1. Acceptance; Entire Agreement
Except as otherwise agreed in a written agreement signed by both Amann Girrbach North America, LP (“AGNA”) and the buyer (“Buyer”), these Terms and Conditions of Sale will govern the Buyer’s purchase order. Acceptance by AGNA of Buyer’s purchase order (whether such order is written, oral or electronic) is expressly conditioned upon Buyer’s agreement that these Terms and Conditions of Sale shall be the sole and exclusive terms and conditions applicable to Buyer’s purchase of AGNA’s consumable products (the “Products”). AGNA specifically rejects, and Buyer disclaims, all terms and conditions in Buyer’s purchase order or other documentation if such terms and conditions are additional to, different from or inconsistent with these Terms and Conditions of Sale. Any performance by AGNA pursuant to Buyer’s purchase order, including without limitation shipment of Products, shall be deemed to be an acceptance solely upon these Terms and Conditions of Sale.
Orders may be placed by the customer by telephone, in writing, by fax or e-mail or in our online-shop at https://us.ag.store To order goods in our online shop, they must first be selected or configured by the customer and compiled according to his own specifications within the framework of the selection offered and then placed in the shopping cart (click on "Add product(s) to shopping cart"). In order to identify and prevent input errors during the ordering process, the customer will be shown an overview page for confirmation purposes when placing an online order before the order is placed in our online store and becomes effective, and in such confirmation process the customer can check all details of the order (goods, price, delivery costs, etc.) and correct the data entered in the input fields themselves or by using the "Back" arrow (<-) in the online-shop. For orders via our online-shop, the customer must also properly register as directed on the online shop web page.
The prices stated on the face hereof shall apply to this order of Products. Unless otherwise specifically provided on the face of an order acknowledgment from AGNA, the prices for the Products purchased do not include shipping charges or sales, use, excise or similar taxes, whether federal, state or local. Invoices shall reflect, and Buyer shall be responsible for the payment of, all such shipping charges and any taxes for which AGNA may be liable or is required by law to collect.
4. Payment Terms
Prepayment is the default payment term. If requested by the customer and confirmed by AGNA in writing, payment in full is due from Buyer within 30 days of the date of the invoice. A service charge shall accrue on all past due accounts at the rate of 1½% per month (18% per annum) or the highest rate allowed by applicable law, whichever is less. Each shipment of Products is to be treated as a separate and independent transaction for purposes of payment and settlement of claims. Buyer hereby grants to AGNA a security interest in all Products purchased under this Purchase Order to secure payment in full of all amounts due hereunder. Buyer authorizes AGNA to execute any documents or make any filings necessary to perfect its security interest in the Products.
For purchases made through our online shop, payment may be made by credit card (VISA & Mastercard), via prepayment or PayPal. The payment processing (except for purchase on prepayment or via PayPal) is carried out by the service provider Adyen NV. In this respect, the following conditions apply:
Payment by credit card (via CrefoPayment)
We only accept Mastercard and Visa credit cards. For this purpose, the customer is automatically redirected to an encrypted page of our payment partner Adyen NV. to make the payment there. In any case, the credit card account will be charged only after delivery of the goods to the customer.
PayPal (via PayPal)
The customer may also pay online via PayPal. For this purpose, registration with PayPal is necessary. The customer's bank and credit card details are stored exclusively at PayPal. When selecting the payment method PayPal, the customer is redirected at the end of the ordering process directly to the website of PayPal to make the payment there. After completion of the payment process at PayPal, the customer is returned to our online store and can complete the order there. After receiving the payment confirmation from PayPal, we will ship the ordered goods within the agreed specified delivery time (if any).
5. Shipping; Title; Risk of Loss
AGNA shall ship the Products to Buyer or Buyer’s designee EXW AGNA’s designated warehouse (Incoterms 2010), provided, that AGNA shall load the Products on departure at Buyer’s risk and cost.
6. Acceptance of Products
Upon receipt of shipment, Buyer shall immediately inspect the Products. The Products shall be deemed to be finally inspected, checked and irrevocably accepted by Buyer, unless Buyer provides written notice to AGNA within ten (10) days of receipt of any claim for defects in the Products or overages or shortfalls. Any fault in delivery, quantity or quality in relation to any other shipment shall not affect this sale or any of Buyer’s obligations in relation to this sale.
7. Returns and Replacement
Buyer shall not cancel its purchase order or revoke acceptance of or return Products except for claims arising under the warranty below. No Products may be returned without AGNA’s express written permission, as evidenced by the issuance of a return authorization. Risk of loss or damage to Products returned to AGNA shall remain with Buyer until they are received by AGNA. Products that have not been stored in a sanitary manner or in accordance with the Products’ storage recommendations cannot be returned or credited. Upon return and acceptance by AGNA, AGNA will charge the Buyer a 15% restocking fee. Medical Products cannot be returned or credited.
All acknowledged shipping dates are approximate based on current availability of materials and prompt receipt of all necessary information from Buyer. AGNA shall not be held responsible for delays in delivery due to strike or other labor dispute, riot, fire, act of God, pandemics, embargo, inability to obtain raw materials or Products, manufacturing delay, delay in transportation, accident, war, governmental action or any contingencies beyond AGNA’s control.
- Subject to the limitations and exclusions set forth in Section 8.2 of these Terms and Conditions of Sale, AGNA warrants that the Products manufactured by AGNA or its affiliates, when used in accordance with the directions provided by AGNA, are fit for the purposes and indications described in the product description,and shall be free from defects in materials and workmanship for a period of 12 months from the date of shipment. The sole obligation of AGNA shall be to replace defective goods. AGNA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- The warranty provided in Section 9.1 above shall be null, void and of no effect if and to the extent the Products (i) have been subjected to adverse storage or environmental conditions, (ii) have been abused, neglected, tampered with or damaged by accident, flood, fire or other hazard or (iii) have been used in a manner inconsistent with the instructions for use provided by AGNA. AGNA shall have no liability for user error or any use that is inconsistent with the instructions and training provided by AGNA or its affiliates.
10. Limitation on Liability
IN NO EVENT SHALL AGNA BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, WHETHER RELATING TO A CLAIM BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE.
11. Buyer’s Duty to Test
Because the conditions of use by Buyer or Buyer’s customers and end users of the Products are beyond AGNA’s control, Buyer shall have a duty to test the Products under the anticipated conditions of use to determine if the character of the Products is suitable for Buyer’s intended use. AGNA DISCLAIMS ANY KNOWLEDGE OF BUYER’S INTENDED USE AND MAKES NO WARRANTY THAT THE STANDARD SPECIFICATIONS OF THE PRODUCTS ARE SUITABLE FOR BUYER’S INTENDED USE. IT IS THE RESPONSIBILITY OF BUYER TO DETERMINE WHETHER THE PRODUCTS ARE IN ALL RESPECTS OF THE PROPER CHARACTER FOR THE PROPOSED APPLICATION.
Customer shall maintain records of all medical Products and other machinery and devices sold by Customer to its clients for a minimum period of fifteen (15) years. These records shall be kept in a manner to allow complete and prompt recall. Records shall contain product information such as article number, lot number, sales date, list of clients supplied and client‘s identification data. If AGNA requests access to such records for Product tracing, recall purposes or corrective actions, Customer shall immediately make such records available to AGNA.
Customer shall be responsible for maintaining complaint records for MP according to national regulations concerning both performance and safety of medical Products. All complaints, whether received orally, written or by electronic means, shall be documented. Customer shall report immediately to AGNA all complaints irrespective of Customer‘s own assessment concerning the actions to be taken regarding the medical event or complaints.
Customer shall resell the Products only in the form originally received from AGNA. Customer shall also be responsible for ensuring that its promotion, marketing, sale and distribution of the Products, and the promotional materials and labeling used in connection therewith, shall be strictly in accordance with the approved use of the Products, including Indications for use statements, where applicable.
13. Export Control Matters
Unless otherwise stipulated, Products delivered by AGNA to Customer are intended to remain and to be used only in the country agreed with Customer.
Customer acknowledges that due to their nature or their intended use or final destination, certain Products are subject to the regulations on export control and in particular require an official permit upon export. In the event that Products delivered by AGNA are to be exported into a third country, the Customer is solely responsible for observing whether the (i) goods, (ii) third countries or (iii) individuals involved are subject to an official export restriction. Customer himself is fully and solely responsible for strictly observing the relevant regulations on export control and embargos for these Products, countries or individuals involved. In particular Customer will adhere to the export control regulations of the European Union (EU) and the individual EU member states as well as the United States (USA), if applicable.
Whenever Customer transfers Products delivered by AGNA to other recipients, Customer shall irrevocably require these recipients to comply with the foregoing and to inform them of the necessity to irrevocably comply with such legal provisions and provide evidence of fulfilling the obligation.
Customer guarantees to indemnify and hold AGNA harmless in respect to any and all costs, in particular of legal proceedings, expenses, liabilities or sanctions arising out of the violation of the above mentioned obligations of Customer.
14. Buyer Indemnity
Buyer shall defend, indemnify and hold harmless AGNA and its officers, directors, employees, agents, consultants, contractors, and affiliates from and against any and all losses, liabilities, damages, costs or expenses (including reasonable legal fees and costs) arising out of in connection with (i) Buyer’s breach of this Agreement, including without limitation Section 10 hereto, (ii) Buyer’s negligence, recklessness or willful misconduct or (iii) Buyer’s violation of any applicable standards of professional conduct.
15. General Conditions
- Neither Buyer nor any agent, employee or other representative of Buyer, shall have any right or authority whatsoever to assume, create, incur or otherwise effect any liability or obligation on behalf of or binding upon AGNA, including, without limitation, making any express or implied warranties relating to the Products beyond the scope of any warranties made by AGNA herein. Buyer shall inform its customers and other end users of the Products regarding the Terms and Conditions of Sale set forth herein.
- In no event shall AGNA’s acceptance of any purchase order or sale of any Products constitute a license in or transfer of any patents, patent applications, inventions, improvements, copyrights, trademarks, know-how, descriptive data or other intellectual property owned, licensed or otherwise used by AGNA in connection with the Products.
In the event that one or more provisions hereof should be held to be unenforceable in any respect, this document shall be construed as if any such unenforceable provision had not been contained herein.
17. Governing Law
These Terms and Conditions of Sale shall be governed by and construed in accordance with the laws of the State of North Carolina, United States of America, without reference to its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods is excluded and shall not apply.
Any controversy or claim arising out of or relating to the Products or to this Agreement, or the breach thereof, shall be settled by arbitration before a single arbitrator administered by the American Arbitration Association under its Commercial Arbitration Rules. The exclusive local for arbitration is Charlotte, North Carolina. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. AGNA and Buyer each agree, to the fullest extent permitted under applicable law, to bring claims against the other only in an individual capacity, and to waive any right to proceed or participate as a plaintiff or class member in any purported class or representative action or arbitration. Unless both AGNA and Buyer so agree, in writing, no arbitrator or judge may consolidate more than one person’s or entity’s claims or otherwise preside over any form of representative or class proceeding.
Customer may not assign, transfer or sub-license any or all of its rights or obligations with respect to the subject purchase order and/or these Terms and Conditions without AGNA‘s prior written approval. AGNA may assign, transfer or sub-license any or all of its rights or obligation under the subject purchase order and/or these Terms and Conditions without Customer´s approval.