pro med instruments, Inc.
4529 SE 16th Place
Suite 101, Cape Coral, FL 33904
These terms and conditions are the complete and exclusive statement of the terms of sale for all products (the “Products”) supplied by Pro Med Instruments, Inc. dba Black Forest Medical Group (“BFMG”) to the party to whom the attached purchase order confirmation or invoice is addressed (“Customer”). Customer shall be deemed to have agreed to all of these terms and conditions by its issuance of a purchase order for a Product, acceptance of any Products, or otherwise. The acceptance by BFMG of any order of the Products is expressly conditioned upon Customer accepting all of these terms and conditions without modification.
2. Product Orders
All purchase orders must be in writing & faxed to 239-540-5790 or emailed to CustomerService.email@example.com. No order shall be final until accepted by BFMG. Upon receipt of a Product order, BFMG shall endeavor to deliver Products within two (2) weeks for products available in its inventory. For special orders and orders for Products not in BFMG’s inventory, additional delivery time may be required. Prices, specifications, and terms of sale are subject to change without notice.
Unless otherwise specified by BFMG in writing, all prices are F.O.B. BFMG’s facility in Florida, with Customer assuming all risk of loss to the Products while in transit. Customer may designate a common carrier and the method of transporting the Products. BFMG may, in its sole discretion, fulfill Product orders through partial shipments. Customer shall report all damage to ordered Products or insufficient Product deliveries in writing to BFMG and to the common carrier within three (3) days of Customer’s receipt of such Products. Non-delivery of ordered Products must be reported to BFMG and to the common carrier in writing within fourteen (14) days from the date of BFMG’s invoice for such Products.
4. Terms of Payment
Payment for Product and Service orders shall be due thirty (30) days following the date of BFMG’s invoice. Customer shall pay a late fee equal to two percent (2%) per month for all invoiced amounts not paid when due. Payment for Annual Service Contracts shall be due within thirty (30) days of the contract’s execution date. Payment for Multi-year Service Contracts is due in full upon execution of the Service Contract and is non-refundable.
Prices do not include any federal, state, or local taxes, or other similar governmental charges. Customer shall pay all such taxes and charges, and shall reimburse BFMG for any such taxes and charges that it is required to pay.
6. Returned Merchandise
Customer shall not be entitled to return Products without prior authorization from BFMG. Permission must be obtained from BFMG prior to returning any product and the Return Material Authorization (RMA) number must be referenced on all documents and shipments. Permission to return merchandise for evaluation should not be interpreted to mean that credit will be given. We reserve the right to hold approval on all returned merchandise until our Quality Assurance Department has completed their inspection. We may issue credit, repair, or replace the product at our discretion, depending on the results of the inspection. Sterile products must be returned in unopened, undamaged cartons, packed to prevent damage. Non-sterile products must be returned in unused saleable condition in original package. Custom or special-order products will not be accepted for credit. A restocking fee of 10% will be charged for products returned within 30 days. A restocking fee of 20% for products returned between 31-60 days. Single-use products over 90 days are not returnable. Custom Products and Used Products are not returnable.
7. Returned Service Merchandise
Customer shall not be entitled to return Products without prior authorization from BFMG. Permission must be obtained from BFMG prior to returning any product and the Return Material Authorization (RMA) number must be referenced on all documents and shipments. For Loaners, the customer must provide a PO to BFMG for the quoted loaner fee and will be responsible for all associated shipping charges. Customer must return loaners so that they arrive at BFMG’s warehouse within five (5) days after having received back the merchandise sent in for service. For any delay BFMG is entitled to charge a fee per day of delay of 1.5% but not more than 90 % in total of Loaners sales price according to the valid price list in this moment.
8. Product Warranty
BFMG warrants to Customer that the Products will be free from defects in material and workmanship for one (1) year from the date of original shipment. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The foregoing warranty shall not extend to any Products which have been subject to misuse, neglect, accident, improper installation, to Products used in violation of instructions furnished by BFMG, or to Products which have been repaired, serviced or altered by anyone other than personnel authorized by BFMG, also not to any Products which have been subject to improper or negligent installation or storage, or which has been subject to improper cleaning, sterilization or maintenance, or which has been subject to accidental damage arising from acts of God, unusual stress, unreasonable operating procedures or abnormal or extreme operating conditions or, which has been used otherwise than in accordance with the instructions for use (IFU) furnished by BFMG.
9. Sole Remedy
In the event that any of the Products fails to comply with the warranty contained in Section 7 of these terms and conditions, the exclusive remedy available to Customer shall be for BFMG, at its option and in its sole discretion, to either repair or replace the Product. Notwithstanding the generality of the foregoing, BFMG shall not be required to repair or replace a Product unless and until such Product is returned to BFMG for examination and BFMG determines in its reasonable discretion that the Product is defective. All repairs and replacements made under pursuant to this Section 8 shall be F.O.B. BFMG’s facility in Florida, and Customer shall be responsible for delivery of repaired or replaced Products.
10. Service and Replacement Parts Warranty
BFMG warrants to Customer that any repair or maintenance services will be performed in a professional and workmanlike manner consistent with generally acceptable industry standards. BFMG warrants that any replacement parts used or installed during repair or maintenance service will be free from defects in material and workmanship for a period of six (6) months from the date of Service. This Service and Replacement Parts Warranty applies only to parts used or installed during repair or maintenance service and does not alter or extend any other Warranties. Customer acknowledges and agrees that its sole remedy for any breach of this provision is for BFMG to re-perform any services rendered or replace any parts used or installed. All repairs and replacements made under pursuant to this Section shall be F.O.B. BFMG’s facility in Florida, and Customer shall be responsible for delivery of repaired or replaced Products.
11. Limitation of Liability
IN NO EVENT SHALL BFMG BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, OF ANY KIND RESULTING FROM ANY USE OR FAILURE OR ACQUISITION OF THE PRODUCTS, (EVEN IF BFMG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE) INCUDING WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY BFMG’S GROSS NEGLIGENCE. Claims must be brought within 6 months of shipment, regardless of their nature.”
12. Government Access to Records
If, and only if, these terms and conditions are determined to be a contract within the purview of§1861(v)(l) (l) of the Social Security Act (§952 of the Omnibus Reconciliation Act of 1980) and the regulations promulgated in implementation thereof at 42 CFR Part 420, BFMG shall make available to the Comptroller General of the United States, the Department of Health and Human Services (“HHS”) and their duly authorized representatives, the books, documents and records and such other information as may be required by the Comptroller General or Secretary of HHS to verify the nature and extent of the costs of Products provided by BFMG hereunder. The obligation of BFMG to make records available shall extend for four (4) years after the date on which it last delivers Products to Customer.
13. No Inducement to Patient Referral
No part of these terms and conditions shall be construed to induce, encourage, solicit or reimburse the referral, arrangement or recommendation of any patients or business, including any patients or business funded in whole or in part by a federal healthcare program. No payment made under these terms and conditions shall be in return for, or intended to induce the referral of patients or business, including those paid in whole or in part by state or federal government programs.
14. Discounts and Rebates
To the extent that these terms and conditions apply to any goods or services for which Customer may receive reimbursement from Medicare or any other federal or state healthcare program, Customer represents and warrants that it will take all steps necessary on its part to bring such transactions within the protection of the “Discount Safe Harbor” under 42 U.S.C. §1320a-7b(b)(3)(A) and/or 42C.F.R.§1001.952(h).
Customer shall defend, indemnify and hold harmless BFMG, its affiliates and their respective officers, agents and employees, from and against all loss, liability, claim, action or expense, including reasonable attorneys’ fees, by reason of bodily injury, including death, and property damage, sustained by any person or persons, arising from or attributed to Customer’s use of the Products.
In the event that a provision of any purchase order or other document exchanged by the parties with respect to the contains provisions that are different from or additional to these terms and conditions, the provisions of these terms and conditions shall govern and such different or additional provisions shall be deemed objected to by BFMG.
17. Excused Performance; Force Majeure
Although every reasonable effort will be made to fill orders to specifications, BFMG shall not be responsible for late, partial, or non-delivery of Products due to shipment delays. Additionally, BFMG shall not be held responsible for failure of or delay in delivery of, nor shall Customer be held responsible for failure or delay in accepting, Products hereunder, if such failure or delay is due to an act of God or public enemy, war, government acts or regulations, fire, flood, embargo, quarantine, epidemic, labor strike or work stoppage by workers, inability to acquire raw materials, accident, unusually severe weather or any other cause similar to any of the foregoing that is beyond their control.
18. Dispute Resolution
Any controversy or claim arising out of or relating to this contract, or the breach thereof, or the supply of products or services to Customer, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and shall be governed by the Laws of the State of Florida, USA. The place of arbitration shall be Lee County, Florida or such other place as BFMG and Customer agree in writing.
19. Termination of Service Program
Any Program for Service or Preventive Maintenance can be terminated by customer or BFMG given notice 3 months prior to expiration date of the Agreement. Customer is not entitled to claim any compensation after termination of the agreement.
20. Customer’s Use of Products
BFMG’s products are intended for the use set forth in product labeling, and are not to be used for any other purposes. Customer warrants to BFMG that the products shall not be adulterated or misbranded within the meaning of the Federal, Food, Drug and Cosmetic Act. Customer agrees to comply with instructions furnished by BFMG relating to the use of the products and not misuse the products in any manner.
21. Data Protection
Customer agrees and understands that it is necessary for BFMG to collect, process and use your data in order to process sales, perform service and confirm compliance with applicable laws. BFMG will maintain and use Customer’s data in order to allow you to exercise your rights arising from the service of your BFMG product and for quality and service-related purposes. If you wish to have access to the information that BFMG holds concerning you or if you want to make changes, please contact BFM.
Revision Date November 2021
1. Legal force of terms and conditions
Our terms and conditions apply exclusively. They form the basis for all information, tenders and contracts concerning our deliveries and services.
In case of doubt, the German version of the terms and conditions shall apply.
Divergent arrangements as well as other possible purchasing conditions are only legally binding if confirmed by pro med instruments GmbH in writing. Acceptance of our deliveries or services is deemed to be confirmation of your acceptance of our terms and conditions.
Our terms and conditions apply to business with companies but also particularly for business with public bodies.
Our terms and conditions also apply to all future business with the purchaser.
Our tenders are non-binding, unless explicitly marked as binding. Verbal or written orders are deemed to have been accepted by us on the issuing of a written order confirmation or the delivery of the goods within an appropriate period of time.
Our advertising claims, tender details such as illustrations, weight and dimensions, performance and characteristics descriptions as well as all other information about our products and services are all only approximate, in as far as they are not confirmed in writing in the tender as an agreed property of our products and services. Information in our tender about the contractually agreed properties of a product do not constitute an assurance of a given property unless we have explicitly defined these parameters as an assured property. We reserve the right to improvements of our products in the interests of technical and medical progress.
- We reserve ownership and copyrights to quotations, illustrations and other documents; they may not be made accessible to third parties.
3. Scope and specifications of a delivery, demonstration products, return
The scope of a delivery is set out in our written order confirmation, in cases of tenders that are time limited and subject to delivery acceptance in due time, our tender documentation sets out the parameters in the absence of a timely order confirmation. Additional agreements and amendments require our written confirmation.
The purchaser bears responsibility for the correctness of his specifications, plans and other information as well as for the lawfulness of their use. We are not obliged to check this.
Demonstration products are to be returned to us within at latest 4 weeks from delivery in excellent condition. Should the demonstration products not be returned within this time frame we will be entitled to charge for the demonstration product pursuant to the price list.
Outside our legal obligations we only accept returned products in justified exceptional circumstances. Products must be new and in original packaging. The purchaser bears the costs for return shipping.
Products explicitly ordered with special packaging or which are not part of our standard delivery program are generally excluded from return.
Price lists and other general price information is non-binding.
The prices quoted, in as far as special divergent agreements have not been reached, apply ex works an are subject to the relevant VAT as well as other indirect taxes, customs charges and duties. Packaging is calculated separately.
5. Payment conditions
Unless otherwise agreed with the purchaser, invoices are to be paid in full within 30 days of the invoice date.
The acceptance of bills of exchange is at our discretion and then only to facilitate payment and is free of charges; the same applies to cheques. Irrespective of the acceptance of bills of exchange we are entitled at any time to demand payment of the original claims in return for exemption of the remaining liabilities.
If the payment deadline is missed the purchaser gets into arrears. If payment arrears or suspension of payments takes place, all open claims, including those that are not yet due, become due for payment in full. This also applies, even if in previous cases deferment of payment was granted. We are entitled to demand statutory default interest on all claims from the moment the purchaser goes into arrears.
The purchaser is only entitled to withhold payment or to offset counter claims in so far as his counterclaims are undisputed, recognised by us or have been legally established.
6. Deadlines for deliveries and services
Deadlines and schedules are binding if explicitly confirmed by us as binding. They only begin once all required services and information have been provided by the purchaser.
Our deliveries are subject to timely and correct supply to ourselves.
The deadlines apply to delivery ex works and are deemed to have been met if the product has been brought to the shipper or been picked up within the agreed performance and delivery deadline. Should delivery be postponed on account of reasons for which the purchaser is responsible, the deadline will be deemed to have been met if notification of readiness for dispatch is carried out within the agreed deadline.
If non-compliance with the deadline for deliveries or services can be proven to be the result of mobilisation, war, insurrection, strikes, lockouts or the occurrence of unforeseeable hindrances beyond our reasonable control, then the deadline is to be extended appropriately.
Should delivery be delayed for reasons we are responsible for, then the purchaser is entitled to demand lump sum delay compensation to the value of 3% of the delivery value for each complete week, to a maximum of 10% of the delivery value. Should the delay be the result of deliberate intention or gross negligence or constitutes a material breach of contract, the statutory liability regulations apply, these are restricted to the respectively foreseeable damage in cases of merely negligent breaches of contract.
If the purchaser provides us with an appropriate secondary deadline after we have already failed to meet the original deadline, should the secondary deadline also pass without delivery having taken place, then the purchaser is entitled to terminate the contract. Compensation claims for non-fulfilment can only be made to the sum of the foreseeable damage if the delay is due to deliberate intention or gross negligence or to a material breach of contract; in all other cases the liability for compensation is limited to 50% of the losses incurred. The limitations of liability pursuant to 6.5 and 6.6 do not apply insofar as a fixed term business transaction was agreed; the same applies if the purchaser can prove that in relation to the delay caused by us immediate realisation of his/her right to compensation is applicable instead of contractual performance.
7. Transfer or risk and acceptance
Pursuant to the ex works clause risk is transferred to the purchaser at the latest when deliveries are dispatched to the purchaser, even if deliveries are only partial or we have taken over other services, e.g. delivery costs or carriage.
If delivery is delayed due to factors for which the purchaser is responsible then risk is transferred from the date of notification of readiness for dispatch.
Partial deliveries are permissible.
8. Obligatory notification of defects, defect warranty
The purchaser is obliged to immediately carefully check delivered goods and establish whether they are complete and meet specifications. Obligatory notification of defects must take place within 8 days of delivery; the date of receipt of a notification of defects is taken to determine the timeliness of the fulfilment of this requirement.
If the defect in the purchased goods is our responsibility, we are entitled to choose between defect removal and replacement for the supplementary performance. In case of defect removal we are obliged to bear all costs related to the removal of the defect, in particular transport, travel, labour and material costs insofar as these have not been raised by the purchased goods have been transported to a place different from the place of performance.
Should supplementary performance fail then purchaser is then entitled to either terminate the contract or to demand an appropriate reduction in the sales price.
Inasmuch as nothing different arises below (8.5 and 8.6) further legal claims by the purchaser are excluded – whatever legal grounds they may be on. We are thus not liable for damage not directly linked to the delivered item; in particular we are not liable for lost profits or other financial losses by the purchaser.
If the damage is caused by deliberate intention or gross negligence we are liable in line with the statutory regulations. This also applies if the purchaser demands compensation rather than performance because of the absence of a guaranteed property.
If we culpably violate an important contractual obligation the liability is limited to the damages typical for this type of contract; all other situations liability is excluded pursuant to subsection 4. An ‚important‘ contractual obligation is defined by these terms and conditions as the kind of obligation the realisation of which the purchaser relies on and can legitimately rely on, since they shape the contract.
The warranty period is 12 months, calculated from the date of transfer of risk.
For replaced or repaired parts the warranty period starts afresh for a period of 6 months from the date of replacement, completion of the repair or acceptance.
The supplier transfers all warranty rights for substantial third-party products against their third-party producers to the purchaser. The purchaser is obliged first to advance warranty claims against the manufacturer of the third party products on the basis of the transferred warranty rights, although the purchaser is not obliged to bring court action. Should the enforcement of the transferred warranty rights fail, the supplier will bear subsidiary liability for warranty claims towards the purchaser.
9. Overall liability
Liability for damages beyond the situations outlined in 8.5 and 8.6 is excluded, whatever the legal nature of the advanced claim. The provision pursuant to paragraph (1) does not apply to claims pursuant to sections 1, 4 of the Product Liability Act, nor does it apply if we are liable for damages to body or health on the basis of other legal grounds. Insofar as the liability limitation pursuant to 8.6 does not apply to claims on the basis of producer liability pursuant to section 823 of the German Civil Code because of damage to property, then our liability is limited to the compensation from the insurer. Should the insurer refuse indemnification or only offer partial indemnification, we would only be liable for the sum insured. The regulation pursuant to paragraph (1) does also not apply in cases of for initial inability or justifiable impossibility of performance. In as far as our liability is excluded or limited, the same applies to the personal liability of our staff, employees, freelancers, representatives, and vicarious agents.
10. Reservation of title
Delivered goods remain our property as a conditional commodity until the payment of the sales price and the settlement of all claims arising from the business relationship as well as all existing and future claims arising from the object of purchase; this also applies if individual claims are included in a current invoice and the balance is established and acknowledged.
Should the purchaser be in payment arrears (section 5.3) we are entitled to take the goods subject to retention of title back and the purchaser is obliged to their surrender.
Should the goods subject to retention of title have been made into a new, moveable item, then this is deemed to have been done for us, without any obligations for us arising from it. The new item becomes our property. If the goods subject to retention of title have been processed with items not belonging to us, then we will acquire co-ownership of the new item in proportion to the value of our goods subject to the retention of title as a part of the overall value. If the client sells the item in the ordinary course of business, he then already surrenders the appropriate claims resulting from delivery and performance to us.
The purchaser is only authorised to re-sell, use or process the goods subject to retention of title in the ordinary course of business and only on the condition that the claims envisaged by section 10.3 are actually transferred to us. The purchaser is not entitled to perform other transactions with the goods subject to retention of title, in particular pawning or transfer by way of security.
Subject to recall, we authorise the purchaser to collect all amounts assigned to us under section 10.3. We will not make use of our own authorisation to collect as long as the purchaser is meeting his payment obligations, including those to third parties. At our request the purchaser must reveal the debtors of the claims assigned and to make them aware that the claims have been surrendered; we are authorised to make the debtors aware of the surrender of claims ourselves.
The purchaser must immediately inform us of third parties‘ levies of execution that affect the goods subject to retention of title or the surrendered claims and must provide us with the documents necessary for appeal. Intervention costs are to be borne by the purchaser.
On suspension of payments, petition or commencement of insolvency proceedings or in the event of a protest of a bill of exchange or a cheque the purchaser‘s right to re-sell, use or process the goods subject to retention of title and his authorisation to collect surrendered claims shall end.
Should the value of the securities granted exceed the claims by more than 20% then we are obliged to transfer the securities back or release the excess securities as we choose. On settlement of all claims arising from the business relationship, ownership of the goods subject to retention of title and the surrendered claims are transferred to the purchaser.
The purchaser is obliged to cooperate with all measures necessary for the protection of our property, in particular the purchaser authorises us by the conclusion of this contract to enter or note the retention of title in public registers, books or similar pursuant to local law and to fulfil all formalities to this end at the purchaser‘s expense.
The contractual relationship is subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) and the reference rules of international private law are excluded.
Should individual provisions prove invalid, this will not affect the validity of the other provisions.
The place of performance for all deliveries (even for ‚post-paid‘ deliveries) is our head office.
The place of jurisdiction is the court responsible for our head office. We are entitled to sue at the client‘s head office.
Following represent the General Terms and Conditions of Purchase of Pro Med Instruments GmbH governing all goods and services deliveries
1. Purpose and scope
- These General Terms and Conditions of Purchase shall apply to all present and future business relations between pro med instruments GmbH, part of BLACK FOREST MEDICAL GROUP (hereinafter referred to as “BFMG”, also referred to as “we”) and the supplier or service provider, provided that the latter is a contractor (Sec. 14 of the BGB [German Civil Code]), a legal entity under public law or a special fund under public law (hereinafter referred to as “Supplier”). Deviating terms and conditions shall only become binding if and to the extent that BFMG has accepted them by prior written consent.
- These terms and conditions shall apply to all deliveries of movable property (goods) and services, regardless of whether the Supplier manufactures the goods itself or purchases them from its suppliers.
- The Supplier is required to confirm the order immediately, at the latest within five (5) working days, by means of an order confirmation stating binding prices and delivery times in text form or by means of delivery. A delayed acceptance by the Supplier shall be deemed – as shall acceptances with modifications – to be a new offer and shall require confirmation by us.
- Offers and cost estimates are free of charge. The Supplier is not entitled, without BFMG’s written consent, to increase prices as a result of changed or unforeseeable circumstances for which the Supplier is responsible.
- Verbal agreements, such as subsequent modifications to the GTCP, including this written form clause, shall require the written consent of BFMG; subsidiary agreements are only effective if they have been confirmed in writing by BFMG. Legally relevant declarations and notifications to be made by the Supplier to BFMG after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
- The Supplier is aware that BFMG also ships medical products to the US market and that these products are used there.
2. Prices and Terms of Payment
- The price stated in the order accepted by the Supplier is binding.
- The Supplier shall inform BFMG of any obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion before acceptance.
- Payment shall be made after complete delivery and performance as well as after receipt of invoice within 14 days with 3% discount or after 60 days without discount. In the case of bank transfer, payment shall be deemed to have been made in due time if BFMG’s bank receives BFMG’s transfer order before the payment deadline; BFMG shall not be responsible for any delays caused by the banks involved in the payment process. Payments on account also entitle the customer to a discount. In the case of contracts for work and services, the date of acceptance shall apply instead of the date of delivery. Payment shall not be deemed to be an acknowledgment of proper performance.
- BFMG shall be entitled to rights of set-off and retention as well as the defense of non-performance of the contract to the extent provided by law. In particular, BFMG shall be entitled to withhold payments due as long as BFMG is still entitled to claims arising from incomplete or defective performance. The Supplier shall be entitled to exercise a right of retention and/or set-off only to the extent that its counterclaim is based on the same contractual relationship or on an undisputed or legally established claim.
- The prices on BFMG’s order include packaging, transport, installation and assembly. Any other agreements must be made in writing with BFMG.
- Additional costs may only be charged if they are incurred directly through the fault of BFMG. Costs for which BFMG is not responsible may not be charged.
3. Delivery / Delayed deliveries
- Agreed delivery dates must be adhered to in a binding manner. Failure to meet the delivery dates shall put the Supplier in default even without a reminder from BFMG. The unconditional acceptance of the goods on the delayed delivery date does not constitute a waiver of claims that exist in connection with the delayed delivery.
- BFMG is not obliged to accept goods delivered more than one (1) working week early.
- In the event of delay by the Supplier, a contractual penalty of 1% of the order value may be demanded per calendar week, in each case in relation to the goods delivered late. The maximum value here is 5% of the order value, in each case related to the goods delivered late. However, the contractual penalty shall not release the Supplier from the performance of the contract. BFMG reserves the right to claim demonstrably higher damages caused by the delay. The Supplier reserves the right to prove that BFMG has suffered no or only minor damage. The damage caused by delay also does not include the additional claims listed under point 3.a which BFMG incurs and which can be passed on to the Supplier.
- The Supplier must notify BFMG immediately of any foreseeable delays in delivery. In doing so, a reason and the duration of the foreseeable delay must be communicated. The occurrence of the delay in delivery remains unaffected. Measures leading to the elimination of the delay are to be worked out and these are to be communicated to BFMG in writing. Additional costs for the elimination of the delay are to be borne by the Supplier as far as they are not caused by BFMG.
4. Assignments and Last-Time Buy, modifications, subcontractors
- The Supplier is not entitled to assign its claims to third parties or to enable them collect its claims.
- Should the Supplier discontinue the cooperation or only parts of the cooperation with BFMG, the Supplier is obliged to inform BFMG in writing at least 12 months in advance. Furthermore, the Supplier shall, prior to the termination of the cooperation, enable BFMG to place an order with the Supplier on the same conditions as before, which order shall not exceed the average consumption of the Supplier’s products by BFMG during the last 24 months.
- BFMG shall be entitled to modify product specifications to the extent that such modifications can be implemented within the normal production process of the Supplier without significant additional effort. BFMG shall reimburse the Supplier for any proven and reasonable additional costs incurred in each case as a result of the modification. If such modifications result in delays in delivery which cannot be avoided with reasonable efforts in the Supplier’s normal production and business operations, the originally agreed delivery date shall be postponed accordingly. The Supplier shall notify BFMG in writing of any additional costs or delays in delivery to be expected by it on careful assessment in good time before the delivery date, but at the latest within 5 working days of receipt of the notification in accordance with sentence 1.
- All obligations arising from the contract shall be fulfilled by the Supplier itself. The involvement of a subcontractor is only permissible with the prior written consent of BFMG.
5. Tools, devices, etc. provided to the Supplier.
- The provision of tools, devices, etc. does not transfer ownership thereof to the Supplier. The use for third parties is prohibited without the written consent of BFMG.
- Tools and equipment must be handled with care. The costs for storage and maintenance are to be borne by the Supplier. The Supplier must insure the tools, devices, etc. against any damage.
- Insofar as the tools are not required for the fulfillment of binding orders placed by BFMG, the Supplier shall, upon request by BFMG, ship the tools to another location or also to third parties designated by BFMG. The costs for this shall be borne by BFMG. Delivery shall be made in a defect-free and fully serviceable condition, unless BFMG is responsible for the defect.
- Insofar as BFMG pays for tools or devices, ownership shall pass to BFMG upon payment. The handing over of the paid tools / devices to BFMG is replaced by a loan relationship between BFMG and the Supplier. The Supplier remains entitled to possession until revoked by BFMG. These tools or devices are to be handed over on request as stipulated in paragraph c. above. There is no right of retention in this respect.
- Any other materials provided by BFMG (materials, patents, industrial property rights, trademarks, designs and any other documents), which are directly or indirectly provided to the Supplier, shall remain the property of BFMG. The Supplier must ensure that these materials are marked in such a way that it is clear at all times that they are the property of BFMG. They may only be used within the framework of the processing of orders for BFMG. Any processing or transformation of the materials provided by BFMG shall be carried out on behalf of BFMG. The parties agree that BFMG shall become (co-)owner of the new or transformed item. The Supplier shall store the new item with the care of a prudent businessman free of charge for BFMG.
6. Transport / packaging / customs and export control
- The delivery shall be made by DDP Freiburg (Incoterms 2020). The organization and provision of auxiliary means for unloading (forklift, skilled personnel, etc.) is the responsibility of the Supplier.
- The packaging must be chosen in such a way that it arrives at BFMG in perfect condition. This also includes packaging that provides professional protection against moisture and damage. All further instructions by BFMG are to be implemented in connection with the packaging.
- The Supplier shall support BFMG in the fulfillment of requirements under foreign trade law as well as customs law, in particular in the import and export of the Supplier’s products (also in the case of modifications or as a component of other products). Upon request, the Supplier shall provide BFMG with long-term supplier’s declarations, certificates of origin and movement certificates relating to the products supplied.
- Export control regulations in accordance with the relevant national and international legal bases shall be complied with. If the products contain more than 10% of materials with US origin, the Supplier shall inform BFMG thereof.
7. Documentation and performance
- The Supplier is obliged to keep all documentation relating to the manufacturing process and to the quality assurance measures taken by it for a period of 10 years and to provide it to BFMG upon request.
- If the Supplier ceases business operations before the expiry of the 10 years, it shall make the documents available to BFMG without request and at no cost.
- Without BFMG’s prior written consent, the Supplier is not entitled to make any modifications with regard to performance, production location, manufacturing process or factors affecting the characteristics of the performance.
8. Quality / warranty / defective delivery / statute of limitations
- The development and production of the goods and services provided by the Supplier shall be carried out in accordance with the latest state of the art and with the highest possible degree of safety.
- In order to ensure the quality of its products, the Supplier undertakes to set up, apply and maintain an effective quality management system and to subject it to continuous optimization and constant improvement and to apply only suitable procedures. The Supplier shall notify BFMG immediately of any threatened withdrawal of the certificate.
- Insofar as authorities (including notified bodies) or customers require insight into the production processes and documentation in order to verify compliance with necessary requirements, the Supplier shall provide the authority or customer with all reasonable support in this regard. The Supplier shall oblige its sub-suppliers accordingly. Prior notice by the authorities is not required.
- The Supplier warrants that the performance from the time of performance until the expiry of the warranty period complies with the agreed specifications and is free from any material defects and defects of title. The Supplier also guarantees this if BFMG evaluates a sampling positively, but it later turns out that the specifications were not fully complied with.
- BFMG shall only carry out random sampling during sampling and incoming goods inspection and shall check the quantity and identity of the goods as well as obvious transport damage.
- Furthermore, the Supplier shall comply with all legal requirements (including the US Dodd-Frank Act, REACH, ROHS) including technical and safety regulations in force at the time of performance. The Supplier shall ensure that its suppliers also comply with these warranties accordingly.
- BFMG shall be entitled to statutory claims for defects to the full extent. If the Supplier fails to meet its obligation to remedy the defect within a reasonable period of time set by us, we shall be entitled to remedy the defect ourselves and to demand reimbursement of the expenses required for this purpose and/or a corresponding advance payment from the Supplier. If the subsequent performance by the Supplier has failed or is unreasonable for us (e.g. due to particular urgency, risk to operational safety or imminent occurrence of disproportionate damage), no deadline need be set; we shall inform the Supplier of such circumstances without delay, if possible in advance.
- We shall not be obliged to inspect the goods or to make special inquiries about any defects upon conclusion of the contract.
- The general limitation period for claims for defects is 3 years. The period begins with the delivery of the goods or the acceptance of the service, if this is required. Longer legal statutes of limitation remain unaffected.
9. Product liability, exemption
- The medical products are distributed worldwide. The Supplier shall indemnify BFMG against claims for damages by third parties at the first request, insofar as the cause lies within the Supplier’s sphere of control or organization.
- The Supplier is obligated to take out product liability insurance with a coverage of at least 10 million euros per case, maximized twice, which also includes indirect deliveries to the USA. This must be maintained until five years after termination of the business relationship; further claims remain unaffected.
- If we and/or BFMG’s customers are obliged to recall or bear the costs due to a defect in the delivery item, the cause of which lies within the Supplier’s sphere of control or organization, the Supplier shall be obliged to reimburse the costs accordingly. The product liability insurance noted in point 9)b) must also include the reimbursement of costs in the event of a recall. Upon request, the Supplier shall provide the Purchaser with evidence of the conclusion of the insurance policy.
- It is not permitted to send documents provided by BFMG to third parties without our written consent. Data are to be used only for the execution of the services contractually agreed upon by us. In the event that a contractual relationship is not established, all copies and originals must be destroyed immediately and without request.
- The Supplier undertakes to keep secret all business, operational and technical matters that become known or come to light as a result of the contractual relationship. This shall also apply beyond the duration of the contractual relationship. The obligation to maintain secrecy ends when the information becomes public knowledge.
- In the event of a breach of this confidentiality clause, we are entitled to terminate the existing contract without notice. We reserve the right to further claims. All claims of the Supplier for damages, performance or payment of goods not yet delivered shall be forfeited.
11. Severability clause
- Should individual provisions of these General Terms and Conditions of Purchase ultimately prove to be legally invalid or unenforceable for legal reasons, the validity of the remainder of these General Terms and Conditions of Purchase shall not be affected thereby. In such a case, the parties shall reach an agreement which replaces the provision in question with a valid provision which is as economically equivalent as possible and shall submit to it.
12. Place of jurisdiction
- All agreements between the parties shall be governed by German law to the exclusion of its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
- The place of jurisdiction for both parties is the local court of Freiburg. BFMG is entitled to sue the Supplier at the court of its registered office or branch office or at the court of the place of performance.