1. Scope of these Terms and Conditions of Sale and Delivery
These General Terms and Conditions of Sale and Delivery apply to every sale and delivery of goods by POLYTECH Health & Aesthetics (POLYTECH) to direct customers, such as surgeons, clinics, hospitals and purchasing groups (CUSTOMERS) in Germany, Switzerland, and in other countries when operating with direct CUSTOMERS outside of distribution contracts. This also applies to future sales transactions and deliveries between the same parties, without the need for a renewed agreement. Counter-offers or counter-confirmations of an ORDER with reference to the CUSTOMER’s business or purchase terms and conditions are hereby expressly and completely rejected and excluded. These General Terms of Sale and Delivery shall be deemed accepted at the latest with the receipt of the goods by the CUSTOMER. The content of any individual agreements between the parties remains unaffected by these terms of sale and delivery.
2. Order and conclusion of contract
Orders are only accepted in writing by POLYTECH. The offers by POLYTECH are non-binding. A contract is concluded with the confirmation by POLYTECH to the CUSTOMER at least in writing or by execution of the delivery. Verbal collateral agreements, changes, additions or assurances to our offers or written contracts are only effective in written form when confirmed by POLYTECH.
POLYTECH delivers goods at the Pricelist valid on the day of the order. All prices are net, excluding VAT. We deliver up to 12 implants in standard delivery. Costs for additional express deliveries or larger orders will be charged to the CUSTOMER separately.
4. Terms of delivery
POLYTECH delivers its goods according to INCOTERMS 2010, DDP: place of delivery. Delivery dates or deadlines are only valid with a separate agreement, which must be made at least in writing, by fax or e-mail. POLYTECH is entitled to partial deliveries at any time, as far as this is reasonable for the CUSTOMER.
5. Limitation of Liability and Force Majeure
POLYTECH shall not be responsible or liable for any failure or delay in the performance of its obligations under the Contract, to the extent that it has been caused by forces directly or indirectly beyond its control, including force majeure and events that obstruct the execution of the contract, in whole or in part - including, but not limited to, material procurement difficulties, production equipment failure, strike, lockout, stoppage, staff shortages, inadequate means of transport, accidents, acts of war or terrorism, civil or military unrest, nuclear or natural disasters, and interruptions, loss or malfunction of utilities, communications or computer services (software and hardware), instructions from authorities, including, but not limited to, sanctions, etc., even if they affect POLYTECH suppliers or their suppliers, even if the parties have agreed on binding delivery dates. Such events entitle POLYTECH to deliver with appropriate delays plus a reasonable grace period, or to withdraw from the contract in whole or in part. If the delay exceeds three (3) months, the CUSTOMER is entitled to withdraw undelivered orders. POLYTECH will inform the CUSTOMER immediately in cases of unavailability of ordered goods, and immediately return the already received consideration for these goods at its request. If the impediment lasts more than three (3) months, the CUSTOMER is entitled to withdraw from the contract with respect to the part of the service not yet fulfilled.
6. Liability for material defects
POLYTECH provides a one (1) year guarantee, under the statutory provisions, that the goods are free of material defects (§ 434 BGB). If the instructions for use or instructions on the packaging of the goods are disregarded or the goods are not transported, stored, handled and used in accordance with their intended purpose, then any claim for warranty expires. Defects must be reported in writing to POLYTECH by the CUSTOMER immediately, at the latest within one (1) week of receipt of the goods, enclosing the delivery note attached to the delivery. This also applies to quantity complaints. Defects that cannot be discovered even after thorough inspection within one (1) week after receipt of the goods must be reported in writing within one week of the discovery, enclosing the delivery note attached to the delivery. The allegedly defective goods shall, in the state in which they are at the time of the discovery of the defect, be made available for inspection by POLYTECH or a third party commissioned by POLYTECH, or shall be sent to POLYTECH upon its request. In case of a timely, proper and justified notice of defects and of written confirmation by POLYTECH, POLYTECH will deliver replacement goods without defects. If it is not possible for POLYTECH to deliver a replacement, the CUSTOMER is entitled to withdraw from the part of the contract affected by the defect.
7. Liability in other cases
Claims for damages due to impossibility of performance, positive breach of contract, culpa in contrahendo, delayed delivery or tort are excluded both against POLYTECH and against its agents. This disclaimer of liability does not apply to intentional or grossly negligent actions as well as to the culpable violation of essential contractual obligations by POLYTECH. However, POLYTECH is liable for the culpable violation of essential contractual obligations, which cannot be attributed to intent or gross negligence, only for the contractually typical, reasonably foreseeable damage. Furthermore, the exclusion of liability does not apply in cases where POLYTECH must be liable for personal injury or property damage in accordance with the Good Liability Act or other statutory provisions.
8. Retention of title
Until the complete fulfillment of all claims, including all balance claims from existing open accounts, which POLYTECH is entitled to against the CUSTOMER - for whatever legal reason - now or in the future, the goods remain the property of POLYTECH. The CUSTOMER keeps the property of POLYTECH free of charge. Goods to which POLYTECH is entitled are hereinafter referred to as reserved goods. Pledges or chattel mortgages of the reserved goods are inadmissible. The claims arising from the resale or any other legal reason with respect to the reserved goods shall be assigned by the CUSTOMER in full to POLYTECH as a precautionary measure. At the request of the CUSTOMER, POLYTECH will release one or more of these securities as long as their value permanently exceeds POLYTECH Health & Aesthetics outstanding claims by more than 50%. In the case of access by third parties to the reserved goods, the CUSTOMER will point out the property of POLYTECH and inform POLYTECH immediately in writing about the access. In the event of a breach of contract by the CUSTOMER, in particular in the event of default of payment, POLYTECH shall be entitled, but not obliged, to wholly or partially take back the goods subject to retention of title or to demand assignment of the purchaser's rights of return against third parties. The parties agree that the withdrawal or seizure of the reserved goods by POLYTECH does not constitute a withdrawal from the contract, unless POLYTECH declares in writing it is. This applies only, insofar as it is not contrary to civil law regulations and statutes of imperative nature.
9. Terms of payment
Invoices by POLYTECH shall be payable without deductions within 30 days of the invoice date, unless a different period has been agreed between the parties, at least in writing. After expiry of the term of payment, the CUSTOMER automatically comes into arrears with the payment. In the event of late payment, the CUSTOMER must pay annual interest of eight (8) percentage points above the base rate. The assertion of any further damage remains reserved to POLYTECH. In addition, POLYTECH is entitled to postpone the delivery of further ordered goods until full payment of the outstanding debts or, at its discretion, to withdraw from the contract. Irrespective of any deviating statement by the CUSTOMER, POLYTECH is entitled to first offset payments made by the CUSTOMER against the latter’s older debts. If costs and interest have already been incurred, POLYTECH is entitled to offset the payments first against the costs, then against the interest and finally against the principal claim. A payment is deemed to have taken place only if POLYTECH can finally dispose of the amount. POLYTECH expressly reserves the right to reject bills of exchange and / or checks received. Their acceptance is always only on account of performance. Discount and bill charges are to be borne by the CUSTOMER and paid immediately. The CUSTOMER is only entitled to set-off, retention or reduction if the counterclaims are legally established or undisputed.
10. Return of goods
The return of faultless goods is only allowed under the following conditions. It always requires a special agreement with POLYTECH in writing. If a return of goods is agreed between the parties, this must be carried out in accordance with the POLYTECH standard return process and free of shipping and other costs for POLYTECH. For a good classified as resalable by POLYTECH (undamaged packaging, undamaged good and within the good's lifetime), a credit note will be issued, the amount of which will be calculated on the purchase price of the goods less any return, restocking and residual shelf-life deductions to be agreed. Non-salable goods and custom-made goods are always excluded from the return. Orders for custom goods cannot be canceled and the total price must be paid in full.
11. Collateral for dealers
The CUSTOMER, as a user or reseller, is obliged to document the use or transfer of the good, so that complete traceability of each good is possible until the end. The CUSTOMER must also impose this obligation on its respective customers, insofar as they are not patients.
12. Jurisdiction and applicable law
Place of performance for all obligations arising from the contractual agreements between POLYTECH and the CUSTOMER is 64807 Dieburg. For all disputes arising from the contractual relationship between the parties Dieburg is the exclusive place of jurisdiction. The Parties acknowledge that POLYTECH's goods are medical devices that may only be sold to customers within the meaning of Article 1 and that their sale as such is a business-to-business agreement. To these General Terms of Sale and Delivery and to all and entire contractual relations between the parties, the law of the Federal Republic of Germany applies. The applicability of the conflict of laws rules and the UN Sales Convention (CISG) is expressly excluded.
13. General provisions
These terms and conditions are the only ones that apply to the sale by POLYTECH to the CUSTOMER, with the express exclusion of any terms and conditions of the CUSTOMER. Collateral agreements as well as changes and / or additions to these sales and delivery conditions must be made in writing. The same applies to the change of requirement of the written form. If any provision of these General Terms of Sale and Delivery or a provision in the context of other agreements between POLYTECH and the CUSTOMER are or become invalid, this shall not affect the validity of all other provisions and agreements. The respectively ineffective provision shall be replaced by a permissible provision corresponding to its economic purpose. The same applies in case of regulatory gap.