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GENERAL TERMS AND CONDITIONS FOR EXPORT of QUANTEL Derma GmbH (hereinafter „Quantel“)
(April 2006)
I. General Provisions
1. The terms and conditions set out below (hereinafter “Terms and Conditions”) shall be applicable for deliveries of goods and services (hereinafter the "Deliveries") rendered by Quantel to Customers which are not domiciled in Germany and qualify as entrepreneurs according to section 14 BGB [German Civil Code]. The Terms and Conditions shall form, among other mutual written declarations, part of the agreement between Quantel and the Customer. Dissenting general terms and conditions of the Customer shall not apply, unless expressly approved by Quantel in writing.
2. Quantel reserves all its proprietary rights and all rights under any applicable copyright law in and to documents for a bid or offer, cost estimate, drawings, manuals, technical documentation and other proprietary information and documents, regardless of whether in electronic, optical or hardcopy form of storage, which have been submitted by Quantel to the Customer (hereinafter the "Documents"). No Documents shall be made accessible to third parties except with the prior written consent of Quantel.
3. The Customer has the non-exclusive, non-transferable right to use the software supplied by Quantel with the agreed performance features in unchanged form on the agreed equipment. In addition, section I. para. 2 applies mutatis mutandis.
II. Shipment, Delivery, Payment
1. Deliveries, including prices and transfer of risk and title, shall be governed by FCA Factory Quantel (FCA INCOTERMS 2000) and shall be exclusive of value-added tax. Value-added tax, if applicable, will be invoiced separately at current rate.
2. Deliveries shall be transported, regardless of the means of transportation, at the risk of the Customer. Quantel will provide transportation insurance upon express demand of the Customer. Any cost arising therefrom shall be born by the Customer.
3. The selection of the place of dispatch, the transport route and the means of transportation shall, in the absence of any written arrangement stipulating otherwise, be subject to Quantel’s reasonable discretion and without liability for the cheapest and fastest transport.
4. For payments, the terms and conditions stipulated in Quantel’s offer or order confirmation shall apply. Place of performance for any payments by the Customer to Quantel shall be Erlangen, Germany.
5. The Customer may offset only claims which are uncontested or which have become res judicata. The Customer may not assign any claims arising from transactions with Quantel without Quantel’s prior written approval.
6. Partial Deliveries are permissible for Quantel as far as the Customer can reasonably be expected to agree therewith.
III. Retention of Title
1. Quantel reserves title to the Deliveries until the Customer has satisfied all claims of Quantel against the Customer under the business relationship. If and to the extent that the value of all security interests due to Quantel exceeds the amount of all secured claims by more than twenty percent (20%), Quantel shall, at the Customer's request, release a corresponding portion of the security interests.
2. The Customer shall not pledge or assign by way of security the deliveries which are subject to retention of title. Resale shall be permissible within the ordinary course of business only by Customers of Quantel, which are agreed upon resellers (dealers). Customers, which are resellers (dealers), shall have the right to dispose of the Deliveries within the ordinary course of business, provided that they, in their turn, stipulate retention of title for the Delivery with their customer.
3. The Customer shall immediately notify Quantel of any attachment, seizure or other disposition or interference of the Deliveries which are subject to the retention of title by third parties.
4. In case of breach of duty by the Customer, in particular, in case of default in payment [Zahlungsverzug], Quantel shall be entitled to rescission and repossession after fruitless expiration of a reasonable period fixed for the Customer to perform. The Customer shall owe an obligation of return.
5. The Customer shall notify Quantel of the measures to be taken in the jurisdiction of the destination of Deliveries in order to secure the retention of title and the aforesaid rights of Quantel and shall take such measures at the Customer's own cost and expense. If and when it is not legally possible to secure the retention of title and the aforesaid rights of Quantel in this form at the destination of the delivery, the Customer shall, at his / her own cost and expense, take all steps necessary to procure for Quantel comparable security interests in the delivery.
IV. Delivery Periods; Default
1. As a precondition of the observance of agreed delivery dates, the Customer must comply with his / her obligations under the agreement with Quantel (payment terms, etc.). If these preconditions are not fulfilled in a timely manner, the agreed delivery dates shall be extended accordingly.
2. In the event that the non-observance of the time limit is due to force majeure, for example, mobilization, war, riot or similar events, for example, strike, lock-out, the time limit shall be extended accordingly.
3. Damage claims of the Customer based on default in delivery [Lieferverzug] and damage claims in lieu of performance shall, for every completed week during which the default persists, be limited to 0.5%, and shall not exceed in the aggregate 5%, of the pro rata price of the portion of the delivery which could not expediently be put into operation as a result of the default [Verzug]. Any claims in excess thereof shall, in all cases of delayed delivery, also after expiration of a period that may have been fixed for delivery, be excluded, unless mandatory liability applies in case of intent, gross negligence or injury to life, body or health. The Customer may rescind the agreement on the basis of the statutory provisions only if and to the extent that Quantel is responsible for the delay in delivery. The preceding regulations do not entail a change in the burden of proof to the Customer's disadvantage.
V. Installation
If the installation and assembly of Deliveries by Quantel (hereinafter "Installation") has been agreed between the parties, the provisions set out hereinafter shall apply:
1. The Customer shall, at his / her own cost and expense, prepare the place of Installation in accordance with the guidelines of Quantel in such a timely manner and, in particular, provide the necessary power connections and other technical facilities in such a timely manner that the Installation can be started as agreed and be executed without interruption.
2. If and when the Installation or the subsequent putting into operation is delayed for reasons for which Quantel is not responsible, the Customer shall, to a reasonable extent, bear the costs of the waiting time of the installation personnel and the required additional travel expenses.
VI. Taking Delivery and Acceptance
1. The Customer may not refuse to accept delivery because of insignificant defects.
2. If Quantel requests acceptance of the delivered item after completion of the installation, the Customer shall effect such acceptance within two (2) weeks. Failing this, acceptance shall be deemed effected. Likewise, acceptance shall be deemed effected if and when the delivered item has been used, as the case may be, after completion of an agreed test phase.
3. If and when the Customer is in default of acceptance [Annahmeverzug] of the delivery and, after fruitless expiration of a reasonable period fixed for the Customer to accept the delivery, Quantel exercises its right to claim damages, such damages shall be equal to fifteen percent (15%) of the agreed price. The Customer may furnish proof of greater or lower damage.
VII. Defects as to Quality
1. Deliveries which turn out to have a defect as to quality within the limitation period – regardless of the operation time – shall, at the choice of Quantel, be repaired or be newly delivered or newly furnished, provided that the cause of such defect existed already at the time when the risk passed.
2. Claims based on defects as to quality shall become barred by the statute of limitations after twelve (12) months, unless Quantel and the Customer individually agreed in writing on a longer period; in case of delivery of used equipment, a shorter period may be stipulated.
In derogation of the preceding subparagraph, the respective longer statutory limitation period shall apply if and to the extent that the delivery relates to a building, objects for a building, construction defects or recourse claims pursuant to Section 478 BGB and in any case of injury to life, body or health as well as in case of breach of duty by Quantel with intent or gross negligence and in case of fraudulent concealment of a defect. The statutory regulations on tolling of the statute of limitations, suspension or new commencement of the periods shall remain unaffected.
3. The Customer shall immediately notify Quantel in writing of any defects as to quality.
4. Quantel must always be given the opportunity for subsequent performance within a reasonable period. If such subsequent performance fails, the Customer may rescind the agreement or reduce the remuneration without prejudice to any damage claims pursuant to section IX.
5. No claims based on defects as to quality are vested in case of insignificant deviation from the agreed quality, insignificant impairment of usability, consumption for the intended purpose or wear for the intended purpose of consumables or wearing parts, natural wear and tear or damage caused after passing of the risk as a result of improper or careless handling, overstress, improper operating materials or special external influence not covered by the agreement and in case of non-reproducible software errors. In the event that the Customer or a third party makes changes or performs repair work in an improper manner, no claims based on defects as to quality shall be vested therefore and for the consequences thereof.
6. Any claims of the Customer regarding the expenses necessary for the purpose of subsequent performance, in particular, transport, travel, labor and materials cost shall be excluded to the extent that the expenses are increased as a result of the fact that the delivered item has subsequently been transferred to a place other than the Customer's business, unless such transfer is in line with use thereof for the intended purpose.
7. Any recourse claims of the Customer against Quantel pursuant to Section 478 BGB (recourse by the entrepreneur) exist only insofar as the Customer has not made any agreements exceeding the statutory claims based on defects as to quality with its customer. Also the preceding para. 6 shall apply mutatis mutandis to the extent of the Customer's recourse claim against Quantel pursuant to Section 478 BGB.
8. In all other respects, section IX. (Other Damage Claims) shall apply to damage claims. Further claims based on a defect as to quality, and claims based on a defect as to quality other than those regulated in this section VII., of the Customer against Quantel or the persons employed by Quantel in the performance of their obligations shall be excluded.
VIII. Defects of Title
1. Unless otherwise agreed, the obligation of Quantel to deliver such that the delivered items are free from industrial property rights and copyrights of third parties (hereinafter the "intellectual property rights") applies only in the member states of the European Union. If and to the extent that a third party asserts justified claims against the Customer based on infringement of intellectual property rights by deliveries made by Quantel and used in compliance with the agreement, Quantel shall be liable to the Customer within the period fixed in section VII. para. 2 as follows:
a) Quantel shall, at its choice and at its own cost and expense, either procure a right of use for the deliveries concerned or exchange the same such that the intellectual property right is not infringed. If this is not possible for Quantel or is not possible for Quantel on reasonable conditions, the Customer shall have the statutory rights of rescission or reduction of the purchase price.
b) The obligation of Quantel to pay damages shall be governed by section IX.
The aforesaid obligations of Quantel are owed only if and to the extent that the Customer immediately notifies Quantel in writing of the claims asserted by the third party and does not recognize an infringement and all defenses and settlement negotiations are reserved to Quantel. If and when the Customer discontinues the use of the delivered item for the purpose of reducing the damage or for other important reasons, the Customer shall be obligated to draw the attention of the third party to the fact that the discontinuance of use does not constitute recognition of infringement of an intellectual property right.
2. Claims of the Customer shall be excluded as far as the Customer is responsible for the infringement of the intellectual property right.
3. Claims of the Customer shall also be excluded if and to the extent that the infringement of the intellectual property right is caused by specific requirements of the Customer, by an application unforeseeable by Quantel or by the fact that the Customer changes the delivered item or uses it together with products not supplied by Quantel.
4. In case of infringement of intellectual property rights, the provisions of section VII., paragraphs 4. and 7. shall additionally apply mutatis mutandis to claims of the Customer pursuant to para. 1 a).
5. The provisions of section VII. shall apply mutatis mutandis in case of other defects of title.
6. Further claims based on a defect of title, or claims based on a defect of title other than those regulated in this section VIII., of the Customer against Quantel or the persons employed by Quantel in the performance of their obligations shall be excluded.
IX. Other Damage Claims
1. Claims of the Customer for damages or for reimbursement of expenses (hereinafter "damage claims") on any legal ground whatsoever, in particular, on the basis of breach of duties resulting from contract or in tort, shall be excluded.
2. The preceding subparagraph does not apply in case of mandatory statutory liability, for example, according to the applicable product liability legislation or liability in case of intent, gross negligence, on the ground of injury to life, body or health or breach of material contractual duties. The damage claim based on breach of material contractual duties shall, however, be limited to the contract-typical foreseeable damage, unless intent or gross negligence is involved or there is liability on the ground of injury to life, body or health. The preceding regulations do not generate a change in the burden of proof.
3. If and to the extent that the Customer has damage claims pursuant to this section IX., such damage claims shall become barred by the statute of limitations upon expiration of the limitation period for claims based on defects as to quality pursuant to section VII. para. 2. However, the statutory limitation periods shall apply in case of damage claims in tort.
X. Final Provisions
1. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Erlangen. However, Quantel shall be entitled as well to file an action at the place where the registered office of the Customer is located.
2. The legal relations in connection with this Agreement shall be governed by German substantive law with the United Nations Convention on Contracts for the International Sale of Goods (C.I.S.G.) being excluded.
3. If any provision of this Agreement is invalid, this shall not affect the validity of the remaining provisions hereof. This does not apply if and when adherence to the agreement would constitute an unreasonable hardship for a party.
4. The Customer agrees that his / her data which are important for the implementation of the contractual relationship will be stored by Quantel.
5. In order to ensure compliance with all applicable legal acts and statutes as to Medical Devices, the Customer shall inform Quantel in all cases of deficiencies or inappropriate use of Deliveries, which have led or may lead to personal injury or constitute a serious risk. Therefore, the Customer shall make available to Quantel all information, data and documents, which are necessary to assess such deficiencies and take necessary actions.
