General Terms and Conditions of sfm medical devices GmbH (for corporate business transactions)
Status: 2020
SECTION 1: GENERAL PROVISIONS, SCOPE OF APPLICATION
1. These General Terms and Conditions of sfm medical devices GmbH (“we” or “us”) are applicable to business relations with our customers (“Customer”) insofar as the Customer is an entrepreneur (Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB)), a legal entity governed by public law or a special fund under public law.
2. The subject of the business relations is particularly the sale and delivery of goods produced by us (“Goods”) and/or the provision of other agreed services (“Services”).
3. The General Terms and Conditions in the relevant current version are also applicable for future contracts on the sale and delivery of Goods and the provision of Services with the same Customer without the need for us to refer to them in each individual case. The relevant current version of our General Terms and Conditions can be downloaded from our website, www.sfm-medical.com.
4. Only these General Terms and Conditions are definitive for our deliveries and the performance of Services. Any deviating, opposing or additional general terms and conditions of the Customer will only become part of the contract if and insofar we have expressly approved the validity thereof. This approval requirement also applies if we effect delivery and/or performance of Services to the Customer without reservation in knowledge of the Customer’s general terms and conditions.
5. Specific agreements reached in an individual case with the Customer, including collateral agreements, supplements and/or amendments, shall in all cases prevail over these General Terms and Conditions. A written contract or ourwritten confirmation is decisive for the content of such agreements.
6. Legally relevant declarations and notifications which are to be submitted to us by the Customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects) require the written form in order to be valid.
SECTION 2: CONCLUSION OF THE CONTRACT
1. Our offers are always subject to alteration and non-binding.
2. The order by the Customer is deemed to be a binding offer of a contract (“Order”).
3. Acceptance of the Order requires written confirmation (e.g. order confirmation) by us (“Acceptance”). Upon Acceptance of the Order, a contract between us and the Customer (“Contract”) comes into being.
4. The written confirmation is definitive for the content of the Contract even if it contains slight or commercially usual deviations from the Order. Such deviations are deemed to have been approved by the Customer unless we receive a written objection from the Customer within two (2) weeks of receipt of the written confirmation by the Customer. If the Order and the written confirmation correspond, the Customer has no right of objection.
SECTION 3: APPROVAL FOR PRODUCTION OF GOODS, PRODUCTION RESOURCES, ACCEPTANCE
1. If the Goods are produced in line with the Customers’ specifications and re-quirements, acceptance is required for the manufacturing process of the relevant Goods and the relevant trade sample prior to the start of the production of Goods. Such an acceptance is also required if we manufacture the tools required for production of Goods.
2. The details of such acceptance(s) and the details relating to the manufacture of production resources will be agreed by the Parties separately.
SECTION 4: DELIVERY, DEADLINES, DELAYS IN DELIVERY, TRANSFER OF RISKS
1. Unless otherwise agreed or otherwise set out below, delivery of the Goods shall be ex works (EXW) Brückenstraße 5, 63607 Wächtersbach in accordance with Incoterms 2020. Delivery is thus deemed to have taken place as soon as we have made the Goods available to the Customer at the previously named location. Upon the making available of the Goods in this way, the risk of accidental loss or accidental deterioration of the Goods is transferred to the Customer. The Goods shall still be deemed to have been made available if the Customer is in default of acceptance.
2. In derogation of Section 4(1) of these General Terms and Conditions, we will at the Customer’s request and expense dispatch the Goods to a different location (sale to destination). Unless otherwise agreed, we are in such a case entitled to decide the type of dispatch (in particular shipping company, dispatch route, packaging) ourselves. In the event of sale to destination, we will, at the Customer’s request and expense, ensure transport insurance cover for the relevant dispatch. The risk of accidental loss and accidental deterioration of the Goods and the risk of delay are transferred to the Customer upon handing over of the Goods to the forwarding agent, freight carrier or other entity appointed to perform dispatch. The Goods are still deemed to have been handed over if the Customer is in default of acceptance.
3. If the Customer is in default of acceptance, or fails to act in cooperation, or if our delivery is delayed for any other reason and is the Customer responsible therefore, we are entitled to demand compensation for the loss resulting therefrom, including additional expenses (such as warehousing costs, costs of maintaining and securing the Goods).
4. Any delivery deadlines/performance deadlines will be agreed individually and are only binding if we confirm the relevant delivery deadline/performance deadline when we accept the Order. Any binding agreement on delivery deadlines/performance deadlines only starts upon receipt by the Customer of our written confirmation.
5. Where adherence to binding deadlines is not possible for reasons for which we are not responsible (non-availability of performance), we will notify the Customer of this without delay and provide notification of the expected new deadline. If delivery and/or performance of Services is not possible even within the new deadline, we are entitled to completely or partially rescind the relevant Contract; we will immediately refund any prior counter-performance effected by the Customer. In this sense, non-availability of performance shall particularly be deemed to be the untimely delivery to us by our supplier if we have concluded a congruent hedging transaction.
6. The occurrence of our default shall be determined in accordance with the statutory provisions. In any event, however, a reminder by the Customer is required.
7. The Customer’s rights pursuant to Section 11 of these General Terms and Conditions and our statutory rights, particularly with regard to an exclusion of the obligation to perform (such as where performance and/or subsequent fulfilment are impossible or unreasonable), remain unaffected.
8. We are fundamentally entitled to effect partial delivery if this is required for logistical reasons and reasonable to the Customer.
Unless otherwise agreed, we additionally reserve the right to deliver quantities within a tolerance of ±10% of the ordered quantity for orders of customer specific products.
SECTION 5: PRICES, PAYMENT
1. Unless otherwise individually agreed, our prices current at the time of ordering apply ex works (EXW) Wächtersbach in accordance with Incoterms 2020 (cf. Section 4(1) of these General Terms and Conditions), plus statutory VAT, where applicable. The costs of packaging required for transport are, unless otherwise agreed, included in the relevant current prices.
2. In the event of sale to destination (cf. Section 4(2) of these General Terms and Conditions) the Customer will be invoiced for the costs of dispatch, particularly transport costs ex works and any customs, fees, taxes and other public charges incurred as well as any transport insurance costs (cf. Section 4(2) of these General Terms and Conditions). These costs are quoted separately on the invoice to the Customer. The costs of packaging required for transport are, unless otherwise agreed, included in the relevant current prices.
3. Where the Goods are delivered on pallets and/or in containers and this loading equipment is not exchanged, we will invoice the Customer for the costs of these pallets and/or containers.
4. Payments shall be made in euro. The price is due and payable net within thirty (30) days of the invoice date. In the case of payments by cheque, the date on which the cheque is cashed and, in the case of bank transfers, the date on which the funds are credited to our account is definitive.
5. The Customer is only entitled to rights of set-off or retention insofar as his or its claim has been legally established or is undisputed. In the event of defects in the Goods supplied, the Customer’s counterclaims, particularly in accordance with Section 9 of these General Terms and Conditions, remain unaffected.
SECTION 6: DEFAULT IN PAYMENT, PAYMENT DIFFICULTIES
1. The Customer is in default upon expiry of the above payment deadline (cf. Section 5(4) of these General Terms and Conditions). During the period of default, the relevant price payable will be subject to interest at the relevant applicable statutory default interest rate. We reserve the right to assert any additionally arising damages for default.
2. If, after conclusion of the Contract, a considerable deterioration in the Customer’s financial circumstances within the meaning of Section 321 BGB occurs, which is particularly deemed to be the case in the event of filing for insolvency or the suspension of payments to us, we are entitled under the statutory provisions to exercise our right to refuse performance of all still outstanding deliveries and/or, after expiry to no avail of a deadline set, to rescind the Contract with immediate effect (Section 321 BGB). This also applies if the Customer is in default with a significant portion of the payment obligations towards us. Further statutory rights on the claiming of compensation in place of performance or compensation for expenses remain unaffected.
SECTION 7: PRODUCT SAFETY
1. We endeavour to guarantee the safety of our products to the greatest extent possible. The Customer will support us in this to the best of his or its knowledge and belief, particularly as described below.
2. In connection with performance of the Contract and the downstream use of the Goods (particularly storage/transport, further processing, handover to customers), the Customer may be affected by their own product-safety or regulatory obligations, particularly concerning medicinal products. In particular, the Customer is obliged to issue necessary instructions to his or its customer, to monitor the Goods marketed by him or it and, if necessary, to take necessary measures to avert any risks. The Customer will comply with such statutory obligations without exception.
3. The Customer will follow instructions issued by us relating to the relevant Goods without exception and will forward instructions, information for use, warnings and risk characterizations on to his or its customers. The Customer also undertakes to impose similar obligations upon his or its customers with regard to the forwarding of relevant information. If the Customer becomes aware – for example, as a result of complaints from his or its customers – of product risks, side effects or other safety problems he or it will forward relevant information to us without delay.
4. The Customer ensures the proper storage and proper transport of the Goods, particularly in line with our instructions. The conditions for storage and transport will be documented by the Customer in a meaningful form and grant us access to relevant documents on request.
SECTION 9: CLAIMS FOR DEFECTS
1. The Customer’s claims with regard to material defects and defects of title are subject to the statutory provisions unless otherwise defined below.
2. Differences in outward appearance, weight and/or dimensions between the Goods delivered and the Goods sold are insignificant if and insofar these differences (i) are usual in the trade or technically unavoidable and still comply with the DIN standards, (ii) represent a technical advance and still comply with the DIN standards, or (iii) are based on a change in the statutory provisions or other regulations. The Customer is free to prove that such differences are of significance for him or it. Insignificant differences do not constitute any defects.
3. If the delivered Goods and/or the Services performed are defective, we can initially choose whether we will effect subsequent fulfilment by rectification of the defect (subsequent improvement) or by supplying an item free from defects (replacement). This does not affect our right to refuse subsequent fulfilment under the statutory provisions.
4. If subsequent fulfilment has failed or if a reasonable deadline set by the Customer for subsequent fulfilment has expired to no avail or is dispensable under the statutory provisions, the Customer may rescind the Contract or reduce remuneration. Claims by the Customer for compensation for damages and/or the reimbursement of futile expenses exist only in accordance with Section 11 of these General Terms and Conditions and are otherwise excluded.
5. Expenses required for examination and subsequent fulfilment, particularly costs for transport, transit, labour and materials, will be borne by us if a defect actually exists. Should the Customer’s desire for rectification of a defect turn out to be unjustified, we may demand reimbursement by the Customer of the costs hereby incurred.
6. The Customer is not entitled to assert claims for defects if and insofar he or it or a third party commissioned by him or it (i) has assembled, handled or used the Goods inappropriately or incorrectly, or (ii) has changed the Goods in any other manner thereby resulting in the defect.
SECTION 10: DISPOSABLE PRODUCTS
1. If the Goods are sterilized goods, these are solely intended for disposable use and are designated as such (“Disposable Product”) by us. These Disposable Products are not suitable for reuse. In the light of these risks, we expressly advise against reusing Disposable Products.
2. Should the Customer reuse the Disposable Products against our warning, such reuse is at his or its own risk.
3. The Customer is not entitled to assert claims for defects if and insofar he or it has reused a Disposable Product which, upon or in connection with the reuse, exhibits defects deviating from the agreed specifications.
4. The Customer’s obligation to forward information on to his or its customers (cf. Section 7(3) of these General Terms and Conditions) also applies to our information in connection with Disposable Products.
SECTION 11: LIABILITY
1. Except where otherwise set out in these General Terms and Conditions including the following provisions, we shall be liable upon violation of contractual and non-contractual duties according to the relevant statutory regulations.
2. We shall be liable for damages – regardless of the legal grounds – for wrongful intent or gross negligence. In the event of ordinary negligence (einfache Fahrlässigkeit) we shall be liable only
- for damages arising from loss of life, physical injury or damage to health,
- for damages arising from the violation of contractual duties, the fulfilment of which rendered the proper execution of the Contract possible in the first place and on which the contractual partner can usually be expected to rely (essential contractual duties). In this case, our liability is limited to compensation for unpredictable and typically occurring damages.
3. The limitations of liability arising from paragraph 2 of this provision do not apply in the event of fraudulent concealment of defects by us or of any warranty given by us as to the quality of the Goods. The limitations of liability also do not apply to claims by the Customer under the German Product Liability Act (Produkthaftungsgesetz) or under any other compulsory regulations.
4. Any exclusion or limitation of our liability applies also to the personal liability of our employees, representatives and other agents (Erfüllungsgehilfen).
SECTION 12: STATUTE OF LIMITATIONS
1. Notwithstanding Section 438(1), no. 3 BGB and Section 634a(1), no. 3 BGB, the general statute of limitations for claims for material defects and defects of title is one (1) year from delivery.
2. The aforementioned reduction in the statute of limitations does not apply to an in-rem claim of a third party to restitution (Section 438(1) no. 1 BGB), cases of fraudulent intent on our part (Section 438(3) BGB and Section 634a(3) BGB), claims in recourse against suppliers in final delivery to a consumer (Section 479 BGB) and non-compliance with any warranty on quality of the Goods. The limitation periods of the General Product Liability Act also remain unaffected in any event.
3. The aforementioned limitation periods also apply to contractual and non-contractual claims of the Customer for damages based on defects in the Goods/work, unless the use of the regular statutory statute of limitations (Section 195, 199 BGB) would lead to a shorter period of limitation in an individual case.
4. For damage claims of the Customer pursuant to Section 11 of these General Terms and Conditions, the statutory periods of limitation shall exclusively apply.
SECTION 13: RETENTION OF TITLE
1. We retain title of ownership to the delivered Goods (“Conditional Goods”) until the complete fulfilment of all our existing and future demands and claims (including all current account balance amounts) against the Customer arising from the current business relationship. This applies insofar as admissible under the law of the country in whose scope of application the Conditional Goods are contractually located. If this law does not permit retention of title to the delivered Goods but does permit the retention of similar rights, we shall be entitled to assert these rights. The Customer undertakes to take all measures to facilitate protection of ownership of or security interests relating to the delivered Goods.
2. The Conditional Goods must neither be pledged nor transferred by way of security to third parties until the secured receivables have been paid in full. The Customer shall notify us in writing without delay if and to what extent third parties have recourse to the Conditional Goods.
3. The Customer is permitted to resell the Conditional Goods in the ordinary course of business. This right to resell does not apply if a prohibition of assignment exists inter partes between the Customer and his or its customers with regard to the Customer’s claims. In the case of resale, the following also applies:
- The retention of title extends to any and all products resulting from the processing, mixing or joining of our Goods at their full value, with ourselves being deemed as the producer. If, upon the processing, mixing or joining with third-party goods, said third party's title should remain, we shall procure co-ownership at the ratio of the amounts invoiced for said processed, mixed or joined goods. In other respects, the same applies to the resulting products as for the Conditional Goods.
- The Customer now already assigns to us by way of security claims against third parties arising from the resale of the Conditional Goods in the full amount or, in the event of co-ownership, in the amount of our relevant co-ownership share pursuant to the above paragraph. We hereby accept said assignment. The Customer’s duties set out in para. 2 of this provision also apply with regard to the assigned claims.
- Beside ourselves, the Customer remains authorized to collect any receivables. We undertake not to collect receivables as long as the Customer fulfils his or its payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been submitted and his or its ability to perform is not otherwise impaired. In the occurrence of any of the aforementioned events, the Customer’s authorization to collect will be extinguished without any express revocation. We may then require that the Customer discloses to us the receivables and their debtors, provides all information required for their collection, hands over the associated documentation and notifies the third party of the assignment.
4. In the event non-contractual conduct by the Customer, in particular non-payment of the due purchase price, we are entitled under the statutory provisions to rescind the Contract and to demand restitution of the Goods on the basis of the retention of title and rescission. If the Customer fails to pay the due purchase price, we may assert these rights only if we have first unsuccessfully granted the Customer a reasonable period in which to make payment or if such a period is dispensable under the statutory provisions.
5. If the realizable value of the securities exceed our receivables by more than 10%, we will release securities at our discretion at the Customer’s written request.
SECTION 14: CONFIDENTIALITY
Insofar as the Customer is given access to our illustrations, drawings, calculations and/or other trade and/or business secrets (“Confidential Information”), he or it shall treat these confidentially. The Customer is entitled to notify third parties of this Confidential Information only with our express consent. If the Customer is given our consent, he or it will make Confidential Information accessible to third parties only to the extent that this is absolutely necessary. Information that is generally known or accessible, does not constitute Confidential Information. Confidential Information which the Customer is obliged to disclose on the basis of legal provisions or administrative/judicial orders, are excepted from the confidentiality obligation.
SECTION 15: PLACE OF JURISDICTION, APPLICABLE LAW
1. For all disputes arising directly or indirectly from or in connection with the General Terms and Conditions or any legal relation between us and the Customer, the sole place of jurisdiction – for domestic and international matters – shall be the Hanau Regional Court (Landgericht), where the Customer is a merchant (Kaufmann) within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity governed by public law or a special fund under public law. However, we are also entitled to bring an action at the Customer’s general place of jurisdiction.
2. The law of the Federal Republic of Germany is applicable to these General Terms and Conditions and to all legal relations between us and the Customer. The application of the Convention for the International Sales of Goods (CISG) is expressly excluded.
SECTION 16: SEVERABILITY CLAUSE
Should individual provisions of these General Terms and Conditions be or become invalid, unenforceable, or null and void wholly or in part, this shall not affect the validity of the remaining provisions. If individual provisions have not become part of the Contract, are invalid, unenforceable, or null and void, the statutory provisions shall apply. If a relevant statutory provision is lacking, the provision that has not become part of the Contract, is invalid, unenforceable, or null and void shall be replaced by a provision that the parties would have agreed upon if they had considered this point from the outset; this must take reasonable and acceptable account of mutual business interests. The previous sentence applies accordingly where there is a gap in the provisions.
sfm medical devices GmbH
General Terms and Conditions of sfm medical devices USA, Inc.
Status: 2018
sfm medical devices USA, Inc., a Virginia corporation ("sfm medical") and the customer ("Purchaser") hereby agree that these General Terms shall govern all of Purchaser’s purchases of Products from sfm medical, and shall also apply to all quotations, orders and contracts for sfm medical’s Products. These General Terms are hereby incorporated into and made a part of any other future contract which will be entered into by and between the parties by this reference, and the defined terms contained in these General Terms shall have the meaning ascribed to them in any other contract by and between the parties.
1. ACCEPTANCE OF GENERAL TERMS/CONTROLLING PROVISIONS
sfm medical's sale of any and all Products to Purchaser is expressly made conditional upon Purchaser’s agreement to and acceptance that these General Terms set forth the sole and exclusive agreement (the "Contract") between Seller and Purchaser, and shall supersede all prior agreements, understandings and representations, whether oral or written, between the parties. Such agreement and acceptance shall be deemed given unless Purchaser notifies sfm medical in writing of its objection to any term or condition stated herein within ten (10) business days following Purchaser’s receipt of (i) sfm medical’s written sales acknowledgement or order confirmation, or (ii) the Products, whichever is earlier. THE CONDITIONS CONTAINED HEREIN SHALL TAKE PRECEDENCE OVER ANY OTHER CONDITIONS AND NO CONTRARY, ADDITIONAL OR DIFFERENT PROVISIONS OR CONDITIONS SHALL BE BINDING ON SFM MEDICAL UNLESS EXPRESSLY ACCEPTED BY SFM MEDICAL IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SFM MEDICAL. In the case of sales outside of the United States of America, Purchaser and sfm medical expressly agree that the provisions of the U. N. Convention on the Sale of Goods (C.I.S.G.) are herewith excluded.
2. RETENTION OF TITLE
sfm medical shall retain title of ownership to all Products that it delivers until Purchaser settles all of sfm medical’s accounts and claims in full. Until Purchaser settles all of sfm medical’s accounts and claims in full, such goods shall be considered “Reserved Goods”. sfm medical’s retention of title shall also extend to Reserved Goods that Purchaser has subsequently sold if sfm medical has pending claims against Purchaser. If Purchaser sells the Reserved Goods without first settling its account with sfm medical, Purchaser will be deemed to have assigned the amount of the Price to sfm medical plus and additional ten percent (10%) to cover the costs of collection and processing. Any disposition of the Reserved Goods, including but not limited to liens, assignments by way of security, or surrender by barter, shall not be permitted until Purchaser has paid sfm medical in full for the Products, or unless sfm medical otherwise consents in writing. Purchaser agrees to notify sfm medical of any seizure by third-parties of any Reserved Goods. Purchaser shall bear the cost of any actions which may be required to pay sfm medical for the Price of the Products. If sfm medical determines that Purchaser’s ability to pay the Price is at risk, sfm medical shall be entitled to request the return of the Reserved Goods. Purchaser agrees to insure all Reserved Goods at its expense for loss. Purchaser agrees to provide sfm medical any and all information and documents which are necessary for the collection of sfm medical’s claims. Purchaser shall immediately notify sfm medical of any claims to be made against sfm medical’s Reserved Goods. Purchaser agrees to assign to sfm medical any claims against third-parties for damage to delivered Reserved Goods, and Purchaser agrees to cooperate with sfm medical in pursuit of these claims.
3. PACKAGING AND SHIPPING
The Parties agree that sfm medical will not credit Purchaser for the return of disposable packaging. sfm medical agrees to provide Purchaser with pallets and other returnable packaging solely on a loan basis. sfm medical reserves the right to select shipping routes and methods which sfm medical decides will incur the lowest costs.
4. DELIVERY AND TRANSFER OF RISK
For all sales under these General Terms, the Products shall be deemed delivered as soon as the goods leave sfm medical’s dock (ex works). The risk of loss or damage shall transfer to the shipping agent or to Purchaser as soon as the goods leave sfm medical’s dock. sfm medical shall have no obligation to provide insurance. IN THE EVENT THAT SFM MEDICAL MAKES PARTIAL SHIPMENTS, FAILS TO COMPLY WITH DESIGNATED DELIVERY DATES, OR OTHERWISE FAILS TO PERFORM ITS OBLIGATIONS FOR REASONABLE SHIPMENT OR DELIVERY OF PRODUCTS IN ACCORDANCE WITH ANY TIME LIMITS SET FORTH HEREIN, SFM MEDICAL SHALL NOT INCUR ANY LIABILITY WHATSOEVER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS OR PURCHASER’S CUSTOMER’S CLAIMS ARISING OUT OF, OR RELATING TO, CHANGES IN DELIVERY DATES, PARTIAL SHIPMENTS OR UNTIMELY PERFORMANCE) WHICH MAY BE INCURRED BY PURCHASER, EVEN IF PURCHASER WAS AWARE OF OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Unless otherwise agreed, we additionally reserve the right to deliver quantities within a tolerance of ±10% of the ordered quantity for orders of customer specific products.
5. PRODUCT INSPECTION AND ACCEPTANCE
Purchaser shall be obligated to diligently check and verify the type, quantity and quality of Products delivered in a timely manner and without undue delay following the receipt of delivered Products. Purchaser shall be obligated to provide written notice to sfm medical of Product defects within five (5) calendar days after the discovery of any defect. If a defect cannot be promptly identified when the Product is delivered, Purchaser shall notify sfm medical of the defect reasonably promptly after the defect becomes known to Purchaser but in all cases within thirty (30) days after delivery, after which Products shall be deemed to have been delivered free of defects. Purchaser shall only be permitted to assert a defect notification if the defect asserted affects the usability of the Product, and shall not be permitted to assert claims for minor deviations from the quality agreed upon by the Parties or if there is not material impairment of usability. If Purchaser gives a notification of defects which is subsequently found to be unwarranted or without justification, sfm medical shall be entitled to request and be reimbursed for all expenses incurred by it as a result of such notification.
6. RETURN OF PRODUCTS
Purchaser may not return Products unless it has first obtained sfm medical’swritten approval to accept such Products, which sfm medical shall not unreasonably withhold. sfm medical is entitled to refuse to accept Products returned without its prior written approval. Products shall be returned at Purchaser’s expense. Purchaser shall bear all costs for repairs conducted outside of the warranty period or not otherwise covered by the warranty.
7. PRODUCT WARRANTY CLAIMS
To the extent that sfm medical receives a defect notification from Purchaser, sfm medical shall have the option to remedy the defect at its expense or substitute delivery of other Products. sfm medical shall bear the expenses required for remedying a material defect, including the costs for work and material and for transport of Products to Purchaser, provided that such costs do not increase due to having to transport the Product to a location other than the business offices of Purchaser initially specified in the confirmed Purchase Order. Purchaser may only assert a claim for damages and not for specific performance to remedy any Product defect. sfm medical shall have the right to reduce the purchase price in connection with an asserted claim for a Product defect, or, if the defect is material and not subject to remedy to limit damages to the purchase price of the Product in question. Purchaser’s aforesaid remedies are exclusive, and Purchaser shall not be entitled to any other remedies or damages. sfm medical shall not be liable for defects in quality which are due to design or manufacturing specifications of Purchaser. Furthermore, sfm medical shall not be liable for defects in any sterile Products which are meant to be single or one-time use Products („Disposable Products“), if and when such Disposable Products are being re-used by Purchaser or any third party. sfm medical shall likewise not be liable for damage which results from the fact that Purchaser integrates or combines the Products into/with its end products. Furthermore, the warranty provided by these General Terms does not cover damages or defects that arise, are caused by or result from (i) unauthorized alternations, repairs, or maintenance of the Products, (ii) negligence, accident, misuse, or improper, unsuitable or abnormal usage of the Products, (iii) failure to conform strictly to sfm medical’s specifications in connection with the installation, operation, maintenance or repair of the Products, (iv) unauthorized modification of the Products, or (v) exposure of the Product to unreasonable temperature or conditions, including but not limited to any vandalism, riots, or explosions. In the event that the Products are altered, modified or repaired by Purchaser or any other third party without the prior written approval of sfm medical, all warranties hereunder shall be terminated and of no effect. Purchaser agrees and acknowledges that any and all modifications to the Product, even if expressly authorized by sfm medical, are made at Purchaser’s sole risk and responsibility. All product information in sfm medical’s brochures, price lists, advertising or other materials shall not be deemed to make any warranty, express or implied. Any samples furnished by sfm medical to Purchaser are solely for the purpose of evaluating the suitability of such material or potential use and, as such, are not intended to serve as warranties of any type, either express or implied. Tolerances or variations normal in the trade with regard to dimensions, quantities, weight, quality, color, etc. shall not warrant justification for complaints under this Warranty.
8. CHANGES IN/DISCONTINUATION OF PRODUCTION
Notwithstanding any obligation to supply Products for confirmed Purchase Orders, sfm medical may, at its option and sole discretion, either discontinue the production of specific Products, no longer supply Purchaser with any Products, or reduce its supply of Products to Purchaser, by providing Purchaser with six (6) months written notice of its intent to do so.
9. INTELLECTUAL PROPERTY
All right, title, and interest in and to all intellectual property, including, without limitation, all copyright, trademark, patent, trade secret, and all other proprietary rights therein disclosed or provided to Purchaser pursuant to these General Terms, and all derivatives thereof, shall remain the sole and exclusive property of sfm medical. Furthermore, the Parties agree that sfm medical shall not be liable for infringements of third party intellectual property rights of any kind (including but not limited to patents, utility models etc.) which are related to or caused by Purchaser’s Product specifications, which result from the incorporation of the Products into End Products, or which result from any alteration of the Products by Purchaser. sfm medical shall also not be liable for any claim or expense related to any unforeseeable use of the Product. Unless agreed otherwise in writing, Purchaser shall also be obligated to ensure that no intellectual property rights are infringed in the country of delivery and Purchaser agrees to indemnify sfm medical for any cost of/defense against infringement. If Purchaser informs the supplier of any infringement of intellectual property rights prior to the delivery of the Products, sfm medical shall, at Purchaser’s expense, take reasonable steps to modify the Products so that such intellectual property rights are no longer infringed or cooperate with Purchaser, again at the expense of Purchaser, to obtain other relief to permit use of the Products. Purchaser hereby represents and warrants that all Products which it orders shall not infringe any intellectual property rights of any third parties, and agrees to indemnify sfm medical against all claims of third parties and all costs relating to the defense against all such claims. Purchaser agrees to inform sfm medical in writing as soon as possible point if a third party claims or asserts any infringement or violation of intellectual property rights with respect to the Products. Sfm medical shall be permitted at the expense of Purchaser to respond to any such infringement claim independently and to assert a defense against any such claims.
10. CONFIDENTIALITY
Purchaser shall hold in confidence and not use or disclose Confidential Information of sfm medical or the terms of these General Terms, except (a) for the limited purpose(s) for which the disclosure of such Confidential Information was made; (b) upon written consent of sfm medical; (c) as may be required by law; or (d) in connection with outside attorneys, accountants, insurers, or auditors of Purchaser when such disclosure is necessary and appropriate under the circumstances. For purposes of these General Terms, "Confidential Information" shall mean all information, data, specifications, documents, analyses, compilations, studies, records, reports, plans, correspondence (including correspondence between the parties), reports and other materials concerning these General Terms or sfm medical or sfm medical’s business, trade secrets, proprietary information, operations, business information, financial information, shipping information, cost data, pricing information, customer and/or consumer information or data, marketing information, supplier information, systems, processes, programs, physical, compositional and performance specifications, designs, products (specifically including those products sold to Purchaser pursuant to these terms), product formulae, manufacturing conditions, techniques, drawings, samples, prototypes, models, machines, tooling, artwork, product ideas, concepts, and knowhow, whether or not speculative or experimental in nature.
11. INJUNCTIVE RELIEF
Purchaser acknowledges and admits that there may be no adequate remedy at law available to sfm medical for Purchaser’s failure to comply with the provisions of these General Terms. Accordingly, Purchaser agrees that, in the event of any such failure by it, sfm medical shall be entitled to seek equitable relief by way of temporary restraining order, preliminary injunction or permanent injunction and such other and further relief as any court with jurisdiction may deem just and proper without the necessity of posting any bond or proving actual damages.
12. COMBINATION OF PRODUCTS WITH OTHER PRODUCTS OR DEVICES
The integration or combination of sfm medical's products with other devices, components, materials or elements shall be the sole responsibility of Purchaser, and Purchaser shall ensure that provide written confirmation to the satisfaction of sfm medical that the integrated device (i.e. the combination of all components) meets industry safety and efficacy standards after being subjected to a complete engineering risk analysis and all applicable testing. Notwithstanding any other provision in these General Terms, Purchaser agrees to indemnify and hold sfm medical harmless for any claim arising from any injury, loss or damage which occurs or is alleged to be caused by a defect in sfm medical’s Product which is integrated or combined with another device, component, material or element. Except as otherwise provided in this paragraph, each Party disclaims any claims for indemnity against the other for any liabilities arising out of current or future sales of Products under these General Terms. To the extent that any disclaimer of indemnity is limited by applicable law, the Parties hereby disclaim any claims for indemnity to the greatest extent permitted by applicable law.
13. WARRANTY PERIOD
sfm medical provides limited warranty cover for twelve (12) months from the date of delivery of a Product to Purchaser. If Purchaser requests service outside of a good faith warranty claim, sfm medical reserves the right to invoice Purchaser for all resulting costs.
14. LIMITED WARRANTY, LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES
EXCEPT AS SET FORTH INTHESE GENERAL TERMS, SFM MEDICAL MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SAFETY OR USE OF SFM MEDICAL'S GOODS, OR ANY WARRANTY AS TO THE QUALITY OR CORRESPONDENCE WITH ANY DESCRIPTION OR SAMPLE, AND SHALL HAVE NO LIABILITY IN RESPECT THEREOF. TO THE EXTENT THAT APPLICABLE LAW FORBIDS SFM MEDICAL’S LIMITATION OF THESE WARRANTIES, SFM MEDICAL LIMITS THESE WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SFM MEDICAL SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS), WHETHER BASED UPON BREACH OF WARRANTY OR CONTRACT, TORT, USE OR OPERATION OF THE PRODUCTS, OR ANY OTHER LEGAL THEORY OR GROUNDS, AND INCLUDING WITHOUT LIMITATION THE FAILURE OF ANY WARRANTY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE. EXCEPT FOR ANY FRAUD OR WILLFUL ACTS OR OMISSIONS BY SFM MEDICAL, SFM MEDICAL'S OVERALL LIABILITY SHALL BE LIMITED TO THE LOSS FORESEEABLE AT THE TIME OF ORDER PLACEMENT AND SHALL NOT EXCEED FIVE HUNDRED THOUSAND US DOLLARS ($500,000..00). Any action for breach of the General Terms, including but not limited to any breach of warranty hereunder, must be commenced within one (1) year from the date the breach occurred.
15. FORCE MAJEURE, OTHER IMPEDIMENTS TO THE CONTRACT
A force majeure of any kind shall suspend Either Party's obligation to perform any agreements made under these General Terms. A force majeure includes but is not limited to the following examples: Acts of God; war (declared or undeclared); mobilization; acts of a public enemy; acts of a Government of any country, state, or political subdivision or regulatory agency thereof or entity created thereby; political unrest; official measures; embargoes, terrorism or sabotage; strike; lock-out or labor stoppage of any kind; labor shortage; energy shortage; transport hindrances; fire; flood; water damage; inclement weather; explosions; operational disruptions; material difficulties; or the occurrence of any other unforeseeable impediment or catastrophe which is beyond either Party’s reasonable control. The failure of sfm medical’s suppliers to deliver in conformity with contracts shall also constitute a force majeure. Whenever a force majeure occurs, the aggrieved Party may extend the delivery period or cancel the contract, either in whole or in part.
16. GOVERNING LAW, VENUE AND JURISDICTION/WAIVER OF JURY; ESCALATION AND MEDIATION.
These General Terms and all purchases made pursuant thereto shall be governed by and interpreted for all purposes in accordance with the laws of the Commonwealth of Virginia without regard to this state’s or any other jurisdictions’ conflict of laws rules. In case the parties are unable to resolve any material dispute regarding any matter related to this Agreement or the performance hereunder, the parties shall attempt to resolve such matter by sending a written notice to the other, and each party shall cause its delegate with decision-making authority to communicate regarding the substantive (rather than procedural) matters in dispute, or meet, with the other party in order to discuss and attempt in good faith to reach agreement on the matter(s) in question. If the parties, within ten (10) days of their initial meeting or substantive (rather than procedural) communication, or after such other longer period as the parties may agree upon in writing, are unable to reach agreement on such matter(s) to the reasonable satisfaction of both parties, either party may submit the dispute for resolution by mediation. The mediation shall be conducted in the city of Richmond, Virginia, by JAMS. Mediation will continue for at least fifteen (15) business days unless the mediator chooses to withdraw sooner. At the request of either party, the mediator will be asked to provide an evaluation of the dispute and the parties’ relative positions. Each party shall bear its own costs of mediation effort. If the dispute cannot be resolved through mediation, either Party may commence an action to ultimately resolve the dispute by referring the matter to the following venue and jurisdiction, as follows. Purchaser and sfm medical stipulate and agree that the court of competent subject matter jurisdiction for Henrico County, Virginia, U.S.A., shall have jurisdiction and both parties agree that such venue is proper in such courts for all actions or proceedings with respect to these General Terms. The prevailing party shall be entitled to recover from the other party its actual costs and expenses (including allowable attorney’s fees and expenses) incurred in connection with any litigation between the parties relating to or arising under this Agreement.
General Terms and Conditions of sfm swiss medical AG
Status: 2018
1. GENERAL REGULATIONS, SCOPE OF VALIDITY
1.1 These General Terms and Conditions ("GTC") of sfm swiss medical AG ("we" or "us") apply to business relations with our clients ("Client"), no matter if the Client is an individual, an entity or a public law institution.
1.2 The subject matter of the business relation is, in particular, the sale and delivery of products ("Products") produced by us or by sfm medical devices GmbH, Germany, and/or the provision of other agreed services ("Services").
1.3 The GTC apply in their respectively valid version. We reserve the right to adapt the GTC if necessary. Adaptations occur, in particular, in case of respective invalidity or ineffectiveness of existing provisions or adaptations of laws or standards. We will inform the Client about the respective adaptations in writing. If the Client does not reject the new GTC within 30 days from reception of the adaptation notice, the adapted GTC are deemed accepted. The respectively current version of our GTC can be accessed via our website [www.sfm.de].
1.4 Only these GTC are relevant for our deliveries and Services. Any deviating, contradicting or complementary General Terms and Conditions of the Client will only become a part of the contract if and as far as we have expressively consented to their validity. This consent requirement also applies if we execute the delivery and/or Service to him without reservation, being aware of the General Terms and Conditions of the Client.
1.5 Any individual agreements with the Client concluded in the individual case, including side agreements, amendments and/or modifications, prevail over these GTC in each case. A written contract or our written confirmation is decisive for the content of such individual agreements.
1.6 Legally valid declarations and notifications to be provided to us by the Client after contract conclusion (e.g. setting deadlines, notices of defects), require the written form to be effective.
2. CONTRACT CONCLUSION
2.1 Our proposals are always nonbinding and without obligation.
2.2 The Client’s order is deemed a binding contract proposal ("Order").
2.3 To accept the Order, a written confirmation (e.g. order confirmation) by us ("Order Ac-ceptance") is necessary. With the acceptance of the Order, a contract is established between us and the Client ("Contract").
2.4 The written confirmation is decisive for the content of the Contract, even if it shows minor or customary deviations from the Order. Such deviations are deemed accepted by the Client if we do not receive a written objection of the Client within two (2) weeks from his reception of the written confirmation. In case of congruence of the Order and the written confirmation, the Client has no right to claim any objections.
3. RELEASE OF PRODUCTION FOR THE PRODUCTS, MEANS OF PRODUCTION, ACCEPTANCE
3.1 As far as the Product is produced according to the specifications and requirements of the Client, an acceptance is required before the beginning of the production of the Product with respect to the production process for the respective Product and the re-spective sample of the Product ("Acceptance"). An Acceptance is also required as far as we manufacture the tools necessary for the production of the Product.
3.2 The details with respect to such Acceptance(s) and to the manufacturing of the means of production will be separately agreed by the parties.
4. DELIVERY, DEADLINES, DELIVERY DELAY, RISK ASSUMPTION
4.1 As far as nothing else has been agreed in writing, we send the Product directly to the Client (sales shipment). In doing this, in particular, we are entitled – subject to any dif-ferent written agreement – to determine the mode of shipment ourselves (in particular the carrier and transport route). Due to the product characteristics, the packaging is de-fined in advance and cannot be modified. Subject to any different written agreement, the risk of accidental loss and accidental degradation of the Product and of any delays is transferred to the Client upon the handover of the Product to the carrier, the for-warder or any other person charged with the execution of the transport within the meaning of art. 185 par. 2 OR (Code of Obligations). In modification of art. 185 par. 2 OR, this also applies if the Product is transported by a helper or by our employees. If the Client is in default of acceptance, this is equivalent to a delivery. If the Client falls into default of acceptance or fails to cooperate or if our delivery is delayed for other reasons attributable to the Client, we are entitled to claim compensation of the damage resulting therefrom, including additional expenses (e.g. storage costs, cost of preserva-tion and protection of the Product).
4.2 The agreement of any delivery/service deadlines will be made individually and is only binding if we confirm the respective delivery/service deadline in writing when accepting the Order. A bindingly agreed delivery/service period does not start running until the reception of our written confirmation by the Client.
4.3 As far as we cannot keep a binding deadline for reasons not attributable to us (so-called non-availability of Service), we will inform the Client thereof immediately and in-dicate the expected new deadline. If the delivery and/or Service is still unavailable within the new period, we are entitled to withdraw from the respective Contract wholly or partially; we will immediately restitute any consideration provided by the Client. A case of non-availability of the Service within this meaning is given, in particular, if we have not been supplied on time by our supplier if we have concluded a congruent cov-ering transaction (binding and sufficient ordering of the Product on time).
4.4 The occurrence of our default is subject to the legal provisions. In any case, however, a written reminder by the Client is required.
4.5 In principle, we are entitled to provide partial deliveries if this is necessary for logistic reasons and reasonable for the client.
Unless otherwise agreed, we additionally reserve the right to deliver quantities within a tolerance of ±10% of the ordered quantity for orders of customer specific products.
5. PRICES, PAYMENT
5.1 Unless anything different has been agreed in writing in the individual case, our prices valid at the moment of the Order according to the proposal sent to the Client in writing apply, plus legal VAT, if applicable. The costs for the packaging required for transport will be listed separately unless otherwise agreed in writing. The other costs for trans-port, dispatch and fees, taxes (except for VAT) and other public duties are included in the respectively valid prices unless otherwise agreed. As far as the Product is delivered on pallets and/or in containers and these loading aids are not exchanged, we will charge the Client for these pallets and/or containers.
5.2 Payments must be made in Swiss francs. The price is due and payable net within thirty (30) days from the invoice date. In case of cheque payments, the date of redemption of the cheque is decisive, in case of bank transfers the day of crediting on our account.
5.3 The client only has any rights of setoff or retention as far as his claim is legally con-firmed or undisputed. In case of defects of the delivered Product, the counter-rights of the client, in particular according to n° 9 of these GTC, remain unaffected.
5.4 We reserve the ownership of the delivered Product until the reception of all payments from the business relation with the Client.
6. DEFAULT OF PAYMENT, PAYMENT DIFFICULTIES
6.1 At the expiry of the above-mentioned (cf. n° 5.2 of these GTC) payment deadline, the Client falls into default without a reminder (Expiration Day). During the period of default, the price to be paid is subject to the respectively applicable legal default interest rate. We reserve the claim of any additional default damage incurred.
6.2 If an essential deterioration of the financial situation of the Client occurs after conclu-sion of the Contract, within the meaning of art. 83 OR, which is given, in particular, in case of an application for insolvency proceedings or the cessation of payments to us, we are entitled, according to the legal provisions, to exercise a right to refuse perform-ance for all outstanding deliveries and/or, after setting a grace period without success, immediately withdraw from the contract (art. 83 par. 2 OR). This also applies if the Cli-ent is in default with an essential part of the payment obligations towards us. Any fur-ther legal rights to claim damages instead of performance or compensation for ex-penses remain unaffected.
7. PRODUCT SAFETY
7.1 We make efforts to guarantee the best possible safety with respect to our Product. To do this, the Client will support us to the best of his knowledge, in particular as de-scribed below.
7.2 In relation to the execution of the contract and the subsequent use of the Product (in particular storage/transport, further processing, release to customers), the Client might have to bear certain obligations on his own with respect to product safety law or certain regulations, in particular on medical devices. In particular, the Client is obliged to pro-vide the necessary instructions to his customers, to monitor the Product marketed by him and, if applicable, initiate required measures of risk prevention. The Client will re-spect such legal obligations without exception.
7.3 The Client will follow any instructions given by us concerning the respective Product without exception and immediately forward to his customers any instructions, applica-tion notes, warnings and risk descriptions transmitted to him. In addition, the Client agrees to impose respective obligations to his customers to forward the respective in-formation. If the Client – e.g. on the occasion of any complaints from his customers – gains any knowledge of product risks, side effects or other safety problems, he will for-ward the respective information to us immediately.
7.4 The Client shall ensure an appropriate storage and, if applicable, an appropriate further transport of the Product – in particular in compliance with our instructions. The Client will document the conditions for storage and, if applicable, transport in a conclusive form and grant us access to the respective documents on request.
8. EXAMINATION OF THE PRODUCT
8.1 The precondition for any claims for defects of the Client is that he has fulfilled his legal obligations of inspection and complaint (art. 201 OR). For this sake, the Client will care-fully inspect the delivered Product immediately after its reception. If the inspection shows a defect of the delivered Product, the Client will notify this defect to us immedi-ately, but at the latest within five (5) working days from reception of the Product, in writ-ing. The Client will notify any hidden defects to us immediately, but at the latest within five (5) working days from detection of the hidden defect, in writing. To keep the dead-line, it is sufficient to send off the notification of defects in time. If the Client fails to no-tify the defect or if the notification of defects is late, the Product is deemed approved. Our liability for any defect which has not been notified on time is excluded.
8.2 If the Client detects a defect of the Product, he will stop any processing or further treatment of the Product immediately after the detection of the defect.
9. DEFECT RIGHTS
9.1 The Client’s rights in case of defects of quality and title are subject to the legal provi-sions, as far as nothing else is provided for below.
9.2 Any deviations of the delivered from the purchased Product with respect to external appearance, weight and/or dimensions of the Product are negligible if and as far as these deviations (i) are customary or technically unavoidable if the norm provisions are still fulfilled, (ii) represent a further technical development if the norm provisions are still fulfilled, or (iii) are caused by a change of the legal provisions or other regulations. The Client is free to prove that such deviations are significant for him. Insignificant devia-tions do not represent a defect.
9.3 If the delivered Product and/or the provided Service is defective, we can first choose whether we provide supplementary performance by correcting the defect (rework) or by delivering an object free from defects (replacement). Our right to refuse supplementary performance subject to the legal preconditions remains unaffected.
9.4 If the supplementary performance has failed or an appropriate grace period to be set by the Client for the supplementary performance has expired without success or is not necessary according to the legal provisions, the Client can withdraw from the contract or reduce the remuneration. Claims for damages and/or compensation for wasted ex-penses of the Client only exist according to n° 11 of these GTC, apart from that, they are excluded.
9.5 The expenses necessary for examination and supplementary performance, in particular transport, route, labour and material costs, will be borne by us if a defect really exists. If, however, the Client’s demand for correction of a defect turns out to be unjustified, we can claim compensation by the Client for the costs therefore incurred.
9.6 The Client is not entitled to claim defect rights if and as far as he or any third party commissioned by him (i) has assembled, handled or used the Product improperly or in-correctly, or (ii) has otherwise altered the Product if this has caused the defect.
10. DISPOSABLE PRODUCTS
10.1 As far as the Product is sterilized Product, it is only destined to be used once and is correspondingly marked by us as a disposable product ("Disposable Product"). These Disposable Products are not suitable for reuse. In light of these risks, we explicitly is-sue a warning of the reuse of Disposable Products.
10.2 As far as the Client reuses the Disposable Products despite our warning, this reuse occurs at his own risk.
10.3 The Client is not entitled to claim any defect rights if and as far he has reused a Dis-posable Product and that product shows any defects related to its reuse deviating from the agreed specifications.
10.4 The Client’s obligation to forward information to his customers (cf. n° 7.3 of these GTC) also holds for our notices related to Disposable Products.
11. LIABILITY
11.1 As far as nothing else can be inferred from these GTC including the subsequent provi-sions, we are liable according to the applicable legal provisions in case of a breach of contractual and non-contractual obligations.
11.2 We are liable for compensation – no matter on which legal grounds – in case of intent and gross negligence. Any liability for slight negligence is excluded.
11.3 The limitations of liability resulting from n° 11.2 of this regulation do not apply as far as we have fraudulently concealed a defect or assumed a quality guarantee. The limita-tions of liability do not apply either to any claims of the Client according to the Product Liability Act nor in case of any other compulsive provisions.
11.4 As far as our liability is excluded or limited, this also applies to the personal liability of or employees, representatives and other agents.
12. STATUTE OF LIMITATION
12.1 By derogation from art. 210 OR / art. 371 par. 1 OR, the general limitation period for claims for defects of quality and title is one (1) year from delivery.
12.2 The above-mentioned reduction of the limitation period does not apply to third-party in rem claims for return (art. 192 par. 1 in connection with art. 127 OR), to cases of fraudulent intent by us (art. 210 par. 6 OR) and breach of any quality guarantee. The limitation periods of the Product Liability Act also remain unaffected in each case.
12.3 The above-mentioned limitation periods also apply to contractual and non-contractual damage claims of the Client based on a defect of the Product, unless the application of the regular legal statute of limitations (in particular art. 60 OR) would lead to a shorter limitation period in the individual case.
13. RIGHT OF WITHDRAWAL
In case of a breach of contract by the Client, in particular in case of a failure to pay the due purchase price, we are entitled to withdraw from the Contract according to the le-gal provisions and to claim a return of the Product on the basis of the retention of title and the withdrawal. If the Client does not pay the due purchase price, we may exercise these rights only if we have already granted the Client an appropriate grace period for payment without success or if such a grace period is not necessary according to the legal provisions.
14. CONFIDENTIALITY
As far as the Client gains access to our illustrations, drawings, calculations and/or other company and/or trade secrets ("Confidential Information"), the Client will treat them confidentially. The Client is not entitled to disclose this Confidential Information to any third parties without our explicit written consent. In case of consent, the Client will make Confidential Information accessible to any third parties only as far as this is absolutely necessary. Information which is known or accessible to the public does not represent Confidential Information. Confidential Information the Client is obliged to disclose due to legal provisions or instructions by authorities/courts is exempted from the confidenti-ality obligation.
15. PLACE OF JURISDICTION, APPLICABLE LAW
15.1 The exclusive – also international – place of jurisdiction for all disputes directly or indi-rectly arising from or in relation to the GTC or the legal relations between us and the Client is the Canton Court of Zug, Switzerland, as far as no other places of jurisdiction are mandatory. We are also entitled, however, to file a suit at the general place of juris-diction of the Client.
15.2 Swiss law applies to these GTC and all legal relations between us and the Client. The UN Sales Law (CISG) is explicitly excluded.
16. SEVERABILITY
If any individual clauses of these GTC are or become wholly or partially invalid, unen-forceable or void, this does not affect the validity of the remaining clauses. As far as any individual clauses have not become part of the Contract or are invalid, unenforce-able or void, the legal provisions apply. As far as there is no corresponding legal provi-sion, the clause which has not become part of the Contract or is invalid, unenforceable or void is replaced by a clause which the parties would have included if they had con-sidered this issue in advance; in doing that, the mutual economic interests must be taken into account in an appropriate, reasonable manner. The preceding phrase ap-plies analogously in case of regulation gaps.
These general terms and conditions are valid without signature.
sfm swiss medical AG