GENERAL TERMS AND CONDITIONS

V16.00.00 from Ritter Implants GmbH & Co. KG, Freiburger Str. 45, 88400 Biberach, info(at)ritterimplants.de, www.ritterimplants.de           

1. Scope

1.1 Our General Terms and Conditions of Business apply only to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). They shall apply to all supply contracts and mutatis mutandis to other services, in particular repairs and also insofar as, in the case of permanent business relations, a reference is no longer made expressly at a later date. Furthermore, our terms and conditions of business shall apply exclusively; we shall not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions of business unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we make delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions.

1.2 Our General Terms and Conditions shall also apply to all future transactions with the customer, even if a reference is no longer expressly made in subsequent transactions.

2. Offer and conclusion of contract

2.1 Our offers are non-binding, unless the binding nature of the offer has been expressly pointed out. A contract shall only be concluded by our order confirmation (in writing, text form), unless we have expressly referred to the binding nature in our offer and the customer has effectively accepted this offer.

2.2 If the customer’s order qualifies as an offer within the meaning of § 145 BGB, we may accept it within 4 weeks.

2.3 We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The purchaser requires our express written consent before passing them on to third parties.

3. Prices, terms of payment, securities

3.1 Unless otherwise agreed, our prices are “ex works”, excluding packaging and insurance; these will be invoiced separately.

3.2 Unless otherwise stated, we shall be bound by the prices contained in our offers marked as binding for four weeks from the date of the offer.

3.3 The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the date of invoicing.

3.4 Unless otherwise agreed, the delivery price (without deduction) is due for payment within 14 days from the invoice date.

3.5 For the timeliness of payment, it is not the receipt of the money by us that is decisive, but the value date on our account.

3.6 We are entitled to set off payments first against older debts and will inform the customer of the type of set-off made. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.

3.7 The deduction of a cash discount requires a special written agreement. Any agreed discount may only be deducted if the customer is not in default with other liabilities towards us.

3.8 If the customer is in default of payment, we shall be entitled to charge default interest in the amount of 9 percentage points above the base interest rate pursuant to § 247 BGB p.a. (§ 288 para. 2 BGB). If we are able to prove higher damages caused by default, we shall be entitled to claim such damages. The counter-evidence by the customer that we have incurred a lower or no damage due to the delay is not excluded.

3.9 The statutory provisions shall apply to the occurrence of default.

3.10 Our claims for payment shall become statute-barred after five years in deviation from § 195 BGB. With regard to the beginning of the limitation period, § 199 BGB shall apply.

3.11 The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall be entitled to exercise a right of retention insofar as a counterclaim is based on the same contractual relationship.

3.12 If the delivery is made to a place outside the Federal Republic of Germany, we shall be entitled to demand the provision of an irrevocable, confirmed letter of credit from a major bank or savings bank licensed as a customs and tax guarantor in the Federal Republic of Germany and to deliver the goods only against provision of the letter of credit. If the INCOTERMS are expressly agreed, the definitions laid down and published from time to time by the International Chamber of Commerce in Paris shall apply.

3.13 The period for notification of SEPA direct debits is ten calendar days, calculated from the invoice date. Repairs and time wage work are payable immediately. All payments are to be made free of charges.

4. Price changes

4.1 The prices agreed between us and the customer shall apply.

4.2 If the price at the time of service provision has increased due to a change in the market price or due to an increase in the fees charged by third parties involved in the service provision, the higher price shall apply. If this is 20% or more above the agreed price, the customer has the right to withdraw from the contract. This right must be asserted immediately after notification of the increased price.

4.3 If the delivery is delayed for reasons for which the customer is responsible by more than 60 days compared to the scheduled delivery date, we may demand the daily price applicable at the time of delivery.

4.4 Unforeseeable changes in import and export duties and charges of currency parities or transport costs entitle us to adjust the price.

5. Delivery time

5.1 Delivery dates or deadlines, insofar as they are to be binding, require written confirmation by us.

5.2 The delivery period shall commence upon receipt of the order confirmation. Delivery dates or deadlines shall be deemed to have been met if readiness for dispatch has been notified or the delivery item has left the factory by the time they expire.

5.3 Compliance with our delivery and performance obligations requires the timely and proper fulfillment of the customer’s obligations and the clarification of all technical issues (in particular the provision of the documents, information, etc. to be procured by the customer) and also the receipt of any agreed or requested security.

5.4 The delivery period or the delivery date shall be extended in the event of labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles beyond our control, e.g. operational disruptions, delays in the delivery of essential materials, insofar as such obstacles demonstrably have a significant influence on the delivery of the delivery item. This shall also apply if the circumstances occur at subcontractors. The delivery period or delivery date shall also be extended in all cases of force majeure. The delivery period shall be extended in accordance with the duration of such measures and obstacles. We shall inform the customer as soon as possible of the beginning and end of such obstacles.

5.5 We are entitled to make partial deliveries and partial performance with regard to the quantity of a complete product within the stated delivery period, provided that this does not result in any disadvantages for use.

5.6 If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the delivery item shall also pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay. Further claims remain reserved.

5.7 In the event of delay in delivery or in the event of impossibility for which we are responsible, the customer may only withdraw from the contract if he has previously set us a period of grace of at least four weeks in writing and has declared that he will refuse performance after the expiry of this period.

6. Scope of delivery

6.1 The scope of delivery is determined by our written order confirmation.

6.2 We reserve the right to make changes in design or form which are due to improvements in technology or to requirements of the legislator during the delivery period, provided that the delivery item is not substantially changed and the changes are reasonable for the customer.

7. Cancellation costs and returns

7.1 If the customer cancels a placed order without justification, we may claim 10% of the sales price for the costs incurred in processing the order and for lost profit, without prejudice to the possibility of claiming higher damages.

7.2 Return shipments of goods deliveries shall be made at the risk and expense of the customer. Expenses incurred by us from returns to which we have not agreed shall be borne by the customer. Any necessary reconditioning and/or repackaging due to changes or damage for which we are not responsible may be claimed by us subject to the lump-sum compensation specified in clause 7.1.

7.3 Excluded from the return are goods that are no longer in our product range, special offers and already used goods.

7.4 The customer has a right of return within 14 days for goods delivered by us. The prerequisite for this is that he returns the goods in their original packaging, not labeled or pasted and accompanied by a copy of the delivery bill stating the reason for the return. If the copy of the delivery note is missing, a handling fee of Euro 60.00 will be charged. A money return is excluded.

7.5 Articles that have been specially ordered for the customer are excluded from the right of return.

7.6 Damaged or unsealed sterile products are excluded from the right of exchange and return.

8. Packing and shipping

8.1 Postage and packaging charges will be invoiced separately. The choice of shipping method is made at our best discretion.

8.2 We shall only take back packaging supplied within the scope of our statutory obligations; packaging shall not be taken back for deliveries abroad. The return does not cover the return delivery and the costs incurred for this. If the customer is not a private end user within the meaning of the Packaging Ordinance, the disposal of the packaging shall be charged to the customer at our cost price. Insofar as the packaging is not returned to us, any participation in and assumption of disposal costs is excluded.

8.3 If the customer so desires, we shall cover the delivery by transport insurance; the customer shall bear the costs incurred in this respect.

8.4 If a collection date has been agreed between both parties and the customer delays the collection date without permission from us, we will charge storage costs in the amount of 90.00 EUR per cubic meter.

9. Transfer of risk

Unless otherwise stated in the order, delivery “ex works” is agreed. If the customer declares that he will not accept the delivery item, the general risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer at the time of refusal. If collection by the customer has been agreed in individual cases, the risk shall already pass to the customer upon notification of readiness for shipment. Shipment shall be at the risk of the customer.
In case of doubt, we shall choose the mode of shipment at our reasonable discretion.

10. Warranty

10.1 The limitation period for claims and rights due to defects in our services – regardless of the legal grounds – is one year. However, this shall not apply in the cases of § 438 para. 1 no. 1 BGB (defects of title in immovable property), § 438 para. 1 no. 2 BGB (buildings, property for buildings), § 479 para. 1 BGB (contractor’s right of recourse) or § 634 a para. 1 no. 2 BGB (buildings or works, the success of which consists in the provision of planning and supervision services therefor). The cases excluded in the preceding sentence 2 shall be subject to a limitation period of three years.

10.2 The limitation periods pursuant to 10.1 shall also apply to all claims for damages against us in connection with the defect – irrespective of the legal basis of the claim.

10.3 However, the limitation periods pursuant to 10.1 and 10.2 shall apply subject to the following proviso:

1. The limitation periods shall generally not apply in the event of intent or fraudulent concealment of a defect or insofar as we have assumed a guarantee for the quality of the delivery item.
2. Furthermore, the limitation periods shall not apply to claims for damages in the event of a grossly negligent breach of duty, in the event – not consisting in the delivery of a defective item or the provision of a defective work performance – of a culpable breach of material contractual obligations in the event of culpably caused injury to life, limb or health or in the event of claims under the Product Liability Act. The limitation periods for claims for damages shall also apply to the reimbursement of futile expenses.

10.4 The limitation period for all claims begins with the delivery, for work performances with the acceptance.

10.5 Unless expressly provided otherwise, the statutory provisions on the commencement of the limitation period, suspension of the running of the limitation period, suspension and recommencement of limitation periods shall remain unaffected.

10.6 The above provisions shall apply mutatis mutandis to claims for damages which are not related to a defect; 10.1 sentence 1 shall apply to the limitation period.

10.7 A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

10.8 Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality or only insignificant impairment of usability. Within the scope of subsequent performance, we shall in no case be obliged to make a new delivery or to manufacture a new product. The customer’s request for subsequent performance must be made in writing. We shall be granted a period of at least two weeks for subsequent performance. If the subsequent performance fails only after the second unsuccessful attempt at subsequent performance, the customer shall be entitled to reduce the purchase price or, at its option, to withdraw from the contract. The statutory cases of dispensability of setting a time limit shall remain unaffected. The application of §§ 478, 479 BGB (right of recourse of the entrepreneur) remains unaffected.

10.9 The expenses necessary for the purpose of subsequent performance shall be borne by the customer insofar as they are increased by the fact that our performance is taken to a place other than the customer’s place of business, unless the transfer is in accordance with its intended use. The application of § 478 BGB (right of recourse of the entrepreneur) remains unaffected.

Notwithstanding any further claims by us, in the event of an unjustified notice of defect, the customer shall reimburse us for the expenses incurred in inspecting and – if requested – remedying the defect.

10.10 Defects must be reported to us in writing immediately upon receipt of the goods or immediately upon discovery. The customer is not entitled to return products to us without prior consent. The customer shall choose the most cost-effective mode of transport.

10.11 There are no warranty claims in the following cases:

• Use of the product outside of or contrary to its intended use or commissioning of the product outside of its specifications.
• Failure to follow the instructions for use
• Improper handling or omitted cleaning/sterilization
• Use of non-approved third-party accessories or system parts
• Modification or conversion of the products by the customer or third parties
• Usual wear and tear or other changes or deterioration of the

Product, which are attributable to:

* external influences (e.g. shocks, impacts, mechanical effects)

* Contact with water or fire

* incorrect storage, handling or use

* unusual environmental conditions, special conditions during reception

   or operating conditions at the installation site or force majeure.

* Contamination, corrosion as a result of neglected, incorrect cleaning

   or improper handling

* Contaminants in the air and water supply

* chemical or electrical influences that are unusual or impermissible

Any warranty obligation shall lapse if the delivered goods are modified, improperly handled or processed.

11. Liability

11.1 We shall be liable in accordance with the statutory provisions in cases of intent or gross negligence on the part of one of our representatives or vicarious agents as well as in the event of culpably caused injury to life, limb or health. In cases of gross negligence, however, our liability shall be limited to the foreseeable damage typical for the contract, unless another exceptional case listed in the preceding sentence or in the following sentence applies at the same time. Apart from that, we shall only be liable in accordance with the Product Liability Act, due to culpable breach of essential contractual obligations or insofar as we as the seller have fraudulently concealed the defect or have assumed a guarantee for the quality of the delivery item. However, damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph 11.1 applies at the same time.

11.2 The provisions of the above paragraph 11.1 shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the obligation or from tort. They shall also apply to the claim for reimbursement of futile expenses. Liability for delay shall be determined in accordance with Section 11.3 of these Terms and Conditions, liability for impossibility in accordance with Section 11.4 of these Terms and Conditions.

11.3 We shall be liable in the event of delay in performance/delivery in cases of intent or gross negligence on our part or on the part of one of our representatives or vicarious agents as well as in the event of culpably caused injury to life, body or health in accordance with the statutory provisions. In cases of gross negligence, however, our liability shall be limited to the foreseeable damage typical for the contract. Outside the cases of the above sentences, our liability due to delay for damages in addition to performance shall be limited to a total of 5% and for damages in lieu of performance (including reimbursement of futile expenses) to a total of 20% of the value of our delivery/service. Further claims of the customer shall be excluded – even after expiry of any deadline set for us to perform. The limitation shall not apply in the event of culpable breach of material contractual obligations. However, the claim for damages for the culpable breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless another case according to sentence 1 of this paragraph is given at the same time.

11.4 We shall be liable in the event of impossibility of our performance/delivery in cases of intent or gross negligence on our part or on the part of a representative or vicarious agent as well as in the event of culpably caused injury to life, body or health in accordance with the statutory provisions. However, in cases of gross negligence, our liability shall be limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in the first sentence above applies at the same time. Outside the cases of the above sentences 1 and 2, our liability for impossibility and damages and for reimbursement of futile expenses shall be limited to a total of 20% of the value of our delivery/service. Further claims of the customer due to impossibility of delivery shall be excluded – even after expiry of any deadline set for us to perform.

11.5 A change in the burden of proof to the disadvantage of the Customer is not associated with the above provisions in Clauses 11.1 to 11.4.

12. Retention of title

12.1 We deliver exclusively under extended reservation of title. We retain title to the purchased item until all claims against the customer to which we are entitled under the business relationship have been satisfied. The retention of title shall also apply to claims arising from previous or future legal transactions. If a current account relationship exists between the customer and us, we shall retain title to the purchased item until receipt of all payments from the existing current account relationship with the customer; the reservation relates to the recognized balance.

12.2 In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the purchased item. The taking back of the object of sale by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to utilize it; the proceeds of the utilization shall be credited against the customer’s liabilities – less reasonable utilization costs.

12.3 The customer is obliged to treat the purchased item with care;

12.4 In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit pursuant to § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.

12.5 The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. We already now accept the assignment of these claims. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or the conditions for the opening of insolvency proceedings are met. However, if this is the case, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

12.6 The customer may neither pledge the delivery items nor assign them as security. Enforcement officers or a third party must be informed of our ownership.

12.7 We undertake to release the securities to which we are entitled at the customer’s request insofar as the realizable value of our securities exceeds the claims to be secured by more than 10% and the customer so requests; the selection of the securities to be released shall be incumbent upon us.

12.8 In the event of breaches of duty by the customer, in particular in the event of default in payment, we shall be entitled, after setting a deadline, to demand the surrender of the delivery item or the new goods and/or, if necessary, to withdraw from the contract after setting a deadline; the customer shall be obliged to surrender the goods. The demand for surrender of the delivery item/the new goods does not constitute a declaration of withdrawal on our part.

12.9 If, for reasons of the law applicable at the customer’s place of business, it is not possible to provide security within the scope of the retention of title, the customer shall be obliged to provide economically equivalent security in our favor which can be realized taking into account the legal provisions applicable at the customer’s place of business and which, in the event of the customer’s insolvency or inability to pay, opens up possibilities of access for us against the customer’s buyers. Irrespective of the effectiveness of the respective other means of security, the retention of title or the assignment of the customer’s claim shall be deemed agreed in any case.

12.10 If the customer defaults on payment or becomes wholly or partially insolvent or otherwise acts in breach of the contract, we shall be entitled, after prior reminder and setting of a deadline for payment, to demand the return of the goods which are our property.

12.11 Insofar as goods are taken back or utilized due to the reservation of title, these costs shall be borne by the customer. Subject to further damages, we shall be entitled to demand 10% of the proceeds of the sale as lump-sum compensation for the expenses. The customer is free to prove a lower claim for damages.

13. Industrial property rights and copyrights

13.1 If claims are made against the customer for infringement of an industrial property right or copyright because he uses our delivery/service, we undertake to procure the right of further use for the customer. The prerequisite for this is that the customer informs us immediately in writing of such claims by third parties and that we reserve the right to take all defensive and extrajudicial measures.

13.2 Claims against us shall be excluded if infringements are caused by the fact that our delivery/service is used in a manner not offered by us or is used together with other deliveries/services than ours. In all other respects, the provisions pursuant to Section 11 shall apply.

13.3 We shall not be liable for infringements of rights of deliveries/services provided on the basis of documents or other specifications of the customer.

14. Place of performance

Unless otherwise stated in the order confirmation, our headquarters (Biberach) shall be the place of performance.

15. Jurisdiction

If the customer is a merchant, our principal place of business (Biberach/Riß) shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.

16. Applicable law

The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.

17. Severability clause

Should any provision be or become invalid, the remaining provisions shall remain valid. The parties undertake to replace an invalid provision with a valid provision that comes as close as possible to the purpose of the invalid provision.