General Terms and Conditions of Sale
1 General Regulations, Validity
1.1: These present General Terms and Conditions of Sales (“T&C”) apply exclusively for all business relations between Aspivix SA (“Company”) and the buyer (“Customer”) in their version valid at the time of the order, unless otherwise stipulated as a result of a written agreement duly signed between the Company and the Customer.
1.2: The subject matter of the business relation is, in particular, the sale and delivery of Products ("Products") produced by the Company.
1.3: These T&C supersede all previous T&C that may have been provided to a Customer at a previous date. The Company reserves the right to adapt the T&C if necessary. Adaptations may occur, in particular, in case of respective invalidity or ineffectiveness of existing provisions or adaptations of laws or standards. The respectively current version of our T&C can be accessed via our website [www.aspivix.com]. Any additions, crossing out, amendments, or deletions made to these T&C that are not approved by the Company are null and void.
1.4: Only these T&C are relevant for deliveries from the Company. Any deviating, contradicting or complementary General Terms and Conditions of the Customer will only become a part of the contract if and as far as the Company has expressively consented to their validity.
1.5: Any individual agreements with the Customer concluded in the individual case, including side agreements, amendments and/or modifications, prevail over these T&C in each case. A written contract or the Company’s written confirmation is decisive for the content of such individual agreements.
2 Ordering Terms and Fulfilment
2.1: Our offers are always nonbinding and without obligation.
2.2: The Customer’s purchase order is deemed a binding contract proposal ("Order").
2.3: Any order must indicate the Company’s reference for the Products ordered, the quantity ordered at the prevailing rate, the delivery address and the invoicing address.
2.4: The Customer can only place an order for delivery sizes as specified by the Company in accordance with the packaging imposed by the Company.
2.5: To accept the order, a written confirmation (e.g. order confirmation) by The Company ("Order Confirmation") is necessary. With the acceptance of the order, a contract is established between the Company and the Customer ("Contract").
2.6: The written confirmation is decisive for the content of the Contract, even if it shows minor or customary deviations from the order. Such deviations are deemed accepted by the Customer if the Company does not receive a written objection of the Customer within five (5) days from his reception of the written confirmation. In case of congruence of the Order and the written confirmation, the Customer has no right to claim any objections.
3 Delivery, Deadlines, Delivery Delay
3.1: The delivery is made either by the direct handover of the Products to the Customer, or to the place indicated by the Customer on the order, through a carrier designated by the Company. Under no circumstances will the carrier be authorised to provide other services than the delivery of the order in the strict sense. Deliveries are made at the door of the Customer’s delivery address.
3.2: The Customer agrees to pay the freight charges for the delivery, that the Company will invoice to the Customer as part of the sales order.
3.3: The delivery lead time proposed to the Customer by the Company is only given for information purposes, and depends on the Company’s supply and transportation availabilities. If lead times are not met, this cannot result in damages, withholdings, or cancellation of the open orders.
3.4: The Company shall use commercially reasonable efforts to fill all orders, but reserves the right to perform partial deliveries with prior notice to Customer.
3.5: The Company is not liable for any loss resulting from its failure to supply Products to the Customer, whether or not the inability to supply is under the control of Company.
4 Examination and Acceptance of the Product
4.1: Acceptance occurs when the Customer signs the delivery receipt.
4.2: The Customer is responsible for checking that the Goods are in good condition at the time of delivery in terms of quality, quantities, references of the Goods and compliance with the order. No complaint will be accepted after a period of five days from the day of the delivery.
4.3: The Customer shall check the Goods delivered on arrival and, where applicable, make any reservation in the event of damage or missing items. It is the Customer’s responsibility to assist in exercising any right of recourse against the carrier that the Company may have. In the absence of such reservations, the Goods will be deemed accepted by the Customer.
4.4: The Customer undertakes not to delay acceptance of the goods.
5 Prices, Payment
5.1: Unless anything different has been agreed in writing in the individual case, the prices valid at the moment of the order according to the order confirmation sent to the Customer in writing apply, plus legal VAT, if applicable.
5.2: The Company shall charge carriage fees by re-invoicing freight costs from the freight forward the Company has chosen, in case no pick-up of the Products has been agreed with the Customer and with the freight forwarder of the Customer’s choice.
5.3: Any tax, duty, fee or other service provision to be paid pursuant to applicable regulations, or those of an importing country or a transit country are payable by the Customer.
5.4: Payments must be made in the currency listed on the invoice. If the payment is not made upfront the amount is due and payable net within thirty (30) days from the invoice date.
6 Default of Payment, Payment Difficulties
If an essential deterioration of the financial situation of the Customer occurs after conclusion of the contract, within the meaning of art. 83 OR (Code of Obligations), which is given, in particular, in case of an application for insolvency proceedings or the cessation of payments to the Company, the Company is entitled, according to the legal provisions, to exercise a right to refuse performance for all outstanding deliveries and/or, after setting a grace period without success, immediately withdraw from the contract (art. 83 par. 2 OR). This also applies if the Customer is in default with an essential part of the payment obligations towards the Company. Any further legal rights to claim damages instead of performance or compensation for expenses remain unaffected.
7 Product Safety
7.1: The Company sells medical devices that have received market authorization, and makes all efforts to guarantee the best possible safety with respect to the Products.
7.2: Any Product sold by the Company must be used by Healthcare Professionals as intended and approved, and in a manner consistent with its related Instruction For Use (IFU) and training material (incl. video).
7.3: If the Customer detects a defect of the Product during the use, he/she will stop any usage of the Product immediately after the detection of the defect and inform the Company immediately in writing, via email at complaint@aspivix.com.
7.4: The Customer undertakes to comply with, and to ensure compliance with, the storage requirements and directions for use that appear on the packaging and in the documentation accompanying the Products. If these requirements/directions should not be complied with, the Company would be entitled to take all measures to guarantee the quality level and the reputation of its Goods, to cancel the open orders and, for subsequent orders, to refuse the Customer’s orders. In all cases, the Company may not be held liable, for any reason whatsoever, each time that these directions for use have not been strictly complied with.
8 Warranty and Liability
8.1: The Company’s guarantee of the Products is strictly limited and is restricted to the Products and their manufacture in conformance with good manufacturing practices and applicable laws. No other warranty or condition shall be implied, including and without limitation, a warranty or condition as to quality or fitness for a particular purpose. The Products are guaranteed in accordance with the particulars stated on the packaging relating to the period for using and keeping them.
8.2: The Customer’s rights in case of defects of quality and title are subject to the legal provisions, as far as nothing else is provided for below.
8.3: The Company warrants the Products to be free from defects in material and workmanship under normal use when used prior to their expiration date. Unless otherwise specified in writing, this warranty extends until the expiration date of the Product.
8.4: Any deviations of the delivered from the purchased Product with respect to external appearance, weight and/or dimensions of the Product are negligible if and as far as these deviations (i) are customary or technically unavoidable if the norm provisions and laws are still fulfilled, (ii) represent a further technical development if the norm provisions and laws are still fulfilled, or (iii) are caused by a change of the legal provisions or other regulations. The Customer is free to prove that such deviations are significant for him. Insignificant deviations do not represent a defect.
8.5: If the delivered Product is defective, The Company must be notified in writing, via email at complaint@aspivix.com. Purchaser will be responsible for completing appropriate return process according to the directions provided in the email from the Company. The Company’s only obligation under this warranty is the replacement of the defective Product and the Company will not be liable for any incidental or consequential damages.
8.6: The expenses necessary for examination, in particular transport, labour and material costs, will be borne by the Company if a defect really exists. If, however, the Customer’s demand for correction of a defect turns out to be unjustified, the Company can claim compensation by the Customer for the costs therefore incurred.
8.7: The Company’s warranties do not apply to Products that have been subjected to alteration, misuse, damage or otherwise used in a manner that is inconsistent with the Product’s IFU. In such cases, the Customer is not entitled to claim defect rights.
8.8: As far as nothing else can be inferred from these T&C including the subsequent provisions, the Company is liable according to the applicable legal provisions in case of a breach of contractual and non-contractual obligations.
8.9: The Company’s liability is excluded when the Products are used in a manner that is inconsistent with the Product’s IFU, and/or when warnings and/or safety precautions set out in the IFU are not followed.
8.10: The Company is liable for compensation – no matter on which legal grounds – in case of intent and gross negligence. Any liability for slight negligence is excluded.
8.11: The limitations of liability resulting from point 8.10 of these T&C do not apply as far as the Company has fraudulently concealed a defect or assumed a quality guarantee. The limitations of liability do not apply either to any claims of the Customer according to the Product Liability Act nor in case of any other compulsive provisions.
8.12: As far as our liability is excluded or limited, this also applies to the personal liability of the Company’s employees, representatives and other agents.
9 Returned of Products
9.1: Apart from the Product declared defective as per definition found in above article 8, only the Products damaged during delivery or delivered in error by the Company can be returned, subject to the Company’s prior written agreement and compliance with the conditions described in Article 9 below.
9.2: Subject to the Company’s agreement as mentioned above, the Company is responsible for the costs of and risks relating to a return. Upon notification, the Company shall communicate the return instructions (packaging, carrier) to the Customer.
9.3: The Customer will return Products in their original box per the initial packaging, without markings and with an expiry date of more than 30 days. No exchange will be made or credit note issued if the Customer does not comply with the above-mentioned provisions.
10 Right of Withdrawal
In case of a breach of contract by the Customer, in particular in case of a failure to pay the due invoice, the Company is entitled to withdraw from the contract according to the legal provisions and to claim a return of the Products on the basis of the retention of title and the withdrawal. If the Customer does not pay the due purchase price, the Company may exercise these rights only if the Company has already granted the Customer an appropriate grace period for payment without success or if such a grace period is not necessary according to the legal provisions.
11 Place of Jurisdiction, Applicable Law
11.1:
The
exclusive – also international – place of jurisdiction for all disputes
directly or indirectly arising from or in relation to the T&C or the legal relations between the Company and the Customer
is the Canton Court of Vaud, Switzerland, as far as no other places of
jurisdiction are mandatory. The Company is also entitled, however, to file a suit at the
general place of jurisdiction of the Customer.
11.2:
Swiss
law applies to these T&C and all
legal relations between the Company
and the Customer.
12 Severability
If
any individual clauses of these T&C
are or become wholly or partially invalid, unenforceable or void, this does not
affect the validity of the remaining clauses.