General Terms and Conditions of Business (AGB) of mediCut Stent Technology GmbH

1 Scope
All of our offerings, orders, deliveries, and services (referred to in the following as "services") – including future ones – are provided solely on the basis of our General Terms and Conditions of Business (AGB). The General Terms and Conditions of Business form part of every contract with us; they still remain valid even if they are not specifically mentioned.

Our General Terms and Conditions of Business only apply to dealings with other companies (§§ 14, 310 German Civil Code / BGB). Our General Terms and Conditions of Business apply solely to the exclusion of all others. General Terms and Conditions of Business of the customer are not applicable, even in cases in which we do not expressly exclude them. They do not become part of the contract even if we unconditionally accept or execute an order .

2 Conclusion of contract
Unless expressly stated otherwise, our offers are subject to change. We are entitled to accept orders of the customer within 15 working days. A contract, even for a verbal order, does not become binding until we confirm the order, at the latest at the start of fulfillment of the service.

Verbal and telephone agreements are subject to our confirmation in writing before they become legally binding. Obvious mistakes, printing errors, spelling mistakes, and calculation errors are non-binding and do not form the basis for any entitlement. We only offer a guarantee when termed as such by us expressly and in writing.

The extent and subject of the service is defined solely by the order confirmation or, in the case of immediate execution of the contract, the delivery note. If these contain any changes in relation to the order of the customer, then the agreement of the customer is taken as read if he accepts the service unconditionally and does not immediately register his objection in writing. If the customer makes changes to or increases the order after our order confirmation then we are entitled to adjust our prices and increase the delivery time.

Our offers are always based on information provided by the customer and are not based on any understanding of the particular circumstances or requirements of the customer. The customer bears the responsibility for ensuring that the services are suitable and fit for purpose. This also applies to cases in which we deliver services on the basis of drawings, specifications, samples, diagrams etc. of the customer. We will only accept liability for a specific intended use or for a specific – technical – suitability if this is specifically agreed in writing. Where we fabricate samples and/or a prototype and these are approved by the customer, our execution of the service is deemed to be contract-compliant. The same applies if we execute the service on the basis of diagrams created by us that the customer has approved.

All information, samples, examples or illustrations in catalogs, price lists or other advertising materials are only approximate (e.g. weight, dimensions, utility value, load-bearing capacity, tolerances or technical data), unless the suitability for use for the contractual purpose requires exact compliance. Any reference to technical standards serves the description of services and does not represent a guarantee of assured properties.

Where we provide technical information or act in a consulting capacity and such information or consulting services do not form part of the contractually agreed scope of services, this is done under strict exclusion of any liability.

If, during performance of the service, we identify that the service it is either technically unfeasible or cannot be implemented reliably in terms of the process, or if specific requirements relating to the service need to be modified, we will inform the customer about this and propose alternative solutions where possible (change request). We will submit a supplementary offer to the customer for this. The customer must notify us immediately, at the latest within 10 working days from receipt of the offer, whether or not he agrees to the change. If no agreement can be reached then both parties are entitled to withdraw from the contract. Our expenses incurred up to this point are to be reimbursed. Resulting claims for damages on the part of the customer are excluded.

3 Pricing / payment
Our current valid list prices apply. Unless agreed otherwise, these prices apply ex works and are subject to VAT. They do not include supplementary services such as packaging, loading, freight, customs duty, expenses, transportation costs and other costs.

A promised or guaranteed service is deemed to have been met if the delivered performance deviates by up to 10% from it (tolerance). In the case of an individual custom manufacturing, we are entitled to over or under-deliver by up to 20% at the expense of the customer.

In the event that missing information, unclear goals or tasks result in additional expenses for us, we will bill such additional expenses separately in accordance with the current list price if the customer fails to correct or add the missing information despite being asked to do so.

Unless agreed otherwise, all invoices are due for payment immediately without discount. The credit received in our account is decisive in terms of the correctness of a payment. Cash discounts are subject to our express, written approval.

In the event of delays in payment or justified doubts in the ability of the customer to pay, we are entitle to demand payments in advance and/or apply a right of retention to further services. This also applies if the insurance of a customer demand is turned down by our trade credit insurer. In the event of delays in payment any discounts, cash discounts and other benefits will become invalid, and interest at a rate of 8 percentage points above the basic rate of interest (§ 288 BGB) will be due.

The customer only has a right of retention and the right to offset if his counter demands are uncontested and determined with legally binding effect or based on claims for defects.

If the agreed performance period is more than four months, we reserve the right to change our prices appropriately with a period of one month's notice if, after conclusion of the contract, cost reductions or increases, particularly on account of tariff agreements, changes to production costs or market prices for comparison products, occur. On request from the customer we will provide documented evidence of the cost increase factors.

4 Delivery
Transfer of risk: The service/delivery and the layout of the documents conform to ICC Incoterms® 2010. ERA 600 is applicable (harmonized guidelines and standards for documents and letters of credit from ICC Paris).

Unless unreasonable, it is permissible to make partial deliveries, over/under-deliveries, reduced deliveries or early deliveries.

Goods are dispatched at the cost and risk of the customer, with no guarantee that the cheapest method has been chosen. A delivery deadline is deemed to have been met if the carrier collects the shipment for dispatch within this deadline; we accept no liability for delays on the part of the carrier. We will insure shipments and/or transportation at the cost of the customer after prior instruction to do so.

Delivery times or dates agreed in writing or verbally are only approximate, unless a fixed delivery date has been promised in writing. Service delivery times start with the receipt of order confirmation, but not before all business-related and technical issues have been clarified and any required advance payments have been credited.

Satisfaction of the delivery time is subject to timely receipt of our own deliveries. We are not liable for omissions or delays on the part of upstream suppliers, and any compensation claims will be passed on to the customer. After expiry of a non-binding service delivery period, the customer is only entitled to withdraw from the contract if he has delivered to us in writing beforehand a threat of refusal with a period of extension of at least 30 days.

Force majeure, official and legal measures, and other circumstances for which we cannot be held responsible, e.g. strikes, industrial disputes, missing approvals, difficulties in the procurement of materials, unrest, embargoes that substantially impede or render impossible our own services or those of upstream suppliers not solely on a temporary basis, shall free us from our obligation to deliver the service for the duration of their presence. We cannot be held liable for delays or inability to perform on account of such events. The customer may ask us to state within a period of 2 weeks whether we would prefer to withdraw from the contract or to fulfill its performance within an appropriate timescale. If, due to the above reasons, the customer can no longer be reasonably expected to accept the service, he is entitled to withdraw from the contract after an appropriate extension period. We are entitled to withdraw in full or in part from the contract if, for the reasons outlined above, we cannot be reasonably expected to fulfill our contractual obligations, but this does not entitle the customer to make subsequent claims for damages. In this case the customer is freed from his corresponding counter obligations. We will keep the customer informed about any delays, for whatever reason.

In the event of delayed fulfillment and ordinary negligence on our part, we are liable to pay a fixed delay penalty of 0.5% per full week of delay, but no more than 5% of the net invoice value of the service affected by the delay. We are entitled to demonstrate that the actual damages are lower. For the remainder our liability is governed by the liability rulings in these General Terms and Conditions of Business.

5 Retention of title
Until all demands have been met (including all demands relating to the account balance) to which we are entitled from the customer now or in future on the grounds of any legal basis, the customer will grant us the following securities, which we will release on demand at our discretion, provided their value does not exceed the demands by more than 20%:

We reserve the right to retain the title of the service until all payments resulting from the business transaction have been received. For the duration of the retention of title the following shall apply:

  • The customer shall maintain the object of the service in perfect order. The customer shall insure the object of the service at his costs against theft, breakage, fire damage, water damage and other forms of damage, provided this can be reasonably expected of him. Proof is to be presented on request.
  • The customer is revocably entitled to sell or process the object of the service in the due course of his business, provided he is not behind with payments. Pledging as collateral and transfer of ownership are not permitted.
  • The customer agrees to cede to us now all demands arising in relation to the reselling of the object of the service, in place of the object of the service or otherwise in relation to the object of the service (e.g. insurance, unlawful acts), including all ancillary rights, irrespectively of whether the object of the service is resold without being processed or after further processing. We hereby accept this transfer of rights.
  • The customer is revocably entitled to collect the demands ceded to us in their own name on our account. Our entitlement to collect the demand ourselves remains unaffected by this. We are entitled to disclosure.

Behavior on the part of the customer that is in breach of the contract, in particular delays in payment or the instigation of insolvency proceedings (enforcement), we are entitled to withdraw from the contract and to demand the immediate release of the object of the service or, if applicable, cessation of release demands against third parties. In this case the customer has a right of retention. Claims for damages, including claims for compensation for loss of profits, remain unaffected by this. Our entitlement to the withdrawn object of the service can be satisfied by free sale.

6 Rights in the event of defects
Is the customer a merchant in the sense of the German Commercial Code (HGB), he has to carefully inspect the received object of the service immediately upon receipt. Defects must be notified to us immediately in writing (complaint). Shipping and/or transport damage must be documented for the carrier. For the remainder § 377 HGB shall apply. If no such complaint is raised, then the object of the service is deemed to be free of defects and compliant with the order, unless there is a defect that is not evident during the investigation. Such defects must be communicated as soon as they are discovered.

The reselling, installation or other use of goods that have been objected to counts as approval of contract-compliant fulfillment and excludes to this extent claims due to defects.

When entering into negotiations with regard to possible defects, we do not waive entitlement to the objection that the complaint was not timely, was factually unfounded or was otherwise inadequate. Measures we have taken to limit damage may not be deemed admission of damage on our part.

Material-related deviations from the agreed quality and scope and changes to the service resulting from technological advancements, as well as changes to the construction, design, dimensions, weight or color are permitted within the normal tolerances that are standard within the industry, provided they do not restrict the suitability of the object of the service for its intended purpose, no guarantee is present and an objective assessment would not deem these changes to be unreasonable for the customer.

If the performance is defective, we will, at our discretion, fulfill our obligation for supplementary performance either by remedying the defect (rectification) or by supplying a defect-free performance (replacement). If we opt for replacement, this is done step-by-step against the return of the defective goods if we so wish. Replaced parts transfer into our ownership.

No liability is accepted in the event of unsuitable or improper use and/or repairs, non-compliance with the operating instructions, incorrect of negligent handling or storage, unless we are responsible for this.

The customer's rights of recourse in accordance with § 478 BGB only exist to the extent that the customer has not made any agreements with the user that go beyond statutory claims in the event of a defect. The imitation of the statutory limitation period in accordance with § 479 BGB is only applicable if the customer has demonstrably granted warranty claims to his buyer.
Further claims or other claims due to defects other than those claims set out in these General Terms and Conditions of Business are excluded.

7 Liability
In accordance with statutory regulations set out in the German Product Liability Act (ProdHG), we are liable without limitation in the event of fraudulent intent, willful acts, personal injury, when accepting a quality guarantee or to the extent that damages are covered by our liability insurance.

We are also liable in accordance with the statutory regulations in the event of a grossly negligent violation of duties; only in the case of a grossly negligent breach of contract relating to duties that are not fundamental to the contract is our liability limited to the foreseeable damages typical for this type of contract.

In the event of minor negligence we are liable for violation of fundamental contractual obligations, whereby our liability is limited to the foreseeable damages that are typical and can be expected for this type of contract. All further liability is excluded.

Fundamental contractual obligations are obligations that are generally required to ensure fulfillment of the proper performance of the contract; the customer can and will normally trust that these obligations will be complied with.

Liability exclusions and limitations also apply to our executive bodies, legal representatives, employees, and other vicarious agents. The customer must accept contributory negligence.

8 Limitation of liability
Our liability for the foreseeable damages typical for this type of contract is limited to EUR 100,000.00 per event for material damage and EUR 200,000.00 for other types of damage; however, the sum total of our liability for all damages within a calendar year is limited to twice these amounts in each case. This limitation does not apply if further damage is covered by the existing liability damage.

Unless agreed otherwise, claims relating to defects will fall under the statute of limitations one year after handover/delivery, unless a longer time period is expressly required by law (ProdHG), e.g. in the case of willful actions, fraudulent intent, or personal injury.

9 Property rights, secrecy, data protection
If, in exceptional cases and on the basis of an agreement in writing, we cede the legal responsibility for property rights to a third party then the following shall apply: If the exploitation of the object of the service leads to the violation of commercial or property rights, we will, at our discretion and costs, either obtain a usage right for the customer or alter the object of the service so that the protected property right is no longer infringed, or replace it with a different object that is not in violation of applicable property rights. If no reasonable options are available to do this, then the customer shall be entitled to his legal rights. This obligation only exists if the customer informs us immediately about any claims made and does not acknowledge any infringement, and we retain access to all potential defense measures. If the customer stops using the service or goods in order to minimize damages or for other important reasons, then he is obliged to inform the third party that the termination of use does not represent recognition of any infringement of property rights. Any relocation of the object of the service to a different country of that of the contract partner takes place at the risk of the customer.

Claims of the customer shall also be excluded in so far as he is responsible for the infringement of protected property rights or the infringement of protected property rights is caused by special requirements of the customer, by an application not foreseen by us, or as a result of the contractual object being modified by the customer or used together with goods not supplied by us. The customer hereby indemnifies us against all third-party claims and also agrees to bear the costs of the appropriate legal defense resulting from claims asserted by third-parties due to the infringement of third-party rights.

The customer will treat with strict confidentiality all contractual content, in particular relating to prices, discounts, know-how and other business secrets, and will not disclose or make available such information, documentation, drawings, or other documents to third parties without our express, written authorization. This does not apply if said content is already in the public domain without any violation of duty to secrecy. The customer will also transfer this secrecy obligation to his employees and associated companies, as well as to third parties to whom the content is made accessible.

We are permitted to use the customer (incl. logo, brand name) and the project as a reference project provided the customer does not raise justified objections.

The customer agrees that we will use his data (communication data, responsible employees, type and scope of orders, etc.) for the purpose of enabling the contract to be fulfilled. We are also permitted to use the data to inform the customer about our products and services if they are typically related to the products and services the customer has acquired from us.

10 Closing definitions
These General Terms and Conditions of Business also apply to all companies associated with the customer in accordance with the meaning of § 15 of the German Companies Act (Aktiengesetz). The customer is obliged to transfer these General Terms and Conditions of Business to his associated companies.

Changes and additions to these conditions that are not based on an individual agreement must be made in writing (fax included). This also applies to any waiver of the requirement of written form. In the event that individual clauses in these terms and conditions are or become invalid, this shall not affect the validity of the remaining terms and conditions.

The customer is not entitled to transfer rights from this contract to third parties without our approval. § 354 a HGB remains unaffected.

If the contract or the General Terms and Conditions of Business are available in different languages, the German version will always take priority in the event of any conflicts.

German law is applicable provided this does not contradict mandatory national laws.

Unless agreed otherwise, and irrespective of the agreed Incoterms, our place of business is also the place of fulfillment, including for any warranty claims. In case that the customer is a merchant, in the sense of the German Commercial Code (HGB) or a corporate body under public law, our place of business is the place of jurisdiction. We are also entitled to take legal action against the customer in the local courts at the latter's place of residence.

In the event of legal disputes with customers outside the EU resulting from or in connection with the contract, the Zürich Court of Arbitration is responsible in accordance with the Swiss Rules of International Arbitration issued by the Swiss Chamber of Commerce. The Court of Arbitration comprises a panel of three judges. The Court of Arbitration is seated in Zürich, Switzerland. Proceedings in front of the Court of Arbitration are conducted in the contractual language.

Date: April 2015

Customer Service

Telephone +49 (0) 7231-280 100