AGB

General Terms and Conditions for Deliveries and Services Ascendens GmbH, Falkenstraße 10, D-90542 Eckental, Germany

1. General

1.1 Our General Terms and Conditions shall apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code) as well as to legal entities under public law and special funds under public law.

To the extent compatible with the German Civil Code, the GTCs shall also apply to physicians, non-medical practitioners and hospitals, with priority over other provisions.

1.2 Our terms and conditions of business shall apply exclusively; we shall not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions of business unless we have explicitly agreed to their validity in writing. Our terms and conditions shall also apply if we carry out the delivery or service to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions.

1.3 All agreements made between us and the client for the purpose of executing this contract are set out in writing in this contract.

1.4 Our Terms and Conditions shall also apply to all future business with the Customer.

2. Scope

2.1 The following terms and conditions apply to the delivery of goods of any kind by Ascendens GmbH to the Customer (hereinafter uniformly referred to as “Delivery”) as well as to the provision of other services by Ascendens GmbH for the Customer (hereinafter uniformly referred to as “Service”).

2.2 The customer confirms with the purchase that he is a specialist dealer for medical products, doctor or alternative practitioner and assumes all obligations under the applicable Medical Devices Act from the date of dispatch of the goods!

3. Offer, conclusion of contract, offer documents, right of revocation

3.1 Our offers are non-binding unless the binding nature of the offer has been expressly indicated.

3.2. If the order of the customer is to be qualified as an offer in the sense of § 145 BGB, we can accept this within 4 weeks.

3.3 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents.
This also applies to such written documents that are designated as “confidential”. The client requires our express written consent before passing them on to third parties.

3.4. The documents belonging to the offer, such as illustrations, drawings, weights and dimensions, as well as other technical data, are only approximate unless they are expressly designated as binding or additionally confirmed in writing.

3.5 The presentation of the product range of Ascendens GmbH on internet pages or presentations does not constitute an offer. It is subject to change and non-binding.

3.6. The prices published by Ascendens GmbH can be taken from the respective current price sheets and are valid for the correspondingly designated period. Price lists or other representations of the products alone do not constitute a legally binding offer. Prices are subject to change without notice. In case of ambiguity, Ascendens GmbH will be happy to provide you with a written offer upon request.

3.7. By sending a written order to Ascendens GmbH, the customer applies for the conclusion of a purchase contract3 with Ascendens GmbH. With a written order you accept
the customer the sales offer of the Ascendens GmbH.

3.8. Any order must be addressed to Ascendens GmbH in written form. The purchase contract is concluded when Ascendens GmbH has explicitly accepted your order by delivering the goods or by accepting the order (order confirmation).

3.9. Confirmed orders cannot be canceled without Ascendens GmbH corresponding consent. Ascendens GmbH reserves the right to accept or reject orders.

3.10. In the event that our suppliers do not deliver the ordered goods or do not deliver them on time, we are entitled to withdraw from the contract.

3.11. A written order confirmation can be replaced by our invoice.

3.12. In the case of contracts concluded outside business premises and distance contracts, the customer has the right to revoke a purchase contract within fourteen days without giving reasons. The withdrawal period is fourteen days from the date of shipment. In order to exercise the right of withdrawal, the customer must inform by means of a clear declaration (by registered letter, fax, not by e-mail) of the decision to withdraw from this contract. If the Customer revokes the purchase contract, Ascendens GmbH shall refund all payments made by the Customer for the individual transaction, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by Ascendens GmbH), without undue delay and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, Ascendens GmbH uses the same means of payment that the customer used for the original transaction.

4. Prices, terms of payment

4.1 Unless otherwise stated, we shall be bound by the prices contained in our offers marked as binding for four weeks from the date of the offer.

4.2 Our prices shall apply “ex works” (EXW) excluding packaging, which shall be invoiced separately.

4.3 Statutory value-added tax is not included in our prices; it shall be shown separately in the invoice at the statutory rate on the date of invoicing.

4.4 Payments to us shall be made on the agreed due date, but at the latest within 14 days from the date of invoicing, without deduction and free of charges. In the case of payment to our account, the date on which the account is credited is decisive.

4.5 Payments are first used to cover costs and interest and then to pay off the oldest invoice.

4.6 If the Customer is in default of payment, we shall be entitled to charge interest on arrears at a rate of eight percentage points above the base interest rate per annum. The assertion of higher interest or further damages is not excluded.

5. Right to refuse performance, set-off, retention

5.1 We may refuse delivery or performance if, after conclusion of the contract with the customer, it becomes apparent that our claim to payment of the price for our delivery or performance is not justified.
performance is jeopardized by the client’s inability to pay, in particular if there is a significant deterioration in the client’s financial circumstances.
Our right to refuse delivery or performance shall only lapse if the price for our delivery or performance is paid or security is provided for it.
We reserve all further statutory rights, in particular the right to withdraw from the contract under the statutory conditions.

5.2 The Customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

6. Delivery periods, delay in delivery, partial deliveries

6.1 Delivery and performance deadlines and dates are generally non-binding and only binding if we have expressly designated them as binding in writing.
The delivery date shall be deemed to have been met if the goods have left our works by the expiry of the delivery date or if notification has been given that the goods are ready for dispatch.

6.2 Compliance with our delivery and performance obligations requires the timely and proper fulfillment of the Customer’s obligations and the clarification of all technical issues. The execution periods shall be extended appropriately if the customer is responsible for an impediment or if the customer has failed to perform an act of cooperation incumbent upon him or has not performed such act in due time, unless we are responsible for the delay.

6.3 The period or deadline for delivery or performance shall be extended in the event of measures within the scope of labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles beyond our control, e.g. operational disruptions, delays in the delivery of essential materials, insofar as such obstacles demonstrably have a significant influence on the delivery or performance. This shall not apply if the hindrance or interruption is caused by an industrial dispute for which we are responsible through unlawful actions. The above provisions shall also apply if the circumstances occur at subcontractors. The delivery period or delivery date shall be extended in accordance with the duration of such measures and obstacles. We shall not be responsible for the aforementioned circumstances even if they arise during an already existing delay. We shall inform the customer of the beginning and end of such obstacles as soon as possible.

6.4 If we are in default with the delivery or service, the Customer may only withdraw from the contract within the scope of the statutory provisions if we are solely responsible for the delay in delivery or service. In the case of minor breaches of duty, withdrawal from the contract is excluded. A change of the burden of proof to the disadvantage of the customer is not connected with the above regulations.

6.5 At our request, the Customer shall be obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery or performance or whether it will insist on the delivery or performance.

6.6 Partial deliveries and partial services shall be permissible within the delivery periods specified by us, provided that this does not result in any disadvantages for use.

6.7 We are entitled to make partial deliveries as well as to charge for them, which also confirms compliance with the delivery deadline in the case of partial fulfillment of the product and or services. If payment for a partial delivery or service is delayed, we may, at our reasonable discretion, suspend further completion of the order without deriving any compensation or claim for damages from the customer.

6.8 Benefit and risk shall pass to the customer as soon as the. leaves the place of dispatch.

7. Transfer of risk, transport insurance, acceptance

7.1 Unless otherwise stated, delivery is agreed “ex works”.

7.2 We are not obliged to take out transport insurance, even in the case of foreign transactions. In case of damage or loss of the goods during transportation, the customer shall immediately arrange for a statement of facts with the carrier and is obliged to exercise his and our rights to reduce or eliminate the damage. If this is agreed separately with the customer, we can cover the delivery by transport insurance. The costs incurred in this respect shall be borne by the customer.

7.3 Insofar as acceptance is required, this shall be decisive for the transfer of risk. It must be carried out by the customer without delay on the acceptance date, alternatively after we have notified the customer that the goods are ready for acceptance. Acceptance cannot be refused due to insignificant defects.

7.4 If the Customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the delivery or service shall also pass to the Customer at the point in time at which the Customer is in default of acceptance or debtor’s delay. We reserve the right to assert further claims.

7.5 Unless otherwise agreed, we shall determine the means of transport and the transport route without being responsible for choosing the fastest or cheapest option. In all cases, the risk is transferred to the customer when the goods leave our premises.

8. Warranty – material defects

8.1 In principle, the manufacturer’s warranty conditions shall apply. Insofar as a defect in the delivery or service existed at the time of the transfer of risk, we shall be entitled, at our discretion, to remedy the defect or to deliver/produce a defect-free item (subsequent performance).

8.2 Claims of the Purchaser for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that expenses are increased because the subject matter of the Supplies has subsequently been brought to another location than the Purchaser’s branch office.

8.3 If subsequent performance fails, the Customer may – without prejudice to any claims for damages under Section 10 of these Terms and Conditions – reduce the remuneration or, at its option, withdraw from the contract.

8.4 Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment or due to special influences not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer or third parties carry out improper modifications or repair work, there shall also be no claims for defects for these and the resulting consequences.

8.5 The warranty period for claims of the Customer against us due to a defect in the delivery or service shall, with the exception of the cases of § 438 para. 1 No. 1 and No. 2 BGB and of Sec. 634a para. 1 No. 2 and No. 3 BGB twelve months from the statutory commencement of the limitation period. This shortening of the warranty period shall not apply to damages resulting from injury to life, body or health, in the event of an intentional or grossly negligent breach of duty or in the event of a culpable breach of a material contractual obligation by us. Furthermore, it shall not apply if we have fraudulently concealed the defect or have assumed a guarantee for the quality of the delivery or service. Possible claims of the customer from § 479 BGB remain unaffected.

8.6 Insofar as liability is assumed for loss of data, liability shall be limited to the typical recovery costs that would have been incurred if the Customer had backed up the data regularly and in accordance with the risk.

8.7 In addition, clause 10 of these terms and conditions shall apply to claims for damages and reimbursement of expenses against us. Further or other claims of the customer against us and our vicarious agents due to a defect than those regulated in this clause 8 are excluded.

8.8 In accordance with the Medical Devices Act, the medical devices of Ascendens GmbH must be actively monitored on the market by a Post-Market Clinical Follow-Up (PMCF). Ascendens GmbH will therefore contact customers who have purchased medical devices from it in order to actively collect and analyze data on the quality, performance and safety of a product throughout its life cycle. The customer is obliged to hand over the legitimately requested data within 10 working days. If he is in default, all warranty claims shall expire immediately.

8.9 In principle, there is no right of return for delivered goods.

9 Industrial property rights and copyrights – Defects of title

9.1 Unless otherwise agreed, we are obliged to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights) only in the country of the place of manufacture.

9.2 If a third party asserts justified claims against the Customer due to the infringement of property rights by deliveries made by us and used in accordance with the contract, we shall be liable vis-à-vis the Customer within the time limit set forth in Clause 8, Para. 5 of these Terms and Conditions as follows: We shall first have the right, at our discretion, either to procure the necessary licenses with respect to the allegedly infringed rights or to provide the Customer with a modified delivery item or parts thereof which, in the event of replacement with the infringing delivery item or part thereof, will eliminate the allegation of infringement with respect to the delivery item. If this subsequent performance fails, the customer shall be entitled to the statutory rights; in particular, he shall be entitled to reduce the purchase price or, at his option, to withdraw from the contract. In all other respects, the provisions of Section 8 of these Terms and Conditions shall apply mutatis mutandis in the event of infringements of property rights. Our obligation to pay damages shall be governed by Section 10 of these Terms and Conditions.

9.3 The aforementioned obligations shall only exist for us insofar as the Customer does not acknowledge an infringement and all defensive measures and out-of-court measures are reserved for us.

9.4 Claims of the Customer shall be excluded insofar as the Customer is responsible for the infringement of property rights.

9.5 Claims of the Customer shall also be excluded if the infringement of the property right is caused by special specifications of the Customer, by an application by the Customer not foreseeable by us or by the fact that the delivery is modified by the Customer or used together with products not supplied by us.

9.6 In the event of other defects of title, the provisions of Section 8 and Section 10 of these Terms and Conditions shall apply accordingly.

9.7 Further or other claims of the customer against us and our vicarious agents due to a defect of title than those regulated in this clause 9 are excluded.

9.8 The Purchaser shall not be entitled to any further or other claims due to the infringement of third party property rights. In particular, the Supplier shall not compensate for consequential damages, such as loss of production and use, as well as loss of profit.

10. Other claims for damages

10.1 We shall be liable in accordance with the statutory provisions for damages arising from injury to life, limb or health.

10.2 We shall be liable in accordance with the statutory provisions for damages based on an intentional or grossly negligent breach of duty by us or on an intentional or grossly negligent breach of duty by our representatives or vicarious agents. Insofar as we are not accused of intentional breach of duty, liability for damages shall be limited to the foreseeable, typically occurring damage.

10.3 Any further claims for damages and reimbursement of expenses of the Customer against us, irrespective of the legal basis, shall be excluded. This applies in particular to a breach of obligations arising from the contractual obligation and from tort.

10.4 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.

10.5 A change in the burden of proof to the disadvantage of the Customer is not associated with the above provisions.

11. Retention of title

11.1 We reserve title to the delivery items until receipt of all claims, irrespective of the legal basis, arising from the business relationship with the Customer. The retention of title shall also apply to claims from previous and future legal transactions and to balance claims from any existing current account relationship.

11.2 The Customer shall be entitled to resell the delivery items in the ordinary course of business; however, it hereby assigns to us all claims in the amount of the delivery price agreed between us and the Customer (including value-added tax) which accrue to it against its customers or third parties from the resale, irrespective of whether the delivery item has been resold without or after processing. The claim assigned to us in advance by the customer shall also relate to the acknowledged balance and, in the event of the customer’s insolvency, to the then existing “causal” balance. We accept the assignment, but may independently enforce our claims directly against the client. The customer is authorized to collect the claims after their assignment. Our authority to collect the claims ourselves shall remain unaffected; however, we undertake not to collect the claims as long as the customer duly meets its payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed.

If this is the case, however, we may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

11.3 The Customer may neither pledge the delivery items nor assign them as security. Enforcement officers or third parties are to be informed of our ownership.

11.4 The processing or transformation of the delivery items by the customer shall always be carried out for us. If the delivery items are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery items (including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the items delivered under reservation of title.

11.5 If the delivery items are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery items (including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the Customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.

11.6 The Customer shall be obliged to treat the delivery item with care; in particular, it shall be obliged to insure it adequately at its own expense against fire, water and theft damage at replacement value. Insofar as maintenance and inspection work is required, the Customer must carry this out in good time at its own expense.

11.7 In the event of seizures or other interventions by third parties, the Customer shall notify us in writing without delay so that we can bring an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.

11.8 In the event of conduct by the Customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and subsequently to take back the delivery items. The assertion of claims for damages shall remain unaffected.

11.9 We undertake to release the securities to which we are entitled pursuant to this Clause 11 at the request of the Customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be incumbent on us.

12. Secrecy

12.1 Offer and product documents may not be reproduced – not even in part – or forwarded without the consent of Ascendens GmbH.

12.2 The parties are obliged to keep all confidential documents and information as well as all commercial and technical details related to the business relationship strictly secret. Such information may only be disclosed to third parties with the express consent of the other contracting party. The obligation to maintain secrecy shall also apply after the execution of this contract. It shall not apply if and to the extent that the knowledge contained in the documents and information or the commercial and technical details have become generally known or were already known to the other party without a breach of contract by the other party having been the cause thereof.

13. Data storage

13.1 The client agrees that his data relevant to the fulfillment of the contract are stored with us and also expressly gives his consent that, in the event of non-payment, the information necessary for the purpose of asserting the claim is transmitted to Creditreform Nürnberg Aumüller KG, Theodorstraße 11, 90489 Nuremberg, in compliance with the data protection guidelines. The client is hereby informed that in the event of debt collection by Creditreform, the data relating to his person will be stored there and that this declaration is deemed to be notification in accordance with § 33 BDSG.

14. Jurisdiction, Applicable Law, Severability Clause, Translations of these Terms and Conditions

14.1 If the Customer is a merchant, a legal entity under public law or a special fund under public law, our registered office shall be the exclusive place of jurisdiction. However, we shall also be entitled to sue the customer at the court having jurisdiction for the customer’s place of business.

14.2 The laws of the Federal Republic of Germany shall apply exclusively, to the exclusion of the international law on the sale of goods, even if the Customer has its registered office abroad.

14.3 Should any provision be or become invalid, the remaining provisions shall remain valid.

14.4 The English version of these General Terms and Conditions is for information purposes only. Only the German text of the contract is binding.

Status: 01/2024