I Scope of application

The following General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTC”) of Invandus GmbH (hereinafter referred to as “Invandus”) apply to the exclusion of all other terms and conditions for all business relationships with companies within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or a special fund under public law (hereinafter referred to as “Buyer”).

By accepting the offer, the buyer declares its agreement with these GTC, both for the present and for all subsequent business relationships with Invandus.

Deviating agreements – even if they are included in the buyer’s order or agreed verbally – are only deemed to be part of the contract if they have been expressly confirmed in writing by Invandus. Invandus hereby expressly objects to the validity of any terms and conditions of purchase or other terms and conditions used by the buyer.

II Offers and offer documents; reservation of right of amendment; confidentiality

Invandus’ offers are always non-binding. All orders that are not based on a written offer from Invandus only become binding for Invandus once Invandus has expressly issued a written order confirmation.

Invandus reserves the property rights and copyrights to offer documents, cost estimates, illustrations, drawings, simulations, planning documents and other files and documents. The customer may not make these accessible to third parties and will return them immediately at Invandus’s request, unless a contract is concluded. Before passing them on to third parties, the customer requires the express written consent of Invandus. This applies in particular to files and documents that are labelled as confidential. Furthermore, the purchaser undertakes to keep Invandus’ business secrets and other confidential information secret (confidentiality obligation) and to use them exclusively for the purposes of the co-operation (prohibition of exploitation).

In the interest of further technical and medical development, Invandus reserves the right to slightly modify the design and execution of the goods even after acceptance of the order, provided that this does not unreasonably prejudice the interests of the purchaser.

III Prices and terms of payment

Unless otherwise agreed, all prices are EXW Höchstadt (Incoterms 2020) plus the respective statutory value added tax and other taxes, customs duties, levies, packaging costs, freight and insurance costs in the currency shown.

If the delivery or service is provided later than four months after conclusion of the contract, Invandus may adjust the price appropriately to the changes in the relevant standard wages and/or material costs that have occurred since conclusion of the contract up to delivery. The same applies if a service or delivery period of less than four months was agreed, but the service can only be provided by Invandus later than four months after the order confirmation or order for reasons for which the buyer is responsible.

Payments must be made net and without deduction within 30 days of the invoice date.

Bills of exchange will be accepted as payment after prior agreement and assumption of the discount expenses by the buyer. Payments may only be made to representatives of Invandus if Invandus has issued written authorisation for collection.

The purchaser is only entitled to offset or withhold payment if its counterclaims have been recognised by declaratory judgement or are undisputed.

IV. Delivery or performance period; partial deliveries

Delivery or performance deadlines are only binding if Invandus has expressly confirmed them in writing. Delivery and performance deadlines are extended to a reasonable extent if the customer does not fulfil its obligations to cooperate in a timely manner or if the customer requests changes to the service, unless Invandus is responsible for the delay.

Compliance with the delivery or performance deadlines is subject to the proviso that Invandus is supplied correctly and on time by its own suppliers, unless Invandus is not responsible for the delay in delivery on the part of its own suppliers. Invandus will notify the purchaser as soon as possible if delays become apparent.

Invandus is entitled to make partial deliveries if this is reasonable for the customer.

If, after conclusion of the contract, a significant deterioration or change occurs in the financial circumstances of the purchaser which jeopardises Invandus’ claim to counter-performance, or if such a situation already existed with the purchaser at the time of conclusion of the contract but only became known to Invandus afterwards, Invandus may refuse performance until the counter-performance has been fulfilled.

V. Delay in delivery or performance

In the event of default in delivery or performance, Invandus is liable in accordance with the statutory provisions, insofar as the contract is exceptionally a fixed-date transaction or the buyer’s interest in further fulfilment of the contract has ceased to exist. In this case, Invandus’ liability is limited to the foreseeable damage typical for the contract, provided that Invandus is not guilty of intent and there is no injury to life, limb or health.

In all other cases, in the event of a delay in delivery or performance, the customer may also demand compensation for any damage caused by the delay in addition to performance. However, this claim for damages in addition to performance is limited to 0.5% of the net price of the affected delivery or service per full week of delay, up to a maximum of 5% of the net price of the affected delivery or service, provided Invandus is not guilty of intent or gross negligence and there is no injury to life, limb or health. The Buyer’s right to withdraw from the contract after expiry of a reasonable grace period and/or to claim damages for non-performance in accordance with Section VIII shall remain unaffected.

VI Transfer of risk

The risk of loss or deterioration of the goods shall pass to the buyer when the goods are handed over for dispatch, even if partial deliveries are made. If dispatch is delayed for reasons for which the Buyer is responsible, the risk shall pass to the Buyer upon notification of readiness for dispatch.

If the buyer does not accept the goods properly offered to it and Invandus consequently cancels the contract after a reasonable grace period has expired, Invandus is entitled to a lump-sum compensation claim for loss of profit in the amount of 30% of the respective order total. Invandus reserves the right to prove higher damages.

VII Warranty

The buyer must inspect the goods immediately after delivery and, if a defect is found, notify Invandus of this in writing without delay, but at the latest within five (5) working days of delivery. The buyer must notify Invandus in writing of any defects that could not be recognised during the proper incoming goods inspection without delay, at the latest three (3) working days after discovery of the defects. Otherwise, the goods are deemed to be approved, unless the defect was fraudulently concealed by Invandus.

Unless otherwise agreed, Invandus only warrants compliance with the applicable specifications. In particular, Invandus does not guarantee the suitability for a specific purpose. Public statements, promotions or advertising by Invandus do not constitute a contractual quality of the goods.

If the goods are defective at the time of the transfer of risk and this has been duly notified in accordance with Clause VII 1, the buyer must first give Invandus the opportunity to repair or replace the goods at Invandus’ discretion (“subsequent fulfilment”), setting a reasonable deadline. Otherwise, the buyer is entitled to withdraw from the contract or reduce the purchase price in accordance with the statutory provisions. The buyer can only demand compensation for damages in accordance with Clause VIII.

Subsequent fulfilment does not include the removal of the defective goods, the reinstallation of the defect-free or repaired goods or the reimbursement of the associated costs if Invandus was not originally obliged to install the goods.

The buyer must carry out or commission Invandus or a body authorised by Invandus to carry out the necessary maintenance work and the prescribed safety checks on the delivered goods, insofar as this is prescribed in the instructions for use of the goods, at the specified intervals and at its own expense. If the buyer is unable to prove at Invandus’ request that he has had the necessary maintenance work and the prescribed safety checks carried out properly, all warranty claims to which the buyer is entitled against Invandus shall lapse if the defect was caused by non-compliance with the maintenance work or failure to carry out the safety checks.

If, in the opinion of Invandus, the assessment of a defect is to be carried out at its manufacturing facility, the purchaser must send the goods to Invandus as instructed and at the expense of Invandus.

No warranty is assumed for repairs and other changes which the buyer carries out himself or has carried out by third parties without the express consent of Invandus. The costs of such repairs will not be reimbursed to the buyer. No warranty is given for damage caused by improper use, abnormal operating conditions, overloading or improper handling, unless Invandus is responsible for this.

Further claims for damages on the part of the buyer exist only in accordance with the mandatory statutory provisions and the following provision in Section VIII.

The warranty period is 12 months after delivery of the goods. This period shall not apply to claims for damages by the Buyer in accordance with Section VIII. Furthermore, claims of the buyer in the event of fraudulent concealment of a defect by Invandus or in the event of the express assumption of a guarantee of quality by Invandus remain unaffected.

VIII. Liability

Invandus is liable without limitation in the event of culpable injury to life, limb or health. Invandus is also liable for intent and gross negligence. Insofar as Invandus is not guilty of intent and there is no culpable injury to life, limb or health, liability is however limited to the foreseeable damage typical of the contract.

Invandus is also liable for culpable breach of such obligations, the fulfilment of which is essential for the performance of the contract and on the fulfilment of which the customer regularly relies and may rely. Insofar as Invandus is not guilty of intent and there is no culpable injury to life, limb or health, liability is, however, limited to the foreseeable damage typical of the contract.

Invandus is also liable in the event of fraudulent concealment of a defect or the assumption of a guarantee. In the latter case, the scope of liability is determined by the guarantee declaration. Invandus is also liable in cases of mandatory statutory liability, for example under the German Product Liability Act or the German Medicines Act.

In all other respects, Invandus’ liability – irrespective of the legal grounds – is excluded, unless otherwise stipulated in these GTC.

Insofar as Invandus’ liability is excluded or limited in accordance with the above provisions, this also applies to the personal liability of Invandus’ executive bodies, legal representatives, employees, staff and vicarious agents.

IX. Retention of title

Invandus retains title to the delivered goods (hereinafter referred to as “reserved goods”) until full payment of the purchase price and all ancillary claims, including the costs of any accessories and spare parts as well as any repairs and replacement deliveries incurred.

Invandus retains title to the goods subject to retention of title beyond Clause IX 1. until all older claims arising from deliveries and services have been settled, whereby, in accordance with the chronological order of delivery or invoicing of the repair service and payment, the last payment in each case effects the transfer of title to all previous deliveries to the extent that these have thus been paid, including any ancillary claims.

The buyer shall store the reserved goods, to which Invandus is entitled to sole or co-ownership, free of charge for Invandus. The buyer is obliged to treat the reserved goods with care.

In the event of breach of contract by the purchaser, e.g. default of payment, Invandus is entitled to take back the delivered goods and the purchaser is obliged to surrender them. Due to the retention of title, Invandus can only demand the return of the reserved goods if Invandus has cancelled the contract.

The buyer is not permitted to pledge or assign the goods subject to retention of title as security as long as the retention of title exists. In the event of seizure or other interventions by third parties in the reserved goods, the purchaser must notify Invandus immediately in writing so that Invandus can file a third-party action against the goods in accordance with Section 771 of the German Code of Civil Procedure (ZPO) and take other measures to protect the ownership of the reserved goods. If the third party is not in a position to reimburse Invandus for the judicial or extrajudicial costs incurred by Invandus in an action pursuant to Section 771 ZPO, the buyer is liable for the loss incurred by Invandus.

If the reserved goods are combined or inseparably mixed with other movable items not belonging to Invandus, Invandus acquires co-ownership of the new item in the ratio of the value of the reserved goods (net purchase price) to the other combined or mixed items at the time of combination or mixing. If the combination or mixing takes place in such a way that one of the buyer’s items is to be regarded as the main item, it is agreed that the buyer hereby assigns Invandus co-ownership of the new item in the ratio of the value of the reserved goods (net purchase price) to the other combined or mixed items at the time of combination or mixing. Invandus hereby accepts the transfer of ownership.

The processing or transformation of the reserved goods by the buyer is always carried out for Invandus. If the reserved goods are processed with other items not belonging to the buyer, Invandus acquires co-ownership of the new item in the ratio of the value of the reserved goods (net purchase price) to the other processed items at the time of processing.

The purchaser is authorised to sell the reserved goods in the ordinary course of business. The buyer hereby assigns to Invandus the claims arising from the sale of the reserved goods, regardless of whether they have been further processed, combined, mixed or not, in the amount of Invandus’s claim under the respective contract. Invandus hereby accepts this assignment. The buyer is revocably authorised to collect the assigned claims. Invandus’ right to collect the claim remains unaffected. Invandus will not collect the receivables itself and will not revoke the authorisation to collect as long as the purchaser fulfils its payment obligations and is not in default of payment. If Invandus so requests, the purchaser is obliged to inform its customer of the assignment and to provide Invandus with the information and documents required to assert its own rights.

If the realisable value of the securities exceeds the value of the claims to be secured by more than 10% in total, Invandus will release securities of Invandus’s choice at the buyer’s request.

If the place of use of the reserved goods is located outside the Federal Republic of Germany, the purchaser is obliged to inform Invandus immediately of any legal requirements for the creation and maintenance of Invandus’s retention of title there and to immediately (i) fulfil the requirements itself at its own expense, insofar as this is legally possible, or (ii) support Invandus in fulfilling the requirements at its own expense.

If the law at the place of use does not recognise Invandus’ retention of title, but allows Invandus to reserve a comparable security interest in the goods subject to retention of title, this security interest shall be deemed to have been agreed accordingly and Invandus may exercise this security interest. The buyer is obliged to co-operate with Invandus in measures that Invandus wishes to take to protect its right of ownership or, in its place, to protect another security interest.

X. Product liability; information and co-operation obligations

If claims are asserted against the purchaser by third parties on the basis of product liability due to defective goods, Invandus shall indemnify the purchaser against claims by third parties to the extent that Invandus is liable to the third party.

In the event of a product liability claim against the purchaser by a third party, the purchaser must inform Invandus immediately and coordinate the further defence against the claim closely with Invandus. The purchaser may not recognise any such third-party claims without the express written consent of Invandus.

XI. Place of fulfilment; place of jurisdiction and applicable law

The place of fulfilment and exclusive place of jurisdiction is Invandus’ registered office in Höchstadt. However, Invandus is also entitled to sue the purchaser at its general place of jurisdiction.

The law of the Federal Republic of Germany applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

XII Other provisions

The purchaser is not authorised to assign rights or claims arising from the contract to third parties without the prior written consent of Invandus. The provision of § 354a HGB remains unaffected by this.

Should any provision of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. The same applies in the event that these GTC do not contain a necessary provision. The contracting parties shall replace the invalid or unenforceable provision with a legally permissible and enforceable provision that comes closest to the economic purpose of the invalid or unenforceable provision. If these GTC or the contracts are incomplete, the contracting parties shall reach an agreement with the content that they would have agreed upon within the meaning of these GTC or the contracts if the loophole had been known when the contract was concluded.

Status: January 2022