- General (Global)
- All services (including deliveries, offers and service offers) (hereinafter referred to generally as “Services”) of BoneArtis AG (hereinafter referred to as “BONEARTIS AG”) are based on these General Terms and Conditions of Sale and Delivery (hereinafter referred to as “General Terms and Conditions”). They are an integral part of all contracts that BONEARTIS AG concludes with its contractual partners (hereinafter referred to as “Clients”) with regard to the services offered. BONEARTIS AG does not recognize any terms and conditions of business of the Client that differ in whole or in part from these Terms and Conditions unless BONEARTIS AG has expressly agreed to them in writing. These General Terms and Conditions apply exclusively even if BONEARTIS AG unconditionally renders the service to the Client in the knowledge that the Client’s terms and conditions conflict with or differ from its Terms and Conditions.
- These General Terms and Conditions also apply to future business relationships with the Client even if they are not expressly agreed once again between the parties.
- The agreements between BONEARTIS AG and the Client claim validity in the event of contradictory or incomplete provisions in the following order – if relevant: individual contract, these Terms and Conditions, statutory provisions. No verbal collateral agreements have been reached between the contracting parties.
- Offer, Conclusion of a contract for services
- Offers of BONEARTIS AG are always subject to change. A contract shall only come about when BONEARTIS AG accepts the order in writing through an order confirmation or carries out the order.
- BONEARTIS AG reserves the ownership, copyright and industrial property rights to illustrations, drawings, technical documents, catalogues and other documentation, also in electronic form. This applies in particular to such written documents that are marked “confidential”.
- If software is part of the scope of services, the Client shall be given a non-transferable and non-exclusive right of use for the software supplied. BONEARTIS AG reserves all other rights to the Software.
III. Services and their time limits
- Deliveries are ex works (according to Incoterm 2010).
- BONEARTIS AG is entitled to carry out part deliveries unless the Client does not want this.
- Delivery dates apply after express, written confirmation.
- The start of the periods of delivery requires that all commercial and technical issues between BONEARTIS AG and the Client have been settled and that the Client has met all of the obligations incumbent upon it.
- A deadline for delivery is deemed to have been met if the goods were reported as ready for dispatch by BONEARTIS AG by the agreed date. In the event of default of performance the Client shall grant BONEARTIS AG a reasonable additional period for delivery of at least four weeks in writing.
- Should performance be delayed due to circumstances for which BONEARTIS AG is not responsible, the performance period shall be extended by the duration of the hindrance. This applies in particular to operational disruptions for which BONEARTIS AG or its suppliers are not responsible, especially due to strikes, lockouts, official interventions for which they bear no blame and other cases of force majeure. Should a binding delivery date be delayed by more than three months due to such a disruption and it is not foreseeable that the disruption will end within another four weeks, both parties are entitled to withdraw from the contract.
- If the Client delays acceptance of the goods, BONEARTIS AG shall be entitled to demand the reimbursement of any additional expenditures for the duration of the default, including the customary storage costs. The date of entry into storage serves as the date of delivery in such instances; the warehouse receipt replaces the shipping documents. After expiry of a reasonable grace period for acceptance BONEARTIS AG is entitled to dispose of the delivery item elsewhere. The right to make further claims is reserved.
- Unless otherwise expressly agreed, the prices are ex works excluding freight, packaging, interim storage, insurance, customs duty, charges and other public levies.
- The prices are each exclusive of the statutory value added tax, which is listed separately.
- Payments shall only be made directly to BONEARTIS AG without any deduction within the agreed payment period. A discount is only admissible in accordance with the relevant details on the invoice.
- Regardless of whether the Client is at fault, interest shall be charged on payment arrears after expiry of the payment period at the statutory default interest rate unless individual contractual provisions exist. If further reminders are necessary, they shall be charged at € 5.00 per reminder.
- Bills of exchange (also clients’ bills of exchange), checks and assignments shall only be accepted on account of performance and shall only be deemed payment once they have been cashed. Discount, exchange expenses and similar charges shall be reimbursed immediately by the Client on request.
- The Client may only offset against claims of BONEARTIS AG with counterclaims that are undisputed or have been finally established in law. This also applies to the assertion of rights of retention or rights to refuse performance. Rights of retention due to defects are only admissible under the aforementioned conditions to an extent which is in reasonable proportion to the defects which have occurred.
- BONEARTIS AG reserves the right to demand advance payment up to the amount of the invoiced value.
- Passage of risk, Dispatch
- The risk of destruction, loss of or damage to the goods shall pass to the Client upon dispatch of the goods ex works or in the case of collection of the goods by the Client with their provision.
- If dispatch is delayed due to fault on the part of the Client, the risk shall already pass to the Client from the day of readiness for dispatch.
- If the Client has not specified special dispatch requirements to BONEARTIS AG in good time in advance, BONEARTIS AG is entitled to effect forwarding of the goods to the best of its judgment.
- All forwarding costs shall be borne by the Client unless otherwise expressly agreed.
VII. Retention of title
- The goods shall remain the property of BONEARTIS AG until all the claims due to BONEARTIS AG have been satisfied.
- As long as ownership has not yet passed to the Client, the Client has an obligation to BONEARTIS AG to handle the reserved goods with care, hold them in safe keeping, maintain and repair them at its own expense and insure them adequately at its own cost at the original value against theft, breakage, fire, water and other damage, and prove this on request. The Client shall hereby assign its claims from the insurance contracts in advance to BONEARTIS AG. BONEARTIS AG hereby accepts the assignment.
- In the event of seizures, confiscation or other interventions by third parties in relation to the reserved goods, the Client shall inform BONEARTIS AG thereof without delay in writing.
- The following additionally applies to Clients as resellers:
- a) The Client is entitled to sell the reserved goods in the course of ordinary business dealings if it retains title to the reserved goods vis-à-vis its customers pursuant to this section VII. The entitlement to resale does not apply if and insofar as a ban on assignments has been agreed between the Client and its customers with respect to the purchase price claim. The Client is not entitled to pledge, assign by way of security or otherwise encumber the reserved goods.
- b) The Client shall herewith already assign to BONEARTIS AG all its claims from the retention of title it agreed with its customers arising from the resale of the reserved goods to secure all claims of BONEARTIS AG, also in the future, from the business relationship with the Client. This applies even if the reserved goods have been processed or resold to several customers of the Client. BONEARTIS AG hereby accepts this assignment.
- c) Even after this assignment the Client is entitled to collect the claims itself from a resale. The authority of BONEARTIS AG to collect the receivable itself shall not be affected thereby. However, BONEARTIS AG undertakes not to collect the receivable as long as the Client duly meets its payment obligations, does not fall into payment arrears, BONEARTIS AG has not revoked the authority to collect and an application has not been filed for the opening of insolvency proceedings in relation to the assets of the Client. At the request of BONEARTIS AG the Client shall immediately notify BONEARTIS AG in writing who the goods have been sold to and what claims are due to the Client as a result of the sale and it shall provide all information required for collection and surrender the relevant documents and notify the debtors about the assignment.
- d) BONEARTIS AG shall undertake to immediately release at its discretion the security that it holds at the Client’s request insofar as the value thereof not only temporarily exceeds the claims to be secured by more than 10%.
VIII. Return of goods (beyond the warranty)
- BONEARTIS AG must expressly agree to the return of goods in writing. The value to be reimbursed when goods are returned shall be determined on the basis of the age, condition and suitability for resale of the goods.
- Custom-made goods which have been expressly ordered or which are not in the standard range of BONEARTIS AG are excluded from returns.
- The Client shall bear the risks and costs for transporting the returned goods.
- Transport insurance/Return of packaging
- At the express, written request of the Client BONEARTIS AG shall insure the consignment against theft, breakage, transport, fire and water damage and any other insurable risks. The Client shall bear the costs therefor.
- If BONEARTIS AG is obliged to take back the packaging under the provisions of the Packaging Ordinance, it shall collect it from the Client at its expense. The parties shall agree the details separately.
- Warranty rights for defects of quality
- The Client shall immediately examine the service rendered for possible defects. The Client shall immediately inform BONEARTIS AG in writing after its discovery if the service rendered is defective in whole or in part, otherwise the service shall be deemed approved. In the case of services the notification period for defects that were visible during a careful examination appropriate for the type of goods is at the latest 14 days after the arrival of the goods. Hidden defects must be notified immediately after detection. The provisions pursuant to this section X also apply in the case of software deliveries.
- If there is a defect in the service for which BONEARTIS AG is responsible and it was reported in due time, BONEARTIS AG shall rectify this defect at its own discretion within an appropriate time period free of charge or provide a replacement (“subsequent performance”).
- If the rectification of defects fails twice or BONEARTIS AG refuses to render subsequent performance, the Client is entitled at its discretion to withdraw from the contract or demand a reduction (corresponding reduction of the purchase price).
- The limitation period for any claims arising from defects is twenty-four months from the passage of risk.
- The liability of BONEARTIS AG for damages, for whatever reason, is limited in accordance with this section XI.
- BONEARTIS AG is not liable in the event of simple negligence unless it relates to the breach of contractually essential obligations. Essential contractual obligations include the obligation to deliver and, if applicable, install in a timely fashion goods that are free of essential defects. Otherwise, BONEARTIS AG is only liable for intentional or grossly negligent conduct.
- In the event of data loss BONEARTIS AG shall be liable only for the expense required for the recovery of data in the case of proper data security by the Client.
- Liability for indirect damage or consequential damage is always excluded.
- The limitations of this section XI do not apply to the liability of BONEARTIS AG for deliberate actions, guaranteed qualities, the breach of essential contractual obligations, loss of life, personal injury or illness or under the Product Liability Act.
- The limitation period for claims for damages against BONEARTIS AG is twenty-four months from the passing of risk of the delivery or provision of the Service.
- The Client is obliged to keep secret all the business, operational and technical matters of BONEARTIS AG that have become known or become known in connection with the service, even beyond the duration of the contract.
- The obligation of secrecy shall end when the information becomes public knowledge without this being based on the breach of an obligation of confidentiality.
XIII. Export control
- The fulfilment of services shall be subject to the proviso that no obstacles based on national or international requirements under export and import law or any other legal requirements preclude them.
- Delays due to export inspections or approval procedures shall in this respect render any delivery terms and deadlines ineffective.
- If BONEARTIS AG is unable to fulfil a contract because approvals have not been granted, the contract for the goods in question shall be deemed to have not been effectively agreed from the outset. The Client shall not derive any claims for damages or for reimbursement of expenses therefrom.
- The Client is responsible for procuring any necessary import authorization.
XIV. Final provisions
- The Client hereby agrees that customer data received in connection with the business relationship will be stored by BONEARTIS AG for the purposes of data processing and that the data will be sent to third parties (e.g. for credit checks, to insurance companies, for notifications under the Medical Devices Act (MPG)) insofar as is necessary for the fulfilment of the contract.
- The Client’s claims may only be assigned with the written consent of BONEARTIS AG.
- BONEARTIS AG hereby declares that it will comply with the statutory requirements of the minimum wage law (MiLoG).
- The Client is obliged to comply with the laws of the applicable legal system(s), in particular the provisions of the minimum wage law (MiLoG), if applicable. In particular, it shall adhere to the guidelines and recommendations of the United Nations Global Compact.
- The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is, as far as is permissible, Rottweil.
- The law of the Federal Republic of Germany applies exclusively to the relationship between BONEARTIS AG and the Client to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
- Should one or more provisions of these General Terms and Conditions be or become invalid, this shall not in any way affect or impair the validity or enforceability of the remaining provisions. The parties undertake in this case to replace the invalid provision with a legally valid substitute provision that comes closest to the economic intentions of the provisions. The same applies in the event of a gap in the provisions.
Applicable Law: Munich, November 2017