(1) These General Terms and Conditions of Purchase (hereinafter referred to as “GTCP”) apply to all contracts governing the purchase of goods (regardless of whether the Seller manufactures the goods itself or purchases them from suppliers (Sections 433, 650 of the German Civil Code (Bürgerliches Gesetzbuch – BGB)) and governing the procurement of services and works (including software and data) with our business partners and suppliers (hereinafter referred to as “Seller”). The terms “Seller” and “Buyer” (or “we” “us” – used in each case for inomed Medizintechnik GmbH) are used for all the aforementioned contracts, irrespective of which contract type is involved. These GTCP apply only if the Seller is an entrepreneur (within the meaning of Section 14 of the German Civil Code), a legal entity under public law, or a special fund under public law.
(2) Unless agreed otherwise, these GTCP shall apply as a framework agreement to similar future contracts, without the need for us to refer to them again in each individual case, in the version valid at the time of the Buyer’s purchase order or, in any case, in the version most recently communicated to the Seller in writing.
(3) These GTCP shall apply exclusively. Any deviating, conflicting, or supplementary General Terms and Conditions (GTC) of the Seller shall not become an integral part of the contract, even if the Seller refers to its GTC in the order confirmation and we do not expressly object to this. The contrary shall apply only and insofar as we have expressly agreed in writing to the applicability of deviating terms and conditions.
(4) Individual agreements (e.g., framework supply agreements, quality assurance agreements, nondisclosure agreements) and specifications in our purchase order shall take precedence over the GTCP. In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of the contract conclusion.
(5) Legally relevant declarations and notifications by the Seller relating to the contract (e.g., setting of time limits, reminders, withdrawal) shall be made in writing. Writing within the meaning of these GTCP includes written and text form (e.g., letter, email, fax). Legal formal requirements and further verifying documents, particularly in cases of doubt regarding the legitimacy of the declarant, shall remain unaffected.
(6) References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply insofar as that they are not directly modified or expressly excluded in these GTCP.
(7) The Seller provides the Buyer with its supplier master data – where applicable in a Buyer’s database set up for this purpose – and keeps this data up to date. Where the Seller is obliged under statutory provisions or under these GTCP to submit certificates, declarations, or other verifying documents, the Seller shall transfer these to the Buyer without undue delay and with the current validity date, where applicable in a Buyer’s database set up for this purpose. The Seller shall inform the Buyer without undue delay and in full in writing of any changes of company name, changes in legal form, and of any material changes to the business relationship between the Seller and Buyer pertaining to its participation, shareholder, or ownership structure.
(1) Our purchase order shall be deemed binding at the earliest upon written submission or confirmation. In the event of obvious errors (e.g., spelling mistakes and calculation errors) and incompleteness of the purchase order, including purchase order documents, the Seller shall notify us for the purpose of correction or completion prior to acceptance; otherwise, the contract shall be deemed not concluded.
(2) The contract shall be formed by means of a written purchase order from the Buyer and the corresponding acceptance by the Seller. Any action taken by the Seller to fulfill a purchase order also constitutes the acceptance of the purchase order. This also applies to the formation of a framework agreement by the corresponding acceptance of a framework purchase order. The Seller shall confirm in writing without undue delay any individual purchase order, stating the binding delivery time, the agreed price, the order number, and the order date. Until the Seller confirms in writing the individual purchase order, the Buyer is entitled to cancel the individual purchase order.
(3) After acceptance of the order, the Buyer may demand changes to the subject of the contract in relation to its execution and quantity, to the extent that this is reasonable for the Seller. The Seller is obliged to notify these changes without undue delay in relation to their feasibility and effects on quality, deadlines, and costs and to notify the Buyer of the results in writing. If a change results in an increase or reduction in costs and/or a missed deadline, the Seller shall notify the Buyer at the same time as providing its change proposal or immediately upon receipt of the change request from the Buyer and submit an appropriate subsequent quotation. The change shall be made by means of a written agreement stipulating the payment of the additional costs or the reimbursement of the reduced costs and any deadline changes.
(1) The delivery time specified by us in the purchase order is binding. If the delivery time is not specified in the purchase order and has not otherwise been agreed, the parties shall agree in writing on a delivery date and duly take into consideration in particular any urgency from the Buyer’s perspective. The Seller shall promptly notify us in writing if it anticipates being unable to meet agreed delivery times for whatever reason.
(2) If the Seller fails to perform or fails to perform within the agreed delivery period or defaults, our rights – in particular to withdrawal and damages – shall be determined in accordance with the statutory provisions. The provisions in Paragraph 3 shall remain unaffected.
(3) If the Seller defaults, we may – in addition to further statutory claims – demand lump-sum compensation for our damage caused by default totaling 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We reserve the right to prove that higher damages have been incurred. The Seller reserves the right to prove that no damage or substantially less damage has been incurred.
(1) Without our prior written consent, the Seller is not entitled to have third parties (e.g., subcontractors) perform the services owed by it. The Seller bears the procurement risk for its services. The Seller is not entitled to render partial performance.
(2) Delivery is made “free domicile” within Germany to the location specified in the purchase order. If the destination is not specified and nothing else has been agreed, delivery shall be made to our place of business in Emmendingen, Germany. The respective destination shall also be the place of performance for delivery and any subsequent performance (goods to be delivered to the creditor’s domicile).
(3) A delivery note stating the date (issue and dispatch), contents of the delivery (item number and quantity), and our purchase order identification (date and number) must be enclosed with the delivery. If the delivery note is missing or incomplete, we shall not be responsible for any resulting delays in processing and payment. A corresponding dispatch notification with the same content must be sent to us separately from the delivery note.
(4) The risk of accidental loss and accidental deterioration of the goods shall pass to us upon handover at the place of performance. If acceptance has been agreed, it shall be decisive for the transfer of risk. Furthermore, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis in the event of acceptance.
(5) The statutory provisions shall apply to the occurrence of our default of acceptance. However, the Seller shall explicitly offer us its services even if a specific or determinable calendar period has been agreed for an action or cooperation on our part (such as the provision of materials). If we are in default of acceptance, the Seller may demand compensation for its extra expenses in accordance with the statutory provisions (Section 304 of the German Civil Code). If the contract relates to a non-fungible item to be manufactured by the Seller (custom production), the Seller shall only be entitled to further rights if we have undertaken to cooperate and are responsible for the failure to cooperate.
(6) If the contractual performance consists of the provision of works or goods, a formal acceptance is required. The Buyer shall perform the acceptance once the notification of completeness is available. The acceptance shall be recorded in a formal acceptance report. However, there shall be no acceptance until the Seller has rectified any found defects. Defects must be rectified without undue delay, within the deadline set by the Buyer. Acceptance shall not be refused due to insignificant defects. The Seller has no right to partial acceptances. Any presumption of acceptance is hereby excluded. Payments by the Buyer shall not imply that the Buyer has accepted the contractual performance.
(1) The price specified in the purchase order is binding. All prices include statutory value added tax unless this is shown separately.
(2) Unless agreed otherwise in individual cases, the price includes all services and ancillary services of the Seller (e.g., assembly, installation) as well as all incidental costs (e.g., proper packaging, transportation costs including any transport and liability insurance).
(3) The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice. In the case of bank transfer, payment shall be deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we shall not be responsible for delays caused by the banks involved in the payment process.
(4) We shall not owe any interest on arrears. The statutory provisions apply to payment default.
(5) We shall be entitled to rights of set-off and retention as well as the defense of nonperformance of the contract to the extent permitted by law. In particular, we shall be entitled to withhold due payments provided we are still entitled to claims against the Seller arising out of incomplete or defective performance.
(6) The Seller has a set-off or retention right only due to legally established or undisputed counterclaims.
(1) We shall reserve the intellectual property rights and copyright in all images, plans, drawings, calculations, performance instructions, product descriptions, and other documents. Such documents shall be used exclusively for the contractual performance and shall be returned to us after completion of the contract. The documents shall not be disclosed to third parties, even after termination of the contract. The obligation of confidentiality shall expire only when and to the extent that the knowledge contained in the provided documents is in the public domain. Special nondisclosure agreements and statutory provisions governing the protection of confidential information shall remain unaffected.
(2) The above provision applies mutatis mutandis to substances and materials (e.g., software, finished, and semi-finished products) as well as to tools, templates, samples, and other items that we provide to the Seller for production. Such items shall be stored separately by the Seller at its own expense and insured against destruction and loss to a reasonable extent as long as they are not processed.
(3) Any processing, mixing, or combining (further processing) of items provided by the Seller shall be carried out on our behalf. The same shall apply in the event of further processing by us of the delivered goods, so that we shall be regarded as the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions.
(4) The transfer of ownership of the goods to us shall take place unconditionally and without regard to the payment of the price. However, if we accept an offer from the Seller of transfer conditional upon payment of the purchase price in an individual case, the Seller’s retention of title shall expire at the latest upon payment of the purchase price for the delivered goods. We remain authorized to resell the goods in the ordinary course of business even before payment of the purchase price, with advance assignment of the resulting claim (subsidiary application of the simple retention of title extended to resale). All other forms of retention of title are hereby excluded; in particular, the expanded, forwarded, and extended retention of title to processing.
(1) The legal provisions and following supplements and clarifications shall apply exclusively in our favor regarding our rights in the event of physically and legally defective goods (including incorrect and short deliveries as well as improper assembly/installation or inadequate instructions) and other breaches of duty by the Seller.
(2) In accordance with the statutory provisions, the Seller shall be liable in particular for ensuring that the goods have the agreed quality upon transfer of risk to us. In any case, those product descriptions which – in particular by designation or reference in our purchase order – are the subject of the respective contract or have been included in the contract in the same way as these GTCP shall be deemed to be an agreement on the quality. It shall make no difference whether the product description originates from us, the Seller, or the manufacturer.
(3) In case of goods with digital elements or other digital content, the Seller shall owe the provisioning and updating of the digital content at least if this is the result of a quality agreement in accordance with Paragraph 2 or other product descriptions provided by the manufacturer or on its behalf, in particular on the internet, in advertising, or on the goods label.
(4) We are not obliged to examine the goods or make special inquiries regarding any defects at the time of contract conclusion. Partly notwithstanding the provisions in Section 442 (1), sentence 2 of the German Civil Code, we shall, therefore, be entitled to claims for defects without limitation even if we did not become aware of the defect upon conclusion of the contract due to gross negligence.
(5) The statutory provisions (Sections 377, 381 of the German Commercial Code (Handelsgesetzbuch – HGB)) shall apply to the commercial duty of inspection and complaints with the following proviso: Our duty to investigate shall be limited to defects apparent during our incoming goods inspection when goods are visually inspected from the outside, including their delivery documents (e.g., transport damage, incorrect or short deliveries) or which become apparent during our random quality checks. If acceptance has been agreed, there shall be no duty to inspect. In all other respects, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered at a later date shall remain unaffected. Notwithstanding our duty to inspect, our complaint (notification of defects) shall in any case be deemed to be immediate and timely if it is sent within 20 working days of discovery or, in the case of obvious defects, of delivery.
(6) Supplementary performance shall also include the dismantling of the defective goods and their reinstallation if the goods have been installed in another item or attached to another item in accordance with their type and their intended use before the defect became apparent; our statutory claim to reimbursement of the corresponding expenses (dismantling and installation costs) shall remain unaffected. The Seller shall bear the expenses required for inspection and supplementary performance (in particular including transportation, travel, labor, and material costs, as well as any dismantling and installation costs) even if it turns out that there was actually no defect. Our liability for damages in the case of an unjustified request to remedy a defect shall remain unaffected; however, we shall only be liable in this respect if we recognized or were grossly negligent in not recognizing that there was no defect.
(7) Notwithstanding our statutory rights and the provisions in Paragraph 5, the following shall apply: If the Seller does not fulfill its obligation to provide supplementary performance – at our discretion by remedying the defect (rework) or by delivering a defect-free item (replacement delivery) – within a reasonable time period set by us, we may remedy the defect ourselves and demand reimbursement of the necessary expenses or a corresponding advance payment from the Seller. No period of grace shall be required if the supplementary performance by the Seller has been unsuccessful or would be unreasonable for us (e.g., due to particular urgency, risks to operating safety, or impending disproportionate damage). We shall notify the Seller of such circumstances immediately and in advance, if possible.
(8) Otherwise, in the event of a material defect or defect in title, we shall be entitled to reduce the purchase price or to withdraw from the contract in accordance with the statutory provisions. In addition, we shall be entitled to compensation for damages and reimbursement of expenses in accordance with the statutory provisions.
(1) In addition to any claims for defects, we shall have unrestricted entitlement to our legally determined rights to expenses and recourse within a supply chain (supplier recourse in accordance with Sections 478, 445a, 445b, and Sections 445c, 327 (5), 327u of the German Civil Code). We are entitled in particular to demand exactly the same supplementary performance (rework or replacement delivery) from the Seller that we owe to our customer on a case-by-case basis; in the case of goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. Our statutory right of choice (Section 439 (1) of the German Civil Code) shall not be restricted hereby.
(2) Prior to acknowledging or fulfilling any claims for defects asserted by one of our customers (including reimbursement of expenses in accordance with Sections 445a (1), 439 (2), (3), (6) sentence 2, 475 (4) of the German Civil Code), we shall notify the Seller and request a written statement, briefly explaining the circumstances of the case. If a substantiated statement is not made within a reasonable time period and if an amicable solution is not reached, the claim for defects actually granted by us shall be deemed to be owed to our customer. The Seller bears the burden of proof in this case.
(3) Our claims from supplier recourse shall also apply if the defective goods have been combined with another product or further processed in any other way by us, our customer, or a third party, for instance, through assembly, attachment, or installation.
(1) Unless stated otherwise in these Terms and Conditions of Purchase, the Seller shall be liable in accordance with the statutory provisions. The Seller is obliged to insure adequately the liability risks relating to the service provision by taking out at its own expense suitable insurance based on the reason and amount, and, upon request, provide the Buyer with proof of such insurance.
(2) If the Seller is responsible for a product defect, it shall indemnify us from third-party claims to the extent that the cause lies within its sphere of control and organization and it is liable in the external relationship.
(3) Within the scope of its indemnification obligation, the Seller shall reimburse expenses pursuant to Sections 683, 670 of the German Civil Code, which arise out of or in connection with a claim by third parties, including recalls conducted by us. We shall inform the Seller of the content and scope of recall measures – as far as possible and reasonable – and give the Seller the opportunity to comment. Further legal claims shall remain unaffected.
(4) The Seller shall take out and maintain product liability insurance with a lump-sum cover of at least EUR 5 (five) million per personal injury or damage to property.
(1) The reciprocal claims of the contracting parties shall become time-barred in accordance with the statutory provisions, unless otherwise specified below.
(2) Notwithstanding Section 438 (1) No. 3 of the German Civil Code, the general limitation period for claims for defects is 3 years from the transfer of risk. If acceptance has been agreed, the limitation period commences with acceptance. The 3-year limitation period shall apply mutatis mutandis to claims arising out of defects in title, whereby the statutory limitation period for claims in rem for the restitution of property of third parties (Section 438 (1) No. 1 of the German Civil Code) shall remain unaffected; claims arising out of defects in title shall furthermore not become time-barred in any case as long as the third party can still assert the right – in particular in the absence of a limitation period – against us.
(3) The limitation periods of sales law, including the extension above, apply – to the extent provided by law – to all contractual defect claims. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period shall apply (Sections 195, 199 of the German Civil Code) unless the application of the limitation periods of the sales law results in a longer limitation period in individual cases.
(1) These GTCP and the contractual relationship between us and the Seller shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods and to the exclusion of the rules of private international law.
(2) If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising out of the contractual relationship shall be Freiburg im Breisgau, Germany. The same shall apply if the Seller is an entrepreneur within the meaning of Section 14 of the German Civil Code. In any case, we are also entitled to file claims at the place of fulfillment of the delivery obligation in accordance with these GTCP and/or any overriding individual agreement, or at the general place of jurisdiction of the Seller. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
(3) Should individual or several provisions of the contract be ineffective or invalid, or a gap is found, this shall not affect the validity of the remaining provisions. The invalid or ineffective provisions shall be interpreted or substituted in good faith as deemed reasonable by the parties in such a way that they reflect the economic intentions. The same shall apply in case of a gap.
inomed General Terms and Conditions of Purchase
Last revised: May 14, 2024