"Buyer" means the person who accepts a quotation of the Seller for the sale of the Good or whose order for the Good is accepted by the Seller
"Goods" means the goods (including any instalment of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions.
"Seller" means Scimed GmbH whose principal place of business is at "Am Mühlenkanal 23, 46419 Isselburg , Germany ".
"Conditions" means the standard terms and conditions of sales set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
"Contract" means the contract for the purchase and sale of the Goods.
"Writing" includes telex, cable- and facsimile transmission and comparable means of communication.
2. Basis of the Sale
2.1. The Seller shall shall sell and the buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case of these Conditions, which shall concern the Contract to the exclusion of any other terms and conditions.
2.2. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller. If any terms and conditions contained in any separate quotation by the Seller to the Buyer shall conflict with these Conditions, the former shall prevail in relation only to those matters of conflict.
2.3. The Seller's employees or agents are not authorised to make any representations concerning the Goods, unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4. Any advice or recommendation given by the Seller or its employees or agents to the Buyers including any advice as to the storage, application or use of the Goods, which is not confirmed in Writing by the Seller, is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller should not be liable for any such advise or recommendation which is not so confirmed.
2.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and Specifications
3.1. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller.
3.2. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order, including any applicable specification, submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the contract in accordance with its terms.
3.3. The quantity, quality and description of, and any specification for, the Goods shall be those set out of the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).
3.4. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification in submitted by the Buyer, the Buyer shall indemnify the Seller against and pay a compensation to the Seller for all claims of third parties and all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
3.5. The Seller reserves the right to make any changes in the specifications in the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance. Where the Goods are deemed to have qualified product and/or process status, the Seller should notify the Buyer in advance of its intention to make changes to the Goods, and shall obtain the Buyer's approval to proceed.
3.6. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and material used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the Goods
4.1. The price of the Goods shall be the Seller's quoted price or, where an order has been confirmed the price stated in the order confirmation.
4.2. The price is exclusive of any applicable value added tax, which the Buyer may be additional liable to pay to the Seller.
4.3. Customs duties or equivalent duties shall be for the account of the Buyer.
4.4. If an increase occurs in the costs and/or the rate of the price determining factor, including but not limiting to wages, material, currency-fluctuations, import duties and insurance rates, irrespective of the cause, the Seller will be entitled to increase the price accordingly.
5. Terms of Payment
5.1. The Buyer shall pay the price of the Goods purchased in full within the term of payment set out in the Sellers quotation (if accepted by the Buyer) or the Buyers order (if accepted by the Seller) and notwithstanding that delivery may not have taken place. In the event that no such term for payment has been set out, the Buyer shall pay the price of the Goods purchased in full within 10 days of the date of the Sellers invoice, notwithstanding that delivery may not have been taken place.
5.2.1. Pre-Payment for the first order for new customers
5.2.2. Payment shall be made in Euros, such currency as may be indicated on the Seller's invoice.
5.3. If the Buyer fails to make any payment on the due date than, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to;
5.3.1. cancel the contract or suspend any further deliveries to the Buyer;
5.3.2. appropriate any payment made by the Buyer to such of the Goods as the Seller may think fit; and
5.3.2. charge the Buyer's interest (both before and after any judgement) on the amount unpaid at the rate of two percent per annum above EURIBOR (European Interbank Offered bank) from time to time, until payment in full is made, taking the interest rate per beginning of each month and maintain it for that specific month.
6.1. Any dates quoted for delivery of the Goods shall never be deadlines. In the event of late performance the Seller must be given a reasonable period of time to perform. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.2. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
6.3. Any claim for shortage in delivery must be notified to the Seller in Writing within seven days of receipt of the Goods by the Buyer.
6.4. If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or other than the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
4.5. Charge for standard delivery including packaging:
- within Germany: € 15,-
- within Europe (EU): € 30,-
- worldwide: € 100,-
Additional charge for Insurance
4.6. Shipping cost declared on the invoice going with the shipment
7. Risk and Property
7.1. Risk of damage to or loss of the Goods and property in the Goods shall pass to the Buyer at the time of delivery to the stated delivery address or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered the delivery of the Goods.
8. Warranties and Liabilities
8.1. Subject to the conditions set out below, the Seller warrants that the Goods will correspond to their specification at the time of delivery and will be free from defects in material and workmanship. On the basis of this warranty Seller will only have the obligations mentioned in clause 8.4 for a period of six month from delivery after which the Seller shall be under no further liability.
8.2. The above warranty is given by the Seller subject to the following conditions:
8.2.1. the Seller shall be under no liability in repsect of any defect arising from fair wear and tear, wilful damage (not being wilful damage by the Seller or its employees or persons used by the Seller) negligence (not being negligence by the Seller or its employees or persons used by the Seller), abnormal working conditions or incorrect use;
8.2.2. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.3. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivered is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or, where the defect or failure was not apparent on reasonable inspection, within seven days after discovery of the defect or failure whichever is the earlier, and no later than six month after delivery.
8.4. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in Writing in accordance with these Conditions, the Seller should at the Seller's sole discretion be entitled to repair the Goods or replace the Goods (or the part in question) free of charge or refund to the Buyer in price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.5. Except in respect of damage cause by gross negligence ("grob fahrlaessig" under German law) or wilful misconduct of the Seller's management, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty on the basic of the law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, or any advise or recommendation given by the Seller or its employees or agents (including any advise as to the storage, application or use of the Goods) expect as expressly provided in these Conditions.
8.6. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of the Seller's obligations in relation to the Goods, in he event of force major, therefore if the delay of failure was due to any cause beyond the Seller's reasonable control, including, but limited to any Act of God, explosion, fire acts, restrictions, regulations, bye-laws, prohibitions on measures of any kind on the part of any governmental, parliamentary or local authority, war, civil commotion, insurrection, international sanctions or boycotts, import or export regulations or embargoes, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, labour disputes or whatever nature whether involving employees of the Seller or of any third party. The Seller will in case of force major be entitled to set aside the Contract in part or in full, without any obligations to pay damages, and without prejudices to the Seller's right to payment from the Buyer for what the Seller have already performed. The Seller will also be entitled to suspend the further performance to the Contract in full or in part.
9. Insolvency of Buyer
9.1. This clause applies if: (I) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or applies for its own bankruptcy or requests a moratorium on payment of its debts or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or a resolution is taken to that effect; (II) an encumbrance takes possession of, or a receiver is appointed over any of the property or assets of the Buyer; (III) the Buyer ceases, or threatens to cease, to carry on business; or (IV) the Seller reasonably takes the view that any of the events mentioned above is about to occur on relation to the Buyer and notifies the Buyer accordingly.
9.2. If this clause applies than, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. Export Terms
10.1. The Buyer shall be responsible for complying with any legislation or regulation governing the importation for the Goods into the country or destination and for the payment of any duties thereon.
11.1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to these provisions to the party giving the notice.
11.2. No waiver by the Seller to any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4. If any provision of these conditions is not valid for any reason whatsoever, the parties shall negotiate on the contents of a new provision which provision approximate the contents of the original provision as closely as possible.
11.5. Any dispute arising out of, under or in connection with these Conditions or the sale of the Goods shall be settled exclusively by final and binding arbitration under the rules of Conciliations and Arbitration of the International Chamber of Commerce, by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Isselburg , Germany .
11.6. The Contract shall be governed by the laws of Germany . The Vienna Convention on the Sale of Goods 1980 (CISG) does not apply.
Revision September 2010
Am Mühlenkanal 23