General Purchasing Conditions of midge medical GmbH
(Version dated August 2020)
These General Purchasing Conditions (GPC) shall apply to all our business relations with business partners, contractors and suppliers (hereinafter: contractor) in the form of orders and purchases of goods and services of all kind, in particular also including work and assembly services. They are part of all contracts concluded by us with our contractors on deliveries and services offered by them. These GPC shall also apply to future business, even if no further reference to this GPC is made.
Our GPC shall apply exclusively. We do not recognise conditions of sale, delivery, service, assembly or other terms and conditions of the contractor unless we explicitly agreed in writing to their application. Our GPC shall also apply exclusively even if, being aware of contractor´s conditions contradicting or deviating from our GPC, we accept his delivery or service without reservation.
Our GPC shall apply –unless otherwise stipulated – only if the contractor is an entrepreneur (§ 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.
Our GPC shall particularly apply to contracts for the purchase and/or the delivery of movable items by the contractor, irrespective of whether he manufactures the goods himself or purchase them from subcontractors. Unless otherwise agreed, they shall also apply in the version valid at the time of our order or most recently communicated to the contractor in text form as framework agreement for all future deliveries, services or offers of the contractor without us having to refer to them separately in each future individual case.
Individual agreements made with the contractor in individual cases have in all cases precedence over the respective regulations in these GPC. A written contract or our written confirmation is decisive for the content of such agreements – the possibility of counterevidence remains unaffected.
Offer and contract conclusion, subcontracting of third parties
Offers from the contractor are free of charge for us and must be submitted in writing. Only orders signed by us and placed in writing are binding. There shall be no oral collateral agreements.
The contractor shall be obliged to accept our order (offer) by written confirmation within 5 days or execute it without reservation (acceptance). After expiry of this period, we are no longer bound to the order. An acceptance after expiry of this period is deemed to be a new offer and requires our acceptance.
The contractor shall not be entitled to subcontract third parties to perform the agreed services without our explicit written consent.
Prices, terms of payment and accounting
The price stated in the order is binding and a fixed price valid for the entire duration of contract performance, including the respective statutory value added tax. Unless agreed otherwise in individual cases, the price includes all performances and ancillary services of the contractor such as, in particular, disassembly, manufacturing, delivery, processing and assembly as well as all ancillary costs, for example packaging, transport, insurances, travelling expenses or costs for material costs. The return of packaging material requires a special agreement.
Invoices containing date, order number, position number and account must be submitted separately to us for each order after the delivery or service has been performed. They must not be added to the consignments. Invoices shall be duly prepared and can be processed by us only if they are verifiable and include all statutory mandatory information under German law. Invoices must separately show tax number, verifiable accounting positions according to the order positions, net amount, applicable value added tax rate and gross amount. Proofs of performances and other verification documents must be added to the invoice. The contractor is responsible for any consequences resulting from non-compliance with these obligations, unless he proves that he is not responsible for the non-compliance.
Unless otherwise agreed in writing, the agreed price is due for payment within 30 calendar days with 3 % discount or within 90 days without discount from complete delivery and performance and, where such is provided by law or in the contract, with acceptance and receipt of an invoice which is correct according to the provisions of Point 3.2.
Assignment, offsetting and right of retention
We are entitled to the right of setoff and retention as well as the plea of non-performance of the contract to the extent permitted by law. We are entitled to assign all claims arising from the order without the contractor´s consent.
Without our written consent, the contractor is not entitled to assign his claims against us, in full or part, to a third party.
The contractor has the right of setoff or retention only in the event of res judicata or undisputed counterclaims.
Performance or delivery deadlines and periods (hereinafter: period) are binding for the contractor and must be adhered to exactly.
The contractor is obliged to inform us immediately in writing of any threatening or existing delay in delivery, the reasons for such delay and the anticipated duration of such delay. The occurrence of the default in delivery remains unaffected by this.
If the contractor fails to provide his service or does not provide his service within the agreed period or is in default, our rights –in particular to withdrawal from the contract or to claim compensation – shall be governed by the statutory provisions. In particular, we are entitled to claim compensation instead of the performance after the fruitless expiry of a reasonable period. If we claim compensation, the contractor has the right to verify that he is not responsible for the breach of duty. The unconditional acceptance of a delayed delivery or performance does not result in waiving further claims - in particular claims for compensation.
Partial deliveries shall not be permitted without our express consent in writing which may not be refused in bad faith.
The seller shall be obliged to specify date and order number on all shipping documents and delivery notes. If he fails to do this, we won´t be responsible for the resulting delays in processing.
Unless otherwise agreed in writing, the delivery shall be made “free domicile” and inclusive of packaging to the location stated in the order according to DDP clause Incoterms® 2020. The contractor shall carefully safeguard our interests during shipment. The goods must be packaged in authorised packaging material so that transportation damages are avoided.
Passing of risk
The risk of accidental loss or accidental deterioration of the goods is passed to us upon correct and complete free delivery to the delivery address stated in the order. If delivery with assembly or service is agreed, the risk is passed following proper assembly or service and handover. As far as an acceptance is afforded by law or contract, this is relevant for the passing of risk. If a formal acceptance is agreed, the risk shall not be passed before confirmation of successful acceptance by us in the acceptance report.
Claims for defects
Unless agreed otherwise, the legal provisions shall apply to our rights in the event of defects as to quality and defects of title of the delivered goods, including wrong delivery and short delivery, improper assembly, defective assembly and operating instructions and defectively performed works as well as other breaches of duty by the contractor.
The contractor shall guarantee that the work, the service or the delivered goods comply with the contractual agreements with regard to quality - in particular function, operating speed and precision - upon the passing the risk. Unless otherwise agreed, those product descriptions apply as agreed quality which - in particular through designation or reference in our order – are the subject matter of the agreement or which were incorporated into the agreement in the same way as this GPC. It is irrelevant whether the product description originates from us, from the contractor, from the manufacturer or from any other third party.
With regard to the defects inspection and complaint obligations to be fulfilled by us, the separate provisions of the quality assurance agreement between us and the contractor shall apply. If such an agreement does not exist, the commercial inspection and complaint obligation according to §§ 377, 381 HGB (German Commercial Code) shall apply: Our duty to inspect as part of the incoming goods control is limited to defects which are evidently revealed by an external examination, including examination of the delivery papers (e.g. transport damage, incorrect or short deliveries), or by our quality control by way of random sample tests. A defect shall be considered to be notified immediately and on time, if we send a notice of defect within 5 working days (days from Monday to Friday, with the exception of legal holidays) from discovery of the defect. In the event of obvious defects, the notification period starts from receipt of the goods. As far as an acceptance is afforded by law or contract, there is no inspection and complaint obligation.
In deviation of § 442 (1) sentence 2 BGB (German Civil Code), we shall also be entitled to full rights regarding defects if the defect shall remain unknown to us upon conclusion of contract as a result of gross negligence.
In case of defectiveness of deliveries or services of the contractor, we shall be entitled to demand supplementary performance on the contractor´s costs - according to our choice by either removal of the defect (rectification) or by delivery of goods free of defect (replacement). The supplementary performance also includes the disassembly of the defect item and reinstallation, as far as, according to its nature and purpose, the item was installed into or attached to another item.
In case of failure of the contractor´s attempt of supplementary performance, or if the contractor unjustifiably refuses to make supplementary performance or if the contractor did not observe a reasonable additional period fixed by us, we shall be entitled ipso jure to remove the defect ourselves or to have it removed by third parties and to claim reimbursement of the expenses accruing therefrom by the contractor. We are eligible for appropriate advance payment. This also applies in case of special need for urgency, imminent danger - in particular threat to the safety during operation – if there is a threat of unusually high damages or the setting of a period for remedy is unreasonable for us for similar reasons. We shall notify the contractor immediately of such cases as well as of the nature and extent of the emergency measures taken.
Our right to withdraw from the contract or to reduce the remuneration accordingly and to demand compensation for further damage or our expenses remains otherwise unaffected.
Considering our rights of recourse within a supply chain (§§ 445 a, 445 b, 478 BGB), we shall be entitled to demand from the contractor that kind of supplementary performance which we owe to our customer in an individual case. A limitation of our right to choose the kind of supplementary performance is not connected to this. Before we admit or satisfy a claim of our customer to remedy defects, we shall generally give the contractor the opportunity to express his views on the facts without, however, entering into a legal obligation to do so. If the contractor fails to make a statement within an appropriate period, fails to express his statement in sufficient plausible manner or denies the presence of a defect and we fail to reach an agreement with the contractor, the claim for a defect raised by us is deemed to be owed to the contractor. Counterevidence is permissible and must be provided by the contractor. In addition, our recourse claims shall also exist in cases where we or third parties processed defective goods in particular by incorporation into another product.
The reciprocal claims of the contractual parties shall become timebarred according to the legal provisions unless agreed otherwise in the following.
In deviation of § 438 (1) no. 3 BGB, the general period of limitation for claims of defects as to quality and defects of title shall be three years from passing of risk. The statutory limitation period for the material claims for the restitution of property by third parties (§ 438 (1) no. 1 BGB) remains unaffected. Claims arising out of defects in title shall on no account be time-barred so long as the third party can still assert the right - particularly due to the absence of limitation - against us.
If acceptance is provided by law or contractually agreed, the limitation period shall commence with the acceptance. If the provisions of law on contracts for work apply to the agreement, the limitation period for defects as to quality and defects of title of a work whose success consists of manufacturing, maintenance or modification of an item or in the performance of planning or supervisory services for this, the limitation period shall be 3 years, in deviation of § 634 a (1) no. 1 BGB.
In the event of correction of defects by the contractor, the limitation period for claims for defects shall be prolonged by the time between complaint and handover or acceptance of the remedial work. The above-mentioned provisions shall apply mutatis mutandis to replacement deliveries and rectifications rendered in the framework of the supplementary performance.
Where the supplier is responsible for product damage, he shall be obliged to indemnify us against claims for compensation by third parties on first request to the extent that the cause resides in his area of control and organisation and he himself shall be liable in the external relationship.
As part of its liability for cases of damage within the meaning of Point 9.1, the contractor shall also be obliged to reimburse any expenditures arising from or in connection with a recall action executed by us. We shall inform the supplier of the content and scope of the recall measures to be performed - to the extent possible and reasonable - and allow opportunity for comment. Other legal claims remain unaffected.
The Supplier shall undertake to maintain a product liability insurance with a blanket coverage of 6 million euros per incidence of personal injury or damage to property - blanket coverage –and to present proof thereof.
The contractor shall ensure that no rights of third parties are infringed in connection with his delivery.
In the event any claims are asserted against us by third parties in this context, the contractor shall be obliged to indemnify us from such claims upon first written request if they are caused by culpable breach of the contractor. If the indemnity does not take place within a reasonable period, we shall be entitled to make arrangements with the third party, in particular to agree on a settlement.
The indemnification obligation of the contractor relates to all expenses incurred by us from or in connection with claims asserted by a third party.
We shall inform the contractor immediately on such alleged trademark right infringements and leave the legal defence to the contractor.
The limitation period for the rights of indemnity is 10 years after conclusion of the agreement.
Reservation of title and software
Where we provide parts to the contractor, we reserve the right of ownership of these parts. As long as they are not processed, they must be stored separately, protected against damage and insured to a reasonable extent against destruction and loss at the contractor´s cost.
Any processing or modification (mixing, combination etc.) by the contractor of provided items according to Point 11.1 shall be carried out on our behalf and for our account as manufacturer. In the event of processing or modification, we shall acquire immediate ownership of the new item or - if the processing or modification is of material from several owners or if the value of the processed material is higher than the value of the provided item - we shall acquire co-ownership (fractional ownership) concerning the newly created item in the ratio of the provided item value to the value of the newly created item.
Title to goods shall be transferred to us unconditionally and regardless of whether the price has been paid. If in an individual case we accept the contractor´s conditional offer to transfer the ownership by paying the price, the contractor´s reservation of title ceases to exist upon payment of the price for the delivered goods at the latest. In the framework of a proper business transaction, we shall remain authorised to resell the goods with advance assignment of the resultant claims even before the payment of the price. At any rate, all other forms of reservation of title (amplified, extended, forwarded) shall be excluded so that a reservation of title declared effective on the part of the contractor should the situation arise, shall only have the effect of a simple reservation of title.
Tools provided by us to the contractor for the manufacturing of goods to be supplied shall remain our property. The contractor is obliged to use the tools exclusively for manufacturing of goods ordered by us and to insure the tools belonging to us against fire, water and theft at replacement value at his own expense. At the same time, the contractor hereby assigns all claims for compensation from this insurance to us. The contractor is obliged to perform any necessary service and inspection work on our tools, as well as all repair and maintenance work on the same, in good time and at his own cost. He must notify us without delay of any malfunctions; if he fails to do this, then we are entitled to claim for compensation for damages. Where the ownership of tools is transferred from the contractor to us but the tools themselves remain with the contractor, we hereby agree under these purchasing terms to the following provision concerning possession: the contractor is in possession and the ownership lies with us. The contractor has no right of retention.
Unless otherwise agreed, the contractor shall at least grant us a nonexclusive, non-transferable and unlimited right of use for software and hardware products and the related documentation.
We shall be entitled to make copies of them for backup purposes. With regard to a potential copyright notice of the originator, we shall also be entitled to share them with our customers in connection with contractual handling.
The contractor shall guarantee the absence of errors in software and their data structure and assures proper duplication.
For delivered software developed or customised especially for us, we can demand the deposit of the source code of the software in addition to the name of the author(s) at a notary of our choice at our expense and on the basis of a trust order which entitles the notary to hand the deposited files to us in case of liquidation or insolvency of the contractor. In the event of entitled handover, the contractor hereby grants us a non-exclusive, temporally unlimited right to change the source code and to use it in altered or unaltered form to the extent we are entitled to use the delivered software.
Secrecy and data protection
All operating facilities, transactions, procedures and working methods, figures, drawings, plans, calculations, models, product descriptions and all other information and documents (hereinafter: information) that are transferred to the contractor for the purpose s of the agreement or have otherwise become known to him shall be kept secret from third parties and treated as strictly confidential and shall not be made accessible to third parties or used for them by the contractor without our prior written consent, unless a disclosure is required for proper implementation of the delivery/performance or due to final decisions or official orders. If information must be transferred to third parties, this transfer shall be limited to an extent necessary for the proper implementation of the delivery/performance or according to the final decisions or official order. The contractor shall be obliged to inform us of the transfer and its extent as far as this is not unreasonable in the individual case. Third parties shall be equally committed to maintain the confidentiality of the information obtained in accordance with the above provisions. The obligation of confidentiality expires if and to the extent that the knowledge contained in the information has become generally known. The contractor shall be full liable for all damages arising from infringement of this obligation to secrecy by the contractor.
All documents surrendered to the contractor for performance of the agreement shall remain our property. We reserve all our copyrights. The documents shall only be used for manufacturing based on our order and shall immediately be returned to us upon request including all transcripts or copies, also in electronic form and digital format such as CD-ROM. After processing of the order and in the event of a premature termination of the contract, they are to be returned to us without request. All documents prepared by the contractor shall be marked with “For midge medical”. We herewith agree with the contractor that the ownership of all documents marked this way is transferred to us and that the contractor provides the ownership of these documents to us as depositary.
Export and import regulations
The contractor shall furnish verifications of performance and origin requested by us with all details required and make them available without delay. The same shall apply accordingly to proofs under value added tax law relating to international and intra-community deliveries.
The contractor shall inform us without delay if a delivery is subject, in whole or in part, to export restrictions.
The contractor shall warrant compliance with the provisions concerning the 'secure supply chain' as expressed in particular in the SR 946 203 Regulations. This means in particular that the contractor shall ensure that goods to be manufactured, stored or provided for transport are produced and kept only at secure facilities, the transport is safe, the goods are protected from unauthorised access and the personnel charged therewith is appropriately trained. The business partners working with the contractor in this context shall also ensure compliance with the obligations in this regard.
The contractor shall undertake to adhere to all applicable export/import provisions, as well as to any associated embargo provisions, trade embargos and sanctions. For this purpose, the contractor ensures that, by means of appropriate organisational measures, in particular the rules of the EU and, if applicable, the corresponding US regulations are observed.
Place of jurisdiction, place of performance, choice of law
If the contractor is businessman as defined in the German Commercial Code (HGB), legal entity under public law or public special assets, our registered office in Berlin shall apply exclusively – also internationally – as court of jurisdiction for all disputes arising directly or indirectly from the contractual relations.
Unless otherwise stated in the order, our registered office in Berlin is the place of performance.
Should individual provisions of this GPC be or become invalid or impracticable without the achievement of the object and purpose of the whole contract becoming impossible or the maintenance of the contract becoming unreasonable for one of the contractual partners, the validity of the remaining provisions shall not be affected. In this event, the invalid of impracticable provision shall be replaced by another regulation that serves the purpose intended by the invalid or impracticable provision, meets the business objectives of the whole contract and the interests of the contractual partners. This shall also apply if a necessary regulation is omitted upon order placement.
This GPC and all legal relationships between the contractor and us are subject to the law of the Federal Republic of Germany, under exclusion of all international and supra-national regulations, particularly the UN Sales Convention. The prerequisites and effects of the reservation of title are on the other hand subject to the law of the respective location of the object insofar as accordingly the choice of law which was agreed is inadmissible or invalid for the benefit of German law.
Any modification of the agreement shall be made in writing. This shall also apply to the alteration of this clause. The provisions of § 305 b BGB remain unaffected.
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