General Terms and Conditions
1 General Regulations, Validity
1.1 These present General Terms and Conditions (“T&C”) apply exclusively for all business relations between Pregnolia AG (“Company”) and the buyer (“Customer”) in their version valid at the time of the order.
1.2 The subject matter of the business relation is, in particular, the sale and delivery of products ("Products") produced by the Company. The products sold by the Company to the Customer are described in the related Order Confirmation and are for use by the Customer in the country of delivery and not for export.
1.3 These T&C supersede all previous. We reserve 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.pregnolia.com].
1.4 Only these T&C are relevant for our deliveries. 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 we have expressively consented to their validity. This consent requirement also applies if we execute the delivery without reservation, being aware of the General Terms and Conditions of the Customer.
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 our written confirmation is decisive for the content of such individual agreements.
1.6 Legally valid declarations and notifications to be provided to us by the Customer after contract conclusion (e.g. setting deadlines, notices of defects), require the written form to be effective.
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 To accept the Order, a written confirmation (e.g. order confirmation) by us ("Order Confirmation") is necessary. With the acceptance of the Order, a contract is established between us and the Customer ("Contract").
2.4 The Company shall use commercially reasonable efforts to fill all Orders, but reserves the right to perform partial deliveries or to discontinue any Product with prior notice to Customer.
2.5 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.
2.6 Company is not liable for any loss resulting from its failure to supply Product to Customer, whether or not the inability to supply is under the control of Company or not.
3 Delivery, Deadlines, Delivery Delay
3.1 As far as nothing else has been agreed in writing, the Company sends the Product directly to the Customer. In doing this we are entitled – subject to any different written agreement – to determine the mode of shipment ourselves (in particular the carrier). If the Customer is in default of acceptance, this is equivalent to a delivery. If the Customer falls into default of acceptance or fails to cooperate or if our delivery is delayed for other reasons attributable to the Customer, we are entitled to claim compensation of the damage resulting therefrom, including additional expenses (e.g. storage costs, cost of preservation and protection of the Product).
3.2 The agreement of any delivery/service deadlines will be made individually and is only binding if the Company confirms the respective delivery/service deadline in writing when accepting the Order. A bindingly agreed delivery/service period does not start running until the reception of our written confirmation at the Customer.
3.3 As far as we cannot keep a binding deadline for reasons not attributable to us (so-called non-availability of Service), we will inform the Customer thereof immediately and indicate the expected new deadline. If the delivery is still unavailable within the new period, we or the Customer are entitled to withdraw from the respective Contract wholly or partially; we will immediately restitute any consideration provided by the Customer. A case of non-availability of the Service within this meaning is given, in particular, if we have not been supplied on time by our supplier but having concluded on time a congruent covering transaction (binding and sufficient ordering of the Product on time).
3.4 The occurrence of our default is subject to the legal provisions.
3.5 In principle, we are entitled to provide partial deliveries if this is necessary for logistic reasons and reasonable for the Customer. This shall be performed only with a previous notice to the Customer.
4 Examination of the Product
4.1 Damages on the outer packages are to be claimed immediately and directly with the carrier on the time of the receipt.
4.2 The precondition for any claims for defects of the Customer is that he has fulfilled his legal obligations of inspection and complaint (art. 201 OR, Code of Obligations). For this sake, the Customer will carefully inspect the delivered Product immediately after its reception.
4.3 The Company will investigate claims submitted for shipment irregularities such as incorrect quantities. These claims must be provided to Company with a signed notation of irregularity on the delivery receipt. The claim and signed notation must be received by the Company within 3 days after receipt of the goods at the destination. Logistic Claims received after 3 days will not be investigated, honored or paid. When the Customer makes a claim, all shipping cartons and packing material must be retained for examination by the Company and/or insurance company.
4.4 The Customer will notify any hidden defects to us immediately, but at the latest within fifteen (15) days from detection of the hidden defect, in writing. To keep the deadline, it is sufficient to send off the notification of defects in time. If the Customer fails to notify the defect or if the notification of defects is late, the Product is deemed approved. Our liability for any defect which has not been notified on time is excluded.
4.5 If the Customer detects a defect of the Product during the use, he will stop any usage of the Product immediately after the detection of the defect and inform the Company immediately in writing.
5 Prices, Payment
5.1 Unless anything different has been agreed in writing in the individual case, our 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. The costs for the packaging required for transport will be listed separately unless otherwise agreed in writing. The other costs for transport, dispatch, insurance and fees, taxes (except for VAT) and other public duties are excluded in the respectively valid prices unless otherwise agreed (ex-works). As far as the Product is delivered on pallets and/or in containers and these loading aids are not exchanged, we will charge the Customer for these pallets and/or containers.
5.2 Payments must be made in Swiss francs. The amount is due and payable net within thirty (30) days from the invoice date.
5.3 The Customer only has any rights of set-off or retention as far as his claim is legally confirmed or undisputed. In case of defects of the delivered Product, the counter-rights of the Customer, in particular according to No. 8 of these T&C, remain unaffected.
5.4 We reserve the ownership of the delivered Product until the reception of all payments from the business relation with the Customer.
6 Default of Payment, Payment Difficulties
6.1 At the expiry of the above-mentioned (cf. No. 5.2 of these T&C) payment deadline, the Customer falls into default without a reminder (Expiration Day). During the period of default, the amount to be paid is subject to the respectively applicable interest rate of 5%.
6.2 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 us, we are 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 us. Any further legal rights to claim damages instead of performance or compensation for expenses remain unaffected.
7 Product Safety
7.1 Pregnolia AG sells medical devices and accessories that have received market authorization and we make efforts to guarantee the best possible safety with respect to our Products.
7.2 These Products are designed and authorized for use under the terms of explicit protocols. An insert with Instructions For Use (“IFU”) is included with each Product.
7.3 For purposes of patient safety and efficacy, and in compliance with market authorization, it is important that all Products be used as instructed. The Products, where required, are provided in sterile packaging and depending on the Product, may be for single or multiple use.
7.4 The use of any Product for other than the intended and approved purpose, or in a manner inconsistent with its IFU, may result in its structural integrity being compromised and/or lead to device failure, which in turn might result in patient injury.
7.5 The Customer shall ensure an appropriate storage and, if applicable, an appropriate further transport of the Product – in particular in compliance with our instructions.
7.6 As far as the Product is sterilized Product, it is only destined to be used once and is correspondingly marked by us as ”do not re-use” product (Disposable Product). These Disposable Products are not suitable for reuse. In light of these risks, we explicitly issue a warning of the reuse of Disposable Products.
7.7 Sterilization of the Products by the Customer is not authorized, as it will lead to incorrect functioning of the Product and may create risk of contamination and/or cause patient infection or cross infection, including transmission of infectious disease(s) from one patient to another, and may also lead to patient injury and unknown risks an harm.
7.8 Any Product sold by the Company must be used as intended and approved, and in a manner consistent with its related IFU and training material (incl. video). The Customer will indemnify Company for all liabilities and costs incurred as a result of any use inconsistent with the IFU, including legal expenses of defending any action.
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.
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 that the Products are free from defects in material. Unless otherwise specified in writing, this warranty is limited to two (2) years from the date of delivery of Products or, if applicable, 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 can first choose whether the Company provides supplementary performance by correcting the defect (rework) or by delivering an object free from defects (replacement) at no cost to the Customer.
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 unauthorized, improper or inadequate servicing or maintenance 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 we have 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 our employees, representatives and other agents.
9 Returned Goods
9.1 The return of defective Products by the Customer shall only take place after the communication of such intention to the Company as per Section 4 and 8 of these T&C.
9.2 Upon notification, the Company shall communicate the return instructions (packaging, carrier) to the Customer.
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 Product on the basis of the retention of title and the withdrawal. If the Customer does not pay the due purchase price, we may exercise these rights only if we have 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 Zürich, Switzerland, as far as no other places of jurisdiction are mandatory. We are 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.
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 in the terms of art. 20 OR.
Version: May 2019