General Terms and Conditions of Purchase
Last updated September 20, 2024
I. General, Scope
These General Terms and Conditions of Purchase (the “General Purchase Conditions”) apply to all offers, orders, and contracts concluded concerning goods and services of all kinds (collectively referred to as “Services”) by Kardion GmbH, its affiliated companies within the meaning of Sections 15 et seqq. German Stock Corporation Act (Aktiengesetz, AktG), as well as their legal successors (in each case the “Purchaser“) in business dealings with entrepreneurs as defined in Section 14 German Civil Code (Bürgerliches Gesetzbuch, BGB), legal entities under public law or public law special funds (in each case the “Contractor”) (and together with the Purchaser the “Contract Partners”).
Contracts between the Purchaser and the Contractor as well as individual offers and orders are governed exclusively by the current applicable version of the General Purchase Conditions. The current version of the General Purchase Conditions can be accessed at www.kardion.com/purchase-terms.
With the first performance of a delivery or Service governed by the General Purchase Conditions, the Contractor acknowledges their exclusive application for all further offers, orders and contracts, even if this is not explicitly agreed again.
The application of general terms and conditions of the Contractor that contradict or deviate from the General Purchase Conditions is hereby explicitly excluded, unless the Purchaser explicitly agreed, in textform, to their application. The General Purchase Conditions also apply exclusively if, in full knowledge of general terms and conditions of the Contractor that contradict or deviate from these General Purchase Conditions, the Purchaser accepts a Service without reservation or makes payment for such Service.
Agreements made orally or by telephone, as well as agreements with employees of the Purchaser, are legally binding for the Purchaser only once the Purchaser has explicitly acknowledged them, in textform.
II. Conclusion of Contract
In its declaration of will issued in response to a request by the Purchaser with the aim of concluding a contract (the “Offer”), the Contractor must follow the request precisely with respect to the information provided and, in the event of any deviation, explicitly point this out, in textform. Offers shall be issued without delay following the request by the Purchaser and are at all times free of charge for the Purchaser.
The Purchaser has the right, at no extra cost, to revoke its binding declaration of will intended to conclude a contract (the “Order”) if it is not confirmed unamended by the Contractor within two weeks of receipt (the “Confirmation”).
Offers, Confirmations and deviations from the Order made by the Contractor and Orders of the Purchaser, as well as any amendments or additions made to the Order by the Purchaser, must be made in textform.
III. Scope, Documentation, Deviations
The Order placed by the Purchaser is authoritative with respect to the scope of the contract (including any annexes thereto) even if this has not been confirmed by the Contractor.
Any deviations from the Order set forth in the Confirmation issued by the Contractor must be clearly marked, notified to the Purchaser in textform and are subject to the Purchaser’s approval in textform. If the Contractor fails to provide such notification, neither the Purchaser’s silence in response to the Contractor’s declaration of will, nor the acceptance of the goods or Service by the Purchaser shall be deemed to constitute acceptance. Any Confirmation by the Contractor that amends the Order is deemed to constitute a new offer, to which the Contractor is bound for a period of two weeks from receipt by the Purchaser. Purchaser’s acceptance must be made in textform.
All documentation and information concerning the relevant Service provided by the Contractor to the Purchaser and by the Purchaser to the Contractor or otherwise made available (e.g. service specifications, descriptions, procedures and logistic schedules) is deemed to constitute contractually agreed conditions.
Even after the conclusion of the contract, the Purchaser may demand technical amendments and additions to the construction and version of the goods as well as changes to the Services, provided this is reasonable for the Contractor. Any resulting consequences are to be given due consideration by both Contract Partners, in particular with a view to additional or lower costs, as well as dates of Services.
The Contractor is not entitled to make changes to the Services without the Purchaser’s prior consent, such consent to be provided in textform.
IV. Prices and Payment Terms
Unless otherwise agreed by the Contract Partners, in textform, the prices stated by the Purchaser in the Order are fixed prices, for delivery free of charge to the specified destination, including packaging and other ancillary costs. All prices are net and are subject to VAT at the applicable statutory rate. All dispatch papers, copies and invoices will state the order details and other details of the Purchaser.
Unless otherwise agreed in textform, the Purchaser will pay (i.) with a 3% discount within 14 days, calculated from delivery or collection of the goods, acceptance of the Service or other provision of Service and receipt of invoice; or (ii.) without deduction within 30 days, calculated from delivery or collection of the goods, acceptance of the Service or other provision of Service.
If payment is not made on time due to incorrect or incomplete delivery documentation or incomplete invoice details, payment and discount periods will commence only once such issues have been resolved.
Payments shall not be deemed to constitute acknowledgement that the Service complies with what was contractually agreed.
In the event of the acceptance of premature Services, the payment deadline is based on the agreed performance date.
V. Place of Performance/Place of Subsequent Performance, Performance Date and Default, Performance, Delivery and Collection
Unless explicitly otherwise agreed in textform, the place of performance is the destination stipulated in the Order. The place of subsequent performance is the original destination, unless otherwise agreed in textform.
The delivery, performance and execution dates stated in the Purchaser’s Order are binding. The provision of the Service and/or receipt of the goods at the place of performance is decisive for compliance with the delivery, performance and execution dates.
The Contractor must immediately notify the Purchaser of any delays to deliveries or Services or other postponements, in textform, as soon as such delays become apparent. The Contractor must state in textform the reason for and the expected duration of the delay to delivery or performance. Such notices do not, however, constitute any acknowledgement of new dates by the Purchaser.
Additional costs of expedited delivery or performance that become necessary to comply with delivery, performance and execution dates must be borne by the Contractor, unless it is able to demonstrate that the Purchaser is responsible for the need for expedited delivery or performance.
If the goods are delivered before the delivery date or the Service is offered before the performance date without the Purchaser’s consent, the Purchaser is not under any obligation to accept or render payment until the agreed delivery and/or performance date. The Purchaser is entitled to have goods delivered prior to the delivery date returned or stored with third-party providers at the cost and at the risk of the Contractor.
In the event of delayed delivery or performance of Services, the Purchaser is entitled to demand a lump sum damage caused by delay in the amount of 0.30% of the value of the delivery or Service per working day, but not exceeding a total of 5% of the value of the delivery or Service (“Lump Sum Compensation”). This is without prejudice to further statutory claims. The Contractor has the right to furnish evidence to the Purchaser that no damage was incurred as a result of the delay or that such damage was considerably less. The Lump Sum Compensation will then be reduced accordingly. If the Purchaser can prove that it incurred higher damage, it can, in addition to the rights set for in Section V. 6. sentence 1 of these General Purchase Conditions, demand compensation for any such higher loss. The claim for Lump Sum Compensation remains valid even if it is not explicitly claimed upon delivery or any acceptance of the Service. It can be withheld or asserted for no longer than until the time of final payment.
Any agreed contractual penalty will be deducted from any Lump Sum Compensation or other claim to compensation for damage caused by delay; in the same way, the Lump Sum Compensation will be deducted from any specifically calculated damage caused by delay. The Purchaser reserves any right to assert the agreed contractual penalty for improper performance (Section 341 BGB) until the time of final payment. This is without prejudice to the assertion of compensation claims going beyond an agreed contractual penalty and the Lump Sum Compensation.
Partial delivery or partial performance of Service are permissible only with the explicit consent of the Purchaser in textform. The same applies to over- or under-delivery or performance of Services.
In the event of default by the Contractor, after setting a reasonable grace period and the fruitless expiry of the additional grace period, the Purchaser can at the Contractor’s cost have the delivery or Service that was not rendered by the Contractor performed by a third party or withdraw from the contract and/or demand compensation. If the Purchaser demands compensation, the Contractor has the right to furnish evidence that it was not responsible for the breach.
The acceptance of delayed deliveries and Services does not exclude the right to assert claims to compensation based on delays.
Unless otherwise agreed in textform, the delivery and shipment are subject to DDP Incoterms 2020 to the agreed destination at the cost and at the risk of the Contractor. If, in individual cases, it has been agreed otherwise, in textform e.g. price calculation ex works or sales depot of the Contractor, the consignments are to be shipped at the lowest cost in each case, unless the Purchaser explicitly stipulates a specific type of shipping.
Order number, EDP-number as well as, if known, the commission number must be stated on all dispatch documentation, invoices and correspondence. Failure to do so will result in the Contractor being liable for any consequences, including delays in processing, unless it is able to demonstrate that it was not responsible for such consequences.
If it has been agreed, in textform, that the Purchaser will collect the goods, the Contractor must make said goods available to the Purchaser on time, taking account of the customary time for loading and dispatch of the goods, and notify the Purchaser of this on time and in textform.
VI. Invoices, Right to Set-Off and Retention as well as Assignment
Unless otherwise agreed in textform, invoices are not permitted to cover several Orders and must state the Order details, in particular the Order number and article numbers. The Contractor is solely responsible for delays and other consequences attributable to non-compliance with the stipulations on invoicing, unless it can demonstrate that it is not responsible for the same.
The Purchaser is entitled to set-off and retention rights within the scope of the statutory provisions. The Contractor shall only be entitled to offset counterclaims to the extent that its counterclaims have been legally established, are undisputed or have been recognized by the Purchaser.
The Contractor is not permitted to assign claims against the Purchaser without the Purchaser’s prior consent in textform.
VII. Compliance with Regulations, Evidence and Indemnification
Deliveries and Services of the Contractor must comply with all applicable statutory provisions, in particular safety and environmental regulations, including the Hazardous Substances Ordinance (Verordnung über gefährliche Stoffe), the Electronic Equipment Act (ElektroG), the applicable medical device law (e.g. MPDG, MDR) and the safety recommendations of the competent German expert committees and professional associations (e.g. VDMA, VDE, VDI, DIN). Relevant certifications, test reports and evidence must be supplied free of charge.
The Contractor is required to ascertain and comply with the current standard of the directives and laws applicable to its goods as regards substance restrictions. It may not use prohibited substances. Substances to be avoided and hazardous substances pursuant to the applicable laws and directives must be stated in the specifications issued by the Contractor.
In the case of deliveries and when rendering Services, in particular when carrying out assembly and installation work, the Contractor is solely responsible for compliance with accident prevention regulations and other German occupational safety provisions. Any protective equipment required under the aforementioned laws must be supplied or provided free of charge.
The Contractor will in good time inform itself as to the existing internal company guidelines in place at the Purchaser’s premises or at the place of Services, in particular safety regulations, and will at all times observe such rules when carrying out assembly and installation work.
The Contractor must ensure that the Contractor and all direct and indirect subcontractors, if any (see Section IX), including temporary employment agencies commissioned by the Contractor, observe the statutory provisions on combatting illegal employment (Schwarzarbeitsbekämpfungsgesetz), the Employee Secondment Act (Arbeitnehmerentsendegesetz), the Law on Temporary Employment (Arbeitnehmerüberlassungsgesetz) and the Minimum Wage Act (Mindestlohngesetz). The Contractor will take appropriate measures in respect of any subcontractors commissioned by it in order to ensure and verify compliance by direct and indirect subcontractors and temporary employment agencies with the statutory requirements set forth in this Section VII. 5. of the General Purchase Conditions. In this context, the Purchaser reserves the right to carry out monitoring activities. If claims are brought against the Purchaser by employees of the Contractors or any subcontractors or any temporary employment agencies and/or social funds under Section 14 Employee Secondment Act (Arbeitnehmerentsendegesetz), Section 13 Minimum Wage Act (Mindestlohngesetz) or other statutory provisions establishing equivalent liability, the Contractor will indemnify the Purchaser in full against such claims and any costs and expenses relating thereto, provided the Contractor is responsible for the claim being brought against the Purchaser.
VIII. Passage of Risk and Transfer of Ownership
Unless otherwise agreed in textform, deliveries are to be made in accordance with DDP Incoterms 2020 to the agreed destination at the cost and at the risk of the Contractor. If the goods are to be collected or Services are to be accepted, this shall be decisive for the passage of risk.
Ownership in the goods must be transferred to the Purchaser unconditionally. However, if in individual cases the Purchaser accepts an Offer in textform of the Contractor pursuant to Section II of the General Purchase Conditions that is conditional on the payment of the purchase price, a prolonged retention of title (verlängerter Eigentumsvorbehalt) is deemed to have been agreed. This excludes all other forms of retention of title, in particular extended, assigned retention of title and extension of reservation of title to include processing.
IX. Subcontractor Clause
As a rule, the Contractor must itself fulfil its obligations under contracts with the Purchaser. The involvement of subcontractors, with the exception of companies from the same company group within the meaning of Sections 15 et seqq. AktG, is permissible only with the Purchaser’s prior consent, such consent to be provided in textform. This does not affect the Contractor’s sole responsibility for the due and proper provision of Services.
Even where consent has been provided pursuant to the foregoing provision, the Contractor may transfer Services only to expert, efficient and reliable subcontractors; this includes such subcontractors observing all statutory provisions, in particular those on combatting illegal employment (Schwarzarbeitsbekämpfungsgesetz), the Employee Secondment Act (Arbeitnehmerentsendegesetz), the Law on Temporary Employment (Arbeitnehmerüberlassungsgesetz), the Minimum Wage Act (Mindestlohngesetz) and the provisions on social insurance law, in particular on the payment of employer contributions. The Contractor is liable for subcontractors as for its own agents pursuant to Section 278 BGB.
X. Confidentiality
The Contractor is required to maintain strict confidentiality and secrecy with respect to all not evident commercial and technical details that become known to it in the course of its business relationship with the Purchaser and not to disclose the same to third parties, nor to use the same for personal or third-party purposes in breach of contract (“Confidentiality Duty”).
The Contractor will not modify, reverse engineer, decompile, disassemble or synthesize any confidential commercial or technical details received from the Purchaser.
The Confidentiality Duty shall not or no longer apply to those parts of commercial and technical details which are to be treated as confidential which (i.) are not already in the possession of the Contractor at the time of disclosure due to an unlawful omission or action, and/or (ii.) were or become known to the public or literature prior to or after the date of disclosure without a negligence or unlawful omission or action of the Contractor, and/or (iii.) have been lawfully acquired by third parties who are not subject to any confidentiality duty vis-à-vis the Purchaser in respect of such parts of the confidential commercial and technical details, and/or (iv.) are developed independently of or on behalf of the Contractor and without reference to the confidential commercial and technical details, and/or (v.) are revealed with the prior express written consent of the Purchaser, and/or (vi.) must be disclosed due to mandatory law.
Unless otherwise agreed by the Contract Partners, in textform, the Confidentiality Duty extends beyond the termination of the contractual relationship. It lapses if and insofar as the confidential commercial and technical details become generally known without this involving any breach of the Confidentiality Duty for which the Contractor is responsible.
Manufacturing for third parties and the making available to third parties of goods specially manufactured for the Purchaser, in particular in accordance with plans, drawings or other special requirements of the Purchaser and/or publications concerning the Orders and Services as well as references to such Orders made vis-à-vis third parties are subject to the Purchaser’s prior consent in textform.
For every culpable breach of this Confidentiality Duty, the Purchaser has the right to demand compensation from the Contractor for the resulting damage, which includes profits lost by the Purchaser as a result of the contractually prohibited use of commercial and technical details to be kept confidential by the Contractor.
XI. Ownership of Technical Documentation, Tools, Items Provided
Samples, models, drawings, work documentation, tools and all items provided by the Purchaser to the Contractor or paid for by the Purchaser remain or become property of the Purchaser. Any transfer of possession necessary for the transfer of ownership is replaced by the Contractor storing the items on the Purchaser’s behalf, free of charge, with the care of a prudent businessman.
Any items provided by the Purchaser to the Contractor remain the property of the Purchaser. The Contractor must on receipt label such items as property of the Purchaser, keep these separately and use them only within the scope of the intended use stipulated by the Purchaser.
Any processing or transformation by the Contractor of items provided by the Purchaser is carried out on behalf of the Purchaser. If items owned by the Purchaser are processed together with other items not belonging to the Purchaser, the Purchaser shall acquire co-ownership in the new item proportionate to the value of the Purchaser’s item to the other processed items at the time of the processing. If the item provided by the Purchaser is inseparably amalgamated with other items that do not belong to the Purchaser, the Purchaser shall acquire co-ownership in the new item, proportionate to the value of the Purchaser’s goods to the other mixed items at the time of amalgamation. If the amalgamation is carried out such that the Contractor’s item is to be viewed as the main item, it is deemed agreed that the Contractor assigns proportionate co-ownership to the Purchaser. Any transfer of possession necessary for the accrual of ownership of the Purchaser is replaced by the Contractor storing the item concerned on the Purchaser’s behalf, free of charge and with the care of a prudent businessman.
The Contractor is at its own cost required to take out adequate insurance for all samples, models, drawings, work documentation, tools and items provided by the Purchaser against all customary risks, in particular against fire and theft, and on request by the Purchaser to furnish evidence of the conclusion of such insurance. The Contractor is liable for the damage or loss thereof while these items are within the possession of the Contractor, its subcontractors, if any (see Section IX), or during carriage arranged by the Contractor.
The Contractor is required to notify the Purchaser immediately of any imminent or existing seizure of its items, as well as any other impairment of the rights of the Purchasers.
The items provided are to be returned at the cost and at the risk of the Contractor.
XII. Intellectual Property, Infringement of Proprietary Rights
The Contractor shall ensure that all Services are free from third-party rights, in particular patents, licenses, applications for intellectual property rights and other third-party intellectual property rights as well as, in particular, that the provision and use of the Services does not involve any breach of such third-party intellectual property rights and that this will not violate any law. The Purchaser is not under any obligation to review whether there are any third-party intellectual property rights in the Service.
The Contractor shall indemnify the Purchaser and its clients against third-party claims based on infringements of intellectual property rights if the Contractor is responsible for such infringement. The Contractor’s indemnification duty covers all necessary costs and expenses incurred by the Purchaser and its clients as a result of, or in connection with, the third-party claim.
The Purchaser is entitled under the involvement of the Contractor and at the latter’s cost, to procure consent to the use of the Services concerned from the rightsholder, if the Contractor has negligently infringed third-party IP rights.
The Contract Partners will without undue delay notify one another of all risks of infringement and alleged infringements that come to their attention.
The Purchaser reserves all ownership, copyright and other intellectual property rights in samples, models, drawings, work documentation, tools, production materials, construction plans and all other documents and other items provided to the Contractor for the purposes of performing the contract, as well as in the know-how embodied therein. The Contractor shall not modify, reverse engineer, decompile, disassemble or synthesize any documents or other items received from the Purchaser for the purposes of performing the agreement without the Purchaser’s prior consent in textform.
The items defined in Section XII. 5. of the General Purchase Conditions are permitted to be made available to third parties only for the purposes of performing the contract and only with the Purchaser’s prior consent in textform. They are permitted to be used by the Contractor only for the performance of the contract (and any purpose agreed upon therein) and, on instruction by the Purchaser, are to be returned immediately, but no later than after performance of the contract.
The Contractor may advertise its business relationship with the Purchaser, the Purchaser’s goods or its Services for the Purchaser only with the Purchaser’s prior consent in textform.
The Contractor shall grant the Purchaser the sole and unrestricted right of ownership to any intellectual property rights in work results arising in the context of Services under the agreement at the time of their creation, provided that these are transferable. If the intellectual property rights are not transferable, the Contractor shall grant the Purchaser the exclusive, irrevocable, transferable, sub-licensable and geographically, temporally and contextually unrestricted right of use to any intellectual property rights in work results arising in the context of Services under the agreement at the time of their creation. In particular, the Purchaser shall be authorised, without restriction, to reproduce, edit, otherwise modify, continue and supplement the work results, to distribute them in unmodified and modified form, to publicly reproduce them by wire or wireless means and to transfer them to other forms of presentation.
Insofar as the intellectual property rights referred to in Section XII. 8. are those which already existed with the Contractor prior to the provision of Services under the agreement and are necessary for the use of the work results by the Purchaser, the Purchaser shall receive a non-exclusive, irrevocable, transferable, sub-licensable and geographically, temporally and contextually unrestricted right of use to such intellectual property rights in deviation from Section XII. 8. The transfer and granting of rights in accordance with Sections XII. 8. and 9. shall be compensated by the full payment of the remuneration.
XIII. Quality Assurance and Audits
The Contractor must perform quality assurance suitable in terms of type and scope and in line with the latest technical standards concerning its Services and, on request by the Purchaser, furnish evidence of the same. If necessary, in addition a detailed quality assurance agreement should be concluded.
The Purchaser shall be entitled to inspect the production status at the Contractor’s premises at any time during the Contractor’s normal business hours and to request information about the production status. The Contractor shall ensure that the Purchaser can also inspect the production status at the premises of third parties used by the Contractor for the performance of its obligations, as well as at the premises of the shipping agent or in warehouses, even during the production process, and request information about the production status from them. The same rights according to Section XIII. 2, sentence 1 and sentence 2 of the General Purchase Conditions shall be granted by the Contractor to regulatory authorities within the scope of the applicable medical device law and such rights of such regulatory authorities shall be ensured vis-à-vis third parties used by the Contractor for the fulfilment of its obligations as well as vis-à-vis shipping agents or at warehouses, including during the production process.
If the Contractor has difficulties in the production or supply of the agreed quality or material characteristics of the goods, it is under an obligation to notify the Purchaser of this without undue delay.
The Contractor shall ensure that its goods do not exceed European Union’s limits or limits of the United States of America for radioactive contamination.
XIV. Inspection of Goods and Complaints
The Purchaser will inspect the received goods to establish any deviations in quality or quantity within a reasonable period, as is feasible within the course of ordinary business. The inspection will be based on the Purchaser’s quality criteria. The Purchaser fulfils its inspection obligation if it carries out an incoming goods inspection by externally examining the goods and the delivery documentation as well as inspecting representative random samples.
The Purchaser must notify the Contractor of obvious defects such that the notice of defects is received by the Contractor within four working days. The Purchaser must notify the Contractor of all other defects as soon as these are ascertained in the course of ordinary business. Within the scope of the foregoing Section XIV. 2. sentence 1 and 2 of the General Purchase Conditions, the Contractor waives the objection of late notification of defects.
Sections XIV.1 and 2 shall also apply in favour of any third parties appointed by the Purchaser to receive the Services in the meaning of a genuine contract for the benefit of third parties pursuant to Section 328 para. 1 BGB.
XV. Warranty
In the event of a defect in the Service provided by the Contractor, the Purchaser is entitled without restriction to all statutory rights and claims, in particular statutory warranty rights and claims.
In the case of wearing parts, the Contractor shall ensure that these can be used without defect for the duration of the customary number of hours of operation. The Contractor shall furthermore ensure that its Service corresponds to the state of the art, the regulations issued by the German legislator, supervisory authorities and trade associations and the German Electrotechnology Association (VDE) as well as the applicable EU-Directives and Regulations concerning performance, accident prevention and environmental protection and that it has successfully completed all stipulated environmental impact assessments for this category of goods.
Defects in the Services of the Contractor must be remedied within an appropriate period at the discretion of the Purchaser by rectification of the defect or the supply of a defect-free item, irrespective of whether a contract of sale or contract for work was concluded, unless the Contractor demonstrates that the selected type of subsequent performance would result in unreasonable costs for the Contractor.
All necessary costs incurred as a result of the subsequent performance, in particular inspection costs, costs of labour and materials, installation and disassembly costs, transport and removal costs, as well as additional start-up costs, must be borne by the Contractor. In addition, the Purchaser is entitled to the statutory claims to withdrawal, reduction and compensation provided the statutory conditions are met.
In urgent cases (in particular in the case of threats to operating safety or to prevent significant damage), to resolve minor defects and in the case of delay in the rectification of defects, the Purchaser is entitled following prior information and on expiry of a brief additional grace period appropriate to the situation, at the cost of the Contractor itself to rectify the defect and any resulting damage or to have the same carried out by a third party at the Contractor’s cost. This also applies subject to the same conditions if the Purchaser delivers or performs Services late or the Purchaser has to rectify the defect at short notice in order to avoid delays to delivery.
If the Contractor is responsible for a defect, the Purchaser is entitled at its discretion precisely to calculate the expense required to process the complaint or to demand lump sum compensation of EUR 100.00. The Contractor reserves the right to furnish evidence that the damage was not incurred or not in this amount.
The warranty period for the Purchaser’s claims based on defects is 36 months from the passage of risk. This also applies to goods delivered subsequently and rectified parts of the goods, provided such rectification is significant and concerns a material defect. This does not apply if the Contractor declares that the subsequent delivery or rectification does not constitute acknowledgment of the obligation to rectify defects e.g. if it is carried out as a gesture of goodwill or to avoid a dispute.
XVI. Replacement Parts
The Contractor shall ensure the availability of all replacement parts necessary for the functioning of the Service for a period of 15 years from initial delivery or collection of the goods or other provision of Service (“Replacement Parts Delivery Period”). The Contract Partners must mutually agree on the prices, quantities and delivery terms for replacement parts, based on availability and the necessary costs for materials, accessories and tradesmen, as well as additional costs for setting up the operating facilities, for packaging, shipping and processing.
If the Contractor fails to fulfill this obligation during the Replacement Parts Delivery Period, it shall notify the Purchaser of this without undue delay, in textform. In such case, the Purchaser has a claim against the Contractor to have the replacement parts that can no longer be delivered replicated at the Contractor’s cost. The Contractor must in this case support the Purchaser in every way, for instance by making available production drawings and procuring any necessary proprietary rights.
XVII. Liability and Product Liability
The Contractor shall be liable in accordance with the statutory provisions, unless otherwise agreed in these General Purchase Conditions.
In the event of the occurrence of a product defect attributable to the Contractor’s Service, the Contractor is required to indemnify the Purchaser against third-party compensation claims insofar as the cause lies in the domain and organisational sphere of the Contractor and it would be liable vis-à-vis external third parties. The principles set forth in Section 254 BGB apply mutatis mutandis to any compensation settlement reached between the Purchaser and the Contractor.
For necessary measures by the Purchaser to prevent damage, e.g. product recalls, the Contractor is liable insofar as its Service caused these measures. The principles set forth in Section 254 BGB apply mutatis mutandis to compensation for damages between the Purchaser and the Contractor.
In the event of the supply of goods that become part of a medical device, as well as in the event of the provision of Services on such goods and medical devices, the Contractor undertakes to take out product liability insurance with a sufficient coverage amount of at least EUR 10 million per loss event (personal injury/damage to property) – lump sum – for the duration of the business relationship and to maintain the same. If the Purchaser is entitled to further compensation claims, these shall remain unaffected.
XVIII. Act on Foreign Trade, Incoterms
The Contract Partners are aware that the supplies and Services may be subject to export and import restrictions. In particular, there may be approval requirements or restrictions on the use of goods or Services abroad. The Contractor shall comply with the applicable export and import control regulations of Germany, the European Union, Switzerland, Great Britain and the United States of America, as well as all other relevant regulations governing the business relationship, and shall provide the Purchaser with all information required to comply with the relevant regulations in textform as soon as possible.
XIX.Applicable Law, Place of Jurisdiction, Severability Clause
Unless otherwise agreed in textform, the legal relationship between the Purchaser and the Contractor shall be exclusively governed by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Unless otherwise agreed in textform, the courts with the local jurisdiction for Stuttgart have exclusive jurisdiction for all contractual and related non-contractual disputes between the Contract Partners. The Purchaser is also entitled to file suit at any other permissible legal venue.
Should any provision of the agreement between the Contract Partners not have become a component part of the contract, in whole or in part, should such provision be or become invalid, unenforceable or void or should the agreement between the Contract Partners prove to have an unintended omission, this shall not affect the validity of the remainder of the provisions of this agreement. The provision that did not become a component part of the agreement, that is invalid, unenforceable or void is deemed replaced with the valid and enforceable provision that the Contract Partners would have agreed upon, had they considered the matter from the outset; the mutual commercial interests are to be given due consideration. The foregoing sentence applies mutatis mutandis in the event of unintended omissions.