General Terms Of Business

1. AREA OF APPLICATION

1.1 
All of our deliveries, services and offers are based on the following General Terms of Sale and Delivery, which form an integral part of every agreement reached with the client – hereinafter known as the ordering party – and of every declaration of intent made to the ordering party.

1.2  
The ordering party’s or third party’s general terms of business are herewith expressly denied. The provision of our services and deliveries in no way represents any recognition of any terms of business on the part of the ordering party.  Even if we take reference to a letter containing the terms and conditions of the ordering party or a third party or refers to them, therein lies no agreement with the validity of such terms and conditions.

2. OFFERS AND ORDER CONFIRMATIONS

2.1 
Our offers are only binding when they are provided in writing and are explicitly identified as being binding. Verbal and telephone declarations are only binding if they have been confirmed in writing or by facsimile. Our offers are made with reservation until such time as the technical feasibility has been completely clarified and confirmed. Upon placement of his order, the client acknowledges these sales and delivery terms in their entirety, as forming the basis for the contract. This applies to future orders as well.

2.2 
We are bound by the terms of our offer for 90 calendar days after the offer date. Orders must be accepted in writing.

2.3 
Orders not based on an offer on our part, or those which – even in part – deviate from our offer, require our written order confirmation. Standardized or computer-generated order confirmation forms are sufficient to meet this requirement.

3. CONSULTATION, DOCUMENTS, DESCRIPTION OF THE DELIVERY OBJECT, QUANTITIES, TECHNICAL REGULATIONS

3.1  
Consultation to the best of our knowledge and abilities with the ordering party upon the conclusion and execution of the contract shall take place if separate compensation has been agreed upon. Otherwise, any consultation merely represents a recommendation from which no claims in any form on the part of the ordering party can arise.

3.2 
Any documents made available to the ordering party remain our property and shall be treated with the strictest confidence. Without our written approval, they may be neither reproduced nor be made public nor be made available to third parties in any other manner, nor may they be employed for any purposes other than those agreed upon. These documents are our sole property. Upon demand, they, together with all copies or reproductions shall be immediately returned to us. Should the delivery or the performance of the intended service not occur, the ordering party is obligated to return them to us without being requested to do so. The ordering party shall view all documents as confidential business files, and shall treat them with corresponding confidentiality. He is liable for all damages to ourselves arising from the failure to observe these obligations. The above applies in its entirety in those cases where a surcharge has been paid by the ordering party for the purpose of creating such documents.

3.3 
Specifications and other information (drawings) concerning the delivery or service object, together with the content of any other documents made available to the ordering party are only binding if this has been expressly stated by ourselves, in writing. Beyond this, we reserve the right to make technical changes.

3.4 
Any foreign legal, official, or other regulations which could have an influence on the provision or utilization of our deliveries and services, shall be provided to us by the ordering party in either German or English at the time the order is placed.

4. PRICING

4.1 
Unless otherwise specified, all prices quoted are understood to be minus the applicable legal value-added tax.

4.2 
Unless otherwise specifically agreed upon, all prices are ex our facilities, without packaging or loading. If delivery to the ordering party has been agreed upon, these prices are understood to be without unloading and without transfer.

4.3 
Confirmed prices apply only to the acceptance of the confirmed quantities at the confirmed times. They do not apply to subsequent orders.

4.4 
We have the right to increase our prices accordingly if the delivery should take place more than 90 days after contract conclusion, and our prices for raw, additive, and operational materials, our salaries and wages, or any other costs which we must bear, increase. The ordering party is responsible for all costs arising from new or increased taxes, duties, fees, or other charges arising from legal or official measures and directly or indirectly affecting our deliveries and services. We shall inform the ordering party of the price increase in writing. Should the ordering party fail to inform us with in one week that he does not approve of the price increase and is therefore withdrawing from the contract, the ordering party is obligated to accept the goods or service at the increased price. The declaration on the party of the ordering party must be received by ourselves within the one-week deadline. Should the ordering party withdraw, he can bring no legal claims against us. We have the right to bill the ordering party for any expenses incurred up to the point of withdrawal.

5. PAYMENT

5.1 
Invoices payments are due immediately after receipt of Invoice without deduction, unless otherwise agreed in writing.

5.2 
If the ordering party does not pay within 30 days after the invoice due date or receipt of the invoice, or  the contractually agreed-upon payment deadline, or if the payment schedule is uncertain, then we are entitled at least 30 days after due date and receipt of the consideration, to demand late-payment interest at a rate of 8 % points above the base rate, but at least 10 % p.a. No special notification of arrears is required.  We are entitled to claim further delay damages.

5.3 
Aside from cash payment and electronic transfers, other forms of payment such as checks will only be accepted with the stipulation that they actually clear. Bills of exchange and checks will only be accepted on the basis of special agreements, and then only for payment. The ordering party is responsible for all costs associated with bills of exchange and checks. Neither are we liable for the timeliness of protests. Credits shall be issued for the amount resulting after the subtraction of all expenses. The date of payment shall be considered to be the date on which the funds are available to us.

5.4 
The ordering party shall make payment to the accounts specified by ourselves. Our employees are only empowered to accept payment– including in the form of bills of exchange or checks – if they have received written authorization to do so.

5.5 
Expenses associated with bills of exchange and credits shall be borne by the ordering party, and are to be paid immediately upon surrender. If payment by promissory note has been agreed upon, said notes must reach us by the due date on the invoice. In cases of bills of exchange, the term may not exceed 3 months beyond the invoice date.

5.6  
At our request, ordering parties outside Europe shall open an irrevocable letter of credit for our benefit, to be activated at the ordering parties expense at a banking institution to be named by ourselves. The term of the letter of credit must exceed the agreed-upon delivery time by at least 3 months. All bank expenses, provisions, and fees shall be borne by the ordering party.

5.7 
Received payments are first applied to costs, then to interest and, finally, to the capital. Where several debts exist, we have the right to apply payments on the part of the ordering party to our debts – including costs and interest – in the sequence in which they fall due, whereby the due date for costs and interest are based on the primary debt. Other assignments on the part of the ordering party are ineffective.

5.8 
Should doubts concerning the ordering party’s ability or willingness to pay arise, particularly as a result of the non-fulfilment of payment obligations arising from this or another contract with either ourselves or one of our associated companies, or as a result of a subsequent deterioration of the ordering parties economic conditions, we have the right to demand immediate payment of our debts . even in the case of a shipment made after the conclusion of a contract . to demand down payments in advance or security deposits or . if the ordering party refuses to make these . to withdraw from the contract. If we have not yet fully performed our contractual obligations, we have the right to bill for the portion of the services provided up to that point. We are not required to make any additional deliveries arising from any existing contract prior to the payment of outstanding debts, including interest . for both performed as well as partially performed services.

5.9 
Enforcement of counterclaims by setoff or by exercise of retention by the Purchaser shall not be imposed unless the counterclaims are undisputed or legally binding.

6. RETENTION OF OWNERSHIP

6.1  
Until such time as full payment of the purchase price, including all secondary debts, has taken place, the goods in question remain our property. In the case of checks and bills of exchange, until such time as these have cleared.

6.2 
If goods delivered under retention of ownership are further processed by the ordering party, the processed gods continue to remain the sole property of the seller. When processing takes place in conjunction with other goods to which we do not retain ownership, we have a claim of co-ownership in the new materials at a ratio of the value of the retained goods to the value of the co-processed goods

6.3 
In case of late payment on the part of the ordering party or of insolvency proceedings against the assets being opened against the ordering party, the goods to which the seller retains ownership shall, without special demand, be separated and held available to ourselves.

6.4 
For the duration of the right of retention of ownership, further disposition, pledging, or employing the goods belonging to us in accordance with Item 6.1 and 6.2 as surety are prohibited. Further disposition in the course of ordinary business is only permitted under the condition that the reseller receives payment from his customer, or that the goods are also disposed of under the retention of ownership. In case of resale, the ordering party at this time transfers his future purchase price debts including all secondary rights to ourselves until such time as our debts against him have been completely fulfilled, without this requiring any special declaration. Until otherwise specified, the ordering party is entitled to obtain the newly arising purchase price demands. He shall, however, immediately transfer all receipts to ourselves. We retain the right to recall the ordering party’s right to obtain the debt and to expose the transfer of debts. We shall not, how ever, exercise this right provided that the ordering party meets his payment obligations in a proper manner. At our request, the ordering party shall inform his purchasers of the transfer, inform us of the name and address of the purchaser, and of the extent of the transferred debt, and shall provide us with any and all such information required to assert the transferred debts. Any costs arising for collection and intervention shall be borne by the ordering party.

6.5 
The ordering party shall treat the goods belonging to ourselves with care and shall adequately insure them against all risks, in particular, fire, theft, and water and, at our request, shall provide evidence of the conclusion of the necessary insurance. At our request , the ordering party shall store the goods to which we retain ownership separately and identify them as our property.

6.6 
All claims on the part of the ordering party against third parties for loss or damage to the goods to which we retain ownership, in particular, insurance and damage claims, are herewith transferred to ourselves. For said transfer, the ordering party shall obtain the necessary authorizations from the potential debtors of such claims.

6.7 
Should the delivered goods or the property on which they are installed be attached, seized, or in any other way claimed by third parties, the ordering party is obligated to immediately inform us of these actions as well as to indicate the goods to which we retain ownership to the third parties and to store these goods separately. The ordering party is liable for all costs incurred in nullifying the effect of all claims arising on the part of third parties.

6.8 
In case of belated payment on the part of the ordering party, or where doubts regarding the ordering party’s ability or willingness to payexist, we have the right to demand the return of the goods to which we retain ownership without this being construed as a withdrawal fromthe contract. Alternately, we may also prohibit the further sale of the goods. In place of the return of the goods to which we retain ownership, we may also demand the transfer of direct ownership in those cases where the ordering party is merely the indirect owner. Theordering party herewith explicitly agrees to our right of return and also explicitly and irrevocably agrees to renounce all rights of retention.

6.9  
If our rights of retention of ownership are not recognized the laws of the country in which the goods to which we retain ownership arelocated or to which they are transferred, a security corresponding to the retention of ownership is herewith agreed upon. If the cooperationof the ordering party is required in order to establish this security, the ordering party shall immediately take all necessary steps to providesame, and shall bear all resulting costs.

7. DELIVERY DEADLINE

7.1  
The delivery deadline begins with the conclusion of the contract not, however, until such time as the ordering party has provided allrequired documents, approvals, and securities, and not before any agreed-upon down payment has been made. If a specific deliverydeadline has been agreed upon, said deadline shall be extended by a suitable period if the ordering party fails to provide the requireddocuments, approvals, and securities in a timely manner or if the agreed-upon down payment is not made on time.

7.2 
The delivery deadline is considered to have been met if readiness to ship is indicated prior to the end of the deadline, or if the object ofdelivery has left our facilities.

7.3  
The delivery deadline shall be extended accordingly in situations where events over which we have no control arise. This applies evenwhere such events occur and the delivery was already delayed. We shall immediately inform the ordering party of the onset and terminationof such events.

7.4 
If delivery is delayed by more than 3 months as a result of events over which we have no control, or if such a delay can be assumed with ahigh degree of certainty, we have the right to withdraw from the contract. In this case we have the right to demand payment for thoseexpenses already incurred and those are not avoidable.

7.5 
If the delivery, acceptance, or physical transfer to the ordering party is delayed for reasons for which the ordering party is responsible, weshall charge him for all costs incurred for the storage of the delivery objects. We have the right to dispose of the delivery objects as wesee fit if the ordering party does not release the shipment within a reasonable period specified by himself, and to repeat delivery to theordering party with a correspondingly extended deadline.

7.6  
Should our services or deliveries be delayed, the ordering party may grant us a suitable extension. Should this extension pass withoutresult, the ordering party has the right to withdraw from the contract to the extent that the delivery has not left the plant o r warehouse uponexpiration of the extension, or that its readiness for shipment has not been indicated. If, during the extension period set by the orderingparty, an event over which we have no control occurs, the extension shall, in turn, be correspondingly extended. Other claims on the part ofthe ordering party are not recognized unless these are based on premeditation or gross negligence of our obligations.

8. SHIPPING AND PACKAGING

8.1 
The ordering party’s shipping rules are only binding on ourselves to the extent that we have confirmed these in writing.

8.2 
There are no separate charges for packaging. We participate in a "Green Spot’ recycling program.

8.3 
The decision regarding the most suitable packaging and shipment methods shall remain ours.

8.4 
Partial deliveries are permitted.

9. RISK TRANSFER 

9.1  
Deliveries are made at the expense and risk of the ordering party. The risk shall pass at the time of the handover of the delivery item (the beginning of the loading process is applicable) to the shipper, carrier or other third parties to carry out the transport to the ordering party. This also applies for partial deliveries or if we have accepted other services (eg shipping). If shipment or delivery is delayed due to circumstances, wherein the cause lies with the ordering party, risk shall pass from that day on to the ordering party, when the delivery item is ready for dispatch and we have notified the ordering party.

9.2 
We retain the right to select and alter the shipping path and shipping method.

10. WARRANTY

10.1  
The ordering party is obligated to inspect the delivered goods immediately upon receipt and to immediately, but no later than within 6 working days, to notify us of any discovered faults. Faults that are not immediately recognizable must be reported immediately upon their detection, but no later than within 6 working days of their detection. Notification must be in writing or via facsimile. We are only liable for faults that have been reported in a timely and proper manner. As indicated by clause 9.1, faults arising during the transfer of risk do not fall under our warranty. A fault only exists in cases of a violation of the German Medical Products Code or the specifications set forth in the DIN ISO 9001 series of standards or the ISO 13485 series.

10.2 
Should our deliveries or services be faulty, we are then entitled and obliged to provide the ordering party with either corrective actions or redelivery within a reasonable time period. The choice remains ours. Where the corrective measures or redeliveries are inadequate, the ordering party may demand price reductions, or may withdraw from the contract.

10.3  
Should it be subsequently determined that our deliveries and services were not at fault, the ordering party shall reimburse us for the undertaken corrective measures or redelivery.

10.4 
Our warranty obligations are based on the requirement that the faulty delivery is returned to ourselves in an unaltered condition. Corrective actions on the part of the ordering party or third parties are prohibited unless we have provided our written approval thereof.

10.5 
In case a defect is our fault, the ordering party may demand compensation in certain circumstances as listed in paragraph 12.

10.6 
It is the responsibility of the ordering party to ensure that all information required to fulfil the contract have been fully and correctly made available to ourselves. Should this not be the case, the ordering party is still obligated to pay for the delivery if it has been fully or partially unsuccessful as a result of lacking information. The ordering party is also responsible for any resulting additional expenditures arising from this situation. Beyond this, the ordering party has no claim for warranties, damage compensation, or other claims if deliveries or services are incomplete or faulty as a result of lacking information.

10.7 
If goods or services are produced or provided by ourselves on the basis of construction specifications, drawings, plans, models, or other information provided by the ordering party, our warranty is limited to the performance having been carried out in accordance with the above-named information from the ordering party. In particular, we are not liable for the correctness and completeness of the construction or of the information provided by the ordering party. We are not responsible for examining the above-named information provided by the ordering party. In particular, we are not obligated to examine whether his goods or services are feasible with the defined version alone or in conjunction with goods or services provided by the ordering or third parties.

10.8 
In any case, we are relieved of the obligation to fulfil warranty claims for as long as the ordering party remains in arrears with respect to his payment obligations. Remedial performance in no way entitles the ordering party to withhold agreed terms of payments.

10.9 
Any claims on the part of the ordering party beyond this point are disallowed. Correspondingly, damage claims on the part of the ordering party are disallowed to the extent that we are merely guilty of negligence. In any case, compensation for subsequent damages, pure property damages, failure to achieve savings, lost profits, loss of interest payments, or damages arising from the claims of third parties are no accepted. Liability for damages to goods that do not form an object of the contract is also not accepted.

 

11. Returns of non-defective goods

11.1 
A sales and return principle is excluded. However, if there should be a case where goods are returned, these goods must be new and in the original packaging (unopened). Returns always require the prior consultation with MORCHER® GmbH. Goods, which MORCHER® GmbH no longer provides in the production program, or which were specifically manufactured or supplied for any client, will also not be accepted back even in exceptional cases. In case that MORCHER® GmbH should accept the return of any goods, MORCHER® GmbH will levy 20% of the value of the goods for the inspection and handling fee.

 

12. RIGHTS OF COMMERCIAL PROTECTION

12.1 
We warrant that our deliveries and services and their utilization does not violate any patents (pending patents) or other rights of commercial protection on the part of third parties within the Federal Republic of Germany. Should a third party claim violation of a patent or rights of commercial protection, the ordering party is obligated to:. Immediately inform us in writing or by facsimile of the claims;. Empower us to defend against the claim and to initiate legal action;. Assign to ourselves the necessary powers and to provide us with all desired support to the best of its ability;. Empower us to make the modifications to deliveries and services that we deem as being appropriate at any time.

12.2 
We are not liable for the possible violation of any foreign patents (pending patents) or other foreign rights of commercial protection. The ordering party herewith releases us from any claims on the part of third parties based on the violation of foreign patents or other foreign rights of commercial protection.

12.3 
The ordering party warrants that the plans, drawings, samples, and other documents provided by him, or their utilization, violate no patents (pending patents) or other rights of commercial protection of third parties. Where services or deliveries are provided on the basis of plans, documents, etc., the ordering party shall release us from damages or claims resulting from the possible violation of patent rights of third parties.

13. LIABILITY

13.1 
Our liability for damages, regardless of their legal basis, particularly due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort is, insofar as each case is at fault, restricted pursuant to this paragraph.

13.2
We are not liable in cases of simple negligence by our bodies, legal representatives, employees or other agents insofar as they do not constitute a breach of contractual obligations. Essential contractual obligations are the obligation to make timely deliveries of materials, which are free of defects, including counseling, protection and care obligations, which enable the ordering party the contractual use of the delivered item or which are intended for the protection of life and limb of the ordering party’s patients or the protection of their property from considerable damage.

13.3
If we are liable pursuant to paragraph 12.2 for reasons for damages, such liability is limited to damages, which we have foreseen in advance as a possible consequence of a breach of contract or which by application of ordinary care we should have foreseen in advance.  Indirect or consequential damages that result from defects in the delivered goods, are only eligible for compensation, if such damages are typically expected with the intended use of the delivered goods.

13.4
In the case of liability for simple negligence, our liability for property damage and the subsequent resulting further financial losses is limited to an amount of EUR 500,000 per claim, even if it is a breach of contractual obligations.

13.5
The before mentioned liability- and limitations apply to the same extent and in the same scope in favor of our bodies, legal representatives, employees and other agents.

13.6
In case we present technical information or become active in an advisory capacity, and such information or advise is not part of the agreed scope of service, then this is done free of charge and without any liability.

13.7
The limitations of this paragraph 12 shall not apply to our liability for intentional conduct, for guaranteed characteristics, injury to life, limb or health or to the Product Liability Act.

14. ACTS OF GOD

14.1 
Should one of the parties be unable to properly fulfil its contractual obligations as a result of Acts of God, the other party may not use this circumstance as the basis for any legal claims, regardless of the basis in law.

14.2 
In particular, Acts of God include war, internal unrest, terrorist actions, seizure or other actions on the part of public forces, strikes, lockouts or other labor conflicts, general unavailability of raw, support, or operating materials, damaged machinery, wastage, machinery failure or other operational interruptions, natural catastrophes, or other circumstances outside the control of the affected party that can only be rectified with unjustifiable expenditures.

15. TOOLS, EQUIPMENT, PROVIDED PARTS, TECHNICAL DOCUMENTATION

15.1  
We shall carefully store and maintain tools, equipment, as well as technical documentation for possible subsequent orders without, however, this in any way representing an obligation on our part to accept subsequent assignments or any binding to prices agreed upon for previous orders. The ordering party is responsible for any costs arising in conjunction with the care and maintenance. If, despite proper care and storage, the tools, equipment, or technical documentation are damaged or destroyed, the ordering party shall compensate us for the resulting damages. Our obligation to store and care for the tools, equipment, and technical documentation becomes void if the ordering party places no order for the items in question within one tear of the most recent delivery.

16. WITHHOLDING, OFFSET, ASSIGNMENT

16.1 
To the extent permitted by law, any withholding rights on the part of the ordering party are excluded.

16.2 
The ordering party may only offset if the counter-service has been recognized by ourselves or has been determined to be legally acceptable.

16.3 
The ordering party may only assign his rights arising from this contract to a third party with out express, written consent.

17. Buyer obligations regarding the import of medical devices

17.1 
Morcher® is producer and owner of product approvals and product registrations in the EU, US and Canada (CAN). In all other countries and sales areas, the buyer is responsible for the correct product registration and product approvals, as well as the correct application. The buyer has to inform Morcher®about all regulatory changes in its sales territory within 14 days after notification by the competent authorities and bodies.

18. MISCELLANEOUS

18.1 
The settling location is Stuttgart, jurisdiction is held in Stuttgart. We do, however, reserve the right to initiate actions against the ordering party at the court in his jurisdiction.

18.2 
Errors in calculation, accounting, typographical errors, etc., in either the offer or the order confirmation entitle us to a correction or an appeal.

18.3 
Only German law is applicable, with the application of the United Nations agreement governing contracts in international goods sales being excluded in its entirety.

18.4 
Should individual clauses of these terms or other contractual agreements between the parties be void or unable to be performed, this in no way affects the remaining clauses. Until such time as the ineffective clause can be negotiated, conventional trade practices or, if necessary, the associated legal regulation, shall take the place of the void or unperformable clause.

18.5 
Changes or amendments to these terms or other contractual agreements between the parties must be made in writing. The same applies to agreements intended to nullify or ease the terms of this clause.

18.6 
The German version of these terms is binding in all matters.

 

2013-04