I. Scope

1. These General Terms and Conditions of Sale apply to all delivery relationships concerning our customers (hereinafter referred to as “customers”) as well as to the corresponding pre-contractual relationships to such delivery relationships (e.g., relating to information, advice, etc.).

2. We do not recognise conflicting general terms and conditions or other contractual conditions imposed by customers. This also applies even if we accept or complete an order knowing that conflicting GTCs exist.

3. Any other general terms and conditions or contractual conditions only apply if we have agreed to their application in writing. In such cases, those other general terms and conditions or contractual conditions only apply to the specific conclusion of that contract and not to any additional future contracts, unless we have otherwise expressly agreed or confirmed in writing.

4. If we and our customers have concluded more detailed supply contracts with correspondingly longer contract texts in individual cases, those contracts take precedence; these General Terms and Conditions only apply insofar as they do not contradict those contracts.

5. These General Terms and Conditions of Sale do not apply to contracts with our distribution partners (e.g., distribution contracts) and do not apply to procurement on the part of Merete GmbH.

II. Conclusion of the contract, subject of the contract

1. Unless a contract is concluded by both parties in written or electronic form or by fax, it is concluded if and only if we provide written confirmation of an order placed by the customer by telephone or in writing, specifying the goods, prices, and delivery times to be delivered, or unless the customer has accepted an offer submitted by us in written, electronic, or fax form. An order confirmation usually results from the direct shipment of the goods and the delivery note, with simultaneous electronic transmission of the invoice. Transmission of an invoice (including in electronic form) is considered confirmation of order.

2. If a delivery is carried out on the basis of a customer order or request without prior confirmation, the contract is considered concluded upon delivery.

3. Our offers are subject to change unless they specify a commitment period. Our price lists are also subject to change without notice and are subject to regular adjustment. If, in accordance with Section II./2, a contract is concluded without an order confirmation / without an offer and acceptance in the form of delivery (Section II./1 p. 3), the price list applicable at the time of delivery completion shall apply.

4. All agreements and ancillary agreements to contract execution are included in our order confirmation in accordance with Section II./1 and/or offer and acceptance and these General Terms and Conditions (if applicable in conjunction with the current price list). These and these alone are decisive for the content of the contract. Verbal and written ancillary agreements, commitments or guarantees that deviate from these require the written consent of our management or our authorised signatories in authorised representative numbers in order to apply.

III. Delivery

1. Delivery periods begin on the date of order receipt, but not before any agreed advance payments are received and/or any other agreed conditions enter into force.

2. Without prejudice to our rights arising from delays in payment, delivery periods and deadlines shall be extended by a period equal to the period in which the customer fails to fulfil their obligations to us. This also applies if, through no fault of our own, the goods cannot be dispatched in good time following notification of readiness for dispatch (including through invoice submission).

3. We are not responsible for delivery delays caused by freight forwarders, logistics companies, etc. if the delivery was sent for intra-European dispatch at least 24 hours before the delivery date.

4. Shipping times for destinations outside of Europe are generally agreed upon separately.

5. Cases of force majeure and other unforeseeable events which we are not responsible for (e.g. labour disputes, disruptions to operations, measures by the authorities, transport problems) and which make delivery considerably more difficult or impossible for us, release us from the obligations arising from the relevant supply contract. In the event of temporary hindrances, however, we are only released from the obligations of the supply contract for the duration of the hindrance, plus a reasonable start-up period. If the customer cannot be reasonably expected to accept the delay, he may withdraw from the contract by written declaration after setting a written grace period.

6. We may fulfil customer orders through partial deliveries, which will then be confirmed through multiple partial invoices and delivery notes. Customer who do not agree to partial deliveries must immediately object in writing after receipt of the partial invoices and delivery notes. We are entitled to make partial deliveries even if the order was previously confirmed with a full invoice.

7. Deliveries within Germany are free of charge provided that the minimum order value of €100 is reached. The minimum surcharge of €20.00 shall be due in full on order values below the minimum. We shall decide on the type and route of transport at our sole discretion. Our goods are packaged for transport in an industry-standard manner. Customers who make binding requirements on transportation means and routes shall bear the delivery costs. Delivery terms on shipments outside of Europe are generally agreed and invoiced separately.

IV. Risk assumption

1. Generally speaking, risks related to material damage and price are only transferred to the customer upon delivery of the goods to the customer. Merete shall retain the risk of material damage and price via the carrier or insurance company from the time goods are handed over to the parcel or courier service until they are delivered to the customer.

2. Merete or the transport company shall be responsible for insuring the goods against transport damage and other risks. Any insurance we carry at the customer’s express request of the customer shall be maintained at the customer’s expense.

V. Pricing

1. Our prices are exclusive of applicable value added tax.

2. Additional and special services, in particular as a result of customer change requests, will be charged separately.

3. Our prices are based on the price list valid on the day of the order, which will be sent on request and is subject to regular adjustment. If any prices are not specified in an order confirmation or in the delivery note, or insofar as a contract is concluded implicitly through delivery without an invoice being sent, the price list applicable at the time of order confirmation or delivery execution shall apply.

VI. Terms of payment

1. Unless expressly otherwise agreed, payments must be made free of postage and charges within 30 days after receipt of invoice and without deduction. Repair invoices are generally due immediately after receipt without deduction. Payments shall be made in euros.

2. If any payment deadlines are exceeded, we are entitled to charge interest in the amount of 10 percentage points above the base rate per annum (Section 247 BGB [German Civil Code]). We reserve the right to claim further damages caused by delay.

3. Should the customer fail to adhere to payment deadlines, we are entitled to demand immediate payment of all our outstanding claims from other orders, regardless of the agreed due date, and also to make any outstanding deliveries contingent upon advance payment or security. In the event that payment / advance payment or security is not provided within two weeks, we shall be entitled to withdraw from the contract(s) without setting a new deadline. Further claims shall remain unaffected.

4. Customer payments are charged in accordance with the provisions of Sections 366 and 367 BGB. Conflicting instructions from the customer are disregarded.

5. For initial shipment at the beginning of a new business relationship, delivery may be made cash on delivery or with prepayment of the invoice amount.

6. Assertion of claims for reduction or other warranty or compensation claims for purposes of offsetting against our compensation claims is only permitted insofar as such counterclaims are undisputed or legally established.

VII. Retention of title

1. We reserve the right of ownership to all goods supplied by us (hereinafter referred to as “Reserved Goods”) until the customer has paid or settled the delivery price for the Reserved Goods and any otherwise existing or later claims, regardless of their legal basis, arising from the business relationship with us.

2. Until the consent is withdrawn, the customer is only entitled to resell, process and combine the Reserved Goods with other things (hereinafter referred to collectively as “re-sale”) in the ordinary course of business. Any other disposal of the Reserved Goods is not permitted. In particular, the customer is not entitled to pledge the Reserved Goods or to assign them to third parties as security. We must be notified immediately of pledges made by third parties. Any and all costs of intervention shall be borne by the customer.

3. The customer hereby assigns to us any claims they have against customers and/or debtors arising in conjunction with the resale or processing (including implantation) of the reserved goods or any other relevant legal basis affecting the reserved goods. The amount of the claim shall be equal to the invoice value of the reserved goods sold. To the same extent as the Reserved Goods, such claims serve as security for our receivables. If the customer sells the Reserved Goods with other goods not delivered by us for a total price, the assignment of the receivables from the sale shall be equal to the invoice value of our Reserved Goods sold. If the assigned receivable is included in a current invoice, the customer hereby assigns to us a corresponding part of the balance in the amount of this receivable, including the final balance from the outstanding account.

4. If the realisable value of the security existing for us exceeds the secured receivables by a total of more than 50% or exceeds the nominal value by more than 20%, we shall, at the request of the customer, be obliged to release securities of our choice.

5. Until the consent is withdrawn, the customer is authorised to collect receivables assigned to us. We are entitled to withdraw consent if the customer does not properly meet their payment obligations arising from the business relationship with us, or if circumstances become known to us which could considerably reduce the creditworthiness of the customer. This also applies to the revocation of authorisation to re-sell the Reserved Goods in the ordinary course of business operations, to process them and to combine them with other things. In the event of revocation, the customer must, at our request, immediately give notice of the assigned receivables and their debtors, give us all the information required to collect the receivables, hand over the relevant documentation and inform the debtor of the assignment. We are also entitled to give the debtor notice of assignment. In all other respects, the customer is not entitled to assign the receivables, even by virtue of our collection authorisation.

6. The customer is obliged to treat the reserved goods with care and to maintain them. We are authorised to insure the reserved goods at the customer’s expense against theft, breakage, fire, water and other damage, unless the customer has demonstrably taken out such insurance.

7. In the event of conduct by the customer which is in breach of contract, in particular in the case of non-compliance with payment dates, we shall be entitled to withdraw from the contract under Sections 323, 324 BGB. The same shall apply in the case of an application for opening insolvency proceedings on the customer’s assets, setting a deadline in this respect being unnecessary.

VIII. Liability for defects

1. The products and goods we supply comply with the technical product information and operating instructions, and are thus suitable for the intended use. The products have no additional suitability or properties.

2. No warranties or assurances regarding suitability, quality or possible uses are offered unless expressly specified in writing by authorised representatives in an authorised number.

3. Information provided in text or image form (e.g. descriptions, illustrations or drawings) through catalogues, brochures, presentations, patient information, other advertising material, our website, or in any other pre-contractual context does not constitute guarantees of quality or durability and thus does not constitute a quality agreement.

4. We are not liable for the success of the treatment options described. We are also not liable for improper and inappropriate use, in particular improper use by the customer or third parties or faulty or negligent treatment and handling, in particular by untrained personnel. In particular, the products and goods may only be used for the specified purpose and in accordance with the surgical instructions.

5. Even if samples or specimens have previously been provided, the customer is obliged to examine the delivered goods for completeness or correctness immediately upon receipt. The delivery will be considered approved if no complaint is received within 48 hours after receipt of the goods at the destination, or within 48 hours of its discovery if the issue was not detectable through a proper inspection. In any case, such complaints must made in writing, electronically, or via fax. If complaints concerning additional volumes are not submitted within 48 working hours of the goods being received at the destination, they are considered approved. Our external sales staff members are not authorised to accept such complaints.

6. The customer is responsible for storing the goods properly for the intended purpose and observing our directions, instructions and warnings. Within their area of responsibility, the customer must ensure that all relevant legal approvals and standards are present for the storage and use of the goods.

7. In the event of a justified complaint, the customer initially has only one claim to supplementary performance, which we may fulfil through our choice of either repairs or delivery of a defect-free item. If we elect to deliver a defect-free item, the customer must return the delivered, defective goods to us. We are entitled to refuse supplementary performance if it is disproportionate. If subsequent performance has failed (Section 440 BGB) or is previously rendered superfluous due to sentence 2, the customer shall be entitled to reduce the purchase price or, at its discretion, to withdraw from the contract. Claims for damages are generally excluded in this case; Section IX below shall apply in this respect.

8. If the customer accepts defective goods even though they are aware of the defect, they are only entitled to the rights and claims for defects if, upon acceptance, they reserve such rights and claims due to the defect.

9. Any claims of the customer due to defects in the goods, including consequential damage caused by defects, shall lapse within one year starting from the date of delivery. Liability for defects according to statutory provisions shall remain unaffected. Liability for defect-related claims is governed under Section X.

10. The customer’s claims due to defects cannot be assigned to third parties.

11. Defective goods may only be returned upon prior agreement with us.

IX. Liability

1. Our liability for breaches of duty or for other reasons is limited to damages resulting from intentional or grossly negligent actions or breaches of duty, including intentional or gross negligence on the part of our representatives and vicarious agents and/or damages resulting from injury to life, limb or health.

2. We are excluded from liability for (normal or minor) negligence unless it concerns the breach of essential contractual obligations; in such cases, liability is limited to damages typical for the contract whose occurrence was to be expected due to circumstances known to us. Liability for non-contractual or unforeseeable damage is excluded.

3. Irrespective of their legal basis, compensation claims expire within one year from the beginning of the statutory limitation period.

4. The above liability regulations apply accordingly to claims for compensation of futile expenses (Section 284 BGB).

5. The above provisions do not imply a reversal of the burden of proof to the detriment of the customer.

6. The mandatory provisions of the German Product Liability Act (Produkthaftungsgesetz) remain unaffected.

7. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, representatives and vicarious agents.

X. Place of performance, place of jurisdiction, applicable law

1. The place of performance and exclusive place of jurisdiction is Berlin. We are, however, entitled to bring action against the customer at their legal place of jurisdiction.

2. The relations between us and the customer are subject to the laws of the Federal Republic of Germany with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the rules of private international law.

3. Should individual provisions be ineffective or lose their effectiveness thanks to subsequent circumstances, the validity of the remaining provisions shall remain unaffected.