Terms and Conditions of Delivery and Payment
Terms and Conditions of Delivery and Payment of Fresenius Medical Care Deutschland GmbH Bad Homburg.
1. VALIDITY
1.1 These Terms and Conditions of Delivery and Payment ("Terms and Conditions") apply to our deliveries and services to undertakings, in particular also doctors, legal entities under public law or a special public fund ("Purchaser").
1.2 These Terms and Conditions also apply to all future business relationships with the Purchaser even if this has not been expressly agreed upon.
1.3 Any deviating terms and conditions of the Purchaser which we do not expressly acknowledge in writing are not binding on us, even if we do not expressly object to them.
2. OFFER AND CONCLUSION OF CONTRACT
2.1 Our offers are non-binding and subject to change.
2.2 A contract is only concluded if we confirm the order in writing within 14 calendar days of receiving it, or if we carry out the delivery or services.
2.3 If the Purchaser's financial situation and/or liquidity situation deteriorates significantly after conclusion of the contract, or if such circumstances already exist at the time the contract is concluded but only become known subsequently, we may withdraw from the contract if the Purchaser is not prepared to provide concurrent performance, security or advance payment despite being requested to do so.
3. PRICES, DELIVERY TERMS AND PAYMENT
3.1 Unless otherwise agreed, all prices indicated by us are net prices free carrier (FCA Incoterms 2020); place of delivery as specified in the order or order confirmation. VAT at the currently applicable rate will be added to the prices.
3.2 Unless otherwise agreed, payment must be made, at our choice, cash against documents or against irrevocable documentary credit confirmed by a German bank.
3.3 Even if there are complaints on the grounds of defects, the Purchaser may only set-off or exercise a right of retention against our due payment claims if its counterclaims are undisputed or final and absolute.
3.4 If the Purchaser is in default with payment and payment is requested from the Purchaser again, we are entitled to demand a flat-fee for the reminder in the amount of EUR 5.00 for the first reminder, EUR 10.00 for the second reminder and EUR 25.00 for the third reminder unless the Purchaser proves that the actual costs incurred for the reminders were lower or that no such costs were incurred. This does not affect any further-reaching statutory claims or rights.
4. PACKAGING
4.1 Unless otherwise agreed, seaworthy packaging or other packaging will only be provided at the express request of the Purchaser and at the Purchaser's cost.
4.2 Packaging can be returned to our supply sites during normal business hours. Packaging must be returned empty, free of foreign matter and contamination, and sorted according to type of packaging. If the aforementioned duties are not fulfilled, we may charge the Purchaser for any additional costs incurred by us for cleaning and sorting.
4.3 Packaging materials from contract work (Lohnarbeit) may not be returned.
5. SHIPPING
5.1 Unless otherwise agreed, our deliveries are free carrier (FCA Incoterms 2020); place of delivery as specified in the order or order confirmation.
5.2 If possible, special requests by the Purchaser concerning the shipping method will be taken into account in return for reimbursement of the additional costs.
6. DELIVERY, DELAY IN DELIVERY
6.1 We reserve the right to make partial deliveries, deliveries in other sizes or packaging or replacement deliveries, to the extent the Purchaser can be reasonably expected to accept them.
6.2 Compliance with delivery dates and performance deadlines is subject to the condition that we are supplied correctly and promptly by our suppliers, insofar as we are not responsible for the delay in delivery by our suppliers. We will notify the Purchaser as soon as possible if it becomes apparent that delays are likely.
6.3 In the event of a delay in delivery, in addition to performance the Purchaser may also demand compensation for any loss incurred from the delay. However, provided we have not acted with intent or gross negligence and there is no injury to life, limb or health, the claim to compensation in addition to performance is limited to 0.5 % of the net invoice amount of the delivery concerned per full week of default, but no more than 5 % of the net invoice amount of the delivery concerned. This has no effect on the Purchaser's right to withdraw from the contract after a reasonable period has elapsed and/or to compensation for non-fulfilment pursuant to clause 10.
7. RESERVATION OF TITLE
7.1 We reserve title in the delivered goods ("Reserved Goods") until all claims arising from the business relationship, including any outstanding balances receivable from current accounts, are settled in full.
7.2 If the Purchaser intends to move the Reserved Goods to a location outside Germany, or if we deliver to such a location, the Purchaser is required to take whatever measures are necessary under the laws applicable there without undue delay at its cost to ensure that our reservation of title is safeguarded and to inform us hereof without undue delay.
7.3 Any processing or treatment by the Purchaser will be deemed to have been carried out for and will not result in any obligations for us. If in processing the Reserved Goods are combined with other items which do not belong to us, we will acquire pro-rata co-ownership in the new item commensurate with the ratio of the value of the Reserved Goods (invoiced amount) supplied to that of the other processed items at the time of processing. If the Reserved Goods are irreversibly combined or mixed using other items which do not belong to us, we will acquire co-ownership in the new item in the ratio of the value of the Reserved Goods (invoice end amount including VAT) to the other combined or mixed constituents at the time of such combining or mixing. If the combining or mixing process takes place in such a way that the Purchaser's item must then be regarded as the principal item, then it is deemed agreed that the Purchaser will transfer co-title therein to us in the ratio of the value of the Reserved Goods (invoiced amount) to the other combined or mixed constituents at the time of such combining or mixing. We hereby accept such transfer.
7.4 The Purchaser is revocably entitled to resell the Reserved Goods in the ordinary course of business. We will not revoke the authorisation to resell as long as the Purchaser duly meets its payment obligations and does not fall into default with payment. The Purchaser is however prohibited from making other dispositions outside the normal course of business, in particular transferring ownership or pledging, until payment has been made in full. The Purchaser assigns to us here and now any claims to which the Purchaser may be entitled from the resale of Reserved Goods, in the invoiced amount for the Reserved Goods, irrespective of whether they have been further processed, combined or mixed. We accept such assignment.
7.5 The Purchaser has a revocable right to collect the assigned claims. This does not affect our right to collect the claims. We will not collect the claims ourselves and will not revoke the Purchaser's authorisation to collect the claims as long as the Purchaser duly meets its payment obligations and does not fall into default with payment. For legitimate reason, the Purchaser must notify its debtors of the assignment and provide us with any information and documents which we need to assert our rights.
7.6 We must also be notified without undue delay of any seizure or other confiscation by third parties. If the third party is unable to reimburse us for costs incurred in court or out of court in legal action to protect our property, the Purchaser is liable for our loss.
7.7 If the realisable value of the securities exceeds the claims secured by more than 10 % we will release securities at our discretion on request by the Purchaser.
8. RETURNS OF SPARE PARTS, CONSUMABLES AND DEFECTIVE GOODS
8.1 It is only possible to return spare parts, consumables and defective goods in return for a credit note with our prior written consent. Goods that are not purchased from us directly must be returned where they were purchased.
8.2 The Purchaser must register returns of spare parts, consumables and defective goods with the sales representative responsible for it or one of our customer service employees, noting the grounds, customer number and the delivery note number. If the form "Registering a Return" is provided by the seller, it can be used for this purpose; the sales representative in charge or a member of the customer service staff will provide such form to the Purchaser on request and will also explain the further procedure regarding the return to the Purchaser on this occasion. With its signature the Purchaser confirms the return and proper storage of the goods, and will receive a copy of the return slip on request.
8.3 It is not permitted to returns spare parts or consumables in return for a credit note in the following cases:
8.3.1 goods which are not in marketable condition under the German Medical Products Act (Medizinproduktegesetz).
8.3.2 goods which are not in the original packaging, not intact or which are labelled or affixed.
8.3.3 goods which can no longer be kept for at least four months.
8.3.4 goods which were not stored as specified on the label.
8.3.5 goods which are medicinal products.
8.4 The Purchaser is responsible for ensuring that goods which are returned are not contaminated by infectious agents and that they do not pose a health hazard.
8.5 Goods which may not be returned pursuant to clause 8.3 and which the Purchaser has sent back to us unbidden will not be returned to the Purchaser. We reserve the right to destroy such goods received unbidden at the cost of the party returning the goods.
8.6 Returns may only be made using the return slip issued by us. The Purchaser must pack and ship the goods at its own expense in a sturdy cardboard box, e.g. the original box, and use a transportation aid, if necessary.
8.7 The provision on returns in this clause 8 does not limit the Purchaser's claims to subsequent fulfilment pursuant to clause 9.
9. CLAIMS FOR MATERIAL DEFECTS
9.1 The Purchaser will inspect the goods without undue delay after receipt and notify us in writing of any defects without undue delay, at the latest five working days after delivery or performance. The Purchaser must notify us in writing and without undue delay of any defects which were not recognisable in the context of its due incoming goods inspection, at the latest three working days after discovering the defects. If complaints or notification of defects are not made on time, deliveries and services are deemed approved unless the defect was maliciously concealed.
9.2 We only assume guarantees to the extent that we have assumed a guarantee in writing for the respective product group and only in accordance with our general guarantee conditions for the respective product group; the Purchaser does not receive any further guarantees in the legal sense from us. This does not affect any manufacturer's guarantees.
9.3 We are entitled to choose between remedying the defects or supplying a replacement. If the defect cannot be remedied even by a second repair or replacement delivery, if such remedy of the defect is unjustifiably refused, unduly delayed, if it is impossible for other reasons or if it is unreasonable for the Purchaser, the Purchaser may, if the other conditions are met, withdraw from the contract or demand a reduction of the purchase price or remuneration and compensation for damages in accordance with clause 10.
9.4 Subsequent fulfilment does not include removal of the defective goods or reinstallation of the defect-free or repaired item or reimbursement of the associated costs if our original obligations did not include installation.
9.5 The maintenance and the prescribed technical safety checks (TSC) on our equipment must be carried out or commissioned at the Purchaser's cost at the time intervals specified by us. If we inquire in this respect and the Purchaser cannot prove that it has had the maintenance and the TSC carried out properly, all warranty claims (Gewährleistungsansprüche) against us expire if the defect was caused by failure to perform maintenance or failure to perform the TSC.
9.6 The warranty period (Gewährleistungsfrist) is 12 months from delivery of the goods. This period does not apply to claims asserted by the Purchaser for compensation arising from injury to life, limb or health or from wilful or grossly negligent breaches of duty which become statute-barred in each case under statutory provisions. The warranty period (Gewährleistungsfrist) for spare parts is 12 months.
9.7 The provisions on warranty (Gewährleistung) do not apply to the provision of services within the meaning of section 611 German Civil Code (Bürgerliches Gesetzbuch); the statutory provisions remain unaffected in this respect.
10. LIABILITY
10.1 We are liable without restriction in the event of negligent injury to life, limb or health. We are also liable in the event of intent or gross negligence. However, if we have not acted with intent and there is no culpable damage to life, limb or health, our liability is limited to foreseeable damage typical of this type of contract.
10.2 We are also liable in the event of culpable breaches of such duties which are material for fulfilling the contract and which the Purchaser relies or is entitled to rely on being fulfilled. However, if we have not acted with intent and there is no culpable damage to life, limb or health, our liability is limited to foreseeable damage typical of this type of contract.
10.3 We are also liable for malicious failure to disclose a defect or where a guarantee has been assumed. In the latter case, the extent of liability depends on the wording of the guarantee. We are also liable in instances of mandatory statutory liability, for example under the German Product Liability Act (Produkthaftungsgesetz) or the German Medicinal Products Act (Arzneimittelgesetz).
10.4 With regard to the rest, liability is excluded irrespective of the legal ground, unless set out otherwise in these Terms and Conditions.
10.5 Where our liability is excluded or limited under the above provisions, this also applies to the personal liability of our directors and officers, legal representatives, employees, staff and vicarious agents.
11. EXPORT CONTROL CLAUSE
11.1 The Purchaser will fully comply with all applicable trade laws and regulations, such as economic sanctions laws and regulations ("Sanctions"), laws and regulations governing the import, export and re-export of goods and services ("Export Controls") and any laws applicable to the import and/or export of goods and services as they relate to customs duties, charges and other taxes ("Customs Regulations").
11.2 The Purchaser agrees to comply with our Trade Governance Standards which can be accessed via the following link: www.freseniusmedicalcare.com/en/trade-governance/.
11.3 The Purchaser hereby confirms that it is not targeted by any applicable Sanctions and/or Export Controls. If the Purchaser is a legal entity, it also confirms that (i) it is not owned or controlled, directly or indirectly, by an individual or entity targeted by applicable Sanctions and/or Export Controls, and (ii) none of its board members is targeted by applicable Sanctions and/or Export Controls.
11.4 The Purchaser will inform us immediately without delay if the Purchaser and/or any of the persons reffered to above become targeted by any applicable Sanctions and/or Export Controls.
11.5 We have the right, at our sole discretion, to immediately terminate, cancel or suspend any delivery, transaction or the performance of any obligation towards the Purchaser without incurring any penalties (i) in case of any violation of this trade laws and regulations compliance clause by the Purchaser, (ii) if the Purchaser or any of the persons referred to in this clause become the target of applicable Sanctions and/or Export Controls, and/or (iii) if the performance of our obligations thereunder would violate applicable Sanctions and/or Export Controls.
11.6 The Purchaser will hold harmless us in full for any loss arising out of Purchaser's violation of Sanctions, Export Controls and/or customs regulations.
11.7 At our request, the Purchaser will provide valid end-use and end-user certificates prior to the delivery of products. The Purchaser undertakes to immediately inform us if provided end-use and end-user certificates are no longer accurate.
12. SHARED VALUES
12.1 As stated in the FRESENIUS MEDICAL CARE Code of Ethics and Business Conduct, we uphold the values of integrity and lawful conduct, especially with regard to anti-bribery and anti-corruption. FRESENIUS MEDICAL CARE upholds these values in its own operations, as well as in its relationships with business partners. Our continued success and reputation depends on a common commitment to act accordingly. Together with us, the Purchaser is committed to uphold these fundamental values by adherence to applicable laws and regulations.
13. APPLICABLE LAW
13.1 All legal relationships between the Purchaser and us are subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for International Sale of Goods (CISG).
14. PLACE OF PERFORMANCE AND PLACE OF JURISDICTION
14.1 Place of performance and jurisdiction is our registered office in Bad Homburg. However, we are entitled to assert a claim against the Purchaser at its general place of jurisdiction.
15. MISCELLANEOUS
15.1 Should any provision of these Terms and Conditions or a provision in connection with other agreements be or become invalid, this will have no effect on the validity of the remaining provisions or agreements.
ADDITIONAL PROVISIONS FOR WORK PROVIDED UNDER A CONTRACT OF WORKS AND SERVICE (WERKLEISTUNGEN)
16. SCOPE OF APPLICATION
16.1 The following additional provisions apply if we provide services which are to be qualified as work services within the meaning of section 631 German Civil Code.
17. TERMS OF PAYMENT
17.1 In addition to clause 3, we are also entitled to demand partial payment for services already rendered pursuant to the contract insofar as such services can be considered individually as part performance, and the Purchaser is enriched by such part performance. This applies in particular where there are separate stages in the provision of services, which can be regarded separately and as independent functional units.
18. PERIOD OF PERFORMANCE
18.1 In conjunction with clause 6 all periods and dates for performance will be postponed and extended in the Purchaser does not promptly provide support services which are owed or requests changes to performance.
19. SUPPORT OBLIGATIONS OF PURCHASER
19.1 The Purchaser is required to provide us with all information necessary for performance and to support us to the extent necessary. If performance is to be carried out at the Purchaser's premises, the Purchaser must in particular ensure access to the object of performance and take all necessary safety measures with regard to our employees.
19.2 If the Purchaser does not satisfy its support obligations within a reasonable deadline set by us, we are entitled to rescind the contract. If the Purchaser is asked and does not provide support, then it is in default in accepting performance and must pay appropriate compensation. Further compensation claims remain unaffected hereby.
20. ACCEPTANCE
20.1 The Purchaser is obliged to accept performance rendered in accordance with the contract unless the obligation to accept was excluded in writing. The Purchaser is only entitled to refuse acceptance if there are material defects. At our request the Purchaser must declare acceptance in writing.
20.2 Performance is deemed accepted even if the Purchaser does not declare acceptance within a reasonable period set by us, unless it is not obliged to do so. If the Purchaser uses our services, acceptance is deemed to have been granted five working days after commencement of use.
21. LIABILITY OF THE PURCHASER
21.1 In the event of destruction of or damage to the object of performance due to a defect in the material provided by the Purchaser or due to instructions given by the Purchaser or due to other acts or omissions by the Purchaser, its legal representatives or its vicarious agents, we are entitled to demand remuneration for the respective performance already rendered and compensation for expenses not already included in the remuneration and loss of profit.
21.2 The above applies accordingly in the event of destruction or damage to the object of performance or it if is otherwise impossible to provide performance on the business premises of the Purchaser.
21.3 In the event that it is not possible to provide performance pursuant to clauses 21.1 and 21.2. above, we may demand the agreed remuneration. However, we are obliged to compensate for the expenses saved due to the impossibility of performance as well as for what we acquire or maliciously fail to acquire by using our working capacity elsewhere.
22. WARRANTY PERIOD (GEWÄHRLEISTUNGSFRIST)
22.1 Departing from clause 9.6, the warranty period (Gewährleistungsfrist) commences on acceptance.