- General Terms of Supply (ALB) of Eisenhut Instrumente GmbH, as of May 2017 -
This is a translation of the original text in german and is therefore not legally binding at any time. The german original text alone is legally binding.
§ 1 Scope of application
1. These general terms and conditions of delivery and payment are exclusively applicable to all business transactions between us and the buyer, customer or purchaser, hereafter referred to as the customer, in addition to other contractual agreements.
We do not recognize other conditions of the customer, even in case of provision of services or accepting payments without qualification, unless we have agreed on its application explicitly in writing.
This is also applicable to the general terms and conditions of business beyond the general conditions of purchase of the customer, especially, but not exclusively, to quality assurance agreements, provision contracts, consignment warehouse agreements and non-disclosure agreements.
2. These general terms and conditions of delivery and payment are applicable only for business dealings with entrepreneurs in terms of § 14 BGB.
3. These general terms and conditions of delivery and payment are also applicable to all the future business relationships, without being incorporated again, until new terms and conditions are defined by us.
4. All agreements made between us and the customer in the framework of the contract negotiations must be put down in writing for proof and must be confirmed by both sides.
5. Supplements to an agreement, subsequent amendments to the contract and assumption of a guarantee, especially the assurances regarding features, or the assumption of a procurement risk must be in writing, if these are given by persons who are not authorised representatives.
§ 2 Consultation
1. Our consultancy is product and service related and it solely covers the products and services delivered by us.
It does not include advice unrelated to the contract, i.e. statements for products not sold by us or services not provided by us.
2. Our consulting services are based on empirical values. Our advice is non-binding if it includes circumstances, on the correctness of which we do not have any influence, for example composition of the raw material or services of subcontractors.
In omitted statements there is no advice.
§ 3 Conclusion of the contract
1. Our offers are subject to change, they are considered as an invitation to tender.
2. In principle, the initial processing of an offer is free. Further offers and drafting work are free only if the supply contract is valid and continues to remain valid.
3. Descriptions and photographs of our goods and products in technical documents, catalogues, brochures, circulars, advertisements and price lists are non-binding, if their inclusion in the contract has not been expressly agreed; the descriptions and photos do not release the customer from conducting his own tests.
By definition the product and service descriptions on the internet can only be of a very general nature; if the customer wants to derive binding agreements on quality or applicability for his purpose, he must make a reference to it in the order.
4. In principle, the order placed by the customer constitutes the offer on which the contract is based.
5. In the order all the details must be provided for order processing. This applies to all deliveries, services and work performances by us. These especially, but not exclusively, include article description, quantity, dimensions, material, material composition, pre-treatment, processing specifications, handling instructions, storage, standards and all other technical parameters and physical characteristics. For tests in which specific temperatures, time periods and other measurement or control values are to be applied, the corresponding measurement methods must be defined before the conclusion of the contract and these must be accepted by both parties. If no such specifications are made, our measurement methods are applicable.
Missing, incorrect or incomplete information is considered as not explicitly agreed and entails no obligations from us, neither in terms of claims for performance and warranty claims nor in terms of claims for damages.
6. If the order placed by the customer deviates from our offer, the customer must separately indicate the deviations.
7. We are entitled to obtain further information which is useful for the proper fulfilment of the order.
8. Orders must be placed in writing or electronically (EDI); orders given orally or by telephone are fulfilled at the risk of the customer.
9. The order is accepted by us within 6 weeks, unless a different acceptance period is agreed upon.
10. Our services ensue from the order confirmation.
11. We reserve the right to process or get the processing done for delivery items or subjects of performance without additional costs for the customer, in another company.
§ 4 Call-off orders
Call-off orders are completed at the maximum for a period of 12 months whereby the call-off-dates and the units must be specified when the order is placed.
Unless otherwise agreed, all the call-off orders must be accepted within one year of the order placement, without the need for an acceptance request. If this period has expired, we have the right to bill the product and send it at the customer’s risk and expense or to withdraw from the contract immediately.
§ 5 USA/Canada Exports
If the customer plans to export our products to USA or Canada, he is obligated to get a product liability insurance with minimum coverage of 5 million Euros and a foreign insurance cover for direct exports to USA and Canada and to maintain it.
§ 6 Withdrawal from contract
1. A withdrawal from the contract by the customer is permitted only in certain cases permitted by law.
2. Otherwise the customer can withdraw only on the basis of the individual contractual agreement with us.
However, even in this respect a withdrawal in case of individually produced or labelled products and sterile products and implants is ruled out.
3. The returns must be delivered for free.
§ 7 Changes
1. For changes to the delivery item or the object of performance after the conclusion of the contract, a separate contractual agreement is required.
2. In case of missing or incorrect information, we reserve the right to change the delivery item or the object of performance to an appropriate extent. Disadvantages from missing or incorrect information, especially additional costs or damages must be borne by the customer.
3. We reserve the right to make technical changes to the delivery item or the object of performance that do not jeopardise the objective of the contract.
4. Quantity variances up to max. 10 % which are customary within the industry are permitted.
5. Part-deliveries or partial performance of services are permitted if they do not affect the usage significantly and jeopardise the objective of the contract. They can be billed separately.
§ 8 Delivery period
1. If a delivery or performance deadline is agreed, it starts when our order confirmation is sent however, not before the complete clarification of all details of the order and the proper fulfilment of all the obligations to co-operate by the customer; the same applies to the delivery or performance dates.
2. In case of consensual changes to the ordered item, delivery or performance deadlines and delivery or performance dates must be agreed upon again.
This also applies if there is a renegotiation about the ordered item after the conclusion of the contract, without a change being made to the ordered item.
3. Delivery or performance deadlines and delivery or performance dates shall be subject to the faultless and timely previous delivery and unpredictable production breakdowns.
4. The delivery or service period is considered to be met if the delivery item or the object of performance has left our plant till the expiry of this period or is handed over to the commissioned transport company in our plant, or we have notified that it is ready for collection or if the delivery is being delayed due to a reason for which the customer is responsible, with a message of readiness for dispatch to the customer.
5. We are entitled to provide the agreed deliveries or services well before the agreed time.
§ 9 Default in acceptance
1. If the customer does not accept the product due to a reason for which he is responsible on the agreed delivery date or till the end of the agreed delivery period, we may demand compensation for any additional expenditure incurred by us as a result. We are especially entitled to charge storage costs for each commenced month amounting to 0.5 %, however at the maximum a total of 5 % of the net delivery or service rate to the customer. The contract parties have the right to provide evidence of higher or lower storage costs.
2. Furthermore, we are entitled to decide an appropriate storage location at the cost and risk of the customer and to insure the delivery items or objects of performance at the customer’s expense.
3. If we are entitled to claim damages instead of delivery then we can, irrespective of the option of asserting a higher actual damage claim, demand 15% of our price as damages, unless the customer proves that damage has not occurred at all or was considerably lower than the flat rate.
§ 10 Force majeure
In cases of force majeure, our deadlines for providing the delivery and services shall be extended for the duration of the disturbance.
This includes circumstances over which we have no influence such as war, fire damage, strikes, lockouts, traffic disruptions, orders from higher authorities, supply restrictions imposed by public authorities or agencies similar to public authorities, such as the FDA, breakdowns or significant operational disruptions e.g. shortage of material or power shortages at sub-contractors or preliminary suppliers commissioned by us. This is also applicable if we were already in default when these circumstances occurred. We shall inform the beginning and end of such hindrances to the customer immediately.
If the delivery or the service is delayed by more than six weeks, the customer as well as we are entitled to withdraw from the contract in relation to the scope of services affected by the disruption. The contract parties are not entitled to compensation payments in this respect.
§ 11 Terms of payment
1. Unless agreed otherwise, all prices shall be in Euro in net, ex works plus statutory value-added tax on the date of invoicing. Incidental costs such as those for packaging, freight, shipping charges, customs duties, assembling, insurances and bank service charges are calculated separately.
The product to be sent is insured by us only if requested by the customer and at his expense.
2. Unless agreed otherwise, the invoices are due in full within 30 days from the date of invoice. The invoices must be paid without any deductions. In case of non-payment the customer will be in default when the payment is due without any further reminder. Discounts and rebates are granted only after a special agreement.
3. Payment in instalments require a separate written agreement.
4. For settlement by bill of exchange a separate prior agreement is required. Discount charges and exchange costs shall be borne by the customer. Settlement of invoice by cheque or bill of exchange will be accepted subject to clearance and shall be deemed to be paid only after it is unconditionally credited.
5. If we have several outstanding receivables against the customer and if the payments of the customer are not made for a particular outstanding receivable then we have the right to decide the outstanding receivables to which the payment is to be attributed.
6. In case of delay, deferment of payment or payment by instalments we have the right to demand default interest according to the standard banking practice, however at least 9 percentage points p.a. above the respective base rate and to withhold further services until all due invoices have been settled. The proof of a higher damage remains reserved.
7. With the placement of the order the customer confirms his ability to pay or his creditworthiness.
lf well-founded doubts arise as to the customer's ability to pay or his creditworthiness, e.g. due to sluggish payment behaviour, delay of payments or protested cheques, we have the right to demand security or cash payment step by step against service. If the customer does not fulfil this demand within a reasonable period granted to him, we can withdraw from that part of the contract which has not yet been fulfilled. We are not required to set a time limit when it is apparent that the customer is not able to provide a security, e.g. if insolvency proceedings are opened against the customer’s assets.
8. The customer is entitled to set-off against our claims only if the counterclaim is undisputed or has been established by a court of law.
The assignment of claims against us requires our approval.
9. The customer has a right of retention only if the counter-claim is based on the same contractual relationship and is acknowledged or legally established, or if we have committed a gross violation of our obligations from the same contractual relationship despite a written warning and have not offered an adequate security.
If our service is undisputedly defective, the customer only has the right to withhold payment in reasonable proportion to the defects and the anticipated costs of remedying them.
10. If value added tax is not included in our calculation, especially because we act on the assumption of an “Intra-community supply” in terms of § 4 No. 1 b in connection with § 6 a UStG, based on the information given by the customer, and we will be charged a value added tax subsequently (§ 6 a IV UStG), the customer is obligated to pay us the amount which will be charged to us. This obligation exists irrespective of whether we have to subsequently pay value added tax, import-turnover tax or comparable taxes in the country or abroad.
§ 12 Passing of risk, packaging
1. Place of fulfilment for services and payments specified in the order is our registered office.
2. The customer is obligated to accept the services specified in the order as soon as we notify him of the completion.
If the customer does not accept the service within two weeks of the notification, the acceptance shall be deemed to have taken place.
3. The risk of damage, loss of the product passes on to the customer with the notification of the completion of the product. In principle, “ex works” delivery has been agreed.
When dispatch is agreed, the risk shall pass on to the customer with the dispatch of the product or its hand-over to the transport company.
4. If no other agreement has been made, we will decide the type and extent of packaging. Disposable packaging shall be discarded by the customer as long as we are not mutually obligated due to mandatory legal provisions to take it back.
5. If the shipment is sent in borrowed packaging, it must be sent back within 30 days of receipt of the delivery with carriage prepaid. The customer is responsible for loss and damage to the borrowed packaging.
The borrowed packaging may not be used for other purposes or for storage of other objects. It is solely meant for the transport of the delivered goods. Labels may not be removed.
6. In case of damage or loss of the products in transit, the customer must immediately carry out the stock-taking and inform us about it. Claims based on any transport damage must be made against the carrier by the customer immediately.
§ 13 Obligation to inspect and obligation to give timely notice, acceptance
1. It is the duty of the customer to inspect the product according to § 377 HGB or comparable foreign or international provisions immediately after receipt and to notify us of defects and damages immediately after they are found in the inspection or even later, in writing. Otherwise the product is considered as defect-free and approved. For services and work performances, the regulation of § 377 HGB shall apply accordingly. Notice of defects must be in writing. An objection in written form e.g. as an email is not enough.
The customer shall give us one or several parts from the affected delivery immediately.
2. Using faulty deliveries or services is not allowed. If a defect cannot be detected upon receipt of the product or provision of services, any further use of the delivery item or the object of performance after its detection must be stopped immediately.
3. In case of complaints regarding our products or services, the customer must send back the ordered item to us after cleaning and sterilizing or autoclaving it.
As far as no other agreement is made, the returns must be delivered for free.
4. The customer must give us the time needed to check the noticed defect. In case of unjustified objections, we reserve the right to charge the customer for the costs of carrying out such an inspection.
5. The notice of defects does not release the customer from fulfilling his payment obligations.
6. If the customer finds out upon receipt of the product that a different article was delivered to him because of incorrect information in his order, and we replace the article for him, he must bear the additional costs incurred by us because of this, e.g. for processing and restocking. In this respect, we charge the customer a processing and restocking fee on the basis of the expense incurred by us, which we deduct from the amount credited to the customer before reimbursement.
§ 14 Warranty rights
1. If there is a defect in our delivery items or performance objects, we have the right to remedy the defect, make a replacement delivery or issue a credit note at our own discretion within an appropriate period.
2. For third party products, even if they have been installed or otherwise used in our products, we have the right to initially limit our liability to assigning our warranty claims, to which we are entitled vis-à-vis the third-party supplier, unless the satisfaction of claims from the assigned right fails or the assigned right cannot be asserted for other reasons. In this case, the customer has the rights from the previous paragraph 1.
3. Claims by the customer because of the expenses, especially for transport, travel, labour and material costs required for the purpose of subsequent performance are excluded, if the expenses increase because the product was delivered subsequently to a location other than the branch of the customer; unless, the shipment corresponds to its intended purpose.
4. For compensations and rectifications of a defect, the same warranty conditions are applicable as for the product originally delivered.
5. Our explanations in connection with this contract,
e.g. service descriptions, reference to DIN-standards, etc., do not include assumption of warranty in case of doubt. Only our express written declarations regarding the assumption of a warranty shall be decisive. Details in product descriptions and product specifications, subject to its registration as quality specifications in terms of § 434 BGB or § 633 BGB, are not a guarantee for the quality of the product or for it retaining a certain quality for a specified duration.
6. In relation to repairs carried out by us without any legal obligation, e.g. as a gesture of goodwill, the customer has the right to assert claims for defects only if this has been expressly agreed.
§ 15 Defect of title, property rights
1. Orders according to the drawings, sketches or other information given to us are performed at the risk of the customer. If we infringe third party property rights in performing such orders, the customer indemnifies us against any claims made by the holders of these property rights. Any further damages shall be borne by the customer.
2. We shall not be liable for any infringements of property rights associated with the application of the delivered items or objects of performance or with the combination or use of the delivered items or objects of performance with other products.
3. In case of defects of title, we are entitled to the following at our own discretion:
- to acquire the necessary licenses with respect to the infringed property rights
- or to repair the defect of the delivery item or the object of performance by provision of a delivery item or object of performance which is changed to a reasonable extent for the customer.
4. Our liability for the infringement of third party property rights only extends to property rights that are registered and published in Germany.
5. We reserve all proprietary rights and copyrights to all the illustrations, drawings, calculations and other (technical) documents provided by us. Any disclosure or transfer to third parties shall require our written consent. In the event that the order is not placed, all the documents are to be returned to us without delay on request. Documents of the customer may be made available to those third parties, to whom we intend to assign deliveries and services.
§ 16 Liability
1. For tortious claims, we are liable in compliance with contractual liability; restrictive liability agreements from the contract shall also apply to the customer.
2. The customer’s rights of recourse against us shall only exist if the customer has not made any agreements with his buyer which exceed statutory claims based on defects and damages.
3. We are not liable if the customer has effectively limited his liability to his buyer on his part.
4. To the extent that our liability is excluded or limited, the same shall also apply to the personal liability of our employees, workers, staff, representatives, vicarious agents and assistants.
5. Insofar as the liability is excluded or limited by the above, the customer is obligated to indemnify us from any claims of third parties.
Furthermore, the customer must indemnify us from claims of third parties due to damages which result from a misuse or wrong labelling of our products by the customer, or a medical malpractice that cannot be verifiably excluded as the cause for the damage.
6. The customer may neither change the delivered contractual products nor their features or packaging, especially the existing warnings about the risks of improper use of the contractual products must not be changed or removed by the customer. If the customer violates this obligation, he shall indemnify us internally from any third-party product liability claims, if and to the extent that the damage is due to such violation. If we have to arrange for a product recall because of a product defect in the contractual products then the customer shall support us and take all measures that can reasonably be expected of him. The customer shall inform us immediately about any risks which come to his attention while using the contractual products and possible product defects. The customer shall also inform us immediately about the buyer’s complaints.
7. The customer is obligated to notify us immediately in writing about any claims brought by third parties and reserve us all protective measures and settlement negotiations.
8. The customer must seek to agree on a waiver of recourse with his product liability insurer for our benefit with reference to § 86 VVG and clause 7.3 AHB.
§ 17 Limitation
1. The period of limitation for claims and rights relating to defects in our products, services and work performances and the damages arising from these is 1 year. The beginning of the limitation period is governed by statutory provisions.
The aforementioned reduction of limitations is not applicable if the law prescribes longer periods in cases of §§ 438 paragraph 1 No. 2, 479 and 634 a paragraph 1 No. 2 BGB.
2. The limitation period according to the previous clause 1, sentence 1 also does not apply in the case of intent, if we have fraudulently concealed a defect or have given a guarantee of quality, in the case of claims for compensation for injuries to persons or the violation of freedom of a person, for claims arising from the product liability law and through grossly negligent breach of duty.
3. Measures taken as part of subsequent performance, that is the delivery of a defect-free object or remedial action, shall not cause the limitation period to begin again, but merely suspend the limitation period applicable for the original delivery item by the duration of the implemented subsequent performance measure. In the event of doubt, subsequent performance by us does not represent acknowledgment in terms of § 212 No. 1 BGB.
4. The above regulations do not imply a change in the burden of proof to the detriment of the customer.
5. Unless expressly specified otherwise, the statutory provisions on the start of the limitation period, the suspension of statute of limitations, the suspension and restart of deadlines remain unaffected.
§ 18 Repair and other services
1. The quality of the material provided by the customer for processing must be tested and guaranteed by him (e.g. raw material, dimensional accuracy etc.). The customer delivers the material to be processed for free. For the material given to us, we only carry out a receiving inspection with respect to the number of units, identity and a visual inspection for obvious transport damages. We are only obligated to test the consistency of the material with the specification given by the customer if there are clear indications for this. We are not obliged to conduct any other tests. A test can be expressly agreed upon, where the costs for the test are borne by the customer.
2. In case of damage, destruction or loss of the objects given to us we are liable to pay damages only if we are responsible for the damage. If parts can no longer be used because of processing faults, we will do the same work on a new piece for free to be sent to us at our expense. It is subject to timely delivery to us. Otherwise our liability to pay damages is limited to the procurement of an identical and equal object, where a value deduction of new for old is made, if legal requirements are met.
The liability does not cover normal wear and tear.
3. If an acceptance has been agreed, it must be carried out within one week, starting with the date of notification of our readiness for acceptance, in our plant or our warehouse. The acceptance costs are borne by the customer. Acceptance shall be deemed to have occurred if the customer does not accept our service within this period of one week.
As long as we have not given a guarantee for the quality of the ordered item or have not maliciously concealed a defect, the customer’s rights due to a defect after the implementation of the agreed acceptance by the customer are excluded, if the customer has failed to give notice of the defect although he could have discovered the defect during the type of acceptance agreed upon, he did not find the defect because of negligence.
4. The customer must insure the objects given to us in the framework of an “off-premises coverage”.
5. Unless other regulations are given explicitly in the above paragraphs 1 to 4 of this § 18, the provisions of the other regulations of this ALB shall apply.
§ 19 Amendment of contract
If unforeseen events significantly change the economic importance or the content of the delivery or service or have a major influence on our operations, the contract must be amended. If this is not justifiable from an economic point of view, we have the right to withdraw from the contract.
§ 20 Reservation of title, lien
1. We reserve the ownership of all objects of the contract till complete payment of all accounts receivable from the business relationship with the customer.
2. If our ownership is processed with other property, connected or mixed, we acquire the ownership of the new object according to § 947 BGB.
3. If processing, combination or mixing occurs in such a way that the external service is regarded as the main object then we shall acquire the ownership in relation to the value of our service to the other service at the time of the processing, combination or mixing.
4. If we acquire ownership of an object through our service, we reserve the right of ownership of this object until the payment of all outstanding receivables from the business relation with the customer.
5. The customer is obligated to carefully keep the goods subject to reservation of title and if necessary carry out maintenance and repair work in time, at his expense. The customer must insure the goods subject to reservation of title at his expense against loss and damage. Security claims arising when such losses occur are to be assigned to us.
6. The customer has the right to resell the object, which is in our (co-)ownership, in the ordinary course of business, provided that he meets his obligations from the business relationship with us. In such a case, the claim resulting from sale is deemed assigned to us in the ratio of the value of the service secured by our reservation of title to the total value of the goods sold. The customer shall still be entitled to collect this claim even after the assignment. Our authority to collect this claim ourselves remains unaffected.
7. The right of the customer to dispose of the goods subject to our reservation of ownership and to collect the receivables assigned to us expires as soon as he no longer meets his payment obligations, or an application is made for insolvency proceedings to be instigated. In these aforementioned cases or any other behaviour of the customer in violation of the contract, we have the right to take back any goods delivered under reservation of the title without warning.
8. The customer shall inform us immediately if there are risks to goods to which we have retained the title, especially in case of insolvency, failure to pay and enforcement measures. Upon our request, the customer must provide all the information needed about the stocks of goods in our (co-)ownership and about the receivables assigned to us and he must inform his buyer about the assignment. The customer shall support us in all measures that are necessary to protect our (co-)ownership and he must bear the costs resulting from it.
9. In relation to all claims under the contract, we shall be entitled to a lien on the objects of the customer that become our property based on the contract. Such lien may also be exercised in relation to outstanding debts from previous deliveries or services, if it is connected with the delivered item or the object of performance.
For other claims from the business relationship, the lien applies only to the extent that it is uncontested or legally determined. §§ 1204 ff. BGB and § 50 paragraph 1 of the insolvency code shall apply accordingly.
10. If the realized value of the securities exceeds the amount payable by more than 15%, we will release securities according to our choice at the customer's request.
§ 21 Secrecy
1. The customer is obligated to keep all aspects of the business relationship worth protecting confidential. He shall especially treat all business and technical information that is not general knowledge, which he gets to know through the business relationship, as a trade secret. Information or aspects of the business relationship, that were publicly known already at the time of the announcement and information or aspects of the business relationship that were already verifiably known to the contract partner from us before the announcement are not subject to confidentiality.
The customer shall ensure that his employees are also obligated to maintain secrecy.
2. Reproduction of the documentation provided to the customer is allowed only within the framework of operational requirements and copyright provisions.
3. None of the documents may be made accessible to third parties, partially or fully, or used for a purpose other than that for which they were given to the customer without our written approval.
4. Even a partial disclosure of the business relationship with us may be made to third parties only after our prior written approval; the customer must also obligate the third parties in the framework of a similar agreement to maintain secrecy.
5. The customer may not advertise using his business relationship with us without our prior written permission.
6. The customer is also obligated to maintain secrecy after the end of the business relationship.
§ 22 Place of jurisdiction, applicable law
1. The place of jurisdiction for all disputes between the parties is the court having local jurisdiction and jurisdiction over the subject-matter for our registered office.
2. The laws of the Federal Republic of Germany shall exclusively govern the business relationships with the customer.
3. If individual parts of this ALB become ineffective, the effectiveness of other provisions remains unaffected. The contract partners shall endeavour to replace the ineffective clause by a different clause, which comes closest to the economic intent and legal sense of the original wording and conforms to the applicable legal regulations.
4. We have the right to process data according to the German Federal Data Protection Act.
§ 23 Contact details
Eisenhut Instrumente GmbH
Managing director Richard Eisenhut, Jochen Eisenhut
Telephone: +49 (0) 7424 98101 0
Fax: +49 (0) 7424 98101 29
Registration court: District court Stuttgart,
Commercial register No.: HRB 460424
VAT ID No.: DE142940133