I Scope of Application

1. The General Terms and Conditions (“General Terms”) hereinafter set forth shall exclusively apply to all transactions with BAIMANN GmbH (“BAIMANN”) with registered seat in Stormstr. 28, 50858 Köln, Germany, registered in Köln HRB 95081.

2. The General Terms as amended from time to time shall also apply to future transactions even if in a particular case they have not been transmitted or otherwise delivered to the buyer.

II Buyer’s General Terms and Conditions

Any differing or conflicting general terms of the buyer shall not be applicable to any transaction and are hereby rejected. Consequently, any variations from these General Terms shall be of no effect unless they have been agreed to in writing by BAIMANN. These General Terms shall also be exclusively applicable if, in the knowledge of contrasting conditions on part of the buyer or conditions that deviate from these General Terms, BAIMANN fulfils its obligation without restriction.

III Payment

1. Unless otherwise agreed upon between the buyer and BAIMANN in writing, invoices shall be paid without any deductions within 14 business days following receipt of the invoice. In the event of failure to pay by the due date, BAIMANN shall be entitled to charge past-due interest in the amount of 8% above the basic rate of interest of the European Central Bank p.a. from the date of default onward.

2. All bank charges shall be borne by the buyer.

3. Checks, bills of exchange, and other means of payment shall be accepted only conditionally on account of performance. In case of payment with such means of payment, payment shall be deemed to have been received as of the date on which the funds from such means of payment have become available to BAIMANN.

4. Any set-off with a counterclaim shall be permitted only if such counterclaim is undisputed by BAIMANN or has been confirmed by a non-appealable court decision.

IV Shipment and Passing of Risk/Export Controls

1. BAIMANN delivers “ex works” (INCOTERMS 2020); packaging is charged separately.

2. Buyer shall be responsible for obtaining insurance coverage against theft, breakage, transport, fire and water damage, as well as other insurable risks.

3. The risk shall pass to the buyer upon dispatch of shipment. This shall apply even in the case of partial shipments, and/or even if BAIMANN has assumed additional obligations such as freight or shipping charges, or direct delivery and installation.

4. If dispatch or shipment is delayed due to circumstances for which the buyer is responsible, the risk shall pass to the buyer as of the date of notification of readiness for dispatch.

5. If the delivery of BAIMANN products is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, BAIMANN may suspend its obligations and buyer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and BAIMANN may even rescind the transaction without incurring any liability towards the buyer. Furthermore, if an end-user statement is required, buyer shall inform BAIMANN thereof, and buyer shall provide BAIMANN with such document upon BAIMANN’s first written request. If an import license is required, buyer shall inform BAIMANN immediately thereof and buyer shall provide BAIMANN with such document as soon as it is available. By accepting BAIMANN’s offer, entering into any transaction, and/or accepting any BAIMANN products, buyer agrees that it will not deal with the BAIMANN products and/or documentation related hereto in violation of any applicable export or import control laws and regulations.

V Delivery Period

1. The period for delivery and performance starts upon dispatch of the acknowledgement and acceptance of the order by BAIMANN, but not before, if necessary, all technical details have been fully cleared up and agreed upon, all documentation, permits, approvals, clearances etc. to be supplied by the buyer have been provided, and only after any agreed upon down payment has been received by BAIMANN. Compliance with the delivery period or schedule shall be contingent upon performance of the buyer’s obligations.

2. The delivery deadline shall be deemed to have been met if, unless otherwise agreed upon, the products to be delivered have left the premises of BAIMANN’s production plant prior to the expiry of such deadline.

3. In case the buyer does not immediately call off the BAIMANN products after it has been advised of readiness for shipment, such BAIMANN products shall be invoiced to buyer after one month following such notice of readiness for dispatch, and the expense incurred for storage shall be billed to buyer at a rate of € 30.00 per pallet per month for each month started. Furthermore, BAIMANN shall have the right, after the setting and fruitless expiry of a reasonable extension of time, to dispose otherwise of the products to be delivered and then to claim the difference between the price agreed upon with buyer and the price by disposal to a third party from buyer.

VI Retention of Title

1. Until complete payment of the products delivered by BAIMANN and settlement of all claims from the business relationship with BAIMANN, BAIMANN reserves title to delivered products.

  1. Products for which BAIMANN reserves title shall be maintained by the buyer as BAIMANN’s escrow agent. The buyer shall be obliged to handle the goods carefully and to insure the products subject to retention of title with the due care and diligence of a prudent businessman, at least against damages deriving from fire, water and theft, and on request to provide evidence to the effect that this insurance has been taken out. The buyer already now assigns to BAIMANN his claims under this insurance by way of security.

    3. If products that are subject to retention of title become inseparably connected or mixed with other products, BAIMANN shall have joint title to the new products. Claims out of the sale of products for which BAIMANN reserved title are hereby already assigned to BAIMANN , such assignment being limited to the amount of the invoice value of products for which BAIMANN has reserved title, in case of sale of BAIMANN’s products together with other products. BAIMANN hereby accepts the transfer of these claims.

    4. The buyer shall only be entitled to sell products that are subject to retention of title in the ordinary course of business. The buyer shall not be entitled to dispose of the products in any other way, especially by pawning or as collateral. In case of a seizure or other measures of distraint by third parties, the buyer shall be obliged to inform the enforcement agencies about BAIMANN’s property and to inform BAIMANN within 3 business days about the seizure.

    5. If there are justifiable grounds for doubts as to the solvency or creditworthiness of the buyer, BAIMANN shall be entitled to prohibit the further sale or processing of delivered products, for which BAIMANN reserves title, and to request its return at the expense of the buyer. The taking-back of products subject to retention of title does not constitute any cancellation or termination of the contract.

    6. BAIMANN undertakes, at the request of the buyer, to release securities (products and accounts receivable) to which BAIMANN is entitled according to the above provisions at BAIMANN ’s discretion, if the value of the securities exceeds the claims to be secured by more than 10%. The realizable value shall be decisive for the valuation of any security.

    VII Duties of Inspection and Notice of Defects

    1. The buyer shall be obliged to inspect the packaging and the products immediately upon delivery and to report any damage to the shipping agent.

    2. Obvious defects, including but not limited to damages resulting from transport damages, shall be notified to BAIMANN in writing without delay, in any event within 10 days of receipt of the delivery at the latest.

    3. The buyer loses the right to rely on a lack of conformity of the products if the buyer does not give notice to BAIMANN specifying the nature of the lack of conformity within 10 days after the buyer has discovered it or ought to have discovered it.

VIII Warranty of Quality of New BAIMANN Products

1. The buyer’s warranty rights are determined by the applicable provisions of the laws of Germany, unless otherwise provided in the provisions hereafter.

2. The faultless installation and professional hand-over of the products to the hospital staff has to be documented in writing. The start of the warranty period depends on the return of the duly completed and signed BAIMANN Installation Protocol and BAIMANN Hand-over Protocol. BAIMANN templates are available in 43 languages from BAIMANN. The non-return of the two protocols within 6 weeks after installation and hand-over invalidates the warranty. Generally excluded from the warranty period are all wear & tear parts. The provisions of section X shall remain unaffected.

3. The buyer shall have no warranty claims if any deviations as to quality of the product delivered from the quality agreed on in the contract are only insignificant.

4. In the case of any defect as to quality, buyer shall be primarily entitled to supplementary performance by BAIMANN. Such supplementary performance shall, at the discretion of BAIMANN , consist of either elimination of the defect or substitute delivery. If BAIMANN decides to eliminate the defect, the buyer shall enable BAIMANN to carry out any repair work by allowing its technicians full access to the defective product for the purpose of fulfilling the warranty or shall upon request send the defective product or defective part of the product to BAIMANN or to a repair shop to be designated by BAIMANN. The reasonable expenses incurred for transport of the defective product shall be refunded to the buyer. If the buyer fails to comply with this obligation, BAIMANN shall be released from any and all warranty obligations. BAIMANN shall bear the reasonable expenses incurred for the purpose of rectification, in particular transport, travel and labor cost. This shall not apply where such expenses have been increased by the fact that the product was subsequently transported to a location other than the premises or the place of business of the buyer, unless the BAIMANN products were supplied to such location in line with its intended use.

5. If such supplementary performance is unsuccessful twice or is delayed for reasons for which BAIMANN is responsible, the buyer may, at its discretion, demand reduction of the purchase price or rescission of the purchase. Prior to a successful rectification of defects as to quality, BAIMANN shall have the right to notify the buyer that no rectification shall take place, so that the only remedies left to the buyer are claim for reduction of the purchase price or rescission of the purchase. The buyer may demand compensation in lieu of performance because of failure to perform or failure to perform properly in respect of a defect as to quality only in the second place, i.e. only after definite failure of the supplementary performance, or after BAIMANN has declared that no rectification shall take place, and only subject to the additional prerequisites according to the provisions of section VIII.

6. Any claims for warranty will be time barred for twelve (12) months after delivery.

7. BAIMANN shall not be liable for any damage resulting from non-compliance with the instructions for assembly and/or installation and/or the operating instructions, from unsuitable or improper storage and/or use of the BAIMANN products, from faulty assembly and/or installation or from faulty commissioning by the buyer or third parties, from normal wear and tear, or from faulty or negligent handling by the buyer, nor for any damage caused by unsuitable components or parts or replacement materials, chemical, electrochemical, electrical, atmospheric and other unforeseeable influences, provided that any such damage is not predominantly attributable to any fault on the side of BAIMANN .

IX Warranty of Quality of Used BAIMANN Products

BAIMANN does not provide warranty for defects as to quality of any used items delivered. The provisions of section X shall remain unaffected.

X Liability for Damages

1. BAIMANN shall be liable in the event of intentional behavior or gross negligence by its officers, employees or any other person employed by BAIMANN in performing a task for which BAIMANN is vicariously liable. In addition, BAIMANN shall be fully liable in the event of non-observance of guarantees, in the event of culpable injury to life, body, and health and under mandatory product liability legislation that is established by Council Directive 85/374/EEC, and that provides for BAIMANN’s strict liability, such as the German Product Liability Act.

2. In the event of culpable violation of essential contractual obligations, meaning principal obligations enabling the proper execution of the contract and upon which the buyer therefore relies and may rely, BAIMANN undertakes liability on the merits, however, the liability for simple negligence shall in this event be limited to damage that is typical for the contract and that can be reasonably foreseen.

3. Otherwise, any claims for direct or indirect damages (on any legal basis whatsoever, including but not limited to tort liability, positive breach of contract and breach of duty prior to contract) shall be excluded.

4. The buyer undertakes in the event of damage occurring or having already occurred to make all necessary efforts or to arrange for such efforts to be made without delay in order to limit the damage and its effects to a minimum.

5. In the event of simple negligence, liability regarding damages incurred by default in delivery shall be limited to a maximum of 5% of the value of the delivery in question.

XI Copyright

1. BAIMANN reserves all proprietary rights and copyrights to and in any and all documents provided to the buyer, including but not limited to cost estimates, drawings, and technical documentation. Such documents may not be made available to any third parties without BAIMANN’s prior written consent.

2. BAIMANN at its sole expense, shall: (i) defend any legal proceeding brought by a third party against buyer to the extent that the proceeding includes a claim that any BAIMANN product as furnished by BAIMANN directly infringes the claimant’s patent, copyright, trademark, or trade secret; and (ii) hold buyer harmless against damages and costs awarded by the final judgment in such proceeding to the extent directly and solely attributable to such infringement.

3. BAIMANN shall have no obligation or liability to buyer under subsection 2 of this section XI, (a) if BAIMANN is not: (i) promptly notified in writing of any such claim; (ii) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and (iii) given full reasonable assistance and cooperation by buyer in such investigation, preparation, settlement and defense; (b) if the claim is made after a period of three (3) years from the date of delivery of the BAIMANN product.

4. If any BAIMANN product is, or in BAIMANN’s opinion is likely to become the subject of a claim of infringement as referred to under this section XI (2) above, BAIMANN shall have the right, without obligation and at its sole option, to: (i) procure for buyer the right to continue to use or sell the product, (ii) provide a replacement product, or (iii) modify the product in such a way as to make the modified product non-infringing; or (iv) terminate any transaction to the extent related to such BAIMANN product.

5. Subject to the exclusions and limitations set forth under section X above, the foregoing states BAIMANN’s entire liability and obligation to buyer and buyer’s sole remedy with respect to any actual or alleged infringement of an intellectual property right or any other proprietary right of any kind.

XII Applicable National and/or International Laws, Rules and Regulations

1. The buyer shall comply with all applicable national and/or international laws, rules and regulations concerning medical devices, including but not limited to the Medical Devices Directive and respective guidelines of the European Commission (MEDDEV).

2. Notwithstanding all other MEDDEV provisions, the buyer is obliged to inform BAIMANN immediately in case of an incident with one of the BAIMANN products or if it has indications that a BAIMANN product is not safe.

3. The buyer is obliged to guarantee traceability of the product at all times in case of a recall.

4. Installation and mounting of fixed installed products as well as maintenance and warranty services and the hand-over/instruction for use have to be conducted by a BAIMANN service engineer or a trained and thus certified partner of BAIMANN .

5. The buyer may not remove references to the capacity of BAIMANN as manufacturer or other references or instructions for use or serial numbers or distribute products without such references and instructions for use.

XIII Place of Performance, Place of Jurisdiction, and Governing Law

1. The place of performance for buyer’s obligation to make payments shall be Saalfeld, Germany.

2. Exclusive Place of jurisdiction for any dispute arising under, out of, in connection with or relating to this Agreement shall be Munich, Germany. BAIMANN shall also be entitled to file suit at the court competent for buyer’s registered office.

3. The law of the Federal Republic of Germany shall apply explicitly excluding the United Nations Convention on the International Sale of Goods (CISG).

— End of General Terms and Conditions —