1.1 The present general terms and conditions shall be binding and form an integral part of the relationship between Partner and Schaerer Medical AG (Manufacturer), if declared applicable in Manufacturer’s offer or elsewhere.
1.2 No change or variation of these conditions by Partner shall be binding and valid unless expressly confirmed in writing by Manufacturer.
2.1 Unless otherwise stipulated,
- Manufacturer’s offers shall be valid for 3 months after the offer date;
- catalogues, brochures and price lists are not binding.
2.2 A contract shall be deemed to have been entered into upon the Partner’s receipt of Manufacturer’s written acknowledgment of the order.
2.3 Offer documents and technical documents remain Manufacturer’s property and may not be used by the Partner for purposes other than those for which they were handed over. They may not be brought to the attention of third parties without Manufacturer’s previous written consent.
3. Regulations in force in the country of destination
When placing the order, the Partner shall inform Manufacturer about the standards and regulations applicable to the supplies and services, as well as to the health and safety of personnel.
4.1 Unless otherwise agreed upon, all prices for supplies shall be deemed to be net. Ex works EXW (Incoterms International Commercial Terms). VAT shall be charged in addition.
4.2 Any and all additional charges and taxes, such as, but not limited to, freight charges, insurance premiums, fees for export, permits, certification, taxes and customs duties, L/C fees as well as packing cost shall be borne by the Partner or refunded to the Manufacturer by the Partner.
5. Passing of benefit and risk
The benefit and the risk of the supplies shall pass to the Partner by notice that the goods are at the disposal of the Partner at the premises of the Manufacturer. In case delivery is delayed at the request of the Partner or due to reasons beyond Manufacturer’s control, the benefit and risk shall pass to the Partner at the time mentioned in the notice of disposal.
6.1 Payment shall be made by the Partner in Euros (EUR) or Swiss Francs (CHF) at Manufacturer’s domicile according to the agreed terms, with no deduction whatsoever, in advance or secured by an irrevocable letter of credit (L/C) confirmed by a major European bank. L/C fees will be charged in addition.
6.2 If the Partner delays in the agreed terms of payment, it shall be liable, without any further notice, for interest with effect from the agreed date on which payment was due at a rate of 5% per annum (Usance 360/360). The right to claim further damages is reserved.
6.3 If the advance payment or any contractually agreed securities are not provided in accordance with the terms of the agreement, or if Manufacturer is seriously concerned about him not receiving payment at all or in due time because of altered circumstances, Manufacturer shall be entitled to either adhere to or to terminate the agreement and shall in both cases be entitled to claim damages, in addition to the interest (6.2), including damages for delay. In case Manufacturer decides to terminate the agreement, he shall be entitled to claim damages for loss of profits.
The products supplied to the Partner are subject to reservation of title in favour of Manufacturer in accordance with the local laws where the supplies have been sold to, until the purchase price has been paid in full. The Partner shall commit himself to participate in the formalisation of the reservation of title. The reservation of title shall be also applicable in case of bankruptcy of the Partner.
In such case, the Partner shall inform the appropriate authorities about the reservation of title.
8. Delivery time, Delivery and Traceability
8.1 Compliance with the delivery time is conditional upon the Partner’s fulfilling its contractual obligations, such as, e.g. respecting the terms of payment, giving of securities or delivering technical information.
8.2 If the Partner is in default as far as his own contractual obligations are concerned, or if hindrances are occurring which Manufacturer cannot prevent despite using reasonable care, Manufacturer reserves the right to prolong the delivery term accordingly.
8.3 The Partner shall not be entitled to claim damages for delayed delivery unless he can prove that they have been caused through Manufacturer’s fault. Payment of liquidated damages is excluded.
8.4 Any delay of the supplies does not entitle the Partner to refuse delivery or payment of price, or to terminate the agreement. This limitation does not apply to cases of unlawful intent or gross negligence of Manufacturer.
8.5 Manufacturer and Partners are required to keep record of the end user of the product according MDD 93/42/EEC, MDR 2017/745 and ISO 13485. Therefore, Partner is obliged to provide information about the end-customers where the products are installed according Order Confirmation. In order to keep the warranty claim according to section 9 Partners are obliged to provide the Serial Number of the product, the full address and contact person of the end user.
The Manufacturer will decline warranty claims of products, where end-user information is missing.
9.1 The warranty period for tables is 2 years, for accessories and spare parts (under consideration of section 9.3-9.7) 2 years. It starts at the date the respective invoice is sent to Partner, but in any event no later than at the moment of notice of disposal according to section 5.
In order to guarantee the warranty period of 2 years, the customer is obliged to plan and carry out the Annual Service by a certified technician within the guaranteed period. The date of the Annual Service shall be planned every year within 2 months after the table is at initial operation. The Annual Service within the warranty period has to be reported by using the Form TPP-10164 arcus and TPP- 10163 axis.
9.2 Upon written request of the Partner, Manufacturer undertakes at Manufacturer's choice to either repair or replace as quickly as reasonably possible any parts of the supplies which, before the expiry of the warranty period, are proved to be defective due to bad material, faulty design or poor workmanship. Replaced parts shall become Manufacturer’s property. Manufacturer shall bear the cost for repairing the defective parts in his workshop. If the repair cannot be carried out in the Manufacturer’s workshop, the Partner shall bear the related cost to the extent they exceed the customary cost for transport, personnel (incl. travelling and living cost), dismantling and reassembling of the defective parts.
9.3 Excluded from Manufacturer’s warranty are all pads, remote controls and batteries. Further excluded are any and all defects caused by incorrect use, accident, misuse, unauthorised alteration or other improper actions (such as disregarding the operating instructions or excessive loading). Maintenance is to be carried out by the Partner in the intervals prescribed by the Manufacturer.
For warranty of third-party equipment and accessories please refer to section 9.4.
9.4 Manufacturer does not assume warranty for defects as far as supplies and services of subcontractors requested by the Partner are concerned. For supplies or parts of supplies requested by Manufacturer the Manufacturer only assumes warranty for third- party equipment and accessories within the limits of the subcontractor warranty.
9.5 As far as any defective design, material or workmanship, as well as any failure to fulfil express warranties are concerned, the Partner shall not be entitled to any rights and claims other than those expressly stipulated in clauses 9.1-9.4.
9.6 Manufacturer will only be liable as far as claims arising out of any additional obligations are concerned in case of unlawful intent or gross negligence.
9.7 The Partner will check the supplies immediately but at the latest 10 days after receipt. In case of defects of the supplies the Partner must inform the Manufacturer in written form with a detailed description of his claim. If he fails to do so, the supplies are to be considered as accepted and all warranty claims with respect to such defects are forfeited.
10. Service and Maintenance of Schaerer Medical products
10.1 Every Partner of the Manufacturer is required to ensure the function of the products at the end customer facility. Therefore, every Partner is obliged to have his own staff trained on the product. For this purposes, the Manufacturer organises trainings for Service Engineers on a regular basis. A factory trained Service Engineer will get a certificate which is valid for 5 years. After 5 years, a refresher training from the Manufacturer is mandatory.
10.2 Every User Manual of any Schaerer Medical product gives recommendations for Annual Services. In order to keep the Schaerer Medical product in good working condition after the guarantee period of 2 years, an annual service call is mandatory.
10.3 To ensure the warranty conditions of spare parts (2 years), the Partner is obliged to send the damaged spare part together with the form Customer Notification FO-0402 back to the Manufacturer.
The Manufacturer therefore highly recommend to start doing such calls and report such works to the Manufacturer. The Partner is also requested to report with the form Work Report FO-0167 such calls to the Manufacturer by providing the product name, serial number and end customer information. The Manufacturer will keep track of those reports by Serial Number. Failure of conducting and reporting such calls may result in refusal of warranty claims in the future.
The Partner is obliged to clean and disinfect the supplies to be returned in accordance with the current and valid regulations. A certificate/confirmation of cleaning and disinfection has to be included in the shipment. Shipments without such confirmation will be considered as hazardous and will be discarded. Moreover, the Partner is required to return the items on loan in the original packaging. In case of non-compliance, supplies will not be accepted by Manufacturer, resp. returned and the Partner shall bear all related cost.
12. Non-performance, bad performance
12.1 In all cases of bad performance or non-performance which are not otherwise expressly covered by these general terms and conditions, the Partner shall grant a reasonable additional period for the supplies and services affected thereby by simultaneously warning to terminate the agreement in case of non-compliance. If such additional period lapses due to Manufacturer’s fault (which shall be proven by Partner), the Partner shall be entitled to terminate the contract with respect to the supplies or services executed contrary to the terms of the agreement, and to claim a refund of the payments already made for the respective supplies or services.
12.2 In such case, any claim for damages shall be limited to 10% of the contract price of the supplies and services affected by the termination.
12.3 In no case shall the Partner be entitled to claim damages other than compensation for cost of repairing defects in the supplies. This particularly, but not exclusively, refers to loss of production, loss of use, loss of orders, loss of profit and other direct or indirect or consequential damage.
12.4 The limitations in clauses 12.2 and 12.3 shall not apply in case of wilful intent or gross negligence on the part of the Manufacturer.
If any provision of these general terms and conditions are deemed, found or held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of these general terms and conditions shall remain in full force and effect and these general terms and conditions shall be construed in all respects as if such invalid, illegal or unenforceable provision were omitted.
14. Jurisdiction and applicable law
The courts at the registered domicile of the Manufacturer in Muensingen shall have exclusive jurisdiction to adjudicate any and all disputes arising out of or in connection with the present Agreement. However, the Manufacturer shall also be entitled to avail himself of the general forum of the Partner.
Schaerer Medical AG
CH-3110 Muensingen, Switzerland
Phone +41317202200 / Fax +41317202230
© Schaerer Medical AG, December 17th, 2020