GCBs

Notice: The Law of the Federal Republic of Germany is applicable to these present ’Allgemeine Geschaeftsbedingungen’ (General Conditions of Business) governing the legal relationship between HEINE and the other contractual party, to the exclusion of the ‘CISG – United Nations Convention on Contracts for the International Sale of Goods). The German language is the negotiating and contractual language.
This text is the English translation of the German language original and is not legally binding. The German language text is the sole legally binding text.

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General Conditions of Business (GCBs)
(Version: Apr. 2011)

Part 1: Preamble

1. These present General Conditions of Business (hereinafter referred to as the ‘GCBs’) are to govern business transactions with enterprises within the meaning of Art. 14 of the German Federal ‘BGB – Buergerliches Gesetzbuch’ (Civil Law Code) and are to be deemed an integral part of all contracts concluded (even all future contracts) between Heine Optotechnik GmbH & Co. KG (hereinafter referred to as ‘HEINE’) and other contractual parties (hereinafter referred to as ‘customers’ and/or ‘suppliers’ respectively), where the subject matter of such contracts is the purchase of goods for the production purposes of HEINE, goods-in-trade and the sale of the products of HEINE.

2. In relation to consumers within the meaning of Art. 13 of the foregoing ‘BGB’ Civil Law Code), the statutory requirements are to be applicable, when the statute law does not prohibit the application of the following GCBs to consumers.

3. Individual agreements take preference in any event over these present GCBs. Any divergent conditions of business of a customer or supplier have no validity, unless HEINE expressly agrees to such in writing. Prices are to be in Euro Currency unless otherwise indicated and to be shown before the addition of value added tax. The prices agreed are only to be valid for the particular contract concluded.

Part 2: General Conditions of Purchase

1. Should no order confirmation be received by HEINE from the supplier within eight days of placing an order, then the order is to be deemed accepted. The submission offer quotations is to be free of charge and non-binding on HEINE.

2. Delivery time periods required by HEINE represent an essential and binding part of the order. The supplier is under a contractual duty to inform HEINE in writing with immediate effect when circumstances arise which indicate that a delivery time period cannot be met. Any exceeding of a delivery time period will entitle HEINE to cancel the order after having granted the supplier a reasonable time period for compliance. The right of the assertion of indemnities for loss or damage consequential to non-fulfilment or deficient fulfilment remain unaffected by the foregoing.

3. The price shown in the order is to be binding. Any alterations in price between the placing of an order and delivery, are to be communicated to HEINE with immediate effect and are to be approved in writing. In case of such price alterations, HEINE is entitled hereunder to cancel the order.

4. Should the supplier be in arrears of delivery, then HEINE is entitled hereunder to demand of the supplier a selection of indemnities for loss or damage, being either an all inclusive amount of a contractual penalty of 0.5% of the agreed selling price per commenced calendar week of arrears, or indemnification for the actual loss or damage suffered. The supplier is entitled hereunder to evidence, that an inferior amount of loss or damage is actually suffered by HEINE than claimed.

5. HEINE can require the contractual penalty to be paid, when HEINE asserts its entitlement thereto, up to the expiry of one calendar month at the latest after the acceptance of the last delivery of goods supplied or services rendered within the scope of the order.

6. All illustrations, technical drawings, calculations and other sundry documentation received by the supplier are to be kept strictly secret. These may only be revealed to third parties with the express approval of HEINE. This present contractual duty to maintain secrecy is to be continued after the completion of the order. The supplier binds itself hereunder, to maintain secrecy on commercial and technical information not already in the public domain, and on documentation, which becomes known to the supplier through the business relationship, and is only to exploit such for the supply of the goods and/or the rendering of the services, respectively. Any subcontractors are also to be placed under a similar duty. The supplier is to require prior written approval to mention the name- or the brand names of the orderer when providing references to others or for the mention of such in any publications.

7. All consignments are to be delivered free of charge to the gate of the works of HEINE, including packing, unless otherwise expressly agreed.

8. The invoice(s) of the supplier will be recognised by HEINE, unless a written complaint is made within
21 days of the receipt of the goods supplied. HEINE however reserves the right hereunder, to assert claims for transformation, diminution and possible indemnities for any loss or damage arising, even when any deficiencies are not apparent on the occasion of the usual commercial acceptance of deliveries, but are only discovered upon the subsequent use of the goods supplied (hidden defects), or when the characteristics assured in the offering are not entirely correct.

9. The supplier is obliged to notify HEINE with immediate effect in writing of any alterations in the type of composition of the working materials or constructional designs in comparison with similar goods previously supplied or services previously rendered to HEINE. Such alterations are to be approved by HEINE in writing.

10. Payment will be made within 14 days of receipt of- invoice and/or the goods supplied with 3% discount or 30 days net, unless otherwise agreed. HEINE hereby recognises no reservation of ownership rights. The supplier is not entitled hereunder, to cede its financial claims on HEINE or to have such financial claims collected by third parties, without the written approval of HEINE. This is not to apply to an effective agreement of an extended reservation of ownership rights for the supplier.

11. In the case of circumstances becoming known between the issuing of the confirmation of the order and the consigning of the delivery, which could foreseeably prevent a fulfilling of a contractual duty, then either of the parties are entitled hereunder to withdraw from the agreed settlement payment conditions and to introduce new terms and conditions.

12. Should HEINE make component parts available to the supplier, then HEINE hereby reserves its ownership rights therein. Processing or transformation by the supplier, are to be undertaken for and on behalf of HEINE. When goods under the foregoing reservation of ownership rights are processed together with items not belonging to HEINE, then HEINE acquires co-ownership in the new goods in the ratio of the value of the goods to the other processed items, at the point time of the processing.

13. Should items provided to the supplier be processed or transformed to a new goods, then the supplier is to be deemed the manufacturer. In cases of a combination or an inseparable blending with other items, then the supplier acquires co-ownership in the new goods in the ratio of the value, which the items have at the point in time of the combining or blending. Should the combination or blending be undertaken in a fashion where the items of the supplier become the main goods, then it is hereby declared and agreed, that the orderer cedes proportionate co-ownership to the supplier, and that the supplier upholds the co-ownership for HEINE.

14. In case of loss or damage to the goods provided, for which the supplier is responsible, HEINE hereby reserves the right to assert indemnity claims.

15. HEINE hereby reserves its ownership rights in its working tools. The supplier is under a contractual duty hereby, only to employ the working tools for manufacturing goods ordered by HEINE. The supplier is also under a contractual duty hereby to insure the working tools belonging to HEINE for replacement value at its own expense against loss or damage and destruction. The supplier already now cedes to HEINE all indemnity claims under such insurance. HEINE hereby accepts such cession.

16. The supplier is under a contractual duty hereby, to carry out any necessary servicing and inspection routines to the working tools belonging to HEINE at regular intervals at its own expense, as well as to undertake all maintenance and reinstatement work thereon. Any breakdowns are to be reported to HEINE with immediate effect. Should the supplier fail to attend to the foregoing, then HEINE hereby reserves the right to assert indemnities for loss or damage.

Part 3: General Conditions of Sale

1. The offerings of HEINE are subject to being unsold. Supply possibilities as well as delivery time periods will be met as well as possible, but are however non-binding. Any divergences therefrom are to be notified in writing with immediate effect.

2. The placing of an order is to be essentially in the written form and is to be binding for a time period of two weeks from the date of the dispatch of the order. HEINE is to be free hereunder to accept or reject an order.

3. Technical descriptions in the order confirmation are to be non-binding, as HEINE hereby reserves the right to make alterations for technical improvements up to the date of consignment.

4. For the time period of arrears of acceptance on the part of the customer, HEINE is entitled hereunder to warehouse the goods supplied at the risk and for the charge of the customer. The customer has a right hereunder to evidence, that no- or only minor loss or damage is suffered. For this purpose, HEINE can employ the services of a forwarder or a warehouseman.

5. Partial consignments are permissible hereunder.

6. Should a customer refuse acceptance of the goods supplied, after the setting of a reasonable time period of respite for compliance, then HEINE can refuse to fulfil the contract for its part and assert indemnities against the customer for loss or damage due to non-fulfilment. HEINE is to be entitled hereunder, to select as indemnity for loss or damage from the customer, either an all inclusive contractual penalty of 0.5% of the agreed selling price per commenced calendar week as from the end of the time period of respite for compliance, or an indemnification of the actually suffered loss or damage. The customer has a right hereunder to evidence, that no- or only minor loss or damage is suffered.

7. The risk of coincidental destruction- and the coincidental diminution of the goods to be supplied passes to the customer, as soon as HEINE makes the goods available for consignment and the orderer is notified thereof, or HEINE has entrusted the goods to a forwarder. The passing of the risk also applies when the customer is in arrears of the acceptance of the consignment.

8. In case of deficiencies in new goods, HEINE will initially make improvements or replacement as it deems fit.

9. Upon the request of HEINE, the goods complained of are to be returned free of charge when only insignificant charges are involved.

10. Diminution is in any event excluded hereunder. Additional claims, e.g. a consequential loss following deficiencies is also essentially excluded. The entire onus of proof is on the customer for all claim prerequisites, in particular concerning the deficiencies themselves, for the point in time of the discovery of a deficiency, and for the time punctuality of the complaint.

11. No new warranty time periods are commenced upon the exchange of component parts, assemblies, or of entire items of equipment.

12. Extended warranty - guarantee

12.1 General Conditions of Warranty

Instead of the statutory warranty time period of 2 years, HEINE will grant a guarantee of 5 years from the date of the consignment of the goods ex works, concerning its equipment (excluding disposables, e.g. bulbs, single-use articles, and chargeable batteries).
The guarantee covers irreproachable workmanship, on condition of the proper use of the equipment and the observation of the operating instructions. During the warranty- and guarantee time period, errors and deficiencies arising on the equipment will be rectified free of charge, in so far as such are evidenced by defective- materials, processing and/or constructional errors. Should buyer complain of a material deficiency during the warranty time period, then the onus of proof is always to be on the orderer, that the product was defective already upon receipt of the goods. The statutory warranty and the guarantee do not apply to loss or damage caused by wear and tear, negligent use, the non-employment of original HEINE components and/or spares (in particular bulbs, as these have been especially developed for HEINE instruments in accordance with the following criterions: colour shade temperature, useful service life, safety, optical quality and performance. The statutory warranty and the guarantee do not also apply to interventions by persons not authorised by HEINE or when the operating instructions are not observed by the customer. Any modification of a HEINE product with parts or additional parts which do not conform to the original HEINE specification will invalidate the warranty for the correct function of the product and further invalidate any warranty claims which result from such a change or modification. Further claims, in particular claims for replacement of loss or damage, which are experienced otherwise than directly on the HEINE product itself, are hereby excluded.

12.2 HEINE GAMMA G5^®, G7^®,GP^®, GST^®, XXL LF^® Blood Pressure Measuring Instruments

Instead of the statutory warranty time period of 2 years, HEINE will grant a guarantee of 5 and/or 10 years respectively, from the date of the consignment ex works, concerning blood pressure measuring instruments excluding the accessories, i.e. a guarantee of 5 years on the HEINE GAMMA G5^®/GP^®/GST^®, and a guarantee of 10 years on the HEINE GAMMA G7^®/ XXL LF^®. In regard to cuff-casing and balls, HEINE will grant a warranty of 2 years from the date of consignment ex works.
The guarantee covers irreproachable workmanship, on condition of the proper use of the equipment and the observation of the operating instructions.
During the warranty- and guarantee time period, errors and deficiencies arising on the equipment will be rectified free of charge, in so far as such are evidenced by defective materials, processing and/or constructional errors. Should an orderer complain of a material deficiency during the warranty time period, then the onus of proof is always to be on the orderer, that the product was defective already upon receipt of the goods. The statutory warranty and the guarantee do not apply to loss or damage caused by wear and tear, negligent use, the non-employment of original HEINE components and/or spares, or not-original accessories, and to alterations and repair conducted by persons, not authorised by HEINE. Any modification of a HEINE product with parts or additional parts which do not conform to the original HEINE specification will invalidate the warranty for the correct function of the product and further invalidate any warranty claims which result from such a change or modification. Further claims are hereby excluded.

12.3 HEINE Fiber Optic Laryngoscope: Performance Guarantee
HEINE hereby grants a 5 year guarantee on its HEINE HiLite^® the Classic+, Modular+ and SANALON+ Laryngoscope models with improved light transmission, which will ensure, that the illumination strength itself does not decline below 1000 Lux even after considerable autoclave cycles (in cases of 4000 autoclaves of a standard autoclave cycle of 134°C and 5 mins.). The performance guarantee applies to HEINE Laryngoscopes, which are cleaned, sterilised, disinfected, and autoclaved in accordance with the operating instructions.

13. HEINE hereby retains its ownership of the goods until receipt of full settlement of all financial claims under a current business contract. When the value of the goods subject to the reservation of ownership rights exceeds the financial claim to be secured under a current business contract, then HEINE is under a contractual duty hereby, to release the goods subject to the reservation of ownership rights, upon the demand of the customer. Mortgaging or assignment of the goods as a surety is not permissible hereunder.

14. The customer is under a contractual duty hereby, to treat goods with all due care during the existence of a reservation of ownership rights. When inspection- and maintenance routines are necessary, then the customer is undertake these regularly at its own expense. The customer is to inform HEINE above all in writing with immediate effect of any attachment of the goods by third parties, in particular of enforced sequestration measures, as well as any damage to- or destruction of the goods.

15. The customer is to inform HEINE of any change of ownership in the goods as well as any change in its own postal address, with immediate effect. The customer is to indemnify HEINE for any loss or damage experienced, and for the expenditure incurred through an infringement against this contractual duty, and for any necessary intervention measures against the attachment by third parties of the goods subject to reservation of ownership rights.

16. The customer is however entitled to resell the goods in the normal course of business. The customer is here and now to cede all financial claims in the amount of the invoice of sale accruing to the customer against a third party from such resale, without any special prior declaration becoming necessary. HEINE hereby accepts such cession. The foregoing also extends to include financial claims on balances which exist within the scope of existent ongoing current account relations, or their termination, between the customer of HEINE and the customer of the customer. Under the cession, the customer is empowered to collect the financial claims. HEINE however reserves the right hereunder, to collect the financial claims itself, when the customer fails to fulfil its settlement payment obligations towards HEINE to a regular extent, and is in arrears of payment.

17. In the event of any contractual infringement by the customer, in particular in case of arrears of payment, HEINE is entitled hereunder to withdraw from the contract and to demand the relinquishment of the goods. In addition, HEINE is entitled hereunder, to withdraw from the contract upon the infringement of a contractual duty by the customer, and to demand the relinquishment of the goods, when it cannot be reasonably expected of HEINE to continue the contract.

18. When otherwise not indicated, invoices are due for settlement payment within 30 days, net and against cash. Cash also includes a bank transfer or a cheque drawn on a bank.

19. A payment is only then deemed as settled when the funds are unrestrictedly at the disposal of HEINE. Cheques will be accepted in fulfilment only and are only deemed as settlement payment when the proceeds are credited to the bank account of HEINE.

20. In the case of circumstances becoming known between the issuing of the confirmation of the order and the consigning of the delivery, which could foreseeably prevent a fulfilling of a contractual duty, then either of the parties are entitled hereunder to withdraw from the agreed settlement payment conditions and to introduce new terms and conditions.

21. The acceptance of discountable bills of exchange is to be subject to the reservation of certain rights. Discounting- and other charges are always to be for the account of the buyer and are to be paid in cash with immediate effect. The amounts of bills of exchange will be credited under reservation of their negotiability. The deposit of bills of exchange will only be deemed as payment, when their acceptance is confirmed in writing by HEINE.

22. Prices are to be understood as packed ex works HEINE, unless otherwise indicated.

23. HEINE is entitled hereunder to assign financial claims on the customer from the supply of goods and the rendering of services for financing purposes.

24. HEINE is entitled hereunder, to use payments received, firstly to offset the charges incurred, then the interest charged and lastly for the settlement of the principal financial claim. The customer is to be informed of such.

25. During the time period when the customer is in arrears of payment, interest charges of 8% over the current bank rate will accrue on the unsettled financial claims. HEINE hereby reserves the right to evidence- and assert against the customer a greater final amount of loss or damage suffered from arrears of payment. HEINE hereby reserves the right to charge arrears interest in the usual commercial amount but in an amount of at least the interest charged by the bank.

26. Invoices will be deemed by HEINE as recognised by the customer, when not contradicted within 21 days.

27. The customer is only entitled to offset financial claims when its own counter financial claims are judicially and legally determined, or when these are undisputed. The customer may only exercise a right of retention hereunder when its own counter financial claims arise out of the same business contract. In the case of complaints, the due settlement payments of the buyer may only then be withheld to the extent, that such are in an appropriate relationship to the deficiencies suffered, provided that the claims of the buyer are undisputed or judicially and legally determined.

28. Exports from the Federal Republic of Germany are subject to the current export regulations. The export of goods in non-E.U. member states is essentially to require the written approval of HEINE, independent of whether the customer is responsible itself for obtaining all import- and export permits.

Part 4: The General Regulation of Indemnifications; Limits of Legal Liability, and Protection Rights

1. Indemnifications

1. Contractual- and statutory indemnifications are only assertable by the customer and/or the supplier respectively, when such are attributable to a premeditated- or gross negligent infringement of contractual duties on the part of HEINE, by its legal representatives, or by its management executives.

2. HEINE is also legally liable in addition, on enforceable legal grounds for typical, predictable, immediate and average consequential loss or damage when such are caused by the gross negligent- or premeditated acts of an ordinary vicarious fulfilment agent, or by the negligent infringement of material contractual duties on the part of HEINE, by its legal representatives, or by its management executives.

3. The limit of the legal liability of HEINE is limited to the sum insured under the insurance(s) contracted by HEINE, always provided that such is permissible under the relative contractual business relationship.

2. Legal Liability

1. Legal liabilities for loss of damage arising from death, bodily injury and health detriment, are not affected by such limits of legal liability. The foregoing limits of legal liability do not apply to claims of customers under product liability or guarantee.

2. Otherwise, the legal liability for the indemnification of loss or damage is excluded hereunder without taking the legal nature of the claim asserted into consideration. In this sense, HEINE is not legally liable hereunder, in particular for loss or damage, which does not occur to the subject matter of the supply, e.g. such as loss of profits and other sundry loss or damage to the assets of the customer and other consequential losses. Indemnification for the expenditure of the customer is limited hereunder to the amount of commercial interest, which the customer has in the fulfilling of the contract. Otherwise, Part 4.1. hereof is to apply.

3. The Treatment of Copy- and Protection Rights

1. When software is part of the supply, then such will be made available to the customer for sole use or for resale, i.e. the customer may not make copies for third parties nor make such available for the use of others. Multiple user rights will require a special written agreement.

2. The supplier of software is legally liable hereunder to HEINE, as being the orderer for the infringement of the commercial protection rights of third parties within the scope of the following regulations. Compliance with this contractual duty is on the prerequisite, that HEINE immediately informs the supplier of the claims of third parties asserted under protection rights, and acts in coordination with the supplier in the treatment of such claims and for the prosecution of third party rights.

3. Should any of such prerequisites not be complied with, then the supplier can be released from its contractual duties. Should an infringement of protection rights occur, and should for this reason the use by HEINE of the subject matter of the supply be legally prohibited in whole or in part, then the supplier can select at its own expense to proceed as follows:

either

-to procure the right for HEINE to use the subject of the supply, or

-to design the subject matter of the supply so as not to infringe protection rights, or

-to replace the subject matter of the supply with another subject matter of corresponding performance, which infringes no protection rights, or

-to take back the subject matter of the supply against refund of the purchase price.

4. Should HEINE however undertake alterations to the subject matter of the supply, to the associated equipment or to the connection of the subject matter of the supply with other equipment or facilities, and should protection rights of third parties thereby be infringed, then no legal liability will attach to the supplier hereunder.

5. The supplier is also not to be legally liable hereunder for the infringement of the protection rights of third parties in regard to a subject matter supplied, which is manufactured according to technical drawings, developments or to other sundry instructions of HEINE. HEINE is in such cases to keep the supplier harmless from the claims of third parties.

6. The assertion of further-going- or other claims concerning the infringement of the protection rights of third parties, are not permitted to the buyer hereunder. In particular HEINE will not indemnify for consequential loss or damage, such as failures to product and exploitation as well as loss of profits. Such shall not apply unless Part 4.2.1 is affected.

4. Data Protection

1. All personally referred data are essentially to be treated confidentially. The data necessary for the development of business are electronically processed and stored, and then passed on to associated or retained enterprises within the scope of order processing. In addition, the data is also passed on to associated enterprises, and possibly also to the ‘Schufa – Schutzgemeinschaft fuer allgemeine Kreditsicherung’ (German Credit Rating Agency) and other commercial information agencies, for the purpose of verifying creditworthiness and the monitoring of solvency.

2. The statutory requirements of the ‘Bundesdatenschutzgesetz‘ (German Federal Data Protection Legislation) are to be observed during data processing. The attention of all participants is notwithstanding hereby drawn to the possibility, that unauthorised persons can obtain access to data during transmission via the internet, as the current state-of-the-art of technology is unable fully to exclude such.

3. Privacy notice and declaration of consent to use the contact form

3.1 General

HEINE Optotechnik GmbH & Co. KG is committed to respecting your privacy. The company website and the contact form are in full compliance with German Federal data privacy regulations set down in the TDG (Teleservices Act), TDDSG (Teleservice Data Protection Act), MDStV (State Treaty on Media Services) and the UWG (Unfair Competition Act). If you have any questions in this regard, please do not hesitate to contact us>>.

3.2 Storage and use of personal details

Details that you provide (first name, surname, telephone number, e-mail address and message) will be stored, but we will only use this information for processing your request. Your details will be treated in the strictest confidence. We will not pass on your details to third parties for marketing purposes.

Part 5: Final Stipulations

1. It is hereby declared and agreed, that no verbal side agreements are superseded and invalid hereunder, i.e. the stipulations of these present GCBs and the contract are the sole agreements.

2. When the written form is agreed, or foreseen in these present GCBs, such is also to apply to transmissions via telefacsimile (telefax) or email.

3. Should any ineffectiveness arise under individual agreements and/or clauses respectively in these present GCBs or under the contract, then such is not to affect the validity of the overall stipulations of the GCBs or the contract in their other remaining parts.

4. The parties hereby declare and agree, that any loopholes occurring by reason of dispositive law, are automatically to be filled, under consideration of the declared intent of the parties.

5. The Law of the Federal Republic of Germany is applicable to these present GCBs and the legal relationship between HEINE and the other contractual party, to the exclusion of the ‘CISG – United Nations Convention on Contracts for the International Sale of Goods). The German language is the negotiating and contractual language.

6. The place of fulfilment and jurisdiction, as also for cheque- and other documentary processes, is the domicile of the registered office of HEINE, within the scope of Art. 38 of the German Federal ‘ZPO – Zivilprozessordnung’ (Civil Law Proceedings Ordinance). This place of jurisdiction is also applicable when the customer or supplier has no general inland place of jurisdiction after the conclusion of the contract, or when the customer or supplier removes its domicile or normal place of residence abroad, or its place of residence or usual place of abode is unknown, at the point in time of making application to the court.