POLYTECH HEALTH & AESTHETICS GMBH GENERAL TERMS OF SALE AND DELIVERY
1. Validity of conditions
These General Terms and Conditions of Sale and Delivery apply to all deliveries by POLYTECH Health & Aesthetics GmbH (hereinafter, POLYTECH) in all countries worldwide (except Germany, Switzerland and all countries and cases where POLYTECH does not act through a Distributor), with the express exclusion of any Terms and Conditions of the Distributor at any time. These deliveries are executed exclusively according to the terms given in this document. They are valid for this and all future sales to the Distributor, even if not explicitly agreed.
Changing the terms of these conditions will not be accepted. These terms are fully accepted upon receipt of the goods at the latest. Alterations to these terms are valid only if confirmed in writing, by fax or e-mail by an authorized representative of POLYTECH. Should an item of these terms or another agreement become invalid, all other terms of sale are not affected and will remain valid.
2. Completion of contract
All agreements require the confirmation in writing, by fax or e-mail by an authorized legal representative of POLYTECH to attain legal validity. The same applies for additions, alterations or supplementary agreements.
Employees of POLYTECH are not authorized to complete any diverging or supplementary agreements or to give verbal assurance over and above the contents of the written contract.
All prices provided in the Pricelist are excluding the currently legal Value Added Tax (VAT) or any other tax that may be applicable and costs for packaging, and, if applicable, transport, customs and insurance. POLYTECH may change the prices with a three months prior notice. Orders are subject to the prices valid on the day of the order confirmation by POLYTECH. In case of a price increase, all orders placed during the notice period but with delivery after the end of it, will be subject to the new prices.
Deliveries by POLYTECH to all Distributors are based on the delivery terms INCOTERMS 2020, EXW: POLYTECH Dieburg or INCOTERMS 2020, EXW: POLYTECH Rödermark. The risk in the goods becomes the responsibility of the Distributor accordingly. Even if the Distributor wishes for or causes a delay of transportation, the risk is passed over to the Distributor upon notification that the goods are ready for dispatch. POLYTECH is permitted, at any time, to deliver orders in part.
5. Period of delivery and Acts of God/Force Majeure
Dates pertaining to the period of delivery, binding or not binding, are to be confirmed by POLYTECH in writing, by fax or e-mail. POLYTECH is not responsible nor liable for any failure or delay of the performance of its obligations hereunder, arising out of or caused by, directly or indirectly, forces beyond its control, including an Act of God/Force Majeure and events that impede or completely hinder the delivery – including but not limited to difficulties in acquiring material, breakdown of production facilities, strike, lock out, work stoppage, lack of employees, inadequate means of transport, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, directives from authorities including but not limited to sanctions, etc., even if occurring to or affecting suppliers of POLYTECH or their suppliers – even if the parties agreed upon binding delivery dates. Such events permit POLYTECH to deliver with according delays plus an adequate recovery period or to withdraw fully or in part from the contract. If the delay exceeds 3 months, the Distributor is entitled to withdraw any orders not yet delivered. In case it is impossible to deliver, the Distributor may cancel the order for this part.
Without prejudice to the limitations set forth in the above paragraph, compensation due to non-completion or delays of delivery can only be claimed if POLYTECH has committed an act of culpable negligence, and if the causation and entity of the damage are proven.
6. Annual standing orders
Goods listed in an annual standing order must be purchased by the Distributor within 12 months from the order, provided POLYTECH has given order confirmation. Should the Distributor not purchase the full amount of goods, he will be obliged to pay 20% of the value of the goods not taken.
7. Warranty (“Gewährleistung”) and liability in goods
POLYTECH warrants that its goods are free of manufacturing and material defects.
The warranty period is one year and starts on the day the risk in the goods becomes the responsibility of the Distributor (see 4). If the instructions for use and notices on the packaging of the goods of POLYTECH are not respected or delivered goods are not transported, stored, handled or used accordingly, the warranty shall automatically become null and void. The Distributor must immediately, at the latest within one week after receipt of the goods, provide written notice of any defects as well as forward a copy of the delivery note enclosed with said goods to POLYTECH. This duty also applies in case of differences regarding delivered quantities. For defects that cannot be detected within one week of receipt of the goods, such notice is to be given in writing without delay within 1 week after their detection. The allegedly defective goods are to be held ready for inspection by POLYTECH in the condition in which they were deemed to be defective. A replacement of the defective product will be delivered upon punctual, orderly and acceptable notification of the defect, and only if such defect is confirmed in writing by POLYTECH. Because of the nature of the goods, in case a replacement is not possible, the Distributor is entitled to cancel the order concerning the defective goods.
8. Retention of title
Unless all outstanding payment obligations (including all outstanding claims resulting from current account balances) that POLYTECH is entitled to are completed and fulfilled by the Distributor, the goods delivered remain property of POLYTECH. A payment is considered as having been executed when the amount paid has been successfully credited and made available to the account of POLYTECH. The retention of title does not affect the transfer of risk as per delivery according to art. 4. The Distributor stores POLYTECH property without charges. Goods that are property of POLYTECH will be referred to in the following as “reserved goods”. Confiscation and transfer of ownership to third persons due to any reason or procedure, including insolvency procedures, is not permitted. All payments originating from the sale of the reserved goods will be given in full to POLYTECH.
By access of a third party to the reserved goods, the Distributor will immediately advise the third party of the property of POLYTECH and give notice to POLYTECH. By breach of contract by the Distributor – in particular delay of payments – POLYTECH is entitled to take the reserved goods back and/or demand the transfer of the right of surrender of the goods against a third party. If POLYTECH takes back or confiscates the reserved goods, this action per se will not be deemed as withdrawal from the contract, as long as POLYTECH does not expressly state so.
Goods delivered by POLYTECH must be pre-paid in full, upon receipt of the invoice. Despite contrary determination by the Distributor, POLYTECH is entitled to account payments against former debts. If charges and interests are already accrued, POLYTECH is entitled to account payments first against the charges, second the interest and third against the payable amount. A payment is considered as having been executed when the amount paid has been successfully credited and made available to the account of POLYTECH. Any costs, charges or fees related to the payment are to be borne entirely and immediately by the Distributor. The Distributor is not entitled to charge, withhold or reduce any payment, also in case of faults or counter demands against POLYTECH, if the counter demands are not legally binding or undisputed. If the Distributor is in arrears, he must pay interest at the current rate of interest for an open current credit, from the day it became due, however at least 8 percentage points over the current rate of interest (“Basiszinssatz”) according to Sec. 247 of the German Civil Code. This is to be set at a higher or lower level if POLYTECH proves charges with a higher rate of interest or higher damages or the Distributor proves charges at a lower rate. In addition, POLYTECH is entitled to withhold further deliveries until all accounts receivable are paid or, if POLYTECH wishes, to withdraw from the agreement.
10. Traceability obligation of the Distributor
The Distributor has an obligation to document the transfer of the products in order to ensure their complete traceability and must also impose this obligation on its own customers, insofar as they are not patients.
11. Return of goods
A written agreement or written consent from POLYTECH must be given before goods free of defects can be returned for any reason. If POLYTECH agrees such consent, it will purchase the goods back at the value which is current at the time of return, which corresponds to their purchase price, minus a coefficient due to repackaging, restocking and leftover shelf-life, as applicable, according to POLYTECH’s return procedure. The return of goods must be executed without POLYTECH being charged any packaging, transport, custom, or additional costs.
No credit notes will be issued for goods that cannot be resold. Credit notes cannot be issued for custom-made products.
12. Applicable Law and Jurisdiction
The business and relationship between POLYTECH and the Distributor shall be governed exclusively by the laws of the Federal Republic of Germany, with express exclusion of rules on conflict of law and of the Convention on Contracts for the International Sale of Goods. Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection or consequence with this business relationship shall be Dieburg, Germany.