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GENERAL TERMS AND CONDITIONS OF SALE

Art. 1 General – Scope

  1. These Terms and Conditions of Sale apply to all commercial transactions in which MPH acts as the supplier, and their validity is exclusive.
  2. The supplier does not acknowledge any contradicting or deviating commercial terms and conditions of the customer unless the supplier has explicitly and in writing agreed that something else applies. The supplier’s Terms and Conditions of Sale shall be deemed to have been accepted at the latest at the moment when goods have been received as delivery.
  3. These Terms and Conditions of Sale are valid exclusively toward businesses/legal entities.
  4. The supplier’s Terms and Conditions of Sale apply always in their latest wording to all subsequent transactions, without any need to explicitly mention or agree upon this fact when such transactions are contracted.

 

Art. 2 Quotation and Contract Execution

  1. The supplier’s quotations are non-binding and subject to change.
  2. The supplier reserves the right to accept or reject the customer’s orders within a period of 2 weeks. A purchase contract will be deemed to have been made when the supplier has in writing confirmed its quotation and renders delivery.
  3. The supplier’s representations do not include any acceptance of guarantee. A guarantee will only be granted in the form of an explicit and written statement of guarantee.

 

Art. 3 Prices

  1. Any and all amounts payable shall be settled in EUR.
  2. Unless agreed otherwise in writing, transactions shall be executed at the prices effective at the moment of delivery.
  3. The customer shall bear any and all extra costs that have been incurred due to the customer’s change requests.
  4. If any changes in the price basis occur up to the delivery date, such as increased costs of raw materials or labour, the supplier reserves the right to adjust the selling prices accordingly.
  5. If an order has been made without a relevant price agreement, then the order shall be executed at the supplier’s prices effective on the delivery date.

 

Art. 4 Delivery, Transfer of Risk

  1. Deliveries are in principle made as “Ex Works Pardubicka 1571, Prelouc“ (Incoterms 2010). This means that the supplier will be deemed to have fulfilled his obligations to deliver when the goods have been made available to the customer at the aforementioned point of delivery.
  2. The supplier will deliver as soon as possible. Any indicated delivery terms are just approximate and non-binding dates. The supplier in particular does not guarantee any indications concerning the time of delivery at the given destination.
  3. In the case of shipping, the risk of potential destruction of or damage to the goods being delivered transfers to the customer upon handover of the goods to the carrier.
  4. The supplier reserves the right to withdraw from the contract in part or in full if the supplier himself has not duly or timely received required components or services from his subcontractors. For this reason, the supplier reserves the right to deliver the scope of delivery in partial deliveries, which the customer is not allowed to reject.
  5. If the customer wishes to have the goods shipped to him, then the shipping shall be arranged at the customer’s risk and expense. Upon the customer’s request, the supplier will at the customer’s expense insure the shipment against destruction, damage in the course of transportation or damaged caused by fire and/or water.
  6. It is up to the customer to choose the route and mode of transportation. There is no guarantee that the fastest and most cost-effective form of packaging, transportation and route will be chosen.
  7. If the shipment is received in a non-objected manner by means of post, forwarding agent, carrier or a third party authorized to take over the goods, then the takeover shall be considered as a confirmation that the packaging is due and proper.
  8. The delivery term indicated by the supplier shall only begin once all technical aspects have been clarified and the customer has duly and timely fulfilled all of his obligations under the contract and the applicable law. The supplier reserves a right to raise an objection that the contract has not been fulfilled.
  9. If a shipment is returned to the supplier for reasons not attributable to him, the supplier shall invoice the customer for any additional costs of transportation incurred.
  10. If the shipment is delayed upon the customer’s request, then the customer shall bear the related costs of storage in a warehouse.

 

Art. 5 Terms of Payment, Default

  1. Unless agreed otherwise, the agreed price shall be payable within 14 days of shipping or making the goods available for collection and sending a notice thereof to the customer. A payment will be considered received when it has been credited to the supplier’s account. The relevant invoice shall be sent directly to the invoicing address. The credit term shall start on the date of issue of the invoice.
  2. The purchase price is to be paid solely to the account specified in the invoice. The customer has granted the supplier the right to settle the invoice by means of direct debit, should the amount still be outstanding on the due date. If it is impossible to collect the outstanding amount by means of direct debit on the due date due to a lack of funds on the customer’s account, the customer will be deemed to be in default with the payment and shall bear any and all costs and expenses connected therewith. Bills of exchange or promissory notes will not be considered as settlement. Any other forms of settlement require a separate agreement.
  3. Any payments that cannot be matched to a particular invoice will be used to settle the oldest debt and any interest and costs charged in this respect.
  4. The customer will be deemed to be in default upon the vain expiry of the due date. Late payment interest shall be charged at eight percentage points above the base interest rate. The supplier reserves the right to claim damages due to the default at a higher amount.
  5. In the case of default in payment, the supplier will charge a reminder fee for internal administration of the case at EUR 50 per every outstanding invoice.
  6. If the customer falls in default with payment or it is impossible to settle an invoice by direct debit, the supplier may decide to deliver any further goods only against advance payment.
  7. The customer may retain payments or set off his payables with receivables from the supplier only when the counter-claims are not disputed, have been finally established or acknowledged by the supplier.
  8. 14 days after the vain expiry of the delivery date, the customer may invite the supplier in writing to deliver within a reasonable additional period of time. The supplier will be deemed to fall in default upon the date of such a reminder.
  9. In the case of force majeure, strike and business disruptions or, as the case may be, if the supplier’s subcontractors fail to deliver or deliver late, the delivery terms indicated by the supplier shall be extended according by the delay in sub-deliveries. The same applies if the customer requests changes or additional deliverables or services. It is up to the customer to prove that the supplier has breached his obligation to deliver in connection with the customer’s purchase of goods from the supplier.
  10. The supplier may be held liable in the case of delayed delivery if this is due to his wilful actions or gross negligence or that of his representative or other parties involved in the delivery, with the liability being subject to the applicable laws and regulations. In any other cases of delayed delivery, the supplier’s liability for damages apart from and instead of the delivery to 5% of the value of the deliverables concerned. Any other claims from the customer are excluded. The aforementioned limitation does not apply to liability for death or any harm to human health or body.
  11. If any circumstances occur which in the supplier’s commercial discretion put the customer’s creditworthiness in question, then the supplier may either rescind the contract or request an advance payment.

 

Art. 6 Warranty and Claims

  1. The customer may exercise his rights under warranty provided that he has duly honoured his obligations to inspect the goods upon receipt and report any defects immediately. Should any objections be raised, then visible defects need to be claimed within 10 days of receiving the goods, and hidden defects must be claimed immediately after their discovery, otherwise the goods will be deemed to have been accepted without reservations.
  2. Any objections concerning the quality of goods do not authorize the customer to retain invoice payments.
  3. A notice of defects shall be submitted in writing using a claim form template and include the invoice and the delivery note numbers, delivery note date, and the delivery note item concerned.
  4. If the supplier arranges for the shipping, then the supplier will acknowledge defects visible upon collection of the goods only when the defects are stated in a bill of lading / protocol signed by the carrier/forwarding agent or a subcontractor of a vicarious agent.
  5. Claimed goods may be modified or shipped back only with the supplier’s explicit consent. The supplier may inspect and test the claimed goods.
  6. If the customer supplies any components or materials for further processing, then he shall ensure that they demonstrate a high and stable quality throughout. The supplier may refuse to accept defective materials or components provided by the customer and may never be held liable for any product defects, delivery delays and production interruptions that can be attributed to defective materials or components provided. It is up to the customer to prove that the materials or components provided have been free of any defects, and shall bear any and all related costs and expenses.
  7. The supplier will settle duly notified and justified claims primarily by delivering defect-free goods. The supplier cannot be held liable for any costs and expenses connected with the exchange or repair of goods and neither for any consequent damage and loss of profit. The customer shall have no right to rescind the contract or request a price discount in this respect.
  8. If the goods supplied as a replacement again show defects or are not delivered to the customer within 14 days of the date when the claim report was received by the supplier or have been delivered incorrectly, then the customer shall have a right to rescind the contract in accordance with the legislation in force. The customer may not request any compensation of vain expenses in this respect.
  9. Claims for damages due to defects on newly manufactured goods are subject to a statute of limitations of 3 months unless the customer can prove wilful conduct or fraud on the supplier’s part.
  10. The customer shall have no right to claim damages if there are just copyright deviations from the agreed properties, when the product can still be used in a safe manner, and for damage that has occurred after the transfer of risk due to improper or negligent storage, excessive use, unsuitable operating or consumption material, or due to extraordinary external influences that the contract did not foresee. If the customer or any third parties make any modifications in an unprofessional manner, then the customer may not claim any damages for the same and any consequences arising therefrom.
  11. In the case of wilful conduct, malicious non-disclosure of a defect or acceptance of a guarantee for a property of the goods at the moment of risk transfer, then the customer’s rights shall be determined exclusively by the applicable laws and regulations. Any customer’s claims toward the supplier beyond this scope due to a defect are excluded provided that the law allows so.
  12. The liability limitations apply also to the supplier’s representatives, employees and auxiliary persons involved in the contract fulfilment.

 

Art. 7 Reservation of Title

  1. The supplier shall retain title to the delivered goods until all receivables connected with the commercial transactions have been settled in full. This also applies to all future deliveries whenever the supplier explicitly refers to this clause.
  2. Should the customer breach the contract, the supplier may request that the goods with retained title be returned, without having to set an additional period of time to do so or to rescind the contract.
  3. The repossession of the goods with retained title shall constitute a rescission of the contract only when the supplier explicitly declares to. In this case, once the supplier has repossessed the object of purchase, he may sell the same and use the proceeds thereof to settle the customer’s payables, after deducting reasonable costs of sale.
  4. If the customer further processes the goods with retained title, the supplier will be considered as manufacturer and, as such, shall gain title to the newly created things. The customer’s revisionary interest shall in such a case continue to apply to the modified object.
  5. If the goods with retained title are processed and combined with other objects that do not belong to the supplier, then the supplier shall become co-owner of the new things in proportion to the objective value of the goods with retained title to the value of the other processed objects, as measured at the time of processing. The same applies when in the case of blended products.
  6. Until the customer has become owner of the goods, he shall handle the goods with retained title in a due and careful manner. This includes taking out insurance against theft, damage caused by fire and water, with the insurance benefits to be assigned to the supplier.
  7. Until the title to the goods has transferred, the customer shall have the obligation to inform the supplier forthwith in writing should the goods be exposed to claims of third parties.
  8. The customer may resell the goods with retained title in normal business transactions. The customer already now assigns to the supplier any and all future receivables that he may receive from selling the goods with retained title to his customers. If the customer agrees on an overdraft facility with his customers, then this shall apply accordingly to the claim from the overdraft facility. This assignment shall apply regardless whether the goods with retained title had been sold without or after its further processing.
  9. The customer may collect the assigned receivables. The supplier may at any time revoke the authorization to collect the receivables with immediate effect. Such a revocation needs to be made in writing and sent to the customer by fax or post. In the case of revocation, the supplier may inform the customer’s customers about the assignment and invite them to direct the payment(s) to the supplier. For this purpose, the customer shall submit to the supplier a list of his customers, which shall include the relevant customers’ names and addresses, amounts of the particular receivables and their due dates.
  10. The supplier shall not collect the receivables by himself as long as the customer honours his payment obligations without delay, does not fall in default with payment and is not subject to a motion for insolvency procedure initiation.
  11. The supplier shall release its security means upon the customer’s request in a reasonable extent when the realizable value of the securities, after foreseeable deductions, exceeds the value of the receivables to be secured by more than two consequent months. It is at the supplier’s discretion to decide which of the securities are to be released.

 

Art. 8 Liability

  1. In the case of wilful misconduct or gross negligence on the part of the supplier or his representative or auxiliary person involved in contract fulfilment, the supplier shall be held liable under the legislation in force. Apart from that, the supplier can be held liable only in the case of death, harm to human health or bodily injury, due to culpable breach of significant contractual provisions, or if the supplier has maliciously failed to disclose information about a defect. The entitlement to damages for breaching significant contractual obligations shall be determined under the supplier’s product liability insurance. Liability for damage caused by the goods as the customer’s object of legal protection, e.g. damage to other assets, is however completely excluded.
  2. The supplier cannot be held liable if damage is due to the customer’s mistake when deploying the object of delivery or based on an error in the customer’s documentation.
  3. If it is impossible to deliver in the case of wilful conduct or gross negligence on the part of the supplier or his representative or auxiliary person involved in contract fulfilment, the supplier shall be held liable under the legislation in force. In the case of wilful conduct or gross negligence on the part of the supplier or his representative or auxiliary person involved in contract fulfilment, the supplier shall be held liable under the legislation in force. However, the supplier’s liability in the case of his wilful conduct or gross negligence shall be limited to typical contractually foreseeable damage unless it is the case of death, harm to human health or bodily injury. The customer’s right to terminate the contract remains intact though.
  4. In other cases, the customer may within the legislative framework in force terminate the contract only if the supplier has in gross negligence breached his contractual obligations.
  5. The supplier’s liability under the Product Liability Act remains intact.

 

Art. 9 Governing Law, Court of Jurisdiction, Miscellaneous

  1. All contracts shall be governed by the law of the Czech Republic. Any clauses or laws referring to other legislative systems are excluded.
  2. If the customer is an entrepreneur, then the court of venue shall be determined according to the supplier’s registered office; however, the supplier may at his discretion bring charges against the customer also with the court of venue according to the customer’s place of residence.
  3. Should any provisions of these Terms and Conditions of Sale or any provision contained in other agreements or contracts be or become ineffective, then this fact shall not affect the force or effect of the remaining provisions or agreements.

 

mph medical devices s.r.o.

Pardubická 1571

CZ-535 01 Přelouč

Tel.: +420 466 768 200

E-mail: mph@mph.cz