shall apply. The buyer may only offset undisputed, legally established, or disputed claims but is ready for decision. ALSANZA is entitled to assign the claims arising from its business relations.
Delivery dates are only binding if they are confirmed. Freight, postage, packaging, and insurance, also for partial deliveries, will be charged separately. In the event of our failure to deliver or a delay in delivery, the customer may declare his withdrawal from the contract after a reasonable period of grace to be determined, which shall not be less than one month. The assertion of a claim for damages is limited by No. 13. of these GTC. Events due to force majeure, in particular also due to strikes, lockouts, operational disruptions and lack of suitable labor, raw or auxiliary materials of any kind, traffic disruptions, etc., shall entitle ALSANZA to postpone delivery for the duration of the hindrance and/or to withdraw from the contract if delivery becomes impossible. Partial deliveries can be made by ALSANZA and must be accepted by the customer.
6. Transfer of Risk and Transport
Unless otherwise agreed, ALSANZA shall determine the means of transport and the transport route at its discretion. The risk is transferred to the customer when the goods leave the factory or warehouse of ALSANZA and have been handed over to a transport company not affiliated with ALSANZA, but at the latest upon delivery. This also applies to partial deliveries. ALSANZA is not obliged to take out transport insurance. In case of damage to or loss of the goods in transit, the customer shall immediately notify the carrier in writing and inform ALSANZA thereof.
7. Retention of Title
Delivered goods remain the property of ALSANZA until full payment of the purchase price and settlement of all claims arising from the business relationship. Any processing or transformation of the goods subject to retention of title by the customer shall always be carried out for ALSANZA. If the goods subject to retention of title are processed or mixed with other items not belonging to ALSANZA, ALSANZA shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items at the time of processing or mixing. If the customer's item is to be regarded as the main item, the customer shall transfer co-ownership to ALSANZA on a pro-rata basis. The customer shall then store the item free of charge for ALSANZA.
Upon request, the buyer must inform ALSANZA of the extent and location of the reserved goods in his possession. The purchaser may resell goods subject to retention of title in the ordinary course of business subject to retention of title. Without ALSANZA's approval, the customer may not pledge or assign goods subject to retention of title by way of security. The customer hereby assigns to ALSANZA by way of security all claims arising from the resale or any other legal reason (e.g., insurance, tort) with regard to the goods subject to retention of title, including all balance claims from the current account. ALSANZA revocably authorizes the customer to collect the claims assigned to ALSANZA for the account of ALSANZA in his name. ALSANZA may revoke the authority to resell the goods subject to retention of title as well as to collect the claim assigned to ALSANZA if it becomes apparent that ALSANZA's claim to consideration is endangered by the customer's lack of ability to pay. ALSANZA is then entitled to demand information about the consignee, inform the consignee of the subrogation, and collect claims against the customer. If the customer, in case of default of payment, does not settle all due claims after request, ALSANZA is entitled, without prejudice to further rights, to demand the immediate surrender of all goods subject to retention of title which is in its ownership. The customer is not entitled to retention in this case. In such a case, the customer already now grants ALSANZA the irrevocable right to immediately collect the goods subject to retention of title and, for this purpose, to enter the customer's business and storage premises without hindrance during regular business hours. ALSANZA clarifies that the exercise of these rights is for security purposes only and does not constitute a rescission of the contract. If the value of the securities given to ALSANZA exceeds the total amount of ALSANZA's claims by more than 20%, the customer may demand the release of securities at ALSANZA's discretion.
8. Notices of Defects
(This provision does not apply to consumers within § 13 of the German Civil Code).
The customer is obliged to inspect delivered goods immediately upon receipt. ALSANZA will only consider complaints if the customer notifies ALSANZA of them in writing without delay. The customer must immediately notify us in writing of any defects that are not obvious. Decisive for compliance with the deadlines is the receipt of the declaration by ALSANZA. If the aforementioned deadlines are missed, the goods are considered approved, and warranty claims are excluded. Notices of defects do not affect the due date of the purchase price.
In the event of loss or damage to the delivery/goods in transit, it is necessary to send a certificate from the relevant transport company.
In principle, the customer is entitled to statutory warranty rights. The limitation period for these warranty rights is one year if the customer is an entrepreneur but two years if the customer is a consumer.
Intraocular lenses (IOL) that have become unsterile must not be sterilized independently. In this case, the warranty right expires.
The warranty expires if third parties carry out interventions or repairs without express permission. ALSANZA does not warrant defects caused by improper handling by the buyer, especially during transport and storage, and improper use of the item. The agreement of quality characteristics and the assumption of quality and durability guarantees require express agreement. If the delivery of goods is defective, ALSANZA shall, in principle, only be obliged to remedy the defect or to deliver a replacement free of defects (subsequent performance). The buyer is entitled to other claims for defects, in particular, the right to withdraw from the contract or to reduce the purchase price, only if ALSANZA does not remedy the defect or deliver defect-free goods within a reasonable period set by the buyer. ALSANZA is not obligated to subsequent performance and/or warranty as long as the purchaser is in default, fulfilling essential contractual obligations on his part. This shall not apply if the Buyer is entitled to a right to refuse performance or a right of retention. The Buyer may withhold payment due to defects or assert other rights to refuse execution only to the extent that the amount of the withheld payment is reasonably proportional to the extent of the defect.
The type of supplementary performance chosen by the customer without prejudice to § 275 paragraphs 2 and 3 of the German Civil Code (BGB) can be refused by ALSANZA if it is only possible with disproportionately high costs. In this case, the customer's claim shall be limited to the other type of subsequent performance. ALSANZA's right to refuse subsequent performance due to disproportionately high costs remains unaffected even under these conditions. If the supplementary performance fails or if ALSANZA is not willing or able to do so, the customer may withdraw from the contract or reduce the purchase price. Subsequent performance shall be deemed to have failed after the second unsuccessful attempt unless the nature of the item, the defect, or other circumstances indicate otherwise. However, in case of a minor breach of contract, in particular, in the event of only minor defects, the customer shall not be entitled to withdraw from the agreement. If the customer also asserts a claim for damages due to a defect in title or quality, the customer shall only be entitled to compensation by Section 13 of these GTC. Warranty obligations shall not exist if the defects that have occurred are causally related to the fact that the customer has not reported a defect by Section 8 and has not immediately given the opportunity for subsequent performance or if the subject matter of the contract has been improperly handled or overused, operating or maintenance instructions from us have not been followed by the customer or the subject matter of the contract has previously been repaired, maintained or serviced in a business other than ours or one authorized by us or parts have been installed in the subject matter of the contract or parts or accessories have been used with the subject matter of the contract the use of which we have not approved, or the customer has modified the subject matter of the agreement in any other way not endorsed by us. These provisions shall not apply to guarantees of quality and durability or in the event of fraudulent concealment of a defect or fraudulent pretense of a non-existent quality. If a guarantee is not complied with, ALSANZA's liability shall be limited to compensation for foreseeable and direct damage that was precisely intended to be prevented by the assumption of the guarantee unless compensation also for further damage is expressly covered by the guarantee. The assignment of warranty claims requires the express prior consent of ALSANZA.
10. Return of Goods Free of Defects
A right to return goods is generally excluded. If a return is nevertheless made in individual cases, this shall only apply to new and originally packaged goods. Returns always require prior agreement with ALSANZA. Goods that ALSANZA no longer carries in its program or which were manufactured or procured at the customer's special request will not be taken back, even in exceptional cases. If ALSANZA agrees to take back goods, 20% of the value of the goods shall be charged as a review and handling fee.
(1) We shall be liable by the statutory provisions, but our liability for damages shall be limited as follows:
a) In the event of simple negligence, liability shall only be assumed for injury to life, limb, and health.
b) In the event of intent on the part of ordinary vicarious agents or gross negligence on the part of legal representatives, employees, or vicarious agents, liability shall be limited to the foreseeable, typically occurring damage. The limitation does not apply to damages resulting from injury to life, body, or health. It also does not apply to consumers.
c) In the event of a breach of a cardinal obligation, we shall be liable for deviation from lit. a) also in the case of simple negligence, but limited as under b). A cardinal obligation is understood to be an obligation that makes the proper execution of the contract possible in the first place and on the fulfillment of which the contractual partner may regularly rely on.
12. The mandatory provisions of the Product Liability Act and liability in the event of a warranty shall remain unaffected. In case of any other breach of duty, in particular, culpa in contrahendo, default, or tort, we shall not assume any further liability than provided for above.
13. Our legal representatives, officers, and ordinary employees are not liable further than ourselves.
14. Confidentiality and Trademark Protection
Offer, sales, and other documents, including image, sound, and other data carriers, may not be handed over to third parties or unauthorized persons, neither in the original nor in copy, nor otherwise used in a manner detrimental to our interests without our approval. Furthermore, our conditions granted in an offer, in particular prices, may not be passed on to third parties, whether in writing or verbally. The customer is not allowed to use or otherwise use the name "ALSANZA", the trademark "ALSANZA", the logo, and other signs or any designations of ALSANZA without our written permission.
Until the goods are shipped, we shall be entitled to withdraw from the contract if the customer is in breach of contract to a not inconsiderable extent, if its financial situation deteriorates significantly or if the circumstances on which the contract is based change significantly.
16. Foreign Deliveries
Due to existing foreign contracts, products purchased from us may only be exported with our express written permission.
17. Place of Performance and Jurisdiction
The place of performance for all claims of a contractual and non-contractual nature shall be Leinfelden-Echterdingen. German law shall apply exclusively to deliveries and services abroad, foreign customers, and contracts of all kinds. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) and the reference standards of German private international law concerning contractual relationships under the law of obligations are excluded. Aachen shall be the exclusive place of jurisdiction if the customer is a merchant, a legal entity, or a special fund under public law. However, ALSANZA is also entitled to sue the customer at his place of business.
We are entitled to process data about the customer received with regard to or in connection with the business relationship, regardless of whether such data originates from the customer itself or third parties, in compliance with the provisions of the Federal Data Protection Act. The invalidity of individual points of the contract with the customer does not affect the validity of the remaining provisions.
Pfullingen,Germany, October 2022- ALSANZA Medizintechnik und Pharma GmbH