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General Terms and Conditions of Sale

Status 25th February 2019

General Terms and Conditions of Sale for Supplies and Services of the Companies of the KLS Martin Group, hereinafter referred to as "Seller".


1. Applicability

1.1. These General Terms and Conditions of Sale (hereinafter referred to as "GCS") shall apply to any - including future - contractual relationship with regard to the delivery of products of the companies of the KLS Martin Group (hereinafter referred to as "Seller") to the customers of the Seller (hereinafter referred to as "Buyer" and jointly referred to as "Parties"), unless the Parties have expressly agreed otherwise in writing.

1.2. The companies belonging to the KLS Martin Group are those listed on the KLS Martin Group website.

1.3. Deviating General Terms and Conditions shall not be accepted and shall not be part of the contract even without express written objection by the Seller.

1.4. For services purchased through the IPS Gate, the special terms of use for the IPS Gate shall apply additionally. The IPS Gate Terms of Use can be viewed at the following link https://ips.klsmartin.com/authz/terms/view.

2. Conclusion of Contract and Changes

2.1. Offers of the Seller are non-binding. The Buyer's order shall be deemed a binding offer. A contract is only concluded if the Seller accepts an order from the Buyer in writing within 14 working days (Monday to Friday) or delivers the products to the Buyer.

2.2. The possibility of acceptance in writing also includes the acceptance by EDI, fax or e-mail.

2.3.  Any modification or amendment of a contract for the supply of products requires a prior express written consent between the Parties.

3. Supply, Transfer of Risk, Customs

3.1. Unless otherwise agreed in writing, all deliveries shall be made exclusively ex works of the Seller (EXW Incoterms in their current version). Clauses deviating from the aforesaid shall be agreed and interpreted in accordance with the corresponding Incoterms of the International Chamber of Commerce in Paris.

3.2. In the absence of a special agreement, packaging shall be at the Seller's choice and against payment. Unless otherwise agreed, the Buyer shall dispose of the packaging.

3.3. Shipment shall be at the expense and risk of the Buyer. A transport insurance is concluded by the Buyer.

3.4. Delivered equipment and auxiliary materials shall be assembled by the Buyer. If the Seller undertakes assembly and/or commissioning on the basis of an additional express agreement, the Seller's General Conditions of Assembly shall apply.

3.5. Partial deliveries are permitted.

4. Delivery Schedule, Delay, Acceptance and Inspection of Incoming Goods

4.1. Unless otherwise agreed by the Parties, the Seller's delivery period shall be 8 (eight) weeks. The delivery period shall commence upon acceptance of the contract offer, but not before the Buyer has provided the documents, licenses, permits and other formalities to be procured by the Buyer and, if applicable, before the agreed advance payments have been made.

4.2. If the Parties agree to modify or supplement the contract, the delivery period to be observed shall be extended by a reasonable amount in accordance with the circumstances.

4.3. The occurrence of a delay in delivery on the part of the Seller as well as the liability for such a delay shall be governed by the statutory provisions.

4.4. The Buyer shall bear the costs for storage, insurance, protective measures, etc. incurred due to a default in acceptance. In the event of default in acceptance, the Buyer shall pay the Seller 0.3% of the respective order value for each commenced calendar day of the delay, but not more than 5% of the respective order value, as a contractual penalty. The right to claim further damages remains unaffected. Any contractual penalty paid shall be set off against the damage of delay to be compensated by the Buyer.

4.5. The Buyer must inspect the products immediately upon receipt in accordance with § 377 HGB (German Commercial Code) and notify the Seller of any defects in accordance with the provisions of § 377 HGB (German Commercial Code).

5. Terms of Payment

5.1. All prices are understood to be ex works of the Seller (EXW Incoterms in their current version) excluding the applicable value added tax and packaging. Buyers within the European Union must state their VAT identification number when concluding the contract. Deliveries made by a Seller based in Germany to Buyers (recipients) based outside the European Union shall not be subject to value added tax.

5.2. Unless otherwise agreed, all payments shall be made by advance payment or by the provision of an irrevocable and confirmed letter of credit no later than 6 weeks prior to the delivery date. The "Uniform Customs and Practice for Documentary Credits" of the International Chamber of Commerce in Paris shall apply. Unless otherwise agreed, all payments shall be made in EURO and shall be made by bank transfer to the account specified by the Seller.

5.3. In the event of non-payment, the Buyer shall be in default upon expiry of the payment period. During the period of default, interest shall be charged on the payments at the statutory default interest rate respectively applicable. The Seller expressly reserves the right to assert further claims for damages caused by default.

5.4. If special circumstances give rise to considerable doubts of the Buyer's creditworthiness, all claims arising from the business relationship shall become due immediately and the Seller shall be entitled to demand delivery against advance payment as well as advance payment before production release. If partial payment has been agreed and the Buyer remains in default with an amount of more than 10% of the outstanding purchase price, the entire outstanding balance shall become due for payment immediately.

5.5. In the case of customer-specific products (custom-made products, special orders) or variants thereof, the Seller shall in principle be entitled to an advance payment in the amount of two thirds of the agreed purchase price, payable no later than 3 weeks prior to commencement of production.

5.6. The Buyer shall only have rights of set-off or retention with respect to claims which have been determined to be enforceable by a court of law. The Buyer's rights in the event of defects shall remain unaffected.

6. Warranty

6.1. If the products are defective, the statutory provisions shall apply unless otherwise specified below. 

6.2. The Seller's liability for defects shall be based on the quality of the products agreed between the Parties in the form of agreed specifications, drawings, technical specifications or other (technical) documents. If a quality has not been agreed, it shall be assessed according to the statutory provisions whether a defect exists or not.

6.3. If the Products have been developed and/or manufactured on the basis of certain specifications of the Buyer (e.g. custom-made products), the Seller shall not be liable under the warranty for defects arising from such specifications of the Buyer.

6.4. The Seller may, at its discretion, remedy a defect (repair) or deliver a defect-free product (replacement) as subsequent performance.

6.5. After agreement with the Seller, the repair can also be carried out by the Buyer and takes place at the contractually determined location of the recipient. If the recipient's location differs from the Buyer's registered office, this must be disclosed to the Seller. Otherwise, the higher costs necessarily incurred as a result shall not be assumed. The Buyer is obliged to cooperate within reason in the repair of defects against reimbursement of costs and in accordance with the Seller's instructions.

6.6. The limitation period for the Buyer's warranty claims shall be 12 (twelve) months and shall commence upon transfer of risk on the products. If acceptance is necessary, the limitation period shall commence upon acceptance of the products.

6.7. The Buyer's claims based on defects require that he has duly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).

7. Liability

7.1. Unless otherwise stated in these GCS including the following provisions, the Seller shall be liable for any breach of contractual or non-contractual obligations in accordance with the statutory provisions.

7.2. The Seller shall be liable for damages - for whatever legal reason - within the scope of fault-based liability exclusively in cases of intent and gross negligence. In the event of simple negligence, the Seller shall only be liable in accordance with the statutory provisions for
a. damages resulting from injury to life, body or health,
b. damages resulting from the not inconsiderable breach of an essential contractual obligation (obligation whose fulfilment makes the proper execution of the contract possible in the first place and on whose observance the Buyer regularly relies and may rely); in this case, however, the Seller's liability is limited to the damage typically occurring.

7.3. The limitations of liability resulting from Section 7.2 shall also apply in the event of breach of duty by or for the benefit of persons whose fault the Seller is responsible for in accordance with the statutory provisions. However, they shall not apply if the Seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the products or for claims of the Buyer under the Product Liability Act.

7.4. The Buyer may only rescind or terminate the contract due to a breach of duty that does not consist of a defect if the Seller is responsible for the breach of duty. A free right of termination on the part of the Buyer (in particular in accordance with § 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

7.5. The safety regulations of the Association of German Electrical Engineers (VDE) shall apply to deliveries and services in the field of electromedicine.

8. Devices, Plans, Sales Documents

8.1. The Seller shall be entitled to dispose at its discretion of devices manufactured for special (customer-specific) parts within one year of the execution of the last order. This shall also apply to any portion of the costs invoiced.

8.2. All rights to devices, drawings, drafts and plans manufactured by the Seller, in particular patent rights, copyrights and inventor's rights, are exclusively entitled to the Seller.

8.3. All sales documents such as catalogues, sample books, price lists etc. made available to the Buyer shall remain the property of the Seller and shall be returned on request.

8.4. All property rights and copyrights to information originating from the Seller - also in electronic form - shall remain with the Seller.

9. Confidentiality

9.1. The Parties undertake to maintain secrecy with regard to all knowledge, information, in particular technical details and all documents obtained within the scope of the cooperation. The obligation exists irrespective of whether the information was communicated orally or in writing.

9.2. The confidentiality obligations shall not apply if and to the extent that the relevant information is verifiably generally known, or becomes generally known through no fault of the party obliged to maintain confidentiality, or has been or will be lawfully obtained from a third party, or is already available at the receiving party prior to its transmission by the other party, or must be disclosed due to mandatory regulations or official orders.

9.3. The confidentiality obligations shall continue to apply even after expiry or termination of a contract or an order.

10. Force Majeure

10.1. The Parties shall not be liable for the non-fulfilment of any of its obligations if the non-fulfilment is due to an obstacle beyond its control ("Force Majeure"), in particular one of the following reasons: fire, natural disasters, war, seizure, export ban, embargo or other official measures, general shortage of raw materials, restriction of energy consumption, serious transport accidents, labour disputes (e.g. strike and lockout) or if lack of conformity of suppliers is due to one of these reasons.

10.2. Each Party may terminate the contract by written notice if its execution is prevented for more than 6 months in accordance with clause 10.1. The obligation to pay for partial services already rendered shall remain unaffected.

11. Retention of Title

11.1. To the extent that such retention of title is effective under applicable law, all products delivered shall remain the property of the Seller until all claims arising from the business relationship have been paid in full. If the validity of the retention of title is subject to special conditions or laws in the country of destination, the Buyer shall be responsible for compliance therewith. He shall inform the Seller thereof.

11.2. The Buyer shall assist the Seller in any action necessary to protect the Seller's property in the country concerned. The Buyer shall inform the Seller immediately, if dangers arise for his property. This applies in particular to disposals of third parties or official orders.

11.3. In the event of a breach of duty, in particular default in payment, the Seller is entitled to withdraw from the contract and to take back the goods subject to retention of title after the unsuccessful expiry of a reasonable period set for the Buyer. The setting of a period may be waived in the event of statutory exceptions. 

11.4. The Buyer shall insure the delivered products at his own expense against theft, fire and water damage as well as other risks for the period up to the full payment of the purchase price.

11.5. If the value of the securities exceeds the claims to be secured by more than 10 %, the Seller shall release securities of his choice upon request.

11.6. If contractual products subject to retention of title are compounded, processed or transformed, even together with other items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the amount of the invoice value of the goods subject to retention of title in proportion to the total value of the new item at the time of processing. Clause 11 shall also apply to the new item.

12. Copyrights and Industrial Property Rights

12.1. Unless otherwise agreed, all copyrights and other industrial property rights with regard to the products and associated documents (e.g. instructions for use, drawings, models) are the exclusive property of the Seller. The Buyer may use or register trademarks, trade names and other signs and industrial property rights of the manufacturer only after prior written approval and only in the interest of the Seller.

12.2. If the Seller has further developed and completed drawings, models or other (technical) templates on behalf of the Buyer, all copyrights and other industrial property rights arising therefrom shall belong exclusively to the Seller.

12.3. If the Seller has developed and/or manufactured products on the basis of certain specifications of the Buyer and these specifications are the subject of the claim of infringements of industrial property rights by third parties against the Seller, the Buyer shall be obliged to indemnify the Seller against such claims on first demand. This indemnification obligation of the Buyer relates to all costs and expenses incurred by the Seller as a result of or in connection with the claim of a third party and also obliges the Buyer to support the Seller in any legal disputes.

13. General Provisions

13.1. Rights and obligations of the Parties shall not be transferable, except transfers of purchase price claims to banks of the Seller.

13.2. Changes, amendments and other collateral agreements to these GCS or to concluded contracts must be made in writing. This also applies to this written form requirement.

13.3. These GCS and a contract concluded on the basis of these GCS shall remain binding even if individual conditions are invalid.

13.4. The Seller and its affiliated companies shall be entitled to store and process data relating to business transactions in accordance with the applicable national provisions and the European General Data Protection Regulation (GDPR).

14. Compliance

The Seller shall be responsible for compliance with the relevant provisions, which, unless otherwise agreed, shall be governed the law of the Federal Republic of Germany, insofar as products manufactured in Germany are exported. The Buyer shall be responsible for observing and implementing the relevant foreign trade regulations (e.g. import licenses, foreign exchange transfer permits, etc.) and other laws applicable outside the Federal Republic of Germany.

15. Jurisdiction, Governing Law

15.1. All disputes arising in connection with agreements based on these GCS shall be finally settled at the registered office of the Seller (place of arbitration) in accordance with the Rules of Arbitration of the International Chamber of Commerce in Paris, excluding the ordinary courts of law, by one or more arbitrators appointed in accordance with these Rules.

15.2. Instead of the arbitration court competent in accordance with Clause 15.1, the state courts competent at the Seller's principal place of business shall have sole and final jurisdiction in the case of Buyers registered in one of the member states of the European Union or in the European Free Trade Association (EFTA, in particular Iceland, Liechtenstein, Norway, Switzerland).

15.3. In any case, the Seller shall also be entitled to appeal to the state courts at the Buyer's place of business. In this respect, the jurisdiction according to Sections 15.1 and 15.2 is not applicable.

15.4. These GCS and all contracts concluded under these GCS are subject to the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 is excluded.