GENERAL TERMS AND CONDITIONS OF DEVILBISS HEALTHCARE GMBH

Scope of validity
Sales, deliveries, orders, offers and other services by DeVilbiss Healthcare GmbH (hereinafter referred to as "DeVilbiss") are provided exclusively to business people as defined by Section 14 of the BGB (Bürgerliches Gesetzbuch, German Civil Law) in line with the following General Terms and Conditions that the purchaser recognises by issuing an order or accepting a delivery. They also apply to all future transactions with the purchaser. The applicability of differing or additional terms and conditions issued by the purchaser is excluded even if DeVilbiss does not expressly contradict them.
Agreeing the contract
1. DeVilbiss offers are non-binding. A contract only comes into existence when DeVilbiss accepts the purchaser's order.
2. The purchaser may issue orders via the internet, fax or by telephone.
3. After receiving the purchaser's order over the internet DeVilbiss will send a non-binding confirmation of receipt to the purchaser.
4. DeVilbiss will accept the purchaser's order by sending an order confirmation to the purchaser by fax or email. The contract depends exclusively on the content of the order confirmation and the present General Terms and Conditions. Oral subsidiary agreements or commitments must be confirmed in writing by DeVilbiss for them to be effective.
5. DeVilbiss reserves all rights to the sales documents (especially graphics, drawings, and weight and measurement statements) and samples. They may not be made accessible to third parties and must be returned to DeVilbiss without delay on request. Such documents may only be passed on to third parties after the prior written agreement of DeVilbiss.
6. The DeVilbiss sales team cannot sign contracts of any kind nor make binding statements on the item to be delivered or other conditions.
Delivery periods and deadlines
1. Delivery dates and periods are only binding if they have been confirmed by DeVilbiss in writing and the purchaser has provided or made available to DeVilbiss all the information and documents required to execute the delivery and has paid any advance payments as agreed. Agreed periods start on the date of order confirmation. The periods are extended as appropriate for additional or extension orders issued later.
2. Unpredictable, unforeseeable events as well as those beyond the influence or responsibility of DeVilbiss, such as force majeure, war, natural disasters, release DeVilbiss from the duties of on-time delivery or service provision for their duration. The agreed periods are extended for the duration of the disruption; the purchaser will be informed of the occurrence of the disruption in an appropriate manner. If the end of the disruption can not be predicted or it lasts longer than two months, each party is entitled to withdraw from the contract.
3. If the purchaser delays acceptance or infringes its other cooperation obligations, notwithstanding its other rights, DeVilbiss is entitled to store the goods at the purchaser's expense and risk as appropriate.
4. DeVilbiss may make partial deliveries if there is a good reason to do so.
Shipment, transfer of risk and insurance policies
1. If no provision is made by the purchaser, shipment is made in the usual packaging by an appropriate delivery method.
2. Shipment takes place ex works, which means that DeVilbiss’ liability ends when the consignment is handed over to the transport company or, if the purchaser is responsible for transport, when the consignment is provided at the DeVilbiss warehouse from which shipment takes place and the announcement of readiness for shipment. In this case, even if the purchaser is not responsible for any damages to the consignment or its loss, the purchaser is still obligated to pay DeVilbiss the full amount of the purchase price.
3. Insurance policies are only provided at the request and the expense of the purchaser.
4. For all orders that fall below an order value of €50 excl. VAT, DeVilbiss reserves the right to add a packing and handling surcharge of €15 excl. VAT.
Prices and payment terms
1. If the ordering parties have not agreed on a particular price, the price is set as per the DeVilbiss price list applicable at the time the contract is concluded.
2. All DeVilbiss prices are understood as ex works excluding the relevant, applicable value-added tax, public fees and charges, any customs charges as well as packaging and shipment costs, which are charged separately.
3. The parties agree that if nothing different has been negotiated; all payment obligations arising from this contract are in euros.
4. If nothing further has been agreed the invoice sum is to be paid by direct debit (cash in advance) immediately after delivery against 3% cash discount.. If payment on invoice has been agreed each invoice is due for payment without deduction immediately after receipt. Payments by the purchaser are considered to have been made when DeVilbiss can dispose of the amount.
5. If the purchaser has delayed payment DeVilbiss is entitled to demand default interest as permitted by law. DeVilbiss may demand restitution of any other damage due to delay without limitation.
6. The purchaser is only entitled to offset amounts if the counter-claim is undisputed or legally binding.
7. Purchaser is only permitted to execute a retention right to the extent to which the counter-claim is based on the same contract and is undisputed or legally binding.
8. If DeVilbiss becomes aware of the risk that the purchaser can not fulfil his duties after the contract has been concluded, DeVilbiss is entitled to only make outstanding deliveries or provide services only for payment in advance or if security is provided; if this is not done even after a period set by DeVilbiss, DeVilbiss may withdraw from the contract in full or in part notwithstanding other rights.
Warranty, inspection requirement and return
1. Data given in catalogues, price lists and other handouts supplied to the purchaser by DeVilbiss and in product descriptions should in no way be taken as a guarantee that the article shall have a particular characteristic. Any such guarantee must be agreed explicitly in writing.
2. The purchaser’s warranty rights require that the purchaser shall check the article following delivery and that DeVilbiss shall be notified immediately in writing of any defect by no later than 2 weeks from the delivery date. Latent defects must be notified to DeVilbiss in writing immediately upon discovering the defect. All warranty rights are not transferable to subsequent owners.
3. DeVilbiss reserves the right to inspect and test the rejected article in any claim. The purchaser will give DeVilbiss the necessary time and opportunity to do so. DeVilbiss may also request after arrangement that the purchaser returns the item complained about to DeVilbiss at the expense of DeVilbiss. If a complaint by the purchaser proves to be unjustified due to deliberate action or negligence, DeVilbiss is entitled to receive reimbursement for all costs incurred in this regard.
4. DeVilbiss shall be entitled, if it so chooses, to remedy any warranty defects by repairing or replacing the defective part or the entire article at no extra cost to the purchaser.
5. Any parts replaced by DeVilbiss will become the property of DeVilbiss.
6. DeVilbiss does not accept any responsibility for damages arising from inappropriate or incorrect use, stocking, storage, transportation, assembly, operation, and lack of maintenance or inappropriate handling by the purchaser, use of inappropriate fixtures or natural wear and tear, except where those damages are caused by DeVilbiss.
7. If a warranty defect is not remedied by rectification or replacement or if such is unacceptable to the purchaser, or if DeVilbiss has rejected doing so by virtue of Article 439, Section 3 of the BGB, the purchaser may choose to cancel the agreement in respect of the defective article, request a corresponding reduction in price or request simple compensation, compensation in lieu of specific performance or reimbursement of its futile expenditures.
8. The limitation period for warranty claim is 12 months from the transfer of risk. If the item to be delivered is sold properly by the purchaser or their direct or indirect contractual partners to an end-user, the provisions of Section 479 of the BGB for any recourse claims remain in force for a longer limitation period.
9. The purchaser shall not be entitled to any other claim except where allowed under Section 7 or under Articles 478 and 479 of the BGB.
10. Finished products or parts thereof cannot be returned if there are no grounds for so doing. If in individual cases, especially for therapeutic reasons, modified requirements or deaths DeVilbiss takes a different decision, DeVilbiss will pay 80% of the delivery price for original packed goods that were delivered within the last three months. Deliveries that were made more than 3 months ago are excluded from exchange. A copy of the delivery note or invoice is proof of the delivery date. Freight costs are to be assumed by the purchaser.
Damages and liability restriction
1. If nothing further has been agreed in Number 7.2 DeVilbiss is liable without limitation for damages as per the statutory regulations.
2. As an exception DeVilbiss is not liable for slight negligence of insignificant contractual obligations and only to a limited extent for damages that can be predicted as being typical of the contract for slight negligence of key contractual obligations.
Reservation of title
1. The products delivered remain the property of DeVilbiss until all claims by DeVilbiss from the business relationship with the purchaser have been paid in full.
2. In case of current account title retention serves to guarantee the balance claim assignable to DeVilbiss.
3. The purchaser is only permitted to sell the retained products within the ordinary course of business. The purchaser is not permitted to pledge the retained products, transfer them as security or otherwise use them in a manner that could put DeVilbiss ownership at risk. The purchaser already assigns the claim from ongoing sales to DeVilbiss; DeVilbiss already accepts this assignment. The purchaser is revocably authorised to collect the claims assigned to DeVilbiss in its own name in trust for DeVilbiss. DeVilbiss can revoke this authorisation and the right to sell the goods on if the purchaser is in default with key obligations such as payment.
4. The purchaser will provide to DeVilbiss at any time all of the desired information on the retained products or claims that are hereby assigned to DeVilbiss. The purchaser must notify DeVilbiss immediately of accesses to or claims by third parties on the retained products and provide the necessary documents. The purchaser will also notify the third parties of the DeVilbiss retention of title. The costs for defending such accesses and claims will be paid by the purchaser.
5. The purchaser is obliged to treat the retained products carefully for the duration of the retention of title.
6. If the realisable value of the securities exceeds the total protected claims of DeVilbiss by more than 10% the purchaser is entitled to request release to this extent.
7. If the purchaser is delayed in key duties, such as payment to DeVilbiss, DeVilbiss can notwithstanding other rights remove the retained products and for the purposes of fulfilling any claims against the purchaser make use of them in another way. In this case the purchaser will grant DeVilbiss or those appointed by DeVilbiss immediate access to the retained products and hand them over. If DeVilbiss demands the return as a result of this provision this does not mean withdrawal from the contract.
8. For deliveries in other legal systems where the retention of title provision stated above does not have the same security effect as in Germany, the purchaser will do everything in its power to give DeVilbiss appropriate security rights without delay. The purchaser will cooperate on all measures, such as registration, publication etc. that are necessary and appropriate for the effectiveness and ability to implement such security rights.
9. At the request of DeVilbiss the purchaser is obliged to insure the retained products appropriately, to provide appropriate confirmation of the insurance and to assign claims from the insurance policy to DeVilbiss.
Product liability / medical products
1. The purchaser will not change the delivered products nor their equipment or packaging; in particular he will not modify or remove the existing warnings about risks relating to the improper use of the products. If the purchaser infringes the provision stated above he will indemnify DeVilbiss internally for product liability claims by third parties if he is responsible for the errors that result in liability.
2. Obligation to cooperate in corrective measures according to Medical Products Safety Scheme Directive (MPSV).
3. The purchaser is obligated to carry out, forward and report back about carrying out corrective measures which had been communicated by DeVilbiss.
General provisions
1. Modifications and additions to the contract and/or these general terms and conditions, as well as subsidiary agreements, must be in written form. This also applies to any changes to this written form clause.
2. If a provision of the contract and/or these general terms and conditions is ineffective in part or in full this does not affect the effectiveness of the other provisions. In this case the parties agree to be obliged to agree in the place of the ineffective provision on a provision that comes as close as possible to the economic purpose of this ineffective provision.
3. The exclusive place of jurisdiction for all disputes arising from the present contractual relationship is Mannheim. DeVilbiss is however entitled to issue proceedings in any other statutory court of jurisdiction.
4. These terms and conditions are subject to the laws of the Federal Republic of Germany with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
5. In order to conduct business processes your information will be stored and processed by DeVilbiss. DeVilbiss will not transmit your information to any other third party. As long as you don’t raise an explicit or in any other way to DeVilbiss discernible objection, DeVilbiss will use your information for marketing purposes.

T&C DeVilbiss Healthcare Deutschland Rev. 6 as of 01.09.2017