Standard Terms & Conditions
1. General Principles.
These Terms and Conditions (the “Terms”) are applicable to any proposition, offer, order and agreement relating to the sale of products (collectively “Products”) marketed or manufactured by Moximed International GmbH (hereinafter “Company”) to the Purchaser (hereinafter “Purchaser”) (Company and Purchaser hereinafter individually “Party” and collectively “Parties”). These Terms are legally binding if they have been declared applicable in the offer or in the confirmation of the order. Company expressively objects to any adverse standard terms and conditions proffered by Purchaser. Any agreement to the contrary requires Company’s written consent. Company’s acceptance of any order by Purchaser is expressly conditioned by Purchaser’s explicit acceptance of these Terms. Any agreement or declaration relevant in law between the Parties has to be in written form.
2. Order and Delivery.
2.1 Purchase and Sale. Company will sell to Purchaser all Products ordered by Purchaser after the respective order has been accepted by Company. Purchaser is obliged to take delivery of the ordered Product against payment of the purchase price. The contract is deemed to be concluded if the order is accepted by Company. Such acceptance may be in writing or by electronic means or by shipment of the Product to Purchaser.
2.2 Partial Acceptance of Order. Company may accept any order by Purchaser in whole or in part. Company’s shipment of a part of the Products ordered shall constitute acceptance of the order only as to those Products shipped.
2.3 Shipment. Company will make every reasonable effort to meet the delivery dates quoted or acknowledged, but will not be liable for any failure to meet such dates. Partial shipments are permitted. Unless specified otherwise in these Terms, shipping charges are regulated by and Company will deliver the Products Free Carrier FCA Laichingen, Germany INOCOTERMS 2010. Company assumes no liability for products damaged during transit, but will extend assistance to help settle claims.
2.4 Inspection and Acceptance. Purchaser shall inspect all shipments immediately after arrival and notify Company in writing within five (5) days of any shortages or other failures to conform to these Terms which are reasonably discoverable upon arrival. Purchaser’s failure to timely notify Company in writing of any alleged nonconformity of the Products or any intermingling of the Products shall constitute an immediate and irrevocable acceptance of the Products. Purchaser shall immediately notify Company upon discovery of any hidden defect pertaining to said Products. Purchaser shall allow Company a reasonable opportunity to inspect such Products to enable Company to verify the alleged nonconformity. The warranty period for such defects shall be thirty (30) days from the date of receipt of the Products by Purchaser.
3.1 Prices. Unless specified otherwise in these Terms the purchase prices for the Products shall be as quoted or, where no price has been quoted, as specified by Company at its then-current standard price list. Company may change its prices at any time without prior notice to Purchaser. The prices payable under this paragraph 3.1 do not include sales, goods and services, value added or other taxes. Purchaser will pay or reimburse Company for all such taxes, or other amounts payable to governmental authorities on account of the sale of the Products or will provide Company with an exemption certificate satisfactory to Company.
3.2 Payment. Company will issue invoices for all amounts payable under these Terms. Purchaser will pay the amount set forth on Company’s invoice within thirty (30) days from the date of such invoice. All amounts payable under these Terms are denominated in Euros. Purchaser will pay all such amount into an account designated by the Company unless expressly agreed otherwise between the Parties. Any amounts not paid when due will be subject to a default interest of 5% of the due amount. Purchaser waives the right to assert offsets or counterclaims with respect to such invoices.
3.3 Disputed Invoices. In the event that Purchaser would like to contest an invoice issued by Company in whole or in part, Purchaser shall promptly notify Company’s customer service personnel (“Customer Service Department”) by phone 49 7333 9259980 or in writing of any disputed invoice and confirm such notice in writing delivered to Company.
4. Product Return and Warranty.
4.1 Limited Warranty to Purchaser. Company hereby warrants to Purchaser that the Products will be free from defects in materials and workmanship for ninety (90) days from the date of shipment. This guarantee is void if the Product is inappropriately handled by Purchaser or any third person. Company does not warrant conformity with respect to material and processing with any samples provided.
4.2 Return Authorization. In the event that the delivered Products are defective, Company accepts the return of the Products and promptly delivers to Purchaser Products free of defects. Written authorization is required prior to returning Product alleged to be defective. This authorization may be requested by telephone or in writing with the Customer Service Department. Authorisation to return will be granted at Company’s sole discretion. Deficiencies of any kind in supplies or products shall not entitle Purchaser to any rights or claims other than expressly stated in this para 4.2 and para 4.3 (Liability). In particular Purchaser’s right of withdrawal from the agreement is excluded.
4.3 Liability. WITH RESPECT TO THE PRODUCTS AND SERVICES DELIVERED, COMPANY SHALL ONLY BE LIABLE PURSUANT TO THE SWISS PRODUCT LIABILITY ACT (PrHG; SR 221.112.944). FURTHER CONTRACTUAL AND NON-CONTRACTUAL LIABILITY IS EXCLUDED. COMPANY SHALL ONLY BE LIABLE IN CASES OF INTENT AND GROSS NEGLIGENCE. THIS SHALL ALSO APPLY FOR ASSOCIATES AND LIABILITY FOR INDIRECT DAMAGES, FOR CONSEQUENTIAL LOSS OR FOR LOSS OF REVENUE.
5. Reporting, Recordkeeping.
Parties agree to supply to each other upon request any information necessary for the other Party to comply with any applicable governmental reporting or recordkeeping requirement including, but not limited to, the United States Food and Drug Administration’s Medical Device Reporting Regulations, the European Medical Device Vigilance Guidelines (MEDDEV 2.12-1 rev 8, Guidelines on a Medical Devices Vigilance System), and all similar national laws insofar as they are applicable in the sales territory. When requesting such information, the requesting Party shall inform the requested Party what information is required for these purposes, and, promptly after being made aware of any such required information, the requested Party shall supply the requesting Party with responsive information necessary to enable the requesting party to comply with such governmental reporting or recordkeeping requirements. In particular Purchaser agrees to provide information to Company that responds to whether the device(s) may have caused or contributed to the death or serious injury of an individual or has malfunctioned, and whether the device(s) would be likely to cause or contribute to death or serious injury of another if the malfunction were to recur, in order for Company to comply with the aforesaid governmental reporting or recordkeeping requirements.
In the event of a recall of Products of Company, Purchaser shall cooperate fully in conducting such recall. If the recall is caused (in whole or in part) by any action of a Party in breach of these Terms, such Party shall pay the costs of such recall. If the recall is caused by reasons other than breach of these Terms by one or both of the Parties, the Parties agree to equally share the costs for said recall.
Purchaser agrees to indemnify, defend and hold harmless Company, its affiliates and their respective officers, directors, employees, agents and representatives from any and all third party claims or suits resulting from (i) Purchaser’s negligent act or omission in connection with the purchase, storage, use, sale, lease, shipment, promotion, endorsement, or distribution of the Products, (ii) Purchaser’s breach of any representation, warranty or covenant contained herein, or (iii) Purchaser’s failure to comply with any or all domestic or foreign laws or other regulatory requirements.
8.1 Force Majeure. Company will not be responsible for any cause beyond Company’s reasonable control.
8.2 Assignment. PURCHASER MAY NOT ASSIGN ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT TO ANY THIRD PARTY WITHOUT COMPANY’S PRIOR WRITTEN CONSENT.