General Terms and Conditions of Sale and Delivery

I. Scope of application

These General Terms and Conditions of Sale and Delivery (in the following "General Terms and Conditions") of Ovesco Endoscopy AG (in the following "Ovesco") apply under exclusion of all other terms and conditions to all business relationships with companies within the meaning of section 14 German Civil Code (Bürgerliches Gesetzbuch), legal entities under public law or a public special fund (in the following "Buyer").
On accepting the offer the Buyer acknowledges that these General Terms and Conditions apply to this business relationship and all subsequent business relationships with Ovesco.
Any agreements which differ herefrom – even if they are set out in the Buyer's order or have been agreed orally – will only form part of the contract if they have been expressly confirmed by Ovesco in writing. Any conditions of purchase or other conditions used by the Buyer are hereby expressly ruled out by Ovesco.

II. Offers and offer documents; right to make amendments; confidentiality

Ovesco's offers are non-binding. Ovesco will not be bound by the terms of any orders which are not based on a written offer submitted by Ovesco until Ovesco has expressly confirmed the order in writing.
Ovesco retains title and copyright in offer documents, cost estimates, illustrations, drawings, simulations, planning documents and other files and documents. The Buyer may not make them available to third parties and will return them without undue delay on request from Ovesco if a contract is not concluded. The Buyer must obtain Ovesco's express written consent before passing them on to third parties. This applies in particular to those files and documents which are marked "confidential". The Buyer further undertakes to keep Ovesco's business secrets and other confidential information of Ovesco confidential (confidentiality obligation) and to use them exclusively for the purposes of the cooperation (ban on exploitation).
In the interests of technical and medical development Ovesco reserves the right to make minor modifications to the design and execution of the goods even after an order has been accepted provided this does not unreasonably adversely affect the Buyer's interests.

III. Prices and payment terms

Unless otherwise agreed, all prices are ex works Tübingen (Incoterms 2020) plus prevailing statutory Value Added Tax and other taxes, customs duties, charges, levies packaging costs, freight and insurance costs in the currency indicated.
If, in accordance with the contract, delivery or performance is rendered more than four months after conclusion of the contract, Ovesco may adjust the price appropriately to the changes in the relevant collective wages and/or changes in the cost of materials which have occurred between conclusion of the contract and delivery. This also applies if a period of less than four months was agreed for delivery or performance, but due to reasons for which the Buyer is responsible Ovesco can only render performance more than four months after the order confirmation or order.
Payments must be made within 30 days of the invoice date, net and without deduction.
Bills of exchange will be accepted in payment subject to prior agreement and subject to the Buyer bearing any discount-related expenses. Payments may only be made to Ovesco's representatives if Ovesco has granted the representative written authority to collect.
The Buyer is only entitled to set-off and retention if its counterclaims have been established as final or absolute or are undisputed.

IV. Delivery deadlines; performance deadlines; part deliveries

Delivery deadlines and performance deadlines are only binding if Ovesco has expressly confirmed them in writing. Delivery deadlines and performance deadlines are duly extended if the Buyer has not satisfied cooperation duties incumbent upon it in due time or the Buyer demands changes to performance, unless Ovesco is responsible for the delay.
Compliance with delivery deadlines and performance deadlines is subject to the condition that Ovesco is supplied correctly and promptly by its suppliers, insofar as Ovesco is not responsible for the delay in delivery by its suppliers. Should it become apparent that delays are likely Ovesco will notify the Buyer as soon as possible.
Ovesco is entitled to make part deliveries to the extent that this can be reasonably expected of the Buyer.
If, after the contract has been concluded, there is a material deterioration or change in the financial circumstances of the Buyer due to which Ovesco's claim to consideration is jeopardised or if such a situation existed at the Buyer on conclusion of the contract but Ovesco only became aware of it afterwards, Ovesco may refuse performance until consideration has been provided.

V. Delay in delivery or performance

In the event of a delay in delivery or performance, Ovesco is liable in accordance with statutory provisions to the extent that the contract – in an exceptional case – is a "time is of the essence" contract or the Buyer is no longer interested in further satisfaction of the contract. In this case, if Ovesco has not acted with intent, and there has been no injury to life or limb or health, liability is restricted to foreseeable damage typical of this type of contract.
In the other cases, the Buyer can – in the event of a delay in delivery or performance – also demand reimbursement of any loss incurred by the delay in addition to performance. However, provided Ovesco has not acted with intent or gross negligence and there is no injury to life, limb or health the claim to compensation in addition to performance is restricted to 0.5% of the net price of the delivery or performance concerned per full week of default, and to a maximum of 5% of the net price of the delivery or performance concerned. This has no effect on the Buyer's right to withdraw from the contract after a reasonable period has elapsed and/or to compensation for non-fulfilment pursuant to clause VIII.

VI. Transfer of risk

The risk of loss or deterioration of the goods transfers to the Buyer when the goods are handed over for shipment, even if part deliveries are made. If dispatch is delayed for reasons for which the Buyer is responsible, the risk will transfer to the Buyer upon notification that the goods are ready for shipment.
If the Buyer does not accept the goods duly offered to it and if, as a result, Ovesco withdraws from the contract after expiry of a reasonable subsequent extension, Ovesco is entitled to a flat-rate compensation claim for loss of profit amounting to 30% of the respective order amount. Ovesco reserves the right to prove that the loss is higher

VII. Warranty

The Buyer must inspect the goods without undue delay after delivery and, if a defect is found, notify Ovesco of this in writing without undue delay, but no later than five (5) working days after delivery. The Buyer must notify Ovesco in writing and without undue delay of any defects which were not recognisable in the context of its due incoming goods inspection, however no later than within three (3) working days after discovery of the defects. Otherwise the goods are deemed to have been accepted unless the defect was maliciously concealed by Ovesco.
Unless otherwise agreed, Ovesco only guarantees compliance with the respective applicable specifications. In particular, Ovesco does not assume any warranty for the suitability for a specific purpose. Public statements, commendations or advertising by Ovesco do not constitute the contractual quality of the goods.
If the goods are defective on transfer of risk and if this was properly reported in accordance with clause VII 1., then the Buyer must set a reasonable deadline and, at Ovesco's choice, give Ovesco the opportunity to improve the goods or to deliver replacement goods ("subsequent fulfilment"). Otherwise, the Buyer is entitled to withdraw from the contract or to reduce the purchase price in accordance with the statutory provisions. The Buyer may only claim damages in accordance with the provisions of clause VIII.
Subsequent fulfilment does not include removal of the defective goods or reinstallation of the non-defective or repaired item or reimbursement of the associated costs if Ovesco's original obligations did not include installation.
The Buyer must have Ovesco or a party authorised by Ovesco carry out or commission such party to carry out the necessary maintenance work and the prescribed safety checks on the delivered goods, insofar as this is required in the operating instructions for the goods, at the specified intervals at its own expense. If Ovesco inquires in this respect and the Buyer cannot prove that it has had the maintenance and the prescribed safety checks carried out properly, all warranty claims to which the Buyer is entitled against Ovesco expire if the defect was caused by failure to carry out maintenance work or failure to perform safety checks.
If Ovesco feels that it is necessary to assess a defect in its own production facilities, the Buyer must send the goods to Ovesco in accordance with Ovesco's instructions and at Ovesco's cost.
Ovesco will not accept warranty claims if repairs and other changes were made by the Buyer or third parties acting on its behalf without Ovesco's express consent. Ovesco will not reimburse the Buyer for the costs of such repairs. Ovesco does not assume any warranty for damage caused by improper use, abnormal operating conditions, overloading or improper handling, unless Ovesco is responsible for such damage.
The Buyer may only assert further claims for damages in accordance with mandatory statutory provisions and the following provision in clause VIII.
The warranty period is 12 months from delivery of the goods. This period does not apply to damages claims of the Buyer pursuant to clause VIII. This does not affect the Buyer's claims in the event that Ovesco fraudulently conceals a defect or if Ovesco has expressly assumed a guarantee of the condition or quality of the property.

VIII. Liability

Ovesco is liable without restriction in the event of negligent injury to life, limb or health. Ovesco is also liable in the event of intent or gross negligence. However, if Ovesco has not acted with intent and there is no culpable damage to life, limb or health, liability is limited to foreseeable damage typical of this type of contract.
Ovesco is also liable in the event of culpable breaches of such duties which are material for fulfilling the contract and which the Buyer relies or is entitled to rely on being fulfilled. However, if Ovesco has not acted with intent and there is no culpable damage to life, limb or health, liability is limited to foreseeable damage typical of this type of contract.
Ovesco is also liable if a defect is fraudulently concealed or if a guarantee has been assumed. In the latter case, the extent of liability depends on the wording of the guarantee. Ovesco is also liable in instances of mandatory statutory liability, for example under the German Product Liability Act (Produkthaftungsgesetz) or the German Medicinal Products Act (Arzneimittelgesetz).
Unless otherwise stated in these General Terms and Conditions, Ovesco will not bear any other liability irrespective of the legal grounds.
Where Ovesco's liability is excluded or limited pursuant to the above provisions, the same will apply to the personal liability of Ovesco's corporate bodies, legal representatives, staff and vicarious agents.

IX. Reservation of title

Ovesco reserves title in the goods supplied (in the following "Reserved Goods") until the purchase price, all ancillary claims including costs of any accessories and spare parts, and any repairs or replacement parts have been paid in full.
Ovesco will retain title in the Reserved Goods over and above the scope set out in clause IX 1. until all older claims for deliveries and services have been settled. The last payment made will cause title to be transferred in all previous goods supplied. Title will be transferred in the sequence in which such deliveries were made or, in the case of repairs, the sequence in which they were invoiced and paid for in as far as these deliveries and services and any ancillary claims have been paid.
The Buyer will keep the Reserved Goods in which Ovesco has sole or co-title for Ovesco free of charge. The Buyer is required to treat the Reserved Goods with care.
In the event of conduct by the Buyer in breach of contract, in particular default with payment, Ovesco is entitled to reclaim the delivered goods and the Buyer is obliged to surrender them. Due to the retention of title, Ovesco may only demand return of the Reserved Goods if it has withdrawn from the contract.
The Buyer is not permitted to pledge or transfer the Reserved Goods by way of security as long as the reservation of title exists. In the event of seizure or any other third-party measure in respect of the Reserved Goods, the Buyer will notify Ovesco in writing without undue delay so that Ovesco can initiate legal proceedings pursuant to section 771 German Code of Civil Procedure (Zivilprozessordnung) and other measures to protect its title in the Reserved Goods. If the third party is unable to refund the costs incurred by Ovesco in or out of court in action pursuant to section 771 German Code of Civil Procedure, the Buyer will be liable for Ovesco's loss.
If the Reserved Goods are irreversibly combined or mixed using other items which do not belong to Ovesco, Ovesco will acquire co-title in the new item in the ratio of the value of the Reserved Goods (net purchase price) to the other items at the time of such combining or mixing. If the combining or mixing process takes place in such a way that the Buyer's item must then be regarded as the principal item, then it is deemed agreed that the Buyer will transfer co-title therein to Ovesco in the ratio of the value of the Reserved Goods (net purchase price) to the other combined or mixed constituents at the time of such combining or mixing. Ovesco hereby accepts the transfer.
Any processing of or alteration to the Reserved Goods by the Buyer will always be carried out for Ovesco. If the Reserved Goods are processed with other items which do not belong to the Buyer, Ovesco will acquire pro-rata co-title in the new item commensurate with the ratio of the value of the Reserved Goods (net purchase price) to that of the other processed items at the time of processing.
The Buyer may re-sell the Reserved Goods in the ordinary course of business. The Buyer hereby assigns to Ovesco any claims from the sale of the Reserved Goods irrespective of whether they have been further processed, combined or mixed in the amount of Ovesco's claim from the respective contract. Ovesco hereby accepts this assignment. The Buyer has a revocable right to collect the assigned claims. Ovesco's right to collect the claim remains unaffected. Ovesco will not collect the claims itself and will not revoke the Buyer's authorisation to collect the claims as long as the Buyer duly meets its payment obligations and does not fall into default with payment. For legitimate reason and at Ovesco's request the Buyer will notify its customers of the assignment and provide Ovesco with any information and documents which it needs to assert its own rights.
If the realisable value of the securities exceeds the claims secured by more than a total of 10% Ovesco will release securities at its discretion on request by the Buyer.
If the Reserved Goods are used at a place outside the Federal Republic of Germany the Buyer is obliged to inform Ovesco without undue delay of all statutory requirements for the creation and maintenance of Ovesco's reservation of title and without undue delay (i) to satisfy the requirements itself, in as far as legally possible, at its own cost or (ii) to support Ovesco in satisfying the requirements at its own cost.
If the law at the place of use does not recognise Ovesco's reservation of title but the law at the place of use does allow Ovesco to reserve a comparable security interest in the Reserved Goods this security interest is deemed to be agreed accordingly and Ovesco can exercise this security interest. The Buyer will collaborate with Ovesco in taking measures which Ovesco wishes to carry out to protect its right of title or, in lieu thereof, to protect another security interest.

X. Product liability; duty to provide information and to cooperate

If a claim is made against the Buyer by third parties on the basis of product liability due to defective goods, Ovesco will indemnify the Buyer against third-party claims insofar as Ovesco is liable to the third parties.
In the event of a product liability claim against the Buyer by a third party, the Buyer must inform Ovesco without undue delay and closely coordinate the further defence against the claim with Ovesco. The Buyer may not acknowledge any such third-party claims without Ovesco's express written consent.

XI. Place of performance; place of jurisdiction; applicable law

Place of performance and exclusive place of jurisdiction is the registered office of Ovesco in Tübingen. However, Ovesco is also entitled to file a claim against the Buyer at its general place of jurisdiction.
The law of the Federal Republic of Germany applies exclusively, the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.

XII. Other provisions

The Buyer is not entitled to assign or transfer rights or claims arising from the contract to third parties without Ovesco's prior written consent. The provision in section 354a German Commercial Code (Handelsgesetzbuch) remains unaffected hereby.
If a provision of these General Terms and Conditions should be or become invalid this will not affect the validity of the other provisions. The same applies if these General Terms and Conditions do not contain a provision that is actually necessary. The contractual partners will replace the invalid or unenforceable provision by whatever legally valid and enforceable provision most closely reflects the meaning and purpose of the invalid or unenforceable provision. If these General Terms and Conditions or the contracts are incomplete the contractual partners will conclude a contract with the content which they would have agreed to within the meaning of these General Terms and Conditions had they been aware of the omission when concluding the contract.

Revised: August 2019