General Purchasing Terms
1. General
1.1 Our Conditions of Purchase shall apply exclusively. We do not acknowledge any conflicting or deviating terms and conditions of our contractual partner („SUPPLIER“) unless we have expressly agreed in writing to their application.
1.2 These Conditions shall be binding for all future business dealings of the same nature. Our Terms and Conditions of Purchase shall only apply in relation to entrepreneurs according to Section 310, paragraph 1 German Civil Code (Bürgerliches Gesetzbuch).
1.3 These Conditions are an integral part of our orders. Orders and all related representations shall be made in writing. Deviations of the Conditions of Purchase shall be made in writing. This shall also apply to this written form clause.
2. Offer and Acceptance
2.1 Offers and price quotes of SUPPLIER shall not be remunerated.
2.2 SUPPLIER shall confirm in writing any order with binding representation of prices and delivery time. If we do not receive such confirmation within 8 days, we shall be entitled to cancel the order.
3. Delivery
3.1 Delivery of 90% to 110% of the ordered goods with price adjustment pro rata shall be deemed as contractual fulfillment.
3.2 Place of fulfillment shall be Melsungen, if not otherwise agreed between the Parties.
3.3 Agreed delivery period shall be binding. For observance of this period, receipt of goods by our receiving center shall be relevant. We shall be entitled to interrupt delivery for a reasonable time. In this case period of delivery shall be prolonged by this interruption period.
3.4 SUPPLIER must request in due time our documents required to carry out the order.
3.5 As soon as SUPPLIER recognizes that he/she is not able to fulfill his/her contractual obligations within the timeframe given, he/she must report this to us without hesitation. He/she must state the reason(s) for this delay and the predicted delay in delivery. Unconditional acceptance of delayed delivery shall by no means waive any rights of us related to late delivery. This shall apply until final payment is made. Further claims for compensation of damages shall remain unaffected.
3.6 SUPPLIER shall upon our request pick up all outer packaging, transport packaging or sales packaging from place of delivery or have these items picked up by a third party.
3.7 The delivery shall be accompanied by two copies of the delivery note, including the reference number, identity of the goods including our respective material number and the agreed receiving department at B. Braun. In case of incorrect or incomplete delivery notes, we shall not bear the risk of any delay caused by such notes.
4. Contract Penalty
In case SUPPLIER does not deliver goods within the agreed upon delivery periods and/or within the delivery period as confirmed by SUPPLIER, SUPPLIER agrees to pay beside any damages claims of B. Braun due to such delivery delay, a contractual default penalty in the amount of 0.2% of the value of the delayed delivery of Products per working day, such penalty not exceed 10 % of the value of such delivery. This shall not apply for late delivery SUPPLIER is not responsible for. Receipt of goods as contractual fulfillment even without express reservation of rights shall not be deemed as waiver of claims for contractual penalties. Further claims for compensation of damages shall remain unaffected.
5. Confidentiality
5.1 Any written information we provide under or in connection with the order shall be deemed as our property. We shall be entitled in any copyright regarding these documents. SUPPLIER may not disclose such information to third parties without our prior written consent. Such information shall solely be used as required or necessary for SUPPLIER’s performance of his/her duties hereunder and SUPPLIER shall return such Information without delay with the end of the term or with termination of the Agreement or in case order is not confirmed by SUPPLIER according to Sec. 2. SUPPLIER shall destroy any copies of such information.
5.2 SUPPLIER is obligated to keep confidential all our technical, scientific, business related or other information even after contractual relationships between us and SUPPLIER have ended. This confidentiality obligation shall not include any information that is lawfully known to the public or to information which may be disclosed by B. BRAUN’s written approval.
5.3 SUPPLIER shall not give reference to the business relationship with B. BRAUN in its advertising without our prior written approval.
6. Prices and Payment
6.1 The price as stated in the order shall be binding.
6.2 Payment shall be done within 30 days after delivery and receipt of the invoice.
7. Retention, setoff
7.1 B. BRAUN shall hold the title to goods with delivery, any reservation of ownership shall herby be waived.
7.2 SUPPLIER is only permitted to offset claims that are undisputed or determined by law.
8. Defects, representations and warranties
8.1 SUPPLIER shall be responsible for delivering goods free of defects and, additionally, for ensuring that guaranteed features are present. In particular, SUPPLIER guarantees that goods and services are compliant with state-of-the-art of science and technology and meet the current technical and occupational medicine standards as well as the most widely recognized applicable medical technical and pharmaceutical standards of administrations and industry. Goods and services delivered must also be in line with pertinent legal regulations. If machines, equipment or plants constitute delivery items, they shall meet the special safety requirements applicable to machinery, equipment and plants at the time of contractual fulfillment and shall be CE marked.
8.2 Our incoming inspection is restricted to identity, short quantities and recognizable outside damage. B. Braun shall inform SUPPLIER within 5 calendar days since the receipt of any obvious defect discovered during the incoming inspection. Any other defect discovered later will be reported by B. Braun to SUPPLIER within 5 calendar days since the discovery. Such defects shall be subject to the controls performed by SUPPLIER. SUPPLIER hereby expressly waives any objection to file a complaint in respect of a defect of goods.
8.3 Period of limitation related to defects of Products shall prescribe at the earliest 36 months after passing of the risk. However, longer legal or contractual terms shall remain unaffected.
8.4 In case defect occurs within the aforementioned period of limitation, there is a presumption that the defect was already existent at passing of the risk unless a presumption can be rebutted by the nature of defect. In the event of any defects, we are entitled to demand cure according to legal regulations; the mode of cure shall be at our discretion, SUPPLIER shall bear the costs incurred for cure. During the execution of the cure, SUPPLIER is required to adhere to our business requirements. If cure is omitted due to legal provisions, further claims shall remain unaffected. We are entitled to claim further legal or contractual rights in the event of defects.
8.5 If SUPPLIER does not fulfill his duty to rectify defects as specified without rightfully refusing to cure within legal or contractual limitation periods, we shall be entitled to remedy the defects ourselves at the cost and liability of SUPPLIER, or allow this work to be undertaken by third parties. We are entitled to claim advance payment for the performance of measures necessary.
8.6 SUPPLIER shall bear all reasonable costs for additional incoming inspections of B. Braun in case of late delivery or delivery of non-conforming Products.
8.7 In case of a cure, SUPPLIER’s legal liability for such goods where a defect has been remedied or a thing free of defects has been supplied, shall be reinstated.
9. Product Liablity
9.1 SUPPLIER agrees to indemnify and hold harmless us from and against all claims, losses, liabilities, damages, costs or expenses of any nature and whether or not made by or involving third parties, arising out or resulting in any way from defects of goods, to the extent such defect is caused within SUPPLIER’s control.
9.2 Furthermore SUPPLIER shall bear the costs for required corrective measures including but not limited to public warnings or recalls. We will inform SUPPLIER about execution of such measures without delay. Further legal claims shall remain unaffected.
9.3 SUPPLIER undertakes to effect and maintain for the duration of the agreement including its limitation periods a liability insurance with a limit not less than €10,000,000 EUR per occurrence and not less than 20,000,000 EUR per annum. SUPPLIER shall be obliged to prove the existence of such insurance coverage upon request by B. Braun. Further claims for damages and compensation remain unaffected.
9.4 Sec. 9.1 and 9.2 shall also be applicable for legal liability based on German Pharmaceuticals Act (Arzneimittelgesetz).
10. Proprietary Rights
10.1 SUPPLIER warrants that the performance by SUPPLIER of its obligations under this Agreement does not and will not violate any agreements between SUPPLIER and any third parties and that the manufacture and sale of the Product by SUPPLIER will not conflict with or infringe on patent rights or any other proprietary rights of any other person or entity.
10.2 To the extent utilization of Products is limited for B. Braun due to third party’s proprietary rights, SUPPLIER shall either acquire all approvals of the respective third parties at his own cost and in due time or change all concerned parts of Product to avoid any infringement of third party rights. In the latter case, SUPPLIER shall be responsible for compliance of changed product with all applicable contractual specifications and understandings.
10.3 SUPPLIER agrees to defend, indemnify and hold harmless B. Braun from and against all claims, losses, liabilities, damages, costs or expenses of any nature B. Braun or third parties may suffer arising out of claims resulting from infringement on patent or any of the proprietary rights to the extent such infringement is caused by negligence or fault of SUPPLIER. Such claims shall prescribe at the earliest 3 calendar years after delivery of Products.
11. Force Majeur
If circumstances which became the basis of a contract have significantly changed since the contract was entered into, we are entitled to withdraw from the contract, to the extent our needs have decreased caused by such circumstances. Respective legal rights shall remain unaffected.
12. Miscellaneous
12.1 The contractual relationship is subject to the laws of Germany.
12.2 Business terms shall be interpreted according tot he Incoterms in their current version.
12.3 Parties shall use all reasonable endeavors to resolve such disputes as may arise between them in a professional and efficient manner. Any controversy or claim arising under, out of, in connection with, or relating to this Agreement which cannot be resolved amicably shall be subject to the jurisdiction of the competent ordinary courts of Melsungen, Germany. Nevertheless B. Braun shall be entitled to sue SUPPLIER at the competent court for SUPPLIER’s place of business.
Status: September 2010
General Conditions of Sale
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.