General Terms and Conditions (GTC) of

PHYWE Systeme GmbH & Co. KG

§ 1

Application of Conditions

1. These General Terms and Conditions (hereinafter referred to as GTC) shall apply for all goods, services and offers of PHYWE Systeme GmbH & Co.KG (hereinafter referred to as PHYWE) for its customers (hereinafter referred to as Customer). They shall apply equally for all future business between the contract parties without requiring a repeated reference. General Terms and Conditions of the Customer shall apply only if expressly approved by PHYWE in writing.

2. All deviating agreements between PHYWE and the Customer shall be set down in writing; a waiver of the written form does not have any effect on the agreement's validity. In the event of such an agreement these GTC shall be of lesser importance and shall supplement the agreement.

3. PHYWE reserves all rights to PHYWE operational and offer documents. If no order is placed, all documents shall be returned immediately of the Customer's own accord. All information in them and from other transactions shall be treated as strictly confidential.

4. All offers, samples and test products as well as their technical data and descriptions in the respective product information and promotional materials on the PHYWE website are for information only and are not binding. They do not represent a warranty of quality or application.

 

§ 2

Offer and Contract Conclusion

PHYWE's offers are not binding. PHYWE reserves an acceptance period of two weeks from receipt at PHYWE regarding the Customer's binding orders. Verbal statements of acceptance (by phone) and all Customer orders shall be confirmed by PHYWE in writing or by telex; a waiver of the confirmation does not affect the effectiveness of verbal statements of acceptance and orders (by telephone).

 

§ 3

Prices

1. The prices given in the PHYWE price list or the PHYWE order confirmation, exclusive of the relevant applicable value-added tax in the respective country, shall be binding. Additional goods and services are charged separately.

2. The prices are "ex work PHYWE" and include PHYWE standard packaging. Special packaging or other requests from the Customer, such as packaging in certain lots, are charged separately. Deviating provisions may be agreed between PHYWE and the Customer or by PHYWE for a region or a country in writing from time to time.

 

§ 4

Delivery and Performance Terms

1. Delivery dates or terms that may be agreed upon, both binding and unbinding, shall be set down in writing. Non-binding delivery terms may be exceeded by up to 8 weeks by PHYWE; only after expiration of this term we shall fall into arrears by reminder of the Customer. Delivery terms shall start as of contract conclusion and acceptance of payment details by PHYWE. In the event that changes to the contract are agreed upon,  it is subsequently required to agree on a new delivery date at the same time. Claims for damages or recourse of the Customer towards PHYWE shall be excluded in any case.

2. In the event of delivery and performance delays due to force majeure, natural disasters as well as due to labour disputes, traffic or operation disturbances, lack of material through no fault of their own and similar reasons on PHYWE and its suppliers' part, the Customer is not entitled to withdraw from the contract or to assert claims towards PHYWE. The Customer is entitled to withdraw from the contract if the aforementioned reasons cause an extension of the delivery date by more than four months. PHYWE is entitled equally to withdraw from the contract. Claims for damages or recourse of the Customer towards PHYWE shall be excluded in any case.

3.PHYWE is entitled to make partial deliveries and partial performances at any time unless the deliveries and performances are to be made fully and completely in accordance with the contractual arrangements.

4. PHYWE's compliance with delivery and performance obligations requires the Customer's timely and proper compliance with its obligations.

5. If the Customer falls into arrears, PHYWE is entitled to demand reimbursement of the additional expenses it had to make for the unsuccessful offer and storage and maintenance of the owed object; with commencement of default of acceptance the risk of incidental deterioration and accidental loss is transferred to the Customer.

 

§ 5

Export Business

PHYWE is entitled to withdraw from the contract regarding delivery of such products (partial withdrawal) that require approval of the federal ministry for economics and export control, the Federal Institute for Medicaments and Medical Products or a similar governmental institution for their export from Germany or their import in their country of destination pursuant to legal provisions in the event that the approval is not issued or  probably may not be obtained until the agreed delivery date. PHYWE shall immediately advise the Customer of this and possibly reimburse a compensation for the part of the performance affected by the withdrawal.

 

§ 6

Shipping and Transfer of Risk

1. Place of performance is Göttingen. The delivery condition is "ex works PHYWE". Other agreements must be made in writing.

2. The Customer may request PHYWE to ship the goods. It shall bear the costs and risk for it. In the case of a forwarding order the risk is transferred to the Customer as soon as the shipment had been handed over to the person executing the transport. If PHYWE is able to ship the goods at the time determined by contract and the shipment is delayed at the Customer's request the risk is transferred to the Customer at notice of readiness for shipment.

3. At the Customer's request shipments shall be insured in its name and on its account.

 

§ 7

Claims for Defects/Guarantee

1. PHYWE is working pursuant to the guarantee claims typical in Germany and the EU. If a PHYWE product shows any other defect already present at delivery, the Purchaser shall advise it immediately and provide evidence. In such an event PHYWE shall repair the defect or deliver a product free of defects (supplementary performance) pursuant to legal provisions. PHYWE shall bear the expenses required for the purposes of supplementary performance, including but not limited to transport, labour and material cost. Additional expenses caused by the sold product being brought to a place other as the domicile or the branch office of the Customer shall not be borne by PHYWE.

2. Insignificant or commercial deviations of the delivered goods in size, shape and colour being in the material's nature do not establish claims for defects by the Customer. Article 377 German Commercial Code applies.

3. PHYWE reserves the right to changes to the PHYWE products required for technical or other reasons not affecting usability and not reducing the service's value and for technical improvements. They do not establish claims for defects, abatement or withdrawal from the transaction by the Customer.

4. If PHYWE's operation or maintenance instructions are not adhered to, changes to the products are made, parts are exchanged or consumables not complying with the original specifications are used, the Customer may not assert claims for defects if the Customer does not refute a substantiated claim to the effect that it was only one of those circumstances that had caused the defect.

5. The Customer must immediately inform customer service management/PHYWE's technical hotline of visible defects in writing, however, the latest within one week after receiving and/or accepting the delivered goods. Defects that can not be discovered within this period even with careful examination shall be communicated and proven to PHYWE in writing immediately upon discovery.

6. Claims for defects for regular wear and tear are excluded.

7. Only the immediate Customer is entitled to claims for defects towards PHYWE and may not transfer them to third parties.

8. Claims for defects fall under the statute of limitations after 12 months as of delivery of the goods under contracts with the Customer. Retaining payments by the Customer is only admissible if the proportion of the occurred defect is appropriate.

 

§ 8

Repairs

If the Customer is not entitled to claims for defects pursuant to § 7 or if the statutory period of limitation pursuant to § 7.8 is expired and PHYWE and the Customer agree on a repair of the products § 7.8 applies equally to the limitation of a defect of the repair.

 

§ 9

Reservation of Title

1. PHYWE reserves title to the goods until fulfilment of all claims from the business relation for whatever legal reason including the claims arising in the future or conditional claims. If the realisable value of existing securities (goods subject to reservation of title pursuant no. 3 below and transferred accounts receivable pursuant no. 5 below) exceeds the secured claims by more than 10 % in total PHYWE is obliged insofar to release securities at the seller's discretion at the Customer's request.

2. Joint ownership rights arising from combination or mixing are deemed goods subject to reservation of title. PHYWE has an appropriate right to the reservation of title on these goods as well.

3. The Customer is entitled to process and sell the goods subject to reservation of title in the course of normal business unless it falls into arrears. Pledging or protective conveyance is inadmissible. By way of security the customer shall immediately transfer to PHYWE all claims (including any outstanding balance claims from the current accounts) arising from the resale or another legal reason (insurance, inadmissible action) in connection with the goods subject to reservation of title to their full extent. PHYWE shall give it the revocable authorization to collect the claims transferred to PHYWE for its account in its own name. This authorization for collection may only be withdrawn if the Customer does not properly fulfil its payment obligations.

4. In the event that the Customer behaves contrary to the contract - including but not limited to falling into arrears - PHYWE is entitled to take back the goods subject to reservation of title after expiration of an appropriate additional respite or demand the transfer of the Customer's claims for return towards third parties as the case may be. PHYWE taking back the goods subject to reservation of title does not constitute a withdrawal from the contract unless PHYWE has expressly stated such withdrawal.

 

§ 10

Payment

1. All payments exceeding the credit limit of the Customer with PHYWE confirmed by PHYWE in writing shall be made for payment in advance or confirmed with an irrevocable letter of credit from a large European bank accepted by PHYWE or an equivalent bank guarantee.

2. Within or above credit limit invoices shall be payable without deducting a cash discount or other discounts with PHYWE receiving the payment within 20 days as of contract conclusion and receipt of the invoice or an equivalent payment listing by the Customer.

3. In the event of orders with a purchase price surpassing € 25,000.00 the Customer shall make an advance payment of 40% of the purchase price for PHYWE products and 60% of the purchase price for third party products. The advance payment is due on contract conclusion and receipt of an invoice or equivalent payment listing.

4. A payment is only deemed made when PHYWE has the amount at its disposal. In case of cheques the payment is only deemed made when the cheque has been cashed.

5. The Customer shall fall into arrears 3 days after maturity of the claim by PHYWE and receipt of an invoice or delivery without it requiring a written reminder. If the Customer falls into arrears PHYWE is entitled to demand interest of 8% above the relevant basic interest rate of the European Central Bank at the respective point in time. PHYWE may submit evidence of a greater damage.

6. If PHYWE becomes aware of circumstances calling the Customer's financial standing into question, including but not limited to not cashing its cheque or stopping its payments, or if PHYWE becomes aware of other circumstances calling the Customer's financial standing in question, PHYWE is entitled to call the complete outstanding debts even if it had accepted cheques.

7. The Customer is only entitled to set off its debts if the counterclaims have been established as final and absolute or are undisputed. The same shall apply for the right of retention pursuant to article 273 German Civil Code, the commercial right of retention pursuant to article 369 German Civil Code and the right of refusal of services pursuant to article 320 German Civil Code.

 

§ 11

Copyright Infringements

1. PHYWE shall exempt the Customer and its customers from claims arising from infringements of copyrights, trade marks or patents unless the design of a delivery object had been made by the Customer. PHYWE's exemption obligations shall be limited to the amount of the predictable damage. An additional requirement for exemption is that in case of a legal dispute (article 72 German Code of Civil Procedure) the Customer informs PHYWE of the dispute and that the alleged legal infringement may be ascribed to the construction of PHYWE's delivery items without combination or use with other products.

2. Optionally PHYWE has the right to free itself from the obligations assumed in clause 1 by either

a) obtaining the required licences regarding the alleged infringed patents, or

b) providing the Customer with a changed delivery item or part of it that rectifies the infringement reproach concerning the delivery item by exchanging it for the infringing delivery items or their parts unless the changed delivery item (or parts of it) falls behind the original performance regarding the usability and/or its value.

 

§ 12

Liability

1. PHYWE shall be liable for breaches of contractual and non-contractual obligations, including but not limited to impossibility, delay and unlawful acts, only in cases of malicious intent and gross negligence - of its executive employees as well - limited to damages foreseeable at contract conclusion.

2. Claims for damages of material defects shall fall under the statute of limitation after 12 months as of delivery of the goods - with exception of personal injury or wilful or grossly negligent breaches of duty. The limitation of legal regress claims remains unaffected. The relevant legal provisions apply for claims for damages on account of other legal reasons.

 

§ 13

Applicable law, jurisdiction, partial invalidity

1. In addition to these provisions German law with exemption of the provisions of the UN Convention on Contracts for the International Sale of Goods dated 11/04/1980 (CISG) applies.

2. Place of jurisdiction is Göttingen

3. If a provision in these General Terms and Conditions or a provision under other agreements is or becomes ineffective the validity of all other provisions or agreements shall remain unaffected.

 

General Terms and Conditions of PHYWE Systeme GmbH & Co. KG, last updated on 01/08/2010