OEM Asia Pacific
1. Operative Conditions
The General Conditions of Sale issued by the Vendor shall govern all offers and agreements regarding deliveries of Products. General conditions of purchase made by the Purchaser as well as any other conditions shall only be binding if specifically accepted in writing by the Vendor.
2. Prices
The prices given in the current price list issued by the Vendor are subject to change alteration without notice and are ex factory net, unless an agreement to the contrary is made.
3. Delivery Dates
Delivery Dates of the Products are Ex Works (EXW). The Products shall be deemed to have been delivered, if the Products are ready for delivery on the agreed date. The Vendor shall have the right to make partial deliveries.
The Vendor shall be released from its obligation to deliver Products, if the Purchaser is in default of its payment obligations or in default under any agreement. Delays in delivery which are not the fault of the Vendor entitle the Vendor to delay its delivery for an appropriate length of time or to withdraw either partially or completely from its obligation to deliver. In cases where the delivery is delayed by more than 60 days, the Purchaser is entitled to withdraw either partially or completely from the unfulfilled part of the agreement.
If the Products cannot be delivered as a result of instructions given by the Purchaser, then the Vendor is entitled to store the Products at the risk and expense of the Purchaser. The date of storage is then deemed to be the delivery date in such cases and the warehouse receipt replaces the delivery documents.
The supply of Products is made at the risk and expense of the Purchaser, unless otherwise agreed.
4. Retention of Title
The Products remain the property of the Vendor, until all its claims against the Purchaser have been satisfied. The Purchaser is not permitted to deposit or assign the Products as security in advance. The Purchaser shall bear any costs arising from possible litigation.
In the event the Products supplied by the Vendor are resold or transferred to a third party for any legal reason before payment has been effected in full, the Purchaser shall have been deemed to have assigned to the Vendor all rights and claims, including all ancillary rights towards his customers, resulting from the sale of the Products. In case of processing, combination or mixture of the goods as determined, the assignment equals the amount of the invoice value of the goods of the Vendor which have been used for this purpose. Upon request of the Vendor the Purchaser in default shall notify its debtors of the assignment and shall furnish the Vendor with all information required for collection of the claim, including all necessary documents. Unless, otherwise stipulated by the Vendor, the Purchaser is obligated to collect the proceeds of the goods resold becoming ipso jure property of the Vendor and is obligated to hold in custody for the Vendor any proceeds collected separately from other proceeds or payments received by Purchaser.
In case of any doubts, retention of title remains effective until the Purchaser proves in each single case that the goods have been paid in full. In the event, goods delivered by the Vendor under retention of title have been claimed by a third party by any means of (e.g. attachment of the debt or a third party has put forward a claim on the receivables assigned to the Vendor), the Purchaser shall inform the Vendor without any delay and notify the third party of the retention of title the assignment.
5. Payment
The purchase price is payable upon delivery and receipt of invoice net in EURO (€), unless otherwise agreed in writing. Payment terms shall be agreed separately in writing. Unless otherwise agreed by the parties, invoices shall be paid without any deduction within 30 days after date of invoice. In cases of default, the Vendor is entitled to assess interest at the legal amount stipulated in § 288 BGB.
The Purchaser is not entitled to withhold, offset, or delay payment on account of counter claims which have not been accepted in writing by the Vendor or for any other reason.
The payment shall be deemed to have been made on the date when the amount in question has been received by the Vendor or has been deposited to Vendor´s bank account. In cases of payment by draft or by cheque, the payment shall only be deemed to have been made when it has been cleared by the bank in which payment was drawn.
6. Minimum Orders
Separate orders must be made for each product group. The minimum order in each case must be € 1.000,--. The Vendor is entitled to charge a processing fee of € 50,-- on orders below this amount.
7. Returns
The Vendor will only accept returns of Products in exceptional and justified cases. Returns require the explicit consent of the Vendor in writing; in the absence of the latter, credit notes for Products will not be issued. The amount to be credited upon return of Products shall depend upon the age, condition and saleability of the Products.
Any Products ordered that deviate from the Vendor's standard presentation and Product range may not be returned.
The Purchaser shall pay the carriage on returned Products.
With regard to electric and electronic Products, the Purchaser confirms that he will use the Products supplied exclusively in non-private households. Purchaser shall return the Products to the Vendor after they are no longer being used. Upon receipt of the returned Products by Purchaser, Vendor shall be responsible for the proper disposal of the Products. The Purchaser shall bind any third parties to whom it transfers the Products supplied to return them to the Vendor after their use has been ended or to properly dispose of the Products supplied in accordance with the legal provisions and at their own expense.
8. Claims and Complaints
Immediately upon receipt of the Products, the Purchaser shall examine the quality and identity of the Products to determine whether the Products are undamaged and complete. Complaints to the Vendor must be made in writing within 14 days of receipt of the Products. If a Complaint is not received by Vendor within said period, then the Products shall be deemed to have been accepted by Purchaser without complaint. On initial receipt of the Products, any visible damage to Products should immediately be brought to the attention of the forwarding agent and a complaint should be made.
In cases of justified complaints notified in time, the Vendor is entitled to replace the Products. In the event Vendor is unable to replace the Products, the Purchaser is entitled to a deduction of the Purchase Price or to a rescission of the contract. Purchaser shall have no other claims against the Vendor. Any complaint not received by Vendor within 12 months after delivery of the Products shall be deemed invalid.
The Vendor offers the following warranty regarding possible defects in Products supplied by the MedTech Division to the exclusion of all other claims: Upon acceptance by the Vendor of any claims due to faulty materials or faulty workmanship, which render the Product either unusable or partially unusable within 12 months from the date of delivery, the Vendor shall at its discretion either replace the faulty parts or repair the Product or part free of charge. The Purchaser shall grant the Vendor sufficient time and opportunity to carry out repairs and deliver replacement Products or parts. If the Purchaser fails to do so, the Vendor is discharged from its liability.
In general, the existence of defects can only be confirmed by the Vendor if the Vendor is notified of these in writing immediately upon discovery, preferably with the enclosure of samples. The Purchaser must leave the faulty Products at the disposal of the Vendor.
Except as expressly provided herein, Vendor shall have no other duties, obligations or liabilities to Purchaser in connection with the purchase and sale of Products, absent willful misconduct and gross negligence. The Vendor´s liability for financial loss is limited to foreseeable losses.
9. General Matters
All offers and agreements are based on Incoterms 2000. Place of performance for deliveries is the place of dispatch; for payments the place of performance is Melsungen, Germany (bank account).
German law shall apply.
Melsungen (lower court) or Kassel (superior court) shall be the exclusive places of jurisdiction. The Vendor reserves the right to undertake legal proceeding against the Purchaser in the Purchaser's principal place of business according to the laws of said place.
Status: February 2002
