General conditions of business

ASSKEA GmbH – Updated 10th November 2010

General
These terms and conditions of business (AGB in German) are applicable to all price quotations, all accepted orders and all products and services supplied by ASSKEA. Without any further explicit reference, they will also apply to all future business relations between ASSKEA and the ordering customer. Any other terms and conditions than these, and, in particular, the purchasing terms of the ordering customer, will be invalid even if they have not been explicitly refused – ASSKEA hereby explicitly rejects such terms.

When ASSKEA accepts confirmation of order, the ordering customer renounces all use of the customer's own terms and conditions, even if these posit exclusivity. Without written confirmation on the part of ASSKEA, no oral arrangements or agreements will be valid.

If the present terms of sale do not state otherwise, the General Terms and Conditions for Products and Services in the Electrical Industry will act as a complement to these AGBs.

Price quotation and confirmation of order

ASSKEA price quotations are subject to alteration unless otherwise stated in ASSKEA’s confirmation of order. Orders, whether made orally or in writing, will count as binding when the written confirmation of order is sent or the goods as ordered have been supplied within a reasonable period of time. For every order, all details of the ASSKEA products must be submitted accurately. ASSKEA accepts no liability for errors and damage which arise from inaccurate or incomplete submission of details.

ASSKEA reserves the right of ownership and copyright to all price quotations, drawings and other documents. These are not to be made accessible to third parties by the ordering customer. Any samples or patterns, oral advice or recommendations, any other documents or product details such as photocopies, drawings or details of dimensions and weight are in no way binding unless an express promise or guarantee has been given in writing.

Prices and Conditions of Payment

Unless otherwise stated or to be assumed from the nature of the confirmation of order, ASSKEA prices are ex-works, exclusive of packaging and value added tax. Packaging will be invoiced separately and the value added tax will be indicated separately as legally applicable on the date of invoice.

ASSKEA’s invoices are due for payment within 30 days, net, unless otherwise stated or implied in the confirmation of order. ASSKEA has the right to claim interest on overdue payments at 2 percentage points above the current base rate. If the customer is in arrears of payment, ASSKEA is entitled to demand interest on the arrears at 8 percentage points above the current base rate.

Delivery date

No dates and deadlines are binding unless they have been expressly set as binding by ASSKEA in the confirmation of order.

In case of acts of God, interruptions to operation, lack of staff, energy or raw materials, strikes or other events beyond ASSKEA'S control, the delivery date will be postponed for as long as the interruption and its effects continue. Should the delivery date be exceeded by more than two months, the ordering customer may withdraw from the contract and all other claims will be excluded. In this case it is, however, necessary for the ordering customer to present ASSKEA beforehand.with a reasonable extension of the due date for delivery.

Under no circumstances is the customer entitled to make replacement purchases or to make claims for damages or anything else on account of non-fulfilment or delay in delivery. The only exception is gross negligence or malice on the part of ASSKEA. It is permissible for ASSKEA to supply part-orders or give partial service.

Supply and training

When medical equipment is applied by ASSKEA direct or by a specialist medical equipment supplier, instruction must be given by an authorized company or an authorized person.

With ASSKEA products, the customer receives a tracking system so that any product can, if necessary, be traced all the way back from user to manufacturer. The customer undertakes to report immediately any notifiable events or risks arising in connection with ASSKEA products to the ASSKEA Quality Assurance Manager.

Unless otherwise agreed, the customer is responsible for the observance of all local and national regulations concerning import, transport, storage and use of the products.

Reservation as to ownership

All products supplied are under a reservation as to ownership. Until fully paid for in every respect, the goods supplied remain the property of ASSKEA. Among the claims arising from the business relationship under whatever legal provision which are to be fully met are those for payment of outstanding balance following postponed payment agreements, and all associated charges (if payment is by cheque or bill of exchange, up to their being cashed). The customer may neither pawn the goods under reservation of ownership nor give them as security. The customer is to inform ASSKEA immediately in writing if third parties attempt to take possession of the goods supplied which are under reservation of ownership. If the customer is in arrears of payment to ASSKEA, ASSKEA is entitled to take back the goods under reservation and to enter premises for this purpose.

The customer is entitled to sell on the goods in accordance with normal business practice. In accepting these AGBs, the customer transfers all his or her claims against the subsequent purchaser to ASSKEA as security. The customer is empowered and obliged in every respect up to the collection of all of the moneys, as long as this document of empowerment has not been withdrawn by ASSKEA. The customer’s empowerment to collect moneys will lapse without further explicit statement on the part of ASSKEA if the customer suspends payments due. As long as the customer fulfils the normal payment obligations, ASSKEA undertakes not to execute its right to collect.

If the customer hires out or leases the goods under reserve in the ordinary course of business, or if he or she allows third parties otherwise to use the goods for a fee, whether for a fixed or open period, the above stipulation in respect of the fee paid applies similarly.

The customer is entitled to combine the goods under reservation with goods belonging to third parties in the normal course of business. In this case, ASSKEA will become co-owner of the newly combined goods in proportion to the worth of the goods combined or newly manufactured, as under § 947 BGB (the German civil code). If the customer sells on the goods combined or newly manufactured of which ASSKEA is co-owner, the customer hereby and already (in advance) has passed to ASSKEA the claim against his or her customer to the purchase price in proportion to the value represented by the co-owned amount and has authorised ASSKEA to collect in ASSKEA's own name the moneys due.

If the amount thus relinquished as security exceeds outstanding invoice sums by more than 20%, ASSKEA will, if requested by the customer, give clearance to the excess amount contained in the security.

Transfer of risk, packaging

Unless ASSKEA’s confirmation of order states otherwise, supply has been agreed as ex-works. The risk of damage to or loss of the goods thus transfers to the customer as soon as the goods leave the ASSKEA works or as soon as the customer is in arrears of acceptance. This condition also applies to cases where supply has been promised without shipping charge.

The means of transport and all other packaging material as defined in packaging regulations will not be taken back. The packaging must be disposed of by the customer at his or her own expense.

Goods supplied by ASSKEA will be insured by ASSKEA at the customer’s expense unless there has been an explicit agreement to the contrary. If the customer collects the goods, no insurance will be taken out.

Claims in respect of damage during transport will only be dealt with if the customer requires the transport company to confirm any damage, losses or short weight before taking acceptance of the goods, and indicates this to ASSKEA forthwith.

Liability for defects

The customer will be under an obligation to inspect the ASSKEA products on delivery without delay and to indicate immediately to ASSKEA in writing any defects or inadequacies noted. If the customer fulfils this obligation to inspect and notify, ASSKEA will accept liability for defects as provided under the law.

Any claims for defects will automatically lapse if not made within one year.

It is a precondition of the liability in respect of defects that the customer can prove purchase (by means of the invoice or delivery note) and that the ASSKEA products still bear their unaltered, original serial numbers.

The further terms affecting ASSKEA’s liabilities are:

- In the case of repair or replacement, ASSKEA will normally make a choice between repair without charge – at the customer's premises or at the ASSKEA factory – or replacement of the product. The repair or replacement may also be delegated to an ASSKEA approved enterprise.

 - In the case of return, the customer is to send the product either in its original packaging or in packaging which gives the same degree of protection back to ASSKEA or to the address given by ASSKEA.

 - ASSKEA’s liability for defects will lapse if any alterations are made to the product, in whatever form, unless the alteration has been made by ASSKEA (or an enterprise approved by ASSKEA) or the alteration has been agreed in writing in advance by ASSKEA. Likewise, no claims in respect of liability will be accepted if repairs are carried out or parts replaced on an ASSKEA product by third parties. This will apply whether or not such measures have themselves or in their combination with other factors been responsible for a defect.

 - ASSKEA will have no liability in respect of details which
 - are due to wear and tear in normal operation
 - are due to faulty installation or to imperfect or inadequate maintenance;
  - are due to improper use or mistakes in operation (failing to follow the user manual supplied);
- are due to improper or negligent handling and maintenance, particularly dirtiness, limescale, ingress of fluids, unprofessional cleaning or disinfection or sterilisation;
 - are due to use of accessories and/or spare parts which have not been expressly approved of by ASSKEA;
 - are due to faulty assembly and/or commissioning, whether by the customer or third parties;
 - are due to negligence on the part of the customer during the use of the product;
 - are due to conditions of operation outside the given limits, particularly in respect of moisture, temperature, electrical connection or supply, shaking or jolting, inadequate ventilation;
 - are due to accident, act of God, or other grounds over which ASSKEA has no control, particularly lightning, water, fire, disturbance of the public peace.

Any damage caused by defects which does not arise in the ASSKEA product itself is not the liability of ASSKEA unless ASSKEA has shown malice or gross negligence. This applies also to malice or negligence on the part of ASSKEA representatives or agents. If there is no supportable claim against ASSKEA for intent to breach contract, ASSKEA’s liability for damages is limited to foreseeable, typical damage for the circumstances. The same applies in an instance where ASSKEA is guilty of failing in a significant contractual obligation.

None of the above limitations of liability apply if ASSKEA has deliberately kept silence concerning a defect or if ASSKEA has given a guarantee in respect of the physical quality of the object in question or if a defect has led to damage to life, limb or health.

All obligatory clauses in the German law on product liability (PHG) remain unaffected.

Place of fulfilment and jurisdiction

The place of fulfilment and the place for hearings in respect of supply and payment, also for all litigation arising directly or indirectly from the contractual relationship, is Gebesee.

The substantive law of Germany will apply exclusively, to the exclusion of UN purchase law.

If any part of these terms and conditions should be or become legally ineffective, the effect of all other parts will be unchanged.