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  3. Terms and conditions

1. General

  1. The following General Terms and Conditions apply to all deliveries, services and offers of the company FENTEXmedical GmbH. 
  2. Contradicting terms and conditions of the customer shall not become integral part of the contract even if not expressively objecting it and even in case of a delivery. 
  3. Any modifications of these terms and conditions and/or amendments as well as supplements and amendments of concluded contracts and of our terms and conditions applicable to it must be made in writing. 
  4. FENTEX is entitled to change these terms and conditions by informing the customer in writing about the relevant changes. The changes enter into force after one (1) month after the notification. In case the modifications made are to the disadvantage of the customer, the customer is entitled to terminate the contract within one (1) month after receipt of the notification of change. If the customer does not terminate the contract, the change shall become effective within a period of one (1) month.

2. Offer and Conclusion of the Contract

  1. All offers made by FENTEX are non-binding, in particular with regard to prices, quantity, terms of delivery, delivery options and extra services. Any contract shall only become effective after a written order confirmation and/or the execution of the order by FENTEX and is exclusively based on its content. 
  2. The explicit guarantee of characteristic features requires the written confirmation by FENTEX. 
  3. FENTEX reserves the right to modify the offer documents or the order confirmation in case of compulsory legally or technically required modifications. 
  4. As far as the contracting parties communicate via electronic mail (e-mail), they shall accept the unlimited effectiveness of the declarations of intention transmitted in such a way according to the following conditions: The general indications must not be suppressed or avoided by anonymization in the e-mail; i.e. the name and e-mail address of the sender, the moment of sending it (date and time) and the name of the sender at the end of the message shall be contained in the e-mail. An e-mail received in accordance with this regulation is considered as being received from the other contracting party unless counter-evidence is given. Confidentiality cannot be guaranteed for data transmitted in an unencrypted way via Internet.

3. Installation, Training and Consulting Service

  1. It is the customer’s own responsibility to guarantee the proper commissioning of the delivered products. Neither the installation by FENTEX nor training or instruction of the customer or its operating personnel on how to use the delivered products is included in the scope of delivery. These services shall only be carried out on the basis of a corresponding agreement and shall be charged extra. 
  2. In case FENTEX is carrying out training, consulting or installation services, the customer shall make sure that the tasks required of him are fulfilled, in particular that the required rooms and infrastructure, documents and personnel are provided. If the customer does not comply with his obligations to cooperate according to sentence 1, the terms for execution, as provided in the contract, shall be prolongated to a reasonable extent. FENTEX shall be entitled to invoice the extra work caused by the delay, in particular for the prolongated provision of its own personnel or its own material. 
  3. Any information requires a written confirmation.

4. Scope of Services

  1. FENTEX is entitled to request assistance by third parties for the execution of the agreed services. 
  2. FENTEX is entitled to partial deliveries and partial execution of services to a reasonable extent and if not explicitly excluded by the customer. 
  3. Any product delivered for testing or demonstration purposes shall remain property of FENTEX.

5. Terms of Delivery

  1. All terms of delivery indicated by FENTEX are non-binding. In case the estimated delivery date indicated by FENTEX is exceeded by more than four (4) weeks, the customer shall grant FENTEX an appropriate extension period for the delivery. 
  2. Any modification of the order by the customer shall suspend agreed dates and terms unless otherwise agreed.
  3. All terms of delivery or terms for the execution of services shall be prolongated to reasonable extent in case of force majeure and all other obstructions for which FENTEX is not responsible and which influence the delivery or the service considerably, in particular in case of strike or lockout at FENTEX, its suppliers and their sub-suppliers.

6. Prices

  1. Unless anything different can be deduced from the order confirmation, our prices are valid ex works. The costs for freight, packaging, insurance and installation, if required, shall be invoiced separately. The packaging shall be charged at cost price. Resellers shall be responsible for taking back the packaging as required by the German packaging ordinance and insofar we shall be exempt from our obligation. 
  2. The prices of the current price list plus legally applicable Value Added Tax shall apply. 
  3. FENTEX is not bound to the indicated prices if a longer term of delivery than four (4) months from written order confirmation has been agreed. In this case, the prices valid on the date of delivery shall be charged. 
  4. Any claim for refund of the customer, e.g. because of overpayment, double payment, etc., shall be credited to the customer’s account and shall be charged against the next due payment as far as possible.

7. Payment

  1. Unless otherwise stated on our acknowledgement, the purchase price is payable immediately net (without deduction). The customer is in default if payments due are not settled within thirty days at the latest from receipt of an invoice or equivalent request for payment. 
  2. The deduction of discount requires special written agreement.
  3.  In case the customer is in default with payment, FENTEX shall be entitled to request default interest amounting to 8% over the basic interest rate unless the customer can prove a smaller damage or FENTEX can prove a larger damage. 
  4. The customer is only entitled to offset against indisputable or legally valid and ascertained demands or offset them against demands by FENTEX. The customer is only entitled to any retention right if his counter claim is indisputable or has been legally ascertained. 
  5. In case the customer has more than one outstanding debt with FENTEX, first the due amount shall be amortized, unless the customer has made any provision regarding repayment. In case of several due payments, the oldest debt shall be amortized first. 
  6. If we gain knowledge of facts which give rise to doubts regarding the creditworthiness of the customer, all deferred payments shall be due for payment immediately.

8. Customer's Default of Acceptance

  1. If the customer is in default of acceptance of the ordered goods, FENTEX shall be entitled to rescind the contract and claim damages after granting an adequate extension of maximum 14 days. If FENTEX claims damages, the claim for damage shall amount to 30% of the order value unless the customer can prove a smaller damage or FENTEX can prove a larger damage.

9. Passage of Risk; Acceptance of Performance; Warranty for Defects; Rectifications with Services

  1. If the customer is not the end user, all deliveries shall be carried out to the costs and risk of the customer. 
  2. In case the customer refuses the acceptance of the goods delivered by FENTEX according to the order, the customer shall send a detailed description of defects to FENTEX immediately but at the latest within 10 working days after receipt of the goods. If, within the mentioned period, no detailed description of defects is received at FENTEX, the delivery shall be considered as accepted. 
  3. The limitation period for claims regarding defects shall be two (2) years from the moment of passing the risk with sales contracts and one (1) year with repair work and delivery of spare parts. Any exceptions hereof shall be stated separately. 
  4. We shall not replace parts that are defective because of normal wear. We cannot be held liable for damages caused by improper or inappropriate use or excessive strain, in particular in case of non-observance of the operating instructions. 
  5. Unless other special regulations have been made, FENTEX shall be liable for defects of its products and services according to the special regulations applicable to it. 
  6. In case of culpable breach of the contractual obligations, the customer shall first request free-of-charge rectification or replacement from FENTEX in any case.
  7.  If the fulfillment fails, the ordering party shall be entitled to request rescission of the contract or reduction of the purchase price.

10. Retention of Title

  1. FENTEX shall retain the property of the delivered products until full payment of the purchase price. If the customer is a merchant, the above-mentioned reservation shall apply until full payment of all claims resulting from or having resulted from the business relation has been made. This shall also apply if individual or all demands by FENTEX are included in a current invoice and the balance has been struck and accepted. 
  2. The customer shall store the reserved property for FENTEX with reasonable commercial care and insure it at his expenses to an adequate extent against fire, water, theft and other risks. The customer assigns his claims resulting from the insurance contracts to FENTEX already at the moment of concluding this agreement. FENTEX accepts this assignment. 
  3. The customer here and now assigns to FENTEX all its claims in the amount of the final invoice total (including VAT) against the buyer or third parties. The customer is revocably entitled to collect these receivables. On request, the customer shall inform FENTEX of the assigned receivables and debtors. FENTEX is entitled to disclose the assignment to the buyer or third parties.
  4. If the customer violates the contract – in particular in case of default payment – or if cessation of payment is expected, FENTEX is entitled to withdraw the reserved property at customer’s expenses or to request the assignment of possible claims for return of the customer against third parties. These rights apply also if the secured claims are already statute-barred. FENTEX is entitled to sell the goods and credit the purchase price against the open liabilities of the customer. 
  5. In case FENTEX exercises its right to take back the goods according to the above-mentioned paragraph, FENTEX is entitled to withdraw the goods with reserved property, which is still in possession of the customer, at customer’s expenses. The customer shall grant access to his premises to the employees of FENTEX authorized to collect the reserved property also without prior announcement during the normal working hours. 
  6. The execution of rights based on the retention of title or any claim for return of the goods is not considered a rescission of the contract.

11. Liability

  1. FENTEX shall be held liable to unlimited extent only in case of malicious intent or gross negligence by FENTEX, its legal representatives or vicarious agents and for fatal or bodily injury or impairment of health resulting from a neglect of duty for which FENTEX, its legal representatives or vicarious agents are responsible. 
  2. FENTEX shall be held liable for other culpable violations of essential contractual obligations, for whatever legal reason, on the merits. The legal right of the contracting party to withdraw from the contract remains unaffected. However, FENTEX can only be held liable for the foreseeable amount of damage or the typically foreseeable expenses.
  3. Any other liability shall be excluded. 
  4. As far as FENTEX can be held liable according to figure 11.2, the liability shall be limited to the coverage of the public liability insurance of FENTEX. 
  5. FENTEX cannot be held liable for damages that the customer could have prevented by taking reasonable measures.
  6. The regulations of figure 11 shall also apply in favor of the employees or other vicarious agents of FENTEX. 
  7. The regulations of the Product Liability Law remain unaffected.

12. Assignability of Claims

  1. The customer is not entitled to assign contracts concluded with FENTEX as a whole or individual rights and obligations hereof or to assign rights and obligations resulting from contracts concluded with FENTEX as a whole or in parts to third parties without the authorization by FENTEX.

13. Final Provisions, Applicable Law, Place of Jurisdiction

  1. The contractual relationship between the parties shall be governed by German law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 and the Law of Conflicts of the International Private Law is excluded. 
  2. The place of jurisdiction is Tuttlingen if the customer is a business undertaking. Alternatively, however, we are entitled to sue the customer at its court of domicile. 
  3. Unless otherwise stated on the acknowledgement, the place of performance is Tuttlingen. 
  4. Should individual or several provisions of this agreement be or become ineffective, the validity of the remaining provisions shall not be affected thereby. In the place of the invalid provision, the valid provision that represents in the closest possible way the sense and economic purpose of the invalidated provision is considered to be agreed.

Neuhausen, September 2006