General Conditions of Sale of SIMEX Medizintechnik GmbH

1. General – Scope
(1) Our conditions of sale are valid exclusively; terms and conditions of the customer which may be contradictory to or divergent from our terms and conditions will not be acknowledged, unless we have expressly confirmed them in writing. Our terms and conditions will also apply if we execute an order of the customer without reservation although we are aware of terms and conditions of the customer which may be contradictory to or divergent from ours.
(2) All terms and conditions agreed upon between ourselves and the customer for the purpose of accepting and executing an order must be put down in writing.

2. Offers – Documentation – Catalogues
(1) If a customer’s order is, within the meaning of § 145 BGB, qualified as a legal offer, we are entitled to accept this offer within 4 weeks. Our offers shall never be binding.
(2) We retain ownership of and the copyright for cost estimates, drawings, pictures and other documents; they must not be placed at the disposal of third parties without our explicit consent in writing.
(3) Descriptions of our products must be considered as information on the nature of these products only and can in no way be considered as a guaranty on the quality of the products in question.
(4) Technical modifications of our products which improve their value or quality may be implemented at any time and without prior notification.
(5) Any quotations we have been asked to submit will be charged if an order does not follow.

3. Tools – Jigs – Devices etc.
(1) Tools, jigs and other devices, which have been manufactured or procured in order to operate the installation in accordance with the requirements of the customer, remain our property, even when these have been paid in full or in part by the customer.
(2) Costs for setting up and starting up an installation on the premises of the customer are not included in any quotation unless clearly specified.

4. Prices – Conditions of Payment – Arrears
(1) The reduction of the invoice value by cash discount requires a written agreement.
(2) If the customer gets in arrears with his payments, we are entitled to demand interest on arrears if the customer is a business enterprise of 8% p. a. on top of the German basic rate of interest, otherwise of 5% p. a. on top of the German basic rate of interest. If we can prove that the damage to us due to delayed payments exceeds this amount, we can claim compensation for the actual damage.
(3) If the customer is a business enterprise, he shall have no right to set off payments unless the underlying counterclaims are non-appealable, undisputed or expressly acknowledged by us. Further, in this case, he shall not have the right to hold back payments, unless his counterclaim is based on the same contractual relationship.

5. Delivery Time
(1) Any delivery time indicated is based on the assumption that all technical details have been clarified. Unless specified otherwise any delivery time indicated by us is not binding.
(2) Should there be a delay in delivery due to reasons we have to account for, any claims for damages, which may be directly due to the delayed delivery, will be limited to the value of the damages that could be expected if the customer is a business enterprise.
(3) If the customer, who is a business enterprise, – once we are already behind schedule – fixes a reasonable extension, he has the right to withdraw from the contract once the extension period has passed without result. If a reasonable extension passes without effect, the customer shall within two weeks after the end of this extension period state whether he wants to cancel the contract or whether he insists on delivery.
(4) As far as we are further liable for damages instead of delivery, claims in case of ordinary negligence will be limited, if the customer is a business enterprise, only to foreseeable damages.
(5) If the customer is a business enterprise we do not accept responsibility in case of ordinary negligence for consequential damages, in particular for lost profits or other loss of production costs of the customer.
(6) Compliance with the terms of delivery on our part requires that the customer duly complies with his obligations in time.
(7) In case the customer is in arrears in accepting delivery or has not met his obligations to cooperate, we are entitled to claim the damages resulting, including possible extra expenditure. In this case the responsibility for the risks of an accidental loss or accidental deterioration of the goods in question is passed on to the customer at the point in time when he gets in arrears.

6. Risk Transfer
(1) If the customer is a business enterprise goods shall, unless specified otherwise in our order confirmation, be delivered “ex factory”. In this case the responsibility for all risks is passed on to the customer when goods dispatched have left the factory. This also applies, if part shipments are made or if we have agreed to render any other services, such as paying for the shipping costs, delivering or setting up of the goods. As far as the parties agreed on a formal acceptance of the goods, the date of this inspection defines the transfer of risk. This acceptance has to take place on the day of delivery, or following the announcement of the supplier that the goods are ready to be delivered. The customer shall not refuse acceptance of the goods on account of a defect that is not substantial.
(2) If the customer is a business enterprise, the responsibility for all risks is passed on to the customer on the date of our notification that goods are ready for delivery, if the delivery of goods is delayed or not effected due to circumstances beyond our responsibility.
(3) Part shipments are considered acceptable as far as they are not unreasonable for the customer.
(4) If requested by the customer we are prepared to arrange for an insurance coverage at his expense.

7. Terms and Period of Warranty
(1) If the customer is a business enterprise, any warranty is dependent on the fact that the customer has duly complied with his obligations of inspecting the goods and advising of any defects possibly discovered.
(2) In case there is a defect with the goods delivered for which we are responsible, if the customer is a business enterprise, we are entitled at our discretion to repair the goods or to supply other goods free of defects.
(3) If we are not willing or not in a position to repair the goods or to replace them in due time or should there be a delay which exceeds any reasonable delivery time due to reasons for which we are responsible or should there be a failure for other reasons to repair the goods or replace them, the customer is entitled at his discretion to withdraw from the contract or to ask for an appropriate reduction of the purchasing price. If a reasonable extension expires without result, the customer which is a business enterprise is obligated, within a period of two weeks, to declare whether he chooses to withdraw from the contract or insists on its performance.
(4) Any further claims of the customer, which is a business enterprise, on whatever legal basis are excluded. Therefore, we are not responsible for any damages that do not refer directly to the goods delivered or to be delivered. In particular we are not responsible for any profits lost or for other damages to the property of the customer. However, in the event that a liability for such damages is in effect, claims for compensation of damages shall not exceed the extent of the foreseeable damage.
(5) Aforementioned exoneration from liability does not apply if the source of damage stems from wrongful intent or gross negligence. Moreover it does not apply if we accepted a guarantee for a specific quality or condition of the goods and this quality or condition is missing.
(6) If we have violated a contractual obligation through negligence, our liability is to be limited to the foreseeable damages. If claims due to damages are asserted that are covered by our business or product liability insurance, our obligation to render compensation shall be limited to the indemnification provided by the insurance.
(7) If the customer is a business enterprise, the period of warranty is one year, calculated from the date of dispatch of the goods. This warranty period is considered as a statutory period of limitation and is valid for claims for compensation of consequential damages, presuming that the claims are not asserted in tort.

8. Retention of title
(1) All goods that we deliver shall remain our property until such time when all outstanding accounts from the customer have been settled. We reserve the right to exercise our legal right and to take the object of sale back for every action that is contrary to the terms of the contract, in particular, default of payment. We are authorised to utilize the objects of sale after we have taken them back; the proceeds are to be credited to the customers account – minus fair costs of utilization.
(2) The customer shall inform us immediately in writing of any levies of execution or other interventions of a third party, so that we can submit a claim in accordance with § 771 ZPO. If the third party is unable to reimburse us for the legal and extrajudicial costs of such a suit, the customer shall be liable for any loss.
(3) The customer is authorised to sell the goods to a third party in the normal course of business; however, as of now he already cedes to us his claim to receive payment resulting from the resale to a third party for the total invoice amount (including VAT), regardless of whether or not the object of sale has been resold after work has been done on it or with it. Although the customer has ceded his claim to receive payment to us he still remains empowered to collect the debt from the third party. Our authorisation to collect the debt ourselves remains unaffected by this. However, we obligate ourselves not to collect the debt if the customer fulfils his obligation to pay from the sale, if he is not in default of payment, and especially if no request for a bankruptcy procedure has been filed, or if no cessation of payments is at hand. However, if any of the above is in fact the case, we have the right to demand that the customer makes the ceded debts and their debtors known to us and provides us with all the necessary details and documents.
(4) Any work on or modifications to the sold goods by the customer is always done for us. If the goods are processed with other items that are not from us, we shall acquire the right of co-ownership of the new object. The proportion of our right of co-ownership shall be equal to the ratio of the value of sold goods to the other items making up the new item at the time of manufacturing. The item resulting from this manufacturing that contains our goods is otherwise subject to the same reservations as the object of sale.
(5) We shall release securities at the request of the customer to the extent that the value of our securities exceeds more than 20% of the actual debts; it is our decision to choose which securities we release.

9. Place of performance and jurisdiction
(1) If the customer is a business enterprise, the place of jurisdiction shall be at the court having jurisdiction for Deisslingen. However, we retain the right to sue the customer in his court of residence.
(2) The place of performance is Deisslingen (Germany), unless stipulated otherwise in our order confirmation.
(3) The contractual relationship and its interpretation are exclusively subject to the laws of the Federal Republic of Germany.

Cancellation Terms

Right of withdrawl

You can cancel your contract within two weeks in writing without giving reasons (eg letter, fax, e-mail) or – if the product was received before the deadline – by returning the goods. The period begins after receipt of this instruction in writing, but not before receipt of the goods by you, but not before receipt of the goods at the recipient (in the case of recurrent delivery of similar goods not before receipt of the first partial delivery) and not before fulfillment of our information obligations in accordance with § 312c Abs. 2 BGB in connection with § 1 Abs. 1, 2 and 4 BGB-InfoV as well as our obligations according to § 312e Abs. 1 Satz 1 BGB in connection with § 3 BGB-InfoV. To maintain the cancellation period, the timely dispatch of the revocation or the product is sufficient. The revocation must be sent to:

simex Medizintechnik GmbH, Geschäftsführer Rainer Siring, Mozartstraße 13, 78652 Deisslingen, Telefon: 07420/920418, Telefax: 07420/1026, Email info@simexmed.de

Consequences of Withdrawl

In the case of an effective cancellation, the mutually received benefits and any benefits (eg interest) surrendered has to be returned. If you can not give us back the service received in whole or in part or only in a deteriorated condition, you may have to pay us compensation. This does not apply to the returned goods if the deterioration of the item is solely attributable to its examination – as would have been possible in a shop, for example

Furthermore, you can avoid the obligation to pay compensation for a deterioration caused by the intended use of the item by not using the item as your own property and refraining from doing anything that impairs its value. Transportable items are to be sent back to us. Items which can’t be returned by parcel are picked up at your place. You have to bear the costs of the return shipment, if the delivered commodity corresponds to the ordered product and if the price of the price of the returned parts does not exceed an amount of 40 Euros or in case of a higher price of the parts at the time of the revocation no agreed consideration or agreed partial payment was provided. Otherwise, the return shipment is free for you. Obligations to reimburse payments must be fulfilled within 30 days. The period begins for you with the dispatch of your revocation or the parts, for us with their receipt.

Right of return instruction

Return terms

You can return the goods without stating reasons within two weeks by returning the goods. The period begins after receipt of this instruction in writing (eg as a letter, fax, e-mail), but not before receipt of the goods at the recipient (in the case of recurrent delivery of similar goods not before receipt of the first partial delivery) and not before Fulfillment of our obligations under § 312c Abs. 2 BGB in connection with § 1 Abs. 1, 2 and 4 BGB-InfoV as well as our obligations according to § 312e Abs. 1 Satz 1 BGB in connection with § 3 BGB-InfoV. Only in the case of goods that can not be shipped by parcel (eg in the case of bulky goods) can you declare the return by requesting a return in writing. To meet the deadline, the timely dispatch of the goods or the return request is sufficient. In any case, the return is at our expense and risk. The return of items or the return request has to be sent to:

simex Medizintechnik GmbH, Geschäftsführer Rainer Siring, Mozartstraße 13, 78652 Deisslingen, Telefon: 07420/920418, Telefax: 07420/1026, Email info@simexmed.de

Consequences of return

In the case of an effective return, the services received on both sides must be returned and any benefits (eg use advantages) that have been obtained must be surrendered. In case of deterioration of the goods, compensation can be claimed. This does not apply if the deterioration of the goods is solely due to their examination – as they would have been possible in a shop, for example. Furthermore, you can avoid the obligation to pay compensation for any deterioration caused by the intended use of the item by not using the item as if it were your own and refraining from doing anything that would impair its value. Obligations to reimburse payments must be fulfilled within 30 days. The period begins for you with the dispatch of the goods or the return request, for us with the receipt.