general commercial conditions for use in relation to companies, legal entities under public law or public funds 4. Packaging, Shipment, Passage of Risk The following terms and conditions shall apply to all future deliveries, services and quota- tions in relation to the buyer, even if no express reference to these terms and conditions has been made. Any contrary terms and conditions of purchase of the buyer shall not apply, and shall be binding upon frasaco only if they have been expressly accepted by frasaco. Even if frasaco makes reference to any letter containing, or referring to, terms and conditions of the customer or any third party, this shall not constitute consent to the application of such terms and conditions. If any individual provisions are or become ineffective, the other terms and conditions shall not be affected hereby. a) b) c) Insofar as the products marketed by frasaco are medical devices under Section 3 (1) Medi- zinproduktegesetz [Medical Devices Act], the buyer shall comply with all applicable statuto- ry provisions and secondary provisions (statutory orders, directives) relating to the instal- lation, operation and use of medical devices and relating to the recording, assessment and prevention of risks in respect of medical devices in circulation or operation. 1. Quotation and Conclusion of Contract a) b) c) Quotations shall be subject to change without notice, to availability and to prior sale. Orders shall become binding only upon frasaco‘s written acknowledgement of the order. Amendments and supplements to the agreement made, including these General Terms and Conditions of Business, shall only be effective in writing. 2. Prices a) The selling prices quoted in the respective latest version of the price list shall apply. Prices shall be subject to change without prior notice. However, a minimum order value of € 50.00 net shall be charged even if the purchase order is below this value Selling prices shall be in € net, ex works Tettnang and exclude packaging, insurance, freight charges, customs duty and incidental import levies. Value-added tax shall be added at the respective statutory rate, insofar as applicable. In addition to the aforementioned amounts, a handling fee of € 10.00 net shall be char- ged in the case of any order value below € 200.00 net. This handling fee shall not apply to order values above € 200.00 net. b) c) 3. Obligation to deliver/take delivery a) Periods and deadlines promised by frasaco in respect of delivery or performance shall always only be approximate, unless a fixed period or deadline has been expressly gu- aranteed or agreed upon. Compliance with such deadlines and periods shall always be conditional upon the timely receipt of all documents essential for carrying out the order, as well as any down payment agreed upon. Otherwise, the deadlines and periods for delivery or performance shall be appropriately extended. Section 10 shall apply as regards the provision of material by the buyer. In cases where shipment has been agreed upon, the periods and deadlines shall relate to the time of hand-over to the forwarder, carrier or any other third party appointed to carry out transportation. b) If frasaco defaults on delivery or performance, or if for whatever reason it becomes impossible for frasaco to deliver or perform, frasaco‘s liability shall be limited to com- pensatory damages under the terms of Section 7. frasaco shall be entitled to make sub-deliveries, if such sub-delivery can be used by the buyer for the purpose intended under the contract, if it has been ensured that the resi- dual goods ordered will be delivered, and if this does not involve any substantial extra work or cost for the buyer, unless frasaco agrees to assume such extra cost. Moreover, deviations of up to +/- 10 % from the quantities ordered shall be permissible. If the buyer fails to fulfil its obligation to take delivery despite a reminder, frasaco shall be entitled, without prejudice to its other rights, to sell the delivery item on the open market. Except where a special agreement has been made, shipments of samples shall be in- voiced after 30 days, calculated from the date of the delivery note. Goods returned for reasons not imputable to frasaco shall be accepted only by prior arrangement and only if the goods are in faultless condition and in their original pa- ckaging, and if postage has been paid. frasaco hereby reserves the right to decide in any individual case whether to accept returned goods. There shall be no entitlement to return custommade goods or goods delivered more than 3 months previously. Section 6 shall remain unaffected by this provision. c) d) e) f) Credit notes shall be issued only if the original invoice and the original delivery note have been enclosed with the goods returned. In the case of a credit note, a handling fee of € 50.00 net and an additional resorting fee of 20 % of the order value shall be charged. g) Any events of force majeure shall entitle frasaco to postpone delivery by the durati- on of the hindrance plus a reasonable start-up period, or to wholly or partly rescind the order on account of the part of the order not performed, provided that such dis- ruptions are of temporary duration. Strike, lockout or unforeseeable circumstances, e.g. business disruptions, that make it impossible for frasaco to deliver on time despite reasonable efforts shall be deemed to be equivalent to force majeure. Inso- far as any aforementioned events make it materially more difficult or impossible for frasaco to deliver or perform, and such hindrance is not of temporary durati- on, frasaco shall be entitled to rescind the contract. If, as a result of such delay, it would be unreasonable to expect the buyer to accept delivery or performance, the buyer may rescind the contract by written declaration to frasaco forthwith. www.frasaco.de 102 b) c) d) b) c) d) e) frasaco shall choose the packaging, mode of shipment and method of shipment at its dutiful discretion and in accordance with any and all applicable legal provisions. Packaging material shall be charged at cost price. frasaco shall effect transportation insurance for all deliveries. In any event, insurance costs shall be borne by the buyer. If any damage occurs in transit, confirmation from the relevant post office or forwarder shall be sent to frasaco. Even in the case of delivery carriage paid, the risk shall pass to the buyer as soon as the goods leave the premises of frasaco‘s supplier. If dispatch is delayed through the fault of the buyer, the risk of accidental destruction shall already pass to the buyer upon notification of readiness for shipment. 5. Retention of Title a) The goods delivered (goods under retention of title) shall remain frasaco‘s property until all claims existing now or in future against the buyer have been satisfied. In the case of a running account, such retention of title shall be deemed to be security for the balance owed by the buyer. During the period of retention of title, the buyer shall not be entitled to pledge the goods or to assign the same to third parties as security. In case the goods are on-sold, the buyer hereby assigns to frasaco, until all frasaco‘s claims have been satisfied, the proceeds receivable from such on-selling, as well as any other claims that the buyer is entitled to against its customers as result of such on-selling (particularly tort claims and claims to insurance benefits). frasaco hereby accepts this assignment. At frasaco‘s request, the buyer shall provide frasaco with all information and documents necessary for asserting frasaco‘s rights against the buyer‘s customers. frasaco hereby revocably authorises the buyer to collect in the buyer‘s own name the claims assigned to the seller. frasaco shall revoke such authorisation to coll- ect only in the event that the goods are realised as security. Any attachment or seizure of goods under retention of title by third parties shall be re- ported to frasaco forthwith. All intervention costs ensuing therefrom shall, in any event, be borne by the buyer. frasaco shall release goods under retention of title, if and insofar as their value exceeds by more than 20 % the sum of the claims secured. In this respect, frasaco shall be free to choose which goods to release. b) c) d) 6. Alterations, Liability for Defects a) frasaco hereby reserves the right to alter the design or manufacture of its products in keeping with technical progress, or to completely remove products from its product range, without prior notice. Information provided in prospectuses, advertising mail, advertisements or demonstration items shall not constitute agreed qualities. This shall apply also to illustrations, drawings and size- or weight-related data enclosed with quotations, unless these are expressly referred to as binding. Any agreement on certain features of the goods or on the production of moulds must be in writing. Any reference to technical standards shall serve as a performance specifica- tion. Any notification of obvious defects shall be made forthwith upon receipt of the delivery. If a quality-related defect exists, such defect shall be eliminated, or a replacement shall be provided free of charge, at frasaco‘s option. If such replacement or rectification fails twice, the buyer may assert the statutory warranty claims under these General Terms and Condi- tions of Business. Parts replaced shall be returned at frasaco‘s request. In any event, war- ranty claims shall become statute-barred one year after the buyer has received the goods. 7. General Limitations of Liability a) In cases where fault is relevant, frasaco‘s liability for compensatory damages on whate- ver legal basis, particularly on the basis of impossibility, default, defective or incorrect delivery, breach of contract, culpa in contrahendo and tort, shall be limited in accor- dance with this Section 7. frasaco shall not be liable in cases of ordinary negligence on the part of its organs, statutory representatives, employees or other authorised agents, except where duties material to the contract have been breached. Duties material to the contract are defined as duties that ensue from the nature of the contract and that, if breached, would jeopar- dise attainment of the purpose of the contract. Insofar as frasaco is liable in principle under Item 7 (b), such liability shall be limited to the loss that was, at the time of contract closure, foreseen by frasaco as being a possible consequence of any breach of contract, or that frasaco ought to have foreseen at such time by applying the diligence customary in the trade. Additionally, any collateral loss and consequential loss incurred as a result of defects in the item delivered shall be compensatable only insofar as such loss is to be typically expected when the item delivered is used as intended. In cases of liability for ordinary negligence, frasaco‘s obligation to compensate for property damage and any further pecuniary loss resulting therefrom shall be limited to an amount of € 5,000,000.00 per occurrence of damage or loss, even if duties material to the contract have been breached. The above exclusions and limitations of liability shall apply to the same extent in favour of frasaco‘s organs, statutory representatives, employees and other authorised agents.