of KLT Health Group GmbH, KLT Health GmbH, KLT Health Trade GmbH, KLT Health Operations GmbH

1. Validity

1.1 All deliveries of products, services, offers and order confirmations of KLT Health GmbH, KLT Health Trade GmbH, KLT Health Operations GmbH and KLT Health Group GmbH (hereinafter referred to as “Seller”) for the delivery of products are exclusively based on these General Terms and Conditions. These are an integral part of all contracts and order and order confirmations that the Seller concludes with its contractual partners (hereinafter also referred to as “Buyer”) for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Buyer, even if they are not separately agreed upon again. Insofar as an individual written agreement has been concluded with the Buyer (esp. purchase contract and written order confirmation by the Seller), this shall take precedence over the General Terms and Conditions in the event of any contradictions.

1.2 Terms and conditions of the Buyer or third parties shall not apply, even if the Seller does not separately object to their application in individual cases. Even if the Seller refers to a letter that contains or refers to terms and conditions of the Buyer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.

2. Offer and conclusion of contract

2.1 All offers of the Seller are subject to change and non-binding, unless they are expressly marked as “binding” or contain a specific acceptance period. Orders or contracts may be accepted by the Seller within 7 days of receipt.

2.2 Orders of the Buyer, regardless of whether they have been placed in writing, electronically or verbally with the Seller, shall only be binding for the Seller after written confirmation of the order.

2.3 The legal relationship between the Seller and the Buyer shall be governed solely by the individual written agreement (in particular the purchase contract and the written order confirmation by the Seller) and/or these Terms and Conditions. These fully reflect all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the Seller prior to the conclusion of a contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.

2.4 Supplements and amendments to the agreements made, including these General Terms and Conditions, must always be in writing in order to be effective. Transmission by telecommunication, in particular by fax or email, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.

2.5 In principle, the Seller shall be entitled to deliver products of the same type and quality, therefore of the same, equivalent or comparable specification, instead of the products specified in more detail in the purchase contract or in the order, provided that they do not impair the usability for the contractually intended purpose. The Seller shall notify the Buyer of this in writing (email) without undue delay after becoming aware of it.

2.6 The Seller warrants that the Products have the agreed specifications, quality and essential characteristics. Beyond that, the Seller does not provide any warranty, in particular the Seller does not provide any quality guarantee to the Buyer with regard to the specifications, quality and essential characteristics of the Products. Rather, it is a description or identification of the product to be delivered.

3. Prices and Terms of Payment

3.1 The prices shall apply to the scope of services and deliveries specified in the order confirmation or in the purchase contract. Additional or special services shall be charged separately. The prices are in EUR until delivery of the products at Frankfurt Airport plus the statutory value added tax. Any costs for export deliveries, customs duties as well as fees and other public charges are already included in the total purchase price stated in the order confirmation.

3.2 The acceptance of orders and execution of deliveries may be made dependent on the provision of a security deposit or advance payment. Until the advance payment has been made or the securities have been provided, the Seller shall be entitled to withhold performance.

3.3 Unless otherwise agreed, invoice amounts are due without deduction within 7 days after the invoice date and payable in Euro to one of the bank accounts indicated on the invoice. Receipt of payment (value date) on the account shall be decisive for the timeliness of payment. Any additional costs shall be borne by the purchaser. This applies in particular to costs incurred in export transactions due to foreign bank transfer.

3.4 In the event of default in payment, interest shall be charged on the claim at a rate of 9 percentage points above the respective base interest rate (§§ 288 para. 2, 247 BGB). We reserve the right to claim further damages, in particular higher interest rates, exchange rate losses, etc.. The purchaser is at liberty to prove that no damage or a lower damage has been incurred.

3.5 Offsetting is only permitted with undisputed or legally established counterclaims. A right of retention may only be asserted if and to the extent that it is based on the same contractual relationship.

3.6 Alternatively, the following payment options are possible after consultation with the Seller:

Down payment to Seller’s account: The Buyer shall make a down payment in the amount of 50% of the total purchase price by transfer to the Seller’s account specified in the written order confirmation. The balance of the total purchase price shall be paid by the Buyer immediately upon delivery of the Product by means of a real-time wire transfer to the Seller’s specified account. The Buyer shall provide the Seller with evidence of the proper real-time transfer.
Deposit to Notary Escrow Account: The Buyer shall make a down payment in the amount of 50% of the total purchase price plus notary fees, by transfer to an escrow account of the notary Dr. Markus Perz, Notare an den Alsterarkaden, Neuer Wall 55, 20354 Hamburg. The payment of the deposit from the escrow account to the account of the Seller shall be made in accordance with the safekeeping instructions of the Notary Dr. Markus Perz, Notaries at the Alsterarkaden, Neuer Wall
55, 20354 Hamburg. The balance of the total purchase price shall be paid immediately upon delivery of the product by means of a real-time transfer to the following account of the Seller. The Buyer shall provide the Seller with proof of the proper real-time transfer.
Payment on Delivery: The total purchase price is due and payable without deduction by real-time wire transfer to Seller’s account specified in the written order confirmation upon delivery of the Products at Frankfurt Airport. The confirmation of receipt of payment by the Seller’s bank shall serve as the Buyer’s proof of payment for the fulfillment of the purchase price claim. The Products shall be transferred to the Purchaser only upon presentation of this confirmation.

3.7 If the Buyer fails to take delivery of the goods without justification and despite the Seller’s request to do so and/or refuses to make the final payment without justification prior to delivery of the goods, the Seller shall have a claim against the Buyer for payment of liquidated damages in the amount of 5% of the gross order amount. The Seller shall be entitled to withhold this amount from the Buyer’s down payment. The Buyer shall be free to prove that no damage or a lesser damage has been incurred. The assertion of further damages by the seller remains expressly unaffected.

 

4 Delivery, reservation of self-delivery, delivery time and transport modalities

4.1 Delivery dates or delivery periods shall always be stated in writing. Deadlines and dates for deliveries and services promised by the Seller shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. They shall only be binding if expressly confirmed in writing. Transactions for delivery by a fixed date must be expressly designated as such and expressly confirmed as such by Seller in writing.

4.2 If Seller itself does not receive delivery although it has placed a congruent order with (a) reliable supplier(s), it shall be released from its obligation to perform and may withdraw from the contract. The Seller shall immediately inform the Purchaser of the non-availability of the performance and shall immediately reimburse any consideration already paid by the Purchaser.

4.3 If the Seller is in default with the delivery of the Product, the Purchaser may only withdraw from the contract after setting and after fruitless expiry of a reasonable subsequent delivery period of 14 days, unless the parties have expressly agreed on a firm deal or have individually agreed on a specific subsequent delivery period.

4.4 Unless expressly agreed otherwise, the Seller shall organize the loading and shipment of the Products to Frankfurt am Main Airport at its due discretion, insured and at the Buyer’s expense. Goods not accepted from Frankfurt am Main airport shall be stored for the account and at the risk of Buyer.

4.5 Delivery of the Products by the Seller shall be made to Frankfurt am Main Airport, Germany. Upon request, Seller shall assist Buyer in the onward transportation of the Products from Frankfurt am Main Airport and in the delivery of the Products from Frankfurt Airport by a carrier to an address to be designated by Buyer.

4.6 The onward transport of the Products and the delivery from Frankfurt am Main Airport shall be for the account and at the risk of Buyer. The risk shall pass to the Buyer at the latest upon handover of the delivery item from Frankfurt am Main airport (whereby the start of the loading process shall be decisive) to the Buyer or to the forwarding agent, carrier or other third party acting on the Buyer’s account and designated to carry out the shipment.

4.7 The Seller shall be entitled to make partial deliveries if the partial delivery is usable for the Buyer within the scope of the contractual purpose.

4.8 The Seller undertakes to issue an invoice in accordance with tax and company law requirements at the same time as each delivery is made.

5. Taking back and bearing the costs of packaging not subject to system participation pursuant to § 15 of the German Packaging Act (Verpackungsgesetz)

The following provisions shall not apply to deliveries to purchasers, i.e. final consumers or end customers who are private households:

5.1 Agreement on the take-back of packaging not subject to system participation between the seller and the buyer

5.1.1 Unless otherwise agreed, the Seller shall, in order to fulfill the take-back obligations pursuant to Section 15 of the German Packaging Act, ensure the collection as well as the professional and proper disposal of the residual empty sales packaging, secondary packaging and transport packaging as well as packaging of the same type, shape and size delivered by the Seller from the Buyer or from its end customers or downstream third parties who are not end customers or the end customers of such downstream third parties. Collection shall take place upon request by the Buyer. The costs incurred for collection and disposal shall be borne by Buyer. If the packaging delivered by the Seller is not returned in accordance with this clause, the Buyer shall be responsible at its own expense for the proper and correct disposal of the packaging, including collection from the end customer and/or from downstream third parties who are not end customers or from end customers of such downstream third parties.

5.1.2 If the Buyer is an end user who no longer commercially markets the goods in the form delivered to him (end customer), the Seller’s obligation under Clause 5.1.1 shall be limited to such packaging originating from such goods which the Seller carries in its product range.

5.2 Agreement on the return of packaging not subject to system participation between the Buyer and third parties.

If the Buyer passes on the products in the packaging supplied by the Seller to third parties, the Buyer shall be obliged to

5.2.1 when handing over to distributors, is obliged to contractually agree the following regulation (distributor clause) with the distributors in advance:

“In order to fulfill the take-back obligation pursuant to Section 15 of the German Packaging Act for itself and the distributors upstream of it in the supply chain, the Seller shall ensure the collection as well as the professional and proper disposal of the residual empty sales packaging, repackaging and transport packaging delivered by it as well as packaging of the same type, shape and size from the Purchaser’s premises. Collection shall take place upon request by the Buyer. If the delivered packaging is not returned in accordance with this clause, the Buyer shall be responsible for the professional and proper disposal of the packaging at its own expense.”

5.2.2 in the event of delivery to end customers shall be obliged to contractually agree the following provision (end customer clause) with the end customers in advance:

“In order to fulfill the take-back obligation pursuant to Section 15 of the German Packaging Act for itself and the distributors upstream of it in the supply chain, the Seller shall ensure the collection as well as the professional and proper disposal from the end customer of the residual empty sales packaging, repackaging and transport packaging delivered by it as well as packaging of the same type, shape and size originating from such goods that are in the Seller’s range of products. The collection shall take place upon the request of the End Customer. If the delivered packaging is not returned in accordance with this clause, the End Customer shall be responsible for the proper and correct disposal of the packaging at its own expense.”

This clause 5.2.2 shall not apply if the end customer is a private household.

5.2.3 The Purchaser shall be free – to the extent legally permissible – to agree with its customer, in addition to the distributor clause or the end customer clause, that the customer shall bear or contribute to the collection and transport costs.

5.3 Obligation to pass on

If the Buyer passes on the Products in the packaging supplied by the Seller to third parties, the Buyer shall be obliged, in addition to the obligation under clause 5.2.1,

5.3.1 to oblige these third parties to agree the distributor clause referred to in 5.2.1 with their customers, if these are not end customers, or, if these third parties pass on to other third parties who are not end customers, to oblige these other third parties, with a corresponding obligation to pass on these obligations to further downstream third parties, to agree the distributor clause with their customers in advance. By imposing the duty to pass on, it shall be ensured that the distributor clause is agreed in advance with all subsequent distributors.

5.3.2 to oblige these third parties to agree the end customer clause referred to in 5.2.2 with their end customers or, if these third parties pass on to other third parties who are not end customers, to oblige these other third parties with a corresponding obligation to pass on these obligations to further downstream third parties to agree the end customer clause with their end customers in advance. By imposing the obligation to pass on, it must be ensured that the third party at the final merchant level who ultimately sells to the end customer agrees the end customer clause with its end customers in advance.

 

6. retention of title

6.1 In the event of payment on account pursuant to Section 3.3, the following shall apply:

6.2 The Products delivered and handed over by the Seller to the Buyer shall remain the property of the Seller until full payment has been made. The Products are hereinafter also referred to as “Retained Goods”.

6.3 The Buyer shall keep the Retained Goods in safe custody for the Seller free of charge after handover.

6.4 The Purchaser shall be entitled to sell the Retained Goods in the ordinary course of business until the case of realization according to Clause 6.8 occurs. Pledges, transfers of ownership by way of security and other encumbrances of the reserved goods are not permitted.

6.5 In the event of resale of the reserved goods by the Buyer prior to full payment of the Seller, the Buyer already now assigns to the Seller by way of security the claims against the customer(s) arising therefrom. The seller accepts this assignment. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorizes the Buyer to collect the claims assigned to the Seller in its own name. The Seller may revoke this collection authorization only in the event of realization.

6.6 The Seller shall be entitled to disclose this assignment by way of security and to collect the receivables directly from the Customer(s) in the event that the Buyer fails to meet its obligations under the Contract or is in default of performance. In this case, the Buyer shall be obligated to name to the Seller upon request the customer(s) to whom it has resold or intends to resell the Products and to provide all information necessary for the assertion of the assigned claims.

6.7 If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the Buyer shall immediately notify them of the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights.

6.8 If the Seller withdraws from the contract in the event of a breach of contract by the Buyer – in particular default of payment – the Seller shall be entitled to demand the return of the reserved goods.

 

7 Warranty, Defects and Notification of Defects

7.1 The Buyer shall carefully inspect the delivered products immediately after delivery with regard to quantity and quality and shall notify the Seller of any defects in writing without delay. With respect to obvious defects or other defects that would have been apparent upon immediate, careful inspection, they shall be deemed to have been approved by Buyer if Seller does not receive a written notice of defect within (three) business days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Buyer if the Seller does not receive a written notice of defect within (three) working days after the time at which the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defect.
The burden of proof that a defect was not apparent at the time of delivery and handover of the products shall lie with the Buyer. Complaints shall be notified to Seller in writing, stating the order data and the invoice and shipping numbers.

7.2 The Buyer shall be obliged to check the Products for their suitability for the intended purposes. Further application, use and processing of the goods are beyond the control of the Seller and are therefore the sole responsibility of the Buyer.

7.3 Excluded from the warranty obligation are damages resulting from improper handling, storage, installation or other external influences for which the Seller is not responsible.

7.4 In the event of justified defects notified in due time, Seller shall, at its option, remedy the defect free of charge within a reasonable period of time (subsequent improvement) or deliver defect-free goods (subsequent delivery). The consent of the Seller must be obtained before returning the products. At the request of the Seller, a rejected delivery item shall be returned to the Seller carriage paid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use. Replaced goods shall become the property of the Seller.

7.5 If the Seller does not comply with a reasonable grace period set for remedying the defect or making a subsequent delivery, the Buyer shall be entitled to rescind the contract, reduce the remuneration (reduction) and, within the limits set out below, claim damages in accordance with the statutory provisions. The same shall apply in the event that subsequent performance fails twice, in the event of refusal of subsequent performance or if subsequent performance is unreasonable or impossible for the Seller.

7.6 Withdrawal from the contract may not be asserted in the event of an insignificant defect. Insignificant shall be deemed to mean, among other things, that less than 3% of the delivered products (based on the respective packaging unit) have a defect that is the subject of a complaint.

7.7 All claims for defects and claims for damages directly related to a defect shall become statute-barred within one year from handover of the products. This period shall not apply to claims for damages of the Buyer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.

 

8 Liability and indemnification

8.1 The Seller shall only be liable for intent and gross negligence – except in the case of breach of material contractual obligations, injury to life, body or health or in the case of claims under the Product Liability Act. Essential contractual obligations are those whose fulfillment is necessary to achieve the purpose of the contract. This shall also apply to any attribution of breaches of duty by its vicarious agents and legal representatives and – insofar as a contract for the benefit of third parties within the meaning of § 328 BGB – also for the benefit of the vicarious agents and legal representatives of the Seller in respect of their own liability towards the Buyer. In this respect it shall be clarified that the manufacturer of the Product, the supplier of the Product to the Seller as well as the transporter of the Product are neither employees nor vicarious agents of the Seller.

8.2 A strict liability as well as a liability for indirect damages, in particular financial losses, loss of profit, is excluded, if and to the extent that this contract does not expressly provide for another regulation.

8.3 Liability for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for this type of contract.

8.4 The Buyer shall have no right of recourse against the Seller arising from the transfer of the delivery to a third party if the Buyer has entered into agreements with the third party that go beyond the statutory mandatory claims for defects (in particular contractual penalty agreements, warranty promises, etc.). This shall not apply if and to the extent that the Seller has expressly agreed in writing to the agreements going beyond the statutory mandatory defect claims.

8.5 If a claim for damages is asserted against Seller by a third party with respect to the delivery of the Products, Buyer shall indemnify Seller in full (including reasonable legal costs and legal defense costs, expenses, fees, taxes, etc., as well as reasonable advances) if the causes of the claim are internally within Buyer’s sphere of control and organization.

 

9 Force Majeure and Other Unforeseeable Events

9.1 The Seller shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure (e.g. natural disasters, war, epidemics, earthquakes, terrorist attacks, extraordinary weather conditions, etc.) or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures) for which the Seller is not responsible. The Seller shall inform the Buyer thereof without undue delay.

9.2 In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period.

9.3 If, as a result of the above circumstances, delivery and/or acceptance is delayed by more than eight weeks, calculated from the agreed delivery date, both parties shall be entitled to withdraw from the purchase contract with immediate effect in accordance with Clause 10.

9.4 In the event of a partial or complete discontinuation of the sources of supply, the Seller shall not be obliged to obtain supplies from suppliers other than those originally intended.

9.5 Whether, after the force majeure has ended, a (subsequent) delivery for the deliveries not made during this period or a subsequent purchase shall take place, shall be determined by the two parties by mutual agreement, taking into account the production capacities.

9.6 In the event that one of the parties declares its withdrawal from the contract pursuant to clause 9.3 or in the event that no (subsequent) delivery is to be made after the parties have agreed, the Seller undertakes to return any advance payments made by the Buyer to the Buyer’s specified account within 14 days or to return any retained security advance payments within 14 days. The receipt of payment (value date) on the Buyer’s account or the (physical) return of the security shall be decisive for the timeliness of payment.

10. Withdrawal for good cause

10.1 Withdrawal from the contract may only be declared by the Buyer or Seller with immediate effect if there is good cause. An important reason shall be deemed to exist in particular if one of the following events occurs:

Non-payment of outstanding invoice amounts despite reminder and setting of a 7-day grace period;
Breach of a material contractual obligation by one of the parties and failure to remedy the breach within 7 days despite written request by the other party;
Significant deterioration of the financial situation of one of the parties after conclusion of the contract before full payment of the purchase price (esp. filing of an insolvency petition,
Opening of insolvency proceedings or rejection due to lack of assets, application for an affidavit, arrest order, etc.);
existence of a case of force majeure or occurrence of other events unforeseeable at the time of conclusion of the contract in accordance with
Clause 9;
export bans for the Products, production bottlenecks, border closures, customs restrictions, shortage of means of transport, shortage of raw materials, operational disruptions or restrictions or industrial action (strike and lockout) as well as other measures, in particular measures under public law, which delay the timely delivery and acceptance of the Products by more than eight weeks.

10.2 The withdrawal shall be declared in writing to the respective other party. Telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.

11. Choice of Law and Place of Jurisdiction

11.1 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be Hamburg, Germany.

11.2 Applicable law for the entire contractual relationship is exclusively the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

12 Secrecy

Buyer and Seller undertake to keep secret for an unlimited period of time all information which becomes accessible to them in connection with this contract and which is designated as confidential or which is recognizable as a business or trade secret due to other circumstances and – unless required to achieve the purpose of the contract – neither to record nor to exploit it in any way. Buyer and Seller undertake to destroy the information designated as confidential immediately after execution of the contract, unless mandatory legal obligations (e.g. tax law retention obligations, etc.) conflict therewith.

13. Severability clause

If any provision of this Agreement is or becomes void, invalid or unenforceable in whole or in part, the validity and enforceability of all remaining provisions shall not be affected thereby. The void, invalid or unenforceable provision shall, to the extent permitted by law, be deemed to be replaced by the valid and enforceable provision which most closely approximates the economic purpose pursued by the void, invalid or unenforceable provision in terms of subject matter, extent, time, place and scope. The same shall apply to the filling of any gaps in this contract.