General conditions of contracts that shall also apply to all our future deliveries.
1.1. These conditions of contract shall apply to all transactions – even for future ones. These shall be applicable even if specific reference is not made to them at any one time. Insofar as purchase conditions of HEUSERs customers are in conflict with them, the former shall be void, even if HEUSER does not expressly disagree with them. On the other hand, even in case of deviating purchase conditions, these general conditions of contract shall be deemed to have been agreed upon, insofar as the client does not immediately and expressly disagree with them. A disagreement in general conditions of purchase is not sufficient for this.
1.2. Insofar as the purchase conditions of the client shall nevertheless have precedence, this precedence relates only to the respective clauses of the purchase conditions and not to the conditions as a whole; these conditions of contract shall apply complementarily.
1.3. By taking possession of the object of the supply, the client subjects in every case to these conditions of contract.
1 4. Heuser medical devices are manufactured, certified and marketed in accordance with the Medical Device Directive 93/42/EWG. The export in countries with directives that differ from 93/42/EWG concerning manufacturing, certifying, authorization and operating of medical products (i.e. USA, Canada and other countries) is not permitted.
2.1. All offers shall be subject to change insofar as nothing contrary is expressly recorded. HEUSER reserves the right to sell in the meantime.
2.2. It is not permitted to photocopy, reproduce or otherwise make diagrams, figures, brochures and other documents such as offers accessible to third parties.
3.1. Orders shall be binding upon HEUSER only after their written confirmation. An order confirmation of HEUSER alone shall be binding for the object and scope of supply.
3.2. Should a notice of acceptance by HEUSER contain extensions, limitations or other changes in comparison with the order, then the acquiescence of the buyer shall be deemed to have been given, if he does not immediately disagree with them.
3.3. Oral agreements, even if they are about supplements or deviations from these conditions of delivery, shall be legally valid for HEUSER only upon written confirmation. The abolition of this written form clause can take place only in writing.
3.4. Insofar as HEUSER accepts orders, these shall come about always under the conditions of normal and orderly supply by its subcontractors. HEUSER shall be freed of its’ obligation to deliver if in case of improper supply by its subcontractors, the selection of the subcontractor has not been carried out frivolously and a congruent hedging or covering transaction has been carried out with the subcontractor.
4.1. Our prices apply ex warehouse Haan.
4.2. Should the material costs, wages, freight, etc. increase after the confirmation of the order, then HEUSER is entitled, in the context of a continuing obligation, using equitable discretion, to increase the price in case of delivery to a businessman at any time, or in other cases, only if the delivery period agreed upon is more than 4 months.
4.3. If nothing else has been agreed upon, the prices according to the price list of HEUSER on the day of delivery shall apply in each case. The VAT is always separately declared and is not included in the offer or list prices.
5.1. Trade samples shall be deemed to be non-binding representative samples that show the approximate type of the goods on an average.
5.2. Warranties and assured characteristics (guarantee of features) exist only if they have been expressly been designated as such. Apart from that, dimensions, weights, information regarding quality and composition etc, figures and technical information – even those in brochures, letters, offers, order confirmations and invoices – are always non-binding for HEUSER and are mentioned especially in brochures always reserving the right of amendment.
5.3. The right to make technical changes shall remain reserved.
6.1. Delivery time indications are always to be deemed to be only approximate and are non-binding for HEUSER, unless they have been expressly stated as binding by HEUSER
6.2. Occurrences due to force majeure that are beyond our control and operational disruptions, as also strikes and lockouts as well as other events that impede the manufacture by HEUSER or its suppliers, especially difficulties in procuring materials give HEUSER the right, even within the period of delay, to extend the delivery period corresponding to the disturbance or to rescind from the contract, without the client thereby being entitled to enforce claims for damages.
6.3. In case of delay in the delivery or impossibility that can be attributed to HEUSER, the customer is entitled to rescind from the contract after the lapse of a reasonable extension of time, which is however at least 30 days long. The extension of time must be set in writing and must be expressly designated as such.
6.4. HEUSER is entitled to make partial deliveries, as long as this is fair and reasonable to the customer. If goods that have been ordered are not picked up, then they shall be invoiced at the latest 30 days from the time they were ready for despatch, without especial notification. The supply does not include the application or commissioning of the goods delivered by the personnel of HEUSER. For specified quantities of supplies, HEUSER reserves the right to insure the consignments at the cost of the customer placing the order. If the insurance is to be done by the customer, this must be clearly mentioned in the order.
7.1. Deliveries by HEUSER are to be prepaid for strictly net, without deductions, unless decided otherwise in writing.
7.2. Cheques and bills of exchange or drafts (in case agreed upon) will not be accepted.
7.3. HEUSER reserves the right at all times to refuse to accept bills of exchange, cheques or other instruments as suitable means of payment and demand immediate cash payment instead.
7.4. If several invoices or claims are open, then a payment shall be offset against the oldest demand in each case, even if the customer stipulates otherwise.
7.5. Retention of payments is excluded in case of deliveries to a businessman.
7.6. The set off against a demand is excluded, insofar as this is not against a demand that is undisputed or held to be legally valid and binding.
7.7. Bills of exchange or instruments that have been accepted from HEUSER for the purpose of refinancing are to be returned to HEUSER without any delay. In case of delay or default on payment, HEUSER is entitled to take custody of the goods delivered on account of retention of lien and title up to the time of complete payment. Termination of the contract in this case can occur only when HEUSER expressly declares this to be the case.
8. The delivery shall occur at the cost and risk of the customer including the danger of frost, as soon as the delivery leaves either our own warehouse or that of our contractor; the last shall apply even in case of transport by vehicles of HEUSER or in case of contracts with terms “carriage paid”. Likewise the risk shall be transferred to the customer 14 calendar days after conveying of the readiness to despatch.
9. Packing materials shall be invoiced at cost price.
10. Default in payment shall occur in case of delivery to a businessman with the passing of 30 days from the date of invoice without further reminders. HEUSER is then – otherwise from the time of reminder – entitled to compute interest at a rate 5% higher than the basic rate; for the rest delay or default in payment shall also have the consequence that all other demands become payable immediately.
11.1. Default in acceptance Should the customer refuse to accept the object of delivery or does not execute a significant participatory action despite being given a reasonable grace period, then HEUSER is entitled to demand the costs that accrue on account of the delay or default in acceptance from the customer, by doing which the enforcement of a greater claim for damages shall not be excluded.
11.2. The customer shall be at liberty to prove a lesser damage.
12.1. Complaints Deliveries and services of HEUSER are to be inspected for defect – free manufacture or accepted without delay after receipt or after intimation. The use of a work that is essentially free of defects shall be tacitly assumed. Complaints of any kind, also wrong deliveries and the deliveries of quantities greater or lower than ordered as well as the absence of assured characteristics (non- fulfilment of quality guarantee) must be sent in writing. It is not permissible to process the defective goods.
12.2. In case of notice of defects that are correct in form and have been made in time, the customer shall have the claim to rework of the delivery or- according to the discretion of HEUSER, as long as the customer is not a user – to the delivery of defect free goods. In case the rework or subsequent corrective delivery goes wrong, the customer can, at his discretion demand reduction in the payment (decrease) or termination of the contract, if sales law provisions are applied in the contract. If work contract provisions are applied in the contract, the statutory stipulations shall apply in respect of termination and reduction.
12.3. In case of delivery to a businessman, the following shall also apply:
The notice of defects that are apparent upon proper inspection must reach HEUSER at the latest within 7 calendar days after receipt of the goods, otherwise they will be deemed to be accepted.
12.4. The guarantee is limited to 12 months from date of delivery or in the case of setting up a plant or device from the date of acceptance.
13. Alterations on devices or plants shall be undertaken only by trained specialists authorised by HEUSER. Alterations and changes in medical products are basically impermissible. Altered medical products no longer correspond to the underlying basic requirements, the CE sign is invalid, the operation as a medical product is not authorised.
14.1. Should a claim be made on the customer due to infringement of intellectual property rights due goods delivered by HEUSER or work prepared by HEUSER, then HEUSER shall be informed without delay and on a continuing basis on all the matters concerning the claim and the necessary documents and information shall be made available to HEUSER.
14.2. An attorney at law or a lawyer commissioned by HEUSER shall be authorised to conduct dispute cases if any. The customer shall be at liberty to engage another attorney as well.
15.1. Retention of title HEUSER retains the title of goods delivered till the complete payment for all – including future – demands including secondary or accessory claims of the business relationship. If a current account is being conducted, the right to retention of title extends also to its balance.
15.2. The customer is permitted to sell or dispose off or otherwise commit or bind hereunto the goods over which HEUSER has a lien only in the usual course of business or under the conditions customary in the trade. He is further not permitted to default on payments.
15.3. In case of use or association with another things or products, this shall occur in the contract with HEUSER with the consequence that HEUSER shall hold the title to the new item corresponding to the proportion of the goods over which it has lien in the end product (invoice value). In case of further sale or installation in the property of a third party, the customer shall relinquish his demands against the purchaser right now (including the right of registration of an equitable mortgage in accordance with Section 648 BGB – German Civil Code) to the extent of the amount of the invoice of HEUSER for securing the claims arising from the business relationship with HEUSER. Payments of this purchaser to the customer of HEUSER, that are not transferred again to HEUSER, shall in the first place be debited against part of the total receivables not ceded to HEUSER, if the payer does not expressly stipulate otherwise.
15.4. If claims are ceded to HEUSER, the customer HEUSER is obligated for every information and handing over of documents. He is authorised to collect the claims or account of HEUSER till the revocation at all times; the collection right of HEUSER remains unaffected by this.
15.5. The customer is obligated to inform HEUSER immediately in case of seizure, attachment or other access of third parties to the goods of HEUSER or the claims assigned to HEUSER. Costs of an intervention shall be to his account. Insofar as the securities given to HEUSER exceed the claims by more than 25%, HEUSER is obligated to reassign or retro-transfer to the appropriate extent.
15.6. With the fulfilment of the claims of HEUSER, including all subsidiary claims, all securities shall pass over to the customer without any special transfer.
16.1. Claims of the customer to damages of any kind with the exception of those that are based on the violation of contractual obligations or are not based on culpability – also those that for example are based on positive violation of contract, violation of an obligation to advice or clarify, defective delivery, etc. – are excluded, if they are based on intentional damage or gross negligence, non-conformance to assured quality (quality guarantee) or the violation of obligations that are significant to the contract. Insofar as HEUSER is liable thereafter, this shall not apply to unforeseen damages.
16.2. In case of delivery to a businessman, this exclusion shall also apply to those damages that can be attributed to the gross negligence of the assemblers or fitters of HEUSER.
16.3. The customer of HEUSER shall support it in every reasonable manner in the defence of claims arising from product related liabilities The customer of HEUSER shall inform it without delay in any case of damage if it occurs or other conspicuousness or abnormality.
17. The assignment of any claim against HEUSER to third parties is excluded.
18. Place of fulfilment and jurisdiction The place of fulfilment or execution of all claims arising from the contracts concluded with HEUSER is Haan. The court having exclusive jurisdiction for all claims of both sides arising from the business relationship including claims arising from cheques and bills of exchange as well as for the questions of validity of the contract itself is the court responsible for Haan, insofar as this is legally permissible. According to its discretion, HEUSER can also approach the court that is responsible for the place where the contractual partner of HEUSER has its registered office. The laws of the Federal Republic of Germany shall apply to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods.
Heuser Apparatebau GmbH, Am Schlagbaum 10, 42781 Haan
Geschäftsführer: Birger Heuser Handelsregister AG Wuppertal HRB 12981