Terms and Conditions

1. Scope

Our General Terms of Business which address individuals who act in the exercise of their commercial or independent vocational or professional capacity when concluding this contract (entrepreneurs) or which address legal entities under public law or special funds under public law are part of our offer to conclude a purchase contract. The present terms also apply for any future business transactions between you and us.

For reasons of legal certainty, we are unable to accept any terms of business contrary to or opposing our General Terms of Business. If, prior to your declaration of intent or prior to shipment or surrender of the goods, you set your own terms and conditions in relation to us, no contract will be created between us. If in such case you accept the goods, our terms of sale apply to the exclusion of all other terms, unless we have expressly and in writing declared that such other terms and conditions are valid.

2. Contract closure

Owing to the rapid technical progress and the continuous improvement of our products, differences between products supplied by us as samples or by virtue of a preceding purchase contract and the products sold to you following your purchase decision cannot be ruled out. We therefore reserve the right to make our offers without engagement, i.e., subject to technical changes.
Neither our sales catalogue nor us placing goods in an online shop constitute an offer to enter into purchase contracts in the legal sense. Instead, this is intended to make it easier for you to give us a binding offer for concluding a purchase contract (product presentation). After we receive your offer, you agree to be bound by it for 2 (two) weeks. You are solely responsible for making the correct choice of the goods and for their quantity. We accept your contract offer either by written confirmation or acknowledgement or by supplying the goods (cf. para. 5) within 2 (two) weeks after receipt of the offer.

3. Prices

We consider ourselves bound by the prices we quote. However, if technical changes result in a change in price, offers made without engagement may also result in a change in price of which we will notify you at once. We must invoice you separately for shipping charges (simple consig.ent by post or courier service, express delivery, air freight). These charges and the statutory value added tax will be shown separately in the invoice. Up to an order value of EUR 50.00 we must invoice an extra charge of EUR 7.50. With an order value exceeding EUR 200.00 within Germany, the shipping is made free of postage and packaging costs. Please note the postage and packaging costs for international shipments (Please See „Shipment & Right of Revocation“ at „www.ternimed.com“).

 
4.  Passing of risk

We deliver ex works, with the effect that our liability ends when we surrender the goods to the first forwarder or, if you are responsible for transport, on the date we make the goods ready for shipment in our supply warehouse and send the notice of readiness for shipment. Even if you are not responsible for any damage to the goods after this point in time, you will be obliged to pay us the purchase price. If a contract has been brought about between us, you will also be liable if you have not accepted the goods (default in acceptance).

5. Delivery periods, force majeure

Delivery dates given by us in writing are deemed to be observed if the goods pass to the first forwarder by that date or, if you are responsible for transport, as soon as we send you the notice of readiness for shipment. You are entitled after setting a reasonable additional period and after such period expires to withdraw from the contract if we fail to deliver within said period. If permanent performance hindrances exist which are beyond our control and of which we have without fault not been aware at the time the contract was closed, we are exempt from performance. Should you have already paid a sum in consideration, we will immediately refund such consideration. If the performance hindrance as defined above occurs only temporarily, our mutual performance obligations are suspended for the duration of the hindrance, at the longest however for four months. Like us, you may not withdraw from the contract before expiry of this four months period if the hindrance or obstacle has not been remedied by then. After receiving the goods, you must at once inspect the goods for any shortages or transport damage. In the event of transport damage, a damage protocol must be made in order to secure any claims against the forwarding company.

6. Payments

If your payment (in Euros only) does not leave your account within a 30 day period commencing on the date the invoice is sent, you are automatically in default of payment without any further notice or reminder from us. Any losses we incur by your default will be claimed against you. We cannot accept payments by cheque or bills of exchange.

If you pay within 10 days, you may make a 2% deduction from the gross invoice amount (discount). Invoice amounts below EUR 100.00 cannot be discounted. If you are in default of payment from another transaction with us, or if there are any doubts with respect to your solvency or ability to pay, we are entitled to ask you to provide security for all unpaid claims. We are also authorised to withhold outstanding deliveries until we receive the security. If no security is provided, we have the right to withdraw from the contract. You may offset only against undisputed claims or claims found to be judicially final. The same applies to the assertion of rights of retention.

7. Reservation of title in the event of purchase

 Until we receive full payment for our claims, the goods we supply remain our property. Please understand that we cannot allow you to pledge or give the goods by way of security to third parties. Under the reservation of title you are under the obligation to give us immediate notice of an encroachment into our rights by a third party. If you violate this duty, we reserve the right to recover the goods. In such case you may not claim any rights of retention or other right of possession.
If the goods you purchase from us are intended for resale, you may do so in the ordinary course of business and prior to settling our claim for payment if you at the same time assign to us by way of security your accounts receivable plus any ancillary rights accruing to you in relation to your buyers and pass on the reservation of title. We also here and now accept such assignment. In the event you default in payment, we are allowed to disclose such assignment and the collection of the claim. In such case you are obliged to inform us of the existence and status of your claims against third party buyers and their persons. If with the assignment we receive a collateral security of over 120% of all our unpaid claims against you, we will upon request return the subordinate claim amount exceeding this limit. The reservation of title serves to secure all our claims arising from the business relationship with you. This also applies if claims are included in an ongoing invoice and the balance is made and acknowledged.

8. Information

You receive from us a high-quality and complex medical-technical product with accessories. In spite of great diligence and care used in the production of our goods, we can only give general information and details on the medical effects the goods have on patients. This also applies to the product information prepared by us in the shape of catalogues, internet presence, etc. The selection of the devices and their use in individual instances remains solely subject to medical advice and council.

9. Warranty at purchase

The period of warranty for new goods commences on the date the goods or the invoice are received whichever occurs last. The claims under warranty are initially limited to subsequent performance. If the subsequent performance fails, you may in your discretion withdraw from the contract or demand a reduction of the purchase price. No further compensation for damage or loss will be made. Wear and tear occurring in the course of proper use is not covered by the warranty. In the course of subsequent performance we have the right of choice either to remedy the defect or to deliver goods free of defects. In whatever case of delivery, § 377 HGB (German Commercial Code) obliges you to inspect the goods and to give notice of defect if you operate a commercial business. Any hidden defects must be reported to us without delay, at the latest within 3 working days after their discovery. The warranty period for defects is one year after passing of risk.
Only the product description is deemed to be agreed as condition of the goods. Public statements, promotional statement or other extolling do not constitute any additional condition statement relating to the goods.

10. Liability

Our liability is for damage or injury to life and limb, the body or to health at least caused by intentional or negligent dereliction of duty by us, by our statutory representatives or vicarious agents. Beyond that, our liability is for damage or loss which are covered by mandatory statutory liability provisions.
We are liable for damage or loss caused by simple negligence to the extent such negligence relates to the infringement of such contractual duties the observance of which is of particular importance for accomplishing the purpose of the contract (cardinal duties); however, liability is limited to the foreseeable, immediate average damage typical for the contract. Further liability is not ruled out if mandatory statutory provisions, for instance the Medical Product Law, demand such liability. If the liability is ruled out or limited according to the foregoing, this also applies to the personal liability of employees, staff members and other persons employed by the employer in the performance of employer‘s obligations.

All claims arising from whatever legal reason are statute limited 12 months after receipt of the goods. The statutory periods apply for intentional or malicious conduct, for claims under the Product Liability Law / the Medical Product Law and for recourse claims held by the entrepreneur under § 479 Section 1 BGB (German Civil Code).

11. Final provisions

If one of the provisions herein is or becomes ineffective, the remaining provisions remain in full force and effect. The assignment of claims in relation to us requires our consent. All contractual relations entered into with us and these General terms of Business are solely governed by German law excluding the UN Convention on the International Sale of Goods (CISG). We save personal data in the event a contract is closed. Personal data within the meaning of the Federal Data Protection Law (BDSG) are individual records concerning personal and factual conditions and circumstances of a certain or identifiable person. Depending on the nature of the contract, these may include name, address, e-mail address, date of birth, occupation and bank details and other sensitive data such as financial or credit standing. We and our partner companies carefully selected in accordance with § 11 BDSG protect these data by applying the provisions of the BDSG and the TMG and by using technical and organisational measures. We will not pass your data saved at our premises to eternal third parties, unless this is necessary for performing this contract with you. We will use your data for market purposes only if you have given your express permission. Pursuant to § 34 BDSG you have the right to receive information free of charge on the data we have saved about you and, pursuant to § 35 BDSG, you have the right to request at any time that your personal data be deleted, corrected or blocked.

Bielefeld, MAY 2011

TerniMed UG (haftungsbeschränkt)