(1) The following General Terms and Conditions of Purchase of POLYTECH shall apply to any agreement (hereinafter, “Agreement”) concluded between any company of the POLYTECH Group, intended as POLYTECH Health & Aesthetics GmbH and any controlling, controlled, subsidiary or affiliated company as listed in Annex A hereto, and any physical or legal person offering and/or providing goods or services to POLYTECH (hereinafter, Supplier). Hereinafter, POLYTECH and the Supplier may also be referred to as Party or Parties. These General Terms and Conditions of Purchase apply regardless of the way an Agreement is executed, whether as a bilateral agreement text or as an exchange of documents as illustrated in section II below or if otherwise agreed and shall also apply to all future business relations between POLYTECH and any Supplier, even if they are not expressly agreed upon again. Deviating terms and conditions of the Supplier which POLYTECH does not expressly and specifically accept in writing are not binding for POLYTECH, even if they are known or knowable to POLYTECH and POLYTECH does not expressly or specifically object to them. Even if POLYTECH refers to any document containing or referring to the terms and conditions of the Supplier or of a third party, this shall not constitute an agreement to the applicability and validity of such terms and conditions. POLYTECH's terms and conditions shall also apply if POLYTECH unconditionally accepts the delivery of the Supplier with knowledge of terms and conditions that are contrary to or deviate from POLYTECH's terms and conditions.
(2) These General Terms and Conditions of Purchase shall not apply to natural persons who conclude a transaction with POLYTECH solely for a purpose which cannot be attributed to their commercial or independent professional activities.
(3) All agreements between POLYTECH and the Supplier are set forth in writing are regulated by the respective Agreement and by these terms and conditions.
(4) In the order process and the performance of services and/or supply of goods, the Supplier undertakes to comply with POLYTECH’s Compliance Handbook and relevant SOPs.
II. Offer and Agreement
(1) The Agreement must be made in writing.
(2) POLYTECH shall submit to the Supplier, orally or in writing, a request to prepare an offer (hereinafter, Request of Offer) for a good or service POLYTECH is interested in.
(3) The Supplier shall prepare the offer (hereinafter, Offer) including therein at least all the elements that are contained in POLYTECH’s Request of Offer. The Supplier shall prepare the Offer in a professional manner and to the best of the conditions it may propose and shall expressly inform POLYTECH in the Offer of any deviations from POLYTECH’s Request of Offer.
(4) The Supplier is bound to its Offer for the conclusion of a purchase contract for eight weeks (hereinafter, Offer Term). POLYTECH may accept the offer within the Offer Term by sending a written order (hereinafter, Order) to Supplier. The Parties may agree on an extension of the Offer Term.
(5) Within two working days from receipt of POLYTECH’s Order, or within such other period as POLYTECH may specify in the Order, Supplier shall provide POLYTECH with a confirmation (hereinafter, Order Confirmation). The Order Confirmation must contain all information relevant to the Order, including, but not limited to Order number, purchase order number, Article or service description, Article or service reference number, Quantity, Unit and Total Price, Discount, Delivery time and Delivery address, Mode of Delivery and all other information required by POLYTECH and/or any essential information as applies from time to time based on the nature of the good or service. Any terms or details of the Order Confirmation that are deviating from the Order shall be automatically replaced by the ones in the Order. Any terms of details from the Order that are missing in the Order Confirmation shall be automatically deemed as included. Any terms or details of the Order Confirmation that are additional to those in the Order, shall be automatically deemed as not included, unless expressly and specifically agreed in writing by POLYTECH.
(6) By issuing and Order Confirmation and / or performing an Order, the Supplier accepts these General Terms and Conditions of Purchase in the version valid at the time of the order. The General Terms and Conditions of Purchase can be viewed at any time on POLYTECH's website https://polytech-health-aesthetics.com/en/pro/general-terms-and-conditions-of-purchase/ .
III. Scope and performance of delivery of goods and services
(1) The Supplier shall provide its goods and services with the utmost care, considering the latest state of science and technology, the applicable safety regulations of the authorities and trade associations, as well as its own existing knowledge and experience gained during the order process. Supplier guarantees compliance with statutory regulations, the agreed technical specifications and any other requirements as may apply from time to time based on the nature of the good or service.
(2) The performance of the supply of goods or provision of services before an Agreement or an Order with Order Confirmation are in place requires POLYTECH's prior written consent.
(3) In the event of any ambiguity on any elements of the Order, the Supplier is obliged to immediately inform POLYTECH and obtain all necessary information. If the Supplier fails to do so, it may not invoke such ambiguity as an excuse in case of incomplete or incorrect performance.
(4) At any time during the order process, or during or after the performance of supply or services, upon POLYTECH's request, Supplier shall provide information on the composition of the delivery item or the structure of the services to the extent necessary to comply with official requirements in Germany and abroad, as applicable.
(5) POLYTECH is entitled, as long as Supplier has not yet fully performed its obligations, to request changes to the Agreement with respect to design, execution, quantity and delivery time within the bounds of reasonableness. In this context, the effects of such changes in respect to the other elements within the Agreement (e.g. additional or reduced costs, delivery dates, etc.) shall be mutually agreed upon upfront. POLYTECH may request changes at any time, to the extent that this is objectively reasonable for Supplier. In case of changes agreed between the Parties pursuant to the foregoing, the Supplier shall issue a new order confirmation (hereinafter, Revised Order Confirmation), to which the provisions under section II. (5) above apply.
(6) Supplier is obligated to immediately notify POLYTECH in writing of any concerns it may have regarding the feasibility of any element of the Order Confirmation or the Revised Order Confirmation (including but not limited to quality, quantity, ancillary services and accessories, delivery terms and time) and to propose to POLYTECH any changes it deems necessary in order to comply with the Order Confirmation or Revised Order Confirmation and any applicable legal requirements. Notwithstanding the preceding provision, the fluctuation in the value of materials, raw materials or services employed by the Supplier, will not determine any changes or adjustments in the prices agreed in the valid Order Confirmation
(7) The Supplier is obliged to supply spare parts for the period of normal technical use, and in any case of at least 5 years after the last delivery, under reasonable conditions.
(8) If the Supplier intends to discontinue the supply of the spare parts after the expiry of the aforementioned period under Section III(7) or to discontinue the supply of the goods during the same period, POLYTECH must be notified thereof and given the opportunity to place a final order prior to the discontinuation. This notification must be performed in reasonable advance and in any case at least six months prior to the discontinuation of production for spare parts, and twelve months prior to discontinuation of production for goods.
IV. Prices, terms of payment
(1) The price in the Confirmed Order shall be binding and -delivery duty paid (DDP) Dieburg following INCOTERMS 2020, unless otherwise agreed expressly and specifically in writing between the Parties.
(2) The packaging and shipping costs are included in the price, unless otherwise agreed expressly and specifically in writing between the Parties. The price does not include the statutory value added tax, which shall apply in the measure applicable at the time. The price includes in particular costs for freight "free domicile", insurance, customs duties, packaging and material testing procedures. Claims based on additional deliveries and/or services can only be asserted after prior written Agreement between the Parties, otherwise the related claims of the Supplier shall be excluded.
(3) Invoices due can only be processed by POLYTECH if they comply with the legal requirements, in particular, but not limited to, with the German Value Added Tax Act (UStG), and contain the order number shown in POLYTECH's Order as well as the information and/or documents required pursuant to the Agreement; Supplier shall be responsible for all consequences resulting from non-compliance with this obligation and applicable statutory provisions. In the absence of the aforementioned information and/or documents, Supplier shall not be entitled to assert any payment claims against POLYTECH.
(4) Unless otherwise agreed in writing, the price for goods and services shall be paid by POLYTECH with a discount of 3% 30 days after transfer of ownership of the goods, after receipt of services, and after receipt of an auditable invoice and receipt of all contractually required documents. Otherwise, payment shall be made with no discount 60 days after transfer of ownership of the goods, after receipt of services, and after receipt of an auditable invoice and receipt of all contractually required documents.
(5) POLYTECH is entitled to rights of set-off and retention to the extent provided by law. The Supplier's rights of set-off and retention shall only apply to the extent that such rights are undisputed or have been established by a court of law. POLYTECH is entitled to reduce invoice amounts by the value of returned goods as well as any expenses and claims for damages.
(6) POLYTECH is entitled to assign all claims arising from the purchase contract without the consent of Supplier. Supplier is not entitled to assign claims arising from or consequent to the contractual relationship with POLYTECH to third parties without POLYTECH’s prior written consent.
(1) Unless otherwise agreed expressly, specifically and in writing between the Parties, the delivery is delivery duty paid (DDP) Dieburg (INCOTERMS 2020):
POLYTECH Health & Aesthetics GmbH, Altheimer Str. 32, 64807 Dieburg, Germany
POLYTECH Health & Aesthetics GmbH, Henri Dunant Str. 2-4, 64807 Dieburg, Germany
POLYTECH Health & Aesthetics GmbH, Paul Ehrlich Str. 11, 63322 Roedermark, Germany
(2) The delivery period or delivery date agreed between Supplier and POLYTECH and specified in POLYTECH's Order shall be binding on Supplier. Supplier is aware and acknowledges that timely delivery is important for POLYTECH and that delivery dates and deadlines are essential for the proper performance of the Agreement.
(3) Supplier is obligated to notify POLYTECH in writing without undue delay if circumstances arise or become apparent to Supplier which indicate that the agreed delivery time cannot be met. Otherwise, Supplier shall not be entitled to invoke such circumstances at a later date. Such notification must also include the indication of a new delivery date which the Supplier reasonably believe it can comply with. Timely notification by the Supplier does not mean and will not be construed as meaning that the circumstance is accepted by POLYTECH as a valid reason for delay. The delayed delivery or service has to be approved by POLYTECH expressly and specifically and in writing. The acceptance by POLYTECH of a delayed delivery or service does not imply a waiver of claims for compensation.
(4) Supplier is not entitled to make partial deliveries without POLYTECH's prior consent.
(5) Unless otherwise agreed in writing, deliveries shall be made at POLYTECH's place of business (obligation to deliver) and shall be insured by Supplier at its own expense against theft, damage in transit, incorrect loading or unloading, notwithstanding and without prejudice to section IV.(1) above.
(6) Goods shall be packed and transported in such a way that damage during transport and loading is avoided and proper isolation and environmental conditions are ensured. Packaging materials and mode of transport shall be appropriate for the quality, quantity and specifications of the goods or services pursuant to the Confirmed Order and shall only be used to the extent necessary to achieve the purpose. The Supplier's take-back obligations, also with regard to transport and product packaging, shall be governed by the statutory provisions. The Supplier assures that all packaging is licensed and registered with an appropriate system provider in accordance with the law and that the charges for this are paid in full and in an orderly manner.
(7) In case of shipments by a third party, the Supplier has to state this clearly in the Offer. Even if shipment by a third party has been agreed upon, the risk shall not pass to POLYTECH until the goods have been handed over to POLYTECH by Supplier or the third party at the agreed destination.
(8) In the event of delays in delivery, POLYTECH is entitled, after prior written warning to Supplier, to demand a contractual penalty in the amount of 0.5%, up to a maximum of 5% in total, of the respective order value for each commenced week of delay in delivery. The contractual penalty shall be added to the damage caused by delay to be compensated by the Supplier.
VI. Release from the obligation to perform, withdrawal from the contract
(1) Neither Party affected by the events described herein shall be responsible or liable for any failure or delay in performing its obligations under this Agreement due directly or indirectly to forces beyond its control (hereinafter a "Force Majeure Event"). However, in such an event, the following shall apply:
a. The Party concerned shall immediately notify the other Party of a Force Majeure event as soon as it foresees it or becomes aware of it.
b. If and to the extent that such Party is prevented from performing its obligations by a Force Majeure Event, it shall be temporarily relieved of its obligations but shall endeavor to continue to perform them and to meet the related deadlines to the extent reasonably possible.
c. The Parties shall negotiate in good faith on possible solutions or alternatives to ensure the fulfilment of the obligations. POLYTECH shall be released from the obligation to accept the ordered delivery or service in whole or in part and insofar entitled to withdraw from the contract if the delivery has become unusable for POLYTECH due to the delay caused by the force majeure.
(2) Each Party may claim damages for non-performance or delay in delivery only if these depend on the act or omission by the other Party or these were aggravated or not prevented.
(3) POLYTECH is entitled to withdraw from the contract if the Supplier has filed for the opening of insolvency proceedings, if insolvency proceedings are opened or if the opening of insolvency proceedings is rejected due to lack of assets.
(4) POLYTECH shall also have the right to rescind the contract if individual enforcement measures are carried out against Supplier.
(5) POLYTECH may also withdraw from the contract if Supplier promises, offers or grants advantages of any kind to an employee of POLYTECH or an agent of POLYTECH involved in the preparation, conclusion or performance of the contract or to a third party, in the latter's interest.
(6) The statutory provisions on withdrawal shall remain unaffected.
VII Transfer of risk, documents
(1) The transfer of risk shall take place upon acceptance of the delivery by POLYTECH at its place of business (in house) or other delivery place agreed in the Confirmed Order.
(2) The Supplier shall bear the transport risk, irrespective of at whose request and from which location the shipment is made.
(3) The Supplier shall adequately insure the goods against transport damage at its own expense. The Supplier shall provide POLYTECH with proof of the necessary insurance cover, upon POLYTECH’s request.
(4) The Supplier is obligated to indicate POLYTECH’s order number on all shipping documents and delivery notes, as well as any other information required by POLYTECH and agreed in the valid Order Confirmation; if the Supplier fails to do so, POLYTECH shall not be liable for any delays in processing and receiving the delivery.
(5) Any and all document and data, including but not limited to drawings, plans, documents, reports, ideas, drafts, models, samples and the like provided to Supplier by POLYTECH (hereinafter, “Documents supplied by POLYTECH”) on any medium, are and shall remain the property of POLYTECH. Supplier shall return the Documents supplied by POLYTECH to POLYTECH without request immediately upon completion of its performance. The Documents supplied by POLYTECH may only be used by Supplier for the purpose of fulfilling its performance obligation vis-à-vis POLYTECH.
(6) If POLYTECH does not accept the offers from the Supplier within the period according to section II.4. the Documents supplied by POLYTECH must be returned to POLYTECH without delay.
(1) Warranty claims against the Supplier for material defects and defects of title shall be governed by the applicable statutory provisions.
(2) The Supplier guarantees that the goods and deliveries comply with the applicable statutory provisions, in particular the requirements of the applicable packaging ordinance, the RoHS Directive, the Act on the Sale, return and Environmentally Sound Disposal of Electrical and Electronic Equipment (Electrical and Electronic Equipment Act ElektroG), the Battery Ordinance and the EU Chemicals Regulation REACH are complied with and implemented, and any others that may become applicable. Furthermore, the Supplier guarantees that any copyright levies incurred have been paid to the relevant collecting societies. Reference shall be made to the copyright levies included in the Supplier’s invoices in accordance with § 54 d UrhG (German Copyright Act).
(3) POLYTECH reserves the right to inspect the incoming goods within a reasonable timeframe, taking into account the nature, packaging, intended use and delivery time of the goods, and in any case at least 15 working days after the goods are received at POLYTECH’s premises.
(1) The Supplier shall be liable within the scope of the statutory provisions.
(2) To the extent that the Supplier is responsible for product damage, the Supplier is obligated to indemnify POLYTECH upon first request against claims for damages by third parties to the extent that the cause lies within the Supplier’s sphere of control and organization and the Supplier itself is liable vis-à-vis third parties. The obligation to indemnify also relates to all expenses necessarily incurred by POLYTECH as a result of or in connection with claims asserted by a third party, including the costs of legal representation. Supplier shall insure itself against such risks to a sufficient extent as is customary in the market. The Supplier shall be liable without limitation for all damages, irrespective of the liability standard. In particular, Supplier’s liability includes remote consequential damages and financial losses.
(3) Further legal claims of POLYTECH remain unaffected. If claims are asserted against POLYTECH by a third party because the delivery of the Supplier infringes a statutory property right of the third party, the Supplier undertakes to indemnify POLYTECH upon first request against such claims, including all necessary expenses incurred by POLYTECH in connection with the claim by the third party and its defense, unless the Supplier has not acted culpably. POLYTECH is not entitled to acknowledge the claims of the third party and/or to conclude agreements with the third party with respect to such claims without the written consent of Supplier.
(4) If POLYTECH has to carry out a recall action due to a case of damage within the meaning of Section IX.2, Supplier shall in particular be obliged to reimburse POLYTECH for all expenses arising from or in connection with the recall action carried out by Supplier. POLYTECH shall, to the extent possible and reasonable in terms of time, inform Supplier of the content and scope of the recall action and give Supplier the opportunity to comment. Further legal claims of POLYTECH remain unaffected.
(5) If Supplier is in default, POLYTECH shall be entitled to the statutory claims resulting from the default. If POLYTECH asserts claim for damages, Supplier shall be entitled to prove that it is not responsible for the breach of duty. If the date on which the delivery must be made at the latest can be determined on the basis of the contract, the Supplier shall be deemed to be in default upon expiry of this date without the need for a reminder.
X. Ownership, Provision, Mixing, Retention of Title
(1) Any and all document and data, including but not limited to drawings, plans, documents, reports, ideas, drafts, models, samples and the like provided by Supplier to POLYTECH (hereinafter, “Documents supplied by Supplier”) pertaining to the order shall be the property of POLYTECH, unless otherwise agreed between the Parties.
(2) Insofar as POLYTECH supplies and/or orders tools, devices and models which POLYTECH makes available to the Supplier or which are manufactured for contractual purposes and are charged separately to POLYTECH by the Supplier, these shall remain POLYTECH’s property. By taking delivery of the tools, the contracting party acknowledges them to be safe and is liable for damage to property and persons while they are in its possession, as well as for damage to the tools themselves, except for normal wear and tear. They must be identified by the Supplier as the property of POLYTECH, carefully stored, secured against damage of any kind and only used for the purposes of the contract. Supplier may only use them outside of this contract and/or pass them on to third parties or make them accessible to third parties with the written consent of POLYTECH. After fulfillment of the respective contract, Supplier shall immediately return them to POLYTECH at its own expense. The costs of maintenance and repair of these items shall be borne by the contracting parties - in the absence of any other agreement - in equal shares. However, to the extent that these costs are attributable to defects in such items manufactured by Supplier or to improper use on the part of Supplier, its employees or other vicarious agents, they shall be borne solely by Supplier. The Supplier shall obligate its sub-Suppliers in accordance with this provision.
(3) Supplier shall immediately notify POLYTECH of any damage to such items that is not merely insignificant. Upon request, Supplier is obligated to return such items to POLYTECH in proper condition if they are no longer required by Supplier for the performance of the contracts concluded with POLYTECH.
(4) Insofar as POLYTECH supplies and/or orders substances and materials, these shall remain its property. Supplier undertakes to secure them and to surrender them to POLYTECH in the event of seizure or other measures against Supplier.
(5) Reservations of title by Supplier shall only apply to the extent that they relate to payment obligations of POLYTECH for the respective products to which Supplier reserves title. In particular, extended or prolonged reservations of title are not permitted.
XI. Property rights and secrecy
(1) The Supplier is obliged to maintain secrecy with regard to all documents and information received from POLYTECH. They may only be disclosed/forwarded/made accessible to third parties with the express and specific consent of POLYTECH. The obligation to maintain secrecy also extends to personal data. The obligation to maintain secrecy shall also apply after the execution or termination of this contract; it shall expire if and to the extent that the information contained in the documents provided has become generally known, unless this is due to a breach of this agreement. Third parties used by Supplier to perform its obligations under this Agreement shall be bound accordingly. In the event of a breach of these obligations, POLYTECH may demand immediate surrender and claim damages. The obligation of confidentiality does not extend to confidential information:
(2) Whose disclosure has been expressly and specifically authorized in writing in advance by the disclosing party;
(3) Which have become part of the public domain before or after their disclosure, provided that such public disclosure is not due to the negligence or willful misconduct of the receiving party;
(4) Disclosed by a third party, unless such disclosure is due to the negligence or willful misconduct of the receiving party (5) Which the receiving party can establish with tangible evidence that it was aware of prior to the disclosure by the disclosing party.
(5) Disclosed to the receiving party by a third party not bound to secrecy, provided that the third party is entitled to make the disclosure;
(6) That the receiving party is required to disclose by law or court order. In such case, the Receiving Party shall promptly notify the Disclosing Party and reasonably cooperate with the Disclosing Party's efforts to limit the effects of such disclosure.
(7) The burden of proof for all exceptions to the confidentiality obligation mentioned in (6) lies exclusively with the receiving party. The conclusion of the contract shall be treated confidentially. The conclusion of the business relationship with POLYTECH may only be referred to in the Supplier's advertising materials after POLYTECH has given its written consent. POLYTECH and Supplier undertake to treat as business secrets all commercial or technical details which are not in the public domain and which become known to them through the business relationship. Third parties used by Supplier to fulfill the obligations resulting from this contract shall be obligated accordingly.
(8) The Supplier guarantees that no rights of third parties are violated in connection with its delivery. In the event that claims are asserted against POLYTECH by a third party in this regard, Supplier is obligated to immediately indemnify POLYTECH against all claims resulting therefrom upon first request and to defend against such claims. The obligation to indemnify shall also apply to all expenses necessarily incurred by POLYTECH as a result of or in connection with the claim by a third party. This also includes the costs of legal representation. The Supplier shall insure itself against these risks to a sufficient extent as is customary in the market.
XII. Data protection
(1) Agreements involving the processing of personal data require a valid data processing agreement between POLYTECH and Supplier before any data transfer between POLYTECH and Supplier takes place. Supplier undertakes and warrants to comply with all data protection provisions applicable to the data processing carried out by it, to take all reasonable measures to protect such data and to inform POLYTECH without undue delay if data received from POLYTECH or processed for POLYTECH is affected by a breach.
XIII. Final provisions
(1) The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods and legal norms that refer to another legal system shall not apply. If copies of these General Terms and Conditions of Purchase are available in English and German, no other versions or courtesy translations shall have any validity.
(2) Subsidiary agreements, amendments or supplements must be made in writing in order to be effective. The written form within the meaning of these General Terms and Conditions of Purchase shall also be deemed to have been complied with by e-mail and fax.
(3) The place of performance and exclusive place of jurisdiction for deliveries and payments (including actions on cheques) as well as all disputes arising between Supplier and POLYTECH from the contracts concluded between them shall be the registered office of POLYTECH Health & Aesthetics GmbH in Dieburg, insofar as the contractual partner is a merchant, a legal entity under public law or a special fund under public law.
(4) Should any provision of these General Terms and Conditions of Purchase be or become invalid, this shall not affect the validity of the remaining provisions.
POLYTECH Health & Aesthetics GmbH
PT H&A Management GmbH