1.1. The following General Terms and Conditions of Business shall govern the relationship between Customer and MEDMIX SYSTEMS LTD (hereinafter “MEDMIX”). They shall apply for all deliveries by MEDMIX to Customer and for all project work that MEDMIX performs for Customer.
1.2. Differing terms and conditions of business of Customer shall not be valid unless MEDMIX has accepted such terms and conditions explicitly and in writing.
1.3. Customer’s purchase order shall constitute a binding offer. Previously issued statements by MEDMIX are not offers, but instead serve only to initiate contractual negotiations. An order (“Supply Agreement”) shall come into effect when an order confirmation is sent by MEDMIX via post, fax, or e-mail.
1.4. In the event of inconsistencies or contradictions between multiple relevant documents, the following sequence of priority shall apply:
– Written confirmation from MEDMIX – Offer/quote from MEDMIX – System diagrams from MEDMIX – Specifications from MEDMIX – General Terms and Conditions of Business of MEDMIX – Written purchase order from Customer.
2.Subject Matter and Scope of Performance of MEDMIX
2.1. The subject matter and scope of the performance owed under this Contract shall be determined based exclusively upon the written order confirmation from MEDMIX. Amendments or supplements to the scope of performance must be made in writing.
2.2. These General Terms and Conditions of Business shall also apply for all subsequent purchase orders and subsequent deliveries under a Supply Agreement.
2.3. The Supply Agreement may not be canceled or amended without the written consent of MEDMIX.
3.Delivery by MEDMIX
3.1. MEDMIX shall deliver the products Ex Works (Incoterms 2010).
3.2. Products shall be deemed delivered when they are made available Ex Works or when Customer is notified that the products are ready to ship.
3.3. In case of transactions calling for advance payment or remote transactions, the delivery of products shall be initiated only after receipt of payment or after Customer has submitted a debit authorization.
3.4. A surcharge for smaller quantities or a flat fee may be charged in the case of small orders.
3.5. If Customer incurs a loss due to a delay that has occurred as a result of gross negligence or intent on the part of MEDMIX, Customer shall be entitled to demand compensation for late performance following a grace period of two weeks from the delivery date specified in the Supply Agreement. This compensation for late performance shall be 0.5% for each full week of delay, but shall not exceed a total of 5% of the net invoice amount for the affected delivery. Should MEDMIX be in default as a result of gross negligence or intent even after accrual of the maximum compensation of 5 % for late performance, Customer shall be entitled to rescind the Supply Agreement in question, subject to an appropriate grace period. In case of negligence (although not of gross negligence) by MEDMIX, or where MEDMIX has legitimately delegated its delivery obligations to agents or servants, all claims for damages or other claims by Customer due to late delivery shall be precluded.
4.Collaboration by Customer and Fulfillment by Third Parties
4.1. Customer shall support MEDMIX, to the extent reasonable and necessary, in a timely manner and at its own expense, in fulfilling the purpose of the Contract, whether this involves resources, information, access to its facilities, etc.
4.2. MEDMIX shall be authorized to bring in third parties for fulfillment of the Contract, or to delegate some or all of its obligations to third parties. MEDMIX shall notify Customer in advance if all or a majority of its obligations under the Contract is to be delegated to a third party.
5.Business and Trade Secrets
MEDMIX shall allow third-party access to business and trade secrets of Customer disclosed to MEDMIX only to the extent that MEDMIX is bringing in these third parties for fulfillment of the owed performance or is delegating the performance of its obligations to such parties. MEDMIX shall conclude nondisclosure agreements with third parties in order to protect these business and trade secrets.
6.Compliance with Regulations
6.1. Prior to the issuance of an offer, Customer must notify MEDMIX in writing and in a timely manner regarding the regulations and standards relevant to the performance by MEDMIX.
6.2. In the absence of any arrangement to the contrary, the performance by MEDMIX shall be in compliance only with such regulations and standards as are specified in the offer from MEDMIX.
7.1. Subject to agreement to the contrary, all prices are understood to be in Swiss francs, exclusive of VAT.
7.2. Customer shall be responsible for all transportation costs, taxes, insurance, charges, fees, and customs duties incurred in connection with the delivery or, if MEDMIX has been required to pay such costs, must reimburse MEDMIX against appropriate documentation.
7.3. Customer’s right of offset shall be precluded.
8.Terms of Payment
8.1. Unless otherwise agreed in writing, deliveries shall be invoiced directly. Completed project work and deliveries shall be invoiced monthly by means of a partial or final invoice.
8.2. All project work and deliveries shall be billed based upon the degree of completion and/or the status of the work performed. This shall apply in particular for stipulated indicative prices, fixed prices, or services based upon a rough cost estimate.
8.3. Unless otherwise stipulated, invoiced amounts shall be payable within 30 days after invoicing, net without deductions. If payment is not remitted within 30 days, Customer shall be in default without issuance of a notice and must pay the statutory interest on arrears. MEDMIX reserves the right to assert additional claims for damages.
8.4. Unless otherwise explicitly stipulated by the parties in writing, payments must be remitted to the domicile of MEDMIX in Swiss francs, without deduction of bank charges or other similar charges.
8.5. If advance payments or deposits are not made as arranged, MEDMIX shall be immediately entitled to rescind the respective Supply Agreement. The right to assert claims for damages remains reserved in any case.
8.6. Should Customer be in arrears with a payment for any reason, MEDMIX shall be authorized, immediately and without restriction of its statutory rights, to suspend further fulfillment of the respective or other pending Supply Agreements until payment is remitted in full or new terms of payment are agreed upon, and MEDMIX has received sufficient sureties for continued fulfillment of the Contract. If such an agreement cannot be reached within 30 days, or if MEDMIX does not receive sufficient sureties, MEDMIX shall be entitled, without prejudice to its statutory rights, to rescind the respective Supply Agreement or demand the return of already delivered products. The right to assert claims for compensatory damages remains reserved in any case.
8.7. Payment by credit card can be accepted in exceptional cases. A debit authorization with specification of credit card information is necessary for this purpose.
8.8. In the case of payment by credit card, a surcharge equal to the credit card company’s fee shall be charged.
9.Retention of Title, Transfer of Ownership, Benefits and Risks
9.1. Products manufactured or ordered for Customer shall remain the property of MEDMIX until payment in full is remitted by Customer.
9.2. Benefits and risks related to the products shall be transferred to Customer pursuant to delivery Ex Works (Incoterms 2010).
9.3. Customer must support any actions taken by MEDMIX to protect its property. In particular, MEDMIX shall be authorized to record entries or priority notices related to the retention of title in public registers, books, or the like pursuant to the relevant national laws, and to perform all formalities in this regard. Customer shall take all necessary measures to ensure that the retention of title is fully accomplished and can be neither canceled nor impaired.
9.4. Customer shall maintain delivered products at its own expense during the term of retention of title, and shall immediately insure the delivered products against all risks.
10.Inspection and Acceptance
10.1. Customer must inspect as quickly as possible every performance, particularly every work result received, every delivered work, every received item, and every obtained result, interim result, and test result, and must immediately issue a written and substantiated complaint regarding any breach of the duty of care and any defects. Should Customer fail to report defects in a timely manner, the performance by MEDMIX shall be deemed to be accepted.
10.2. In the case of project work, payment of the final invoice or start of live operation (whichever comes first) shall be implicitly deemed to constitute acceptance. In any event, acceptance shall be deemed to have occurred six (6) months after delivery of the work.
10.3. Should hidden defects subsequently become evident, Customer must issue a written and substantiated complaint to MEDMIX immediately after discovery of the defect. Should Customer fail to do so, the performance by MEDMIX shall be deemed to be approved with respect to these defects as well.
11.Warranty, Liability, and Indemnification
11.1. All warranty claims and claims for damages by Customer against MEDMIX shall conform exclusively to the following provisions. No further legal remedies or rights exist vis-à-vis MEDMIX.
11.2. In the event of reported breaches of the duty of care and detected defects, MEDMIX shall remedy the reported defect within an appropriate period of time, which shall be at least 8 weeks. If MEDMIX issues a warranty for a specific period of time, MEDMIX shall remedy defects in performance by MEDMIX at no charge during this period of time, so long as MEDMIX is responsible for these defects. MEDMIX may, at its own discretion and with discharging effect, supply replacement product instead of performing a repair. In order to prevent supply bottlenecks, Customer shall be required to maintain appropriate stocks.
11.3. If MEDMIX fails to remedy within an appropriate period of time breaches of the duty of care and/or defects that were reported in a timely manner by Customer, Customer shall have the right, under exclusion of all further claims, to deduct from the owed price an amount corresponding to the reduced value. Demands for refund of previously remitted payments shall be precluded.
11.4. Should Customer incur a further loss, due to either a breach of duty of care or a defective work, or for another reason that can be attributed to MEDMIX, Customer shall have the right to claim damages if MEDMIX is at least responsible for gross negligence.
11.5. Customer shall be responsible for payment of the full agreed price, even if it asserts a warranty claim. Deductions are not permitted except in cases of price reduction.
11.6. Both parties shall have the right to demand a review at their own expense by a neutral expert of the performance by MEDMIX or alleged defects.
11.7. Should Customer demand developments that exceed the application of generally accepted technical standards, Customer shall refrain from asserting claims against MEDMIX, and shall indemnify MEDMIX against third-party claims for losses resulting from the use of technologies that were not yet generally accepted at the time of fulfillment of the Contract.
11.8. Notwithstanding the foregoing provisions, no warranty claims and claims for damages shall apply with regard to prototypes, pilot production items, initial batch items, etc.. In addition, Customer must sufficiently test such prototypes, pilot production items, initial batch items, etc.. In the event of a breach of this duty, MEDMIX shall be released from any and all liability. In particular, Customer shall bear sole responsibility for the risks associated with premature serial production. In the event of a dispute, Customer must provide evidence that it has performed the tests pursuant to this clause.
11.9. MEDMIX shall not be liable to Customer for the consequences of a violation of MEDMIX’s operating procedures or requirements (such as usage instructions, technical data sheets, definition of operational or production environment requirements, recommended sterilization procedures, etc.).
11.10. Liability for defects shall not apply in the event of improper handling or storage of the products. In particular, Customer shall be responsible for material compatibility between the products and the biomaterials placed into them, as well as biocompatibility. Customer must establish the foregoing by means of suitable tests.
11.11. The suitability of the mechanical and hydraulic functions of the goods for a specific intended use must be determined by Customer and shall be Customer’s responsibility.
11.12. Customer shall be responsible for sterilization of the products. MEDMIX shall not be liable for the sterility of the products.
11.13. MEDMIX also issues no guarantee and assumes no warranty for any properties of the products, particularly for a specific intended use. Customer shall be responsible for determining the intended use.
11.14. Depending on the use of certain raw materials or manufacturing processes, it cannot be excluded that the products feature minor optical or other variations. MEDMIX shall not be liable for such variations, provided they do not affect the use and safety of the products.
11.15. Customer also acknowledges its sole responsibility for fulfillment of the regulatory requirements for the products. MEDMIX shall deliver the products to Customer as an OEM manufacturer, without CE marking or other certification. Customer shall act as the party placing the products on the market, and shall assume sole responsibility for compliance with all relevant regulations.
11.16. Changes on products are reserved. Customer is informed prior to the execution of the change if there is a valid agreement between MEDMIX and the Customer. A possible agreement can be the so called “Customer Release“. This product-specific agreement can be requested from MEDMIX.
11.17. Customer declares that it is liable for all instructions that it issues in connection with the fulfillment of the Contract, and shall indemnify MEDMIX so long as MEDMIX is not responsible for gross negligence.
11.18. Customer must purchase appropriate liability insurance and disclose evidence of such insurance to MEDMIX upon demand.
11.19. Defects may be remedied by MEDMIX only. Should Customer attempt to remedy any defects itself, or should it involve third parties for this purpose, MEDMIX’ responsibility shall be precluded. Should changes or repairs be made to contractual products without the consent of MEDMIX, all liability shall be precluded unless MEDMIX is at least responsible for gross negligence with respect to the occurrence of the defect and/or loss.
11.20. The warranty shall expire if Customer fails to undertake all appropriate actions to reduce loss upon the occurrence of a defect, and fails to give MEDMIX an unrestricted opportunity to remedy the defect.
11.21. All warranty and liability claims of Customer shall expire at the end of one year. The warranty period and the statute of limitation shall each begin upon performance or partial performance by MEDMIX. A performance or partial performance shall be considered as completed with each shipment and/or transfer or delivery to Customer of a work result, a work, an item, or a result, interim result, or test result.
11.22. MEDMIX shall be liable for performance by third parties only to the extent of the warranty and liability of the third-party service provider, but its liability shall not exceed the scope defined in this Clause 11. MEDMIX’ liability for its agents and servants shall be completely precluded.
12.1. MEDMIX shall not be liable for delays or omissions if and insofar as these are caused by an obstacle that is outside the control of MEDMIX or its suppliers (Force Majeure). Such obstacles shall include acts of God, complete or partial destruction of production-design facilities, etc., defects in production materials, war or civil war, revolutions, strikes, political instability, fire, epidemics, quarantine, extraordinary weather conditions, embargoes or trade restrictions, or any other obstacles that are deemed to be Force Majeure events according to international practice.
12.2. Upon occurrence of a Force Majeure event, MEDMIX shall notify Customer as quickly as possible, and shall inform Customer of the foreseeable effects on the subject matter of the Contract (including fulfillment date and price).
All intellectual property and know-how related to the products, as well as associated manufacturing processes and methods, shall remain the sole property of MEDMIX.
The only warranted characteristics shall be those that are explicitly designated as such in the offer or order confirmation from MEDMIX. The assurance of characteristics shall be valid, at the latest, until expiration of a warranty period, where applicable. The characteristic shall be deemed to be present if Customer did not report its absence upon acceptance of the performance by MEDMIX.
15.Right of Recourse of MEDMIX
If actions or omissions by Customer or its agents and servants cause injury to persons or damage to property of third parties, and if complaints are filed against MEDMIX for this reason, MEDMIX shall have the right of recourse against Customer.
Audits can be carried out with MEDMIX and their suppliers under appointment.
16.1. One audit-day will be charged of CHF 5’000, provided that the annual turnover of CHF 25’000 has not been reached.
16.2. The audit charges can be reclaimed by the customer if he reaches the annual turnover of CHF 25’000 within the period of 12 months after the audit appointment.
16.3. Audits have to be registered in advance for 8 weeks.
16.4. The audit program is released by MEDMIX and a nondisclosure agreement has to be signed.
17.Place of Performance and Venue
The place of performance for deliveries of products and exclusive venue for all proceedings between the parties shall be the domicile of MEDMIX in Rotkreuz.
18.1. Amendments, deviations, and supplements to the General Terms and Conditions of Business or other contractual arrangements between the parties must be in writing in order to be valid.
18.2. The non-assertion of a right or claim under these General Terms and Conditions of Business or the other contractual agreements between the parties shall not be deemed to constitute a general waiver of this right or this claim.
18.3. These General Terms and Conditions of Business or a Supply Agreement do not establish a partnership, an unregistered association, a joint venture or any other equivalent relationship between the parties.
18.4. Should a provision of these General Terms and Conditions of Business or other contractual agreements between the parties be or become invalid, this shall not affect the validity of the remaining contractual provisions. The parties agree to replace the invalid provision with a legally valid arrangement that achieves the economic purpose of the invalid provision to the extent possible. The same procedure shall be followed in the event that a gap discovered is in the provisions.
18.5. Subject anything to the contrary in these General Terms and Conditions of Business, the rights and duties under these General Terms and Conditions of Business or a Supply Agreement may be assigned to third parties only with the prior written consent of the other party.
18.6. All legal relations between Customer and MEDMIX shall be governed by Swiss substantive law. The UN Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, shall not apply.
Rotkreuz, June 01, 2015