General Conditions of Sales and Delivery
1. Scope of Application
1.1 These General Conditions of Sale and Delivery (hereinafter referred to as „GCS“) apply to all deliveries, services and offers of Medela AG, Lättichstrasse 4b, 6341 Baar/Switzerland (hereinafter referred to as „Medela“), provided that they have not been modified or excluded expressly and in writing. In case where Medela has concluded any written agreement with the Buyer, any condition of such written agreement shall supersede the corresponding clause of the GCS.
Conflicting or deviating conditions of purchase or other reservations made by the Buyer shall not be effective unless Medela has expressly accepted them in writing.
2. Conclusion of the Contract, Prices, Packing, Delivery, Transport, Insurance
2.1 Any offers of Medela are without obligation unless otherwise stated.
The contract is deemed to be concluded when Medela sends a written order acknowledgment accepting the Buyer’s order. If Medela has submitted to the Buyer a binding offer in writing stipulating an acceptance period, the
contract shall be deemed concluded if the Buyer sends a written acceptance before expiry of such period.
2.2 The Buyer shall inform Medela, upon placing the order at the latest, about the standards and regulations applicable to the execution of the supplies and services, to the operations of the plant as well as to the health and safety of personnel.
2.3 Unless otherwise agreed, all prices are net, ex works (INCOTERMS 2010) in Swiss Francs or Euros and do not include any freight, insurance costs, taxes, duties, assembling, installation or initiation. Airworthy packaging is included
2.4 The products will be packed by Medela.
2.5 Special requirements regarding forwarding and insurance shall be communicated to Medela in good time. Transport shall be at Buyer’s own expense and risk. Complaints with regard to transport shall be submitted immediately by the Buyer to the last carrier on receipt of the products or the shipping documents.
2.6 Insurance against risks of any kind is the responsibility of the Buyer. Even when taken out by Medela, it shall be at
the Buyer’s expense.
3. Time for Delivery, Delay, Cancellation of the Contract
3.1 The delivery time shall start to run as soon as the contract has been entered into effect and all technical points have been settled.
3.2 The delivery time shall be reasonably extended:
– if the information required by Medela for performance of the contract is not received in time or if the Buyer subsequently changes it;
– if agreed terms of payment are not met, letters of credits are opened too late, or the necessary import licenses are not received by Medela in time;
– if hindrances occur which Medela cannot prevent despite using the required care regardless whether they affect the Buyer or a third party. Such hindrances include, but shall not be limited to, epidemics, war, revolution, serious breakdown in the works, accidents, labour conflicts, late or deficient delivery by subcontractors of raw material, semi finished or finished products, the need to scrap important work pieces, breakdown of international transports, official actions or omissions by any state authorities or public bodies, natural catastrophes, acts of God.
3.3 If the delay exceeds 3 weeks and is caused by a fault of Medela the Buyer is entitled to claim liquidated damages, provided that the Buyer has suffered a loss as a result of such delay. If substitute materials can accommodate the Buyer, no damages can be claimed. Buyer needs to substantiate the incurred damages. In any case, damages cannot exceed 0.5% of the contract value per week of delay and the total damage claimed cannot exceed 5% of the contract value. Calculation of the damage will start with the 4th week of delay. If partial shipments have been effected, the damage will be calculated only on the value of the delayed part of the contract.
3.4 Buyer is not entitled to any other damages of delay except those stated in Subsection 3.3 above.
4. Terms of Payment
4.1 Unless otherwise agreed, all payments must be effected by advance payment or by irrevocable letter of credit confirmed by a reputed Swiss Bank.
4.2 Payments or Letter of Credits must be issued directly by Buyer or his customer. Any other payments or letter of credit from a third party are not acceptable.
4.3 In case of delay of payment, Medela is entitled to discontinue any further deliveries and to claim interest of 8% p.a. for any overdue amounts.
4.4 If any particular circumstances create considerable doubts regarding the Buyer's creditworthiness, all claims resulting from the whole business relationship shall become due immediately. Medela will inform Buyer in writing of such termination.
5. Plans, Sales materials, Secrecy
5.1 All intellectual property rights such as drawings, drafts and plans, etc. whether in print or in electronic form shall remain the property of Medela.
All sales materials such as catalogues, sample books, price lists etc. which have been placed at the Buyer's disposal, remain property of Medela and shall be returned to Medela on request.
5.2 Any documents pertaining to an offer, such as pictures, drawings, weights, measures, capacities or data on further
qualities and other information about the contractual products and services, are only binding approximately.
5.3 Descriptions and statements relating to the quality, ranges of uses or applications of the Products are governed by strict medical regulations and legislation. The Buyer accordingly agrees to not provide such statements of this nature to the public, especially not in promotion materials, without the prior consent of Medela.
5.4 The contractual parties agree to keep secret all commercial and technical details of their mutual business - as long as not in the public domain. This also applies to the items mentioned in Subsections 5.1 and 5.2, which also shall not be disclosed or made available to any third party.
5.5 The contractual parties shall also ensure that their subcontractors will be under the same confidentiality obligation as set out in Subsection 5.4.
6. Retention of Title and Ownership
6.1 Medela shall retain ownership of the goods supplied until full payment has been received. The Buyer shall take all necessary measurements for the protection of the proprietary rights of Medela.
6.2 Medela is entitled, with the Buyer’s participation, to apply for registration of the reservation of the proprietary rights.
7. Quality Management
7.1 The Buyer agrees to submit a written report to Medela without delay in the event of a defect in one of the Products that harms, or could have harmed a consumer or in the event of a repeated occurrence of an unusual defect.
7.2 If any of the Products are recalled, the Buyer shall inform the local authorities and ensure that all the Products concerned are taken off the market.
7.3 The Buyer agrees to keep a traceability record of each of the Products bearing a serial number. The traceability record shall contain the following information:
• Article number
• Serial number
• End user (name, address, manager, telephone number, e-mail address, if applicable)
• Delivery date /date of installation.
7.4 The Buyer shall ensure safe storage of such traceability reports in their entirety for a period of 13 years, commencing from the date of installation of the Products.
7.5 Medela has the right to control traceability records at any time.
7.6 Certain Products comply with Swiss, European and/or North-American regulatory requirements and quality standards. The Buyer agrees to register the Products if legislation applicable to the territory imposes requirements over and above these standards.
7.7 Nothing in this Agreement shall prevent the Buyer from complying with the law applicable to the territory.
7.8 The Buyer shall have all the documents that are required for the distribution of the Products, such as promotional materials, instructions for the use of the Products etc., translated into the official language(s) of the territory at his own expense.
7.9 The Buyer commits himself not to change the intended use of the products.
8. Customer Services
8.1 The Buyer shall provide adequate customer support and after-sales service.
8.2 The Buyer assures compliance with stipulations in Medela’s service instructions for all Products. The Buyer is entitled to undertake technical service and maintenance in accordance with the official Medela service manual.
8.3 The Buyer will keep records of all service work performed for a period of 13 years.
9. Conformity of Goods and Warranties, Exclusion of Liability
9.1 Medela warrants that the Products are free from defects and fit for their intended purpose.
9.2 Upon receipt, the Buyer must examine the goods without delay and shall notify Medela within 10 days in writing of any deficiencies. If the Buyer fails in doing so, the products shall be deemed to have been taken over.
9.3 If the goods do not conform to the contract, Medela may remedy the lack of conformity at first and at its own discretion within four weeks after the Buyer's request and, even if the defects are substantial, by repair or substitution delivery.
9.4 Faulty materials will be replaced or repaired by Medela free of charge during the warranty period if not resulting from abuse, misapplication or use with accessories not originating from Medela. In no event shall Medela be liable for claims which exceed the scope of warranty described.
9.5 Medela is entitled to specify the warranty period for each Product and the Buyer undertakes to pass on the warranty period specified in this manner to its customers. The Buyer also agrees to offer at least the same warranties to its customers as Medela grants for the specific Product.
9.6 Safe as stipulated in these conditions, Medela shall not be liable for any damages caused by defective products,
including losses of production, profit or other indirect losses whatsoever.
10. Code of Conduct
10.1 The contracting parties agree to fight against corruption and are committed to fair and open competition based on price and quality. They will not make any offer, gift, payment, remuneration or benefit of any kind whatsoever and considered as an illegal act or corrupt practice. Any act of this kind shall entitle Medela to terminate the present Contract with immediate effect.
10.2 Medela adheres to the code of conduct established by the United Nations Global Compact (www.unglobalcompact.com, www.medela.com) and expects Buyer to act accordingly.
11. Applicable Law, Court of Jurisdiction and Legal Venue
11.1 Rights and duties of either party are not assignable.
11.2 Modifications, amendments or further subsidiary agreements to these GCS are required in written form.
11.3 These GCS are interpreted and governed by substantive Swiss law.
11.4 For Buyers from member countries of the EU or EFTA, any disputes in connection with these GCS shall be finally and bindingly resolved by the ordinary courts of law in Zug/Switzerland.
11.5 For Buyers from any other countries, any disputes in connection with these GCS shall be finally and bindingly settled in accordance with the Rules of Arbitration of the International Chamber of Commerce, Paris, by one or more arbitrators appointed in conformity with the said Rules. Place of Arbitration shall be Zug, Switzerland.
11.6 In any case, Medela is entitled to invoke the state courts at the place of the Buyer in which case Subsection 11.4 or 11.5 above shall become obsolete.
11.7 Except as expressly stipulated in these GCS, all further contractual or legal claims against the Seller are excluded, especially claims for termination of the contract, price reduction or damages of any kind, including such damages
which have not incurred in the subject of delivery itself.
© Medela AG