General Terms and Conditions - Aesculap, Inc.
Terms of Sale: These General Terms and Conditions (“Terms”) are an integral part of the purchase agreement (“Agreement”) between Customer and Aesculap and, together with the Agreement and the Schedules and Addenda attached thereto shall govern the purchase by and sale to Customer of Aesculap Products, and contains the entire agreement between Customer and Aesculap, and supersedes all prior proposals and agreements between the parties, whether oral or written, relating to the Products described or set forth herein. Notwithstanding the foregoing, Aesculap has the right from time to time to amend these Terms, and Customer agrees to be bound thereby. Both parties acknowledge and agree that the Agreement and these Terms supersede the terms and conditions of any purchase order used by Customer and, except for delivery instructions and quantities ordered, any conflicting or additional terms are void and have no effect, but that Customer may place orders by use of purchase orders for its convenience and to comply with its internal procedures and requirements.
Payment Terms: Payment terms are net thirty (30) days from date of invoice. Credit card payments will not be accepted without prior approval from Aesculap. Any taxes, fees or assessments imposed upon the Product, its sale, transportation, delivery, use or consumption shall be the responsibility of Customer. Customer’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. Balances remaining unpaid at due date are subject to a service charge of 1.5% per month or the highest rate permitted by law, whichever is lower, until paid. Any discounts, rebates, administrative fees, credits, or other fees due or owed to Customer will be applied against delinquent balances before payment or reimbursement is made. Any disputed amounts should be reported immediately and remitted with the undisputed amount by the payment due date. If Aesculap agrees with the billing dispute, Aesculap will credit Customer the amount of the agreed-upon billing dispute. All billing disputes must be made within six (6) months of the applicable invoice date or will be deemed to be waived. If payments are not made within the credit terms, or if Customer becomes insolvent or bankrupt, Aesculap, in addition to its other available rights and remedies, may withhold further shipment until all overdue balances are made current, and may require prepayment of future orders prior to shipment. Customer shall reimburse Aesculap for any costs and expenses incurred for collection of overdue amounts or enforcement of its rights, including without limitation, its reasonable attorneys’ fees, expenses and court costs.
Tax: Customer must provide Aesculap with a resale/exemption certificate in order to avoid the withholding by Aesculap of applicable taxes. No refund or adjustment to previously withheld taxes will be made by Aesculap sixty (60) days after the invoice date. Please mail proof of certification to: Aesculap, Inc.., 824 Twelfth Ave., Bethlehem, PA 18018-0027 or email to: TaxDepartment@aesculapusa.com.
Minimum Order: Orders received with a value of less than $100.00 will be subject to a handling charge of $25.00.
Returned Goods Policy: Product returns are subject to the following conditions:
- All returns are subject to the prior authorization of Aesculap, in its discretion. Customer must notify Customer Support at (800) 227-2862 and complete a Return Request Form. The Return Request Form requires lot numbers, quantities and catalog numbers along with a specific reason for return. Customer Support will either authorize or deny the request for return. Only items appearing on an approved Return document are acceptable for return. Product returns will only be accepted from the original purchaser. Product returns will not be accepted from third party return companies. Unauthorized returns will be destroyed and no credit issued. All authorized returned goods must be shipped freight prepaid to the Aesculap location indicated on the Return document with the Returns Goods authorization number (“RGR”), except Aesculap will pay freight costs for Product shipped-in-error.
- Returns that are authorized for Products shipped-in-error will not be subject to a restocking charge if returned within thirty (30) days of delivery. All other returns of Products must be made within sixty (60) days of the date of invoice. Except as noted above, all returns are subject to a 25% handling/restocking charge. Credit for Product returns (other than Products not eligible for return pursuant to paragraph 3 below) for unused Products returned in their original packaging and in resalable condition will receive full credit, less a 25% handling/restocking charge. Products returned without their original packaging will not be eligible for any credit.
- Certain Products are not eligible for return. These are:
a. Products which have deteriorated because of improper storage, handling, abuse or other factors,
b. Products which have been opened, partly used or which the labels or seals have been removed or tampered,
c. Products which have been involved in a special promotion sale,
d. Broken, damaged or opened cases. Resealed cartons are not eligible for return,
e. Special products made to Customer’s specification,
f. Sterile Products, and
g. Products that have been discontinued by Aesculap. - Returns made with respect to warranty claims shall be subject to Aesculap’s Product Warranty.
Expiration Date: On dated Products, the expiration date is shown as a month and year, e.g., August 2027, 8/27. The date of expiration is the last day of the given month, e.g., August 31, 2027.
Credits for returned goods are conditioned upon Aesculap’s inspection and approval of such goods upon their return. If Aesculap determines, in its discretion, that any returned goods are not eligible for return due to any of the reasons provided in paragraph 4 above, Customer will not receive a credit, even if a Return document was issued. No advance credits will be accepted.
Intellectual Property Rights: In all cases, all intellectual property rights in and to, and all technology relating to, the Products supplied to Customer, their design and all improvements thereto or thereof, whether or not such Product, design or improvement is made pursuant to Customer‘s specifications or at Customer’s expense, shall be and remain the exclusive property of Aesculap.
Warranty: Aesculap warrants to the original purchaser that each standard Product bearing the Aesculap name at time of delivery is free of defects in material and workmanship and, when used for the purposes and indications described on the labeling, is fit for the purposes and indications described on the labeling. All warranties for Products, including all accessories, consumables, and disposables shall expire one (1) year from the date of shipment from Aesculap except for Fiber Optic cables and all Video Accessory Cables that are warranted for ninety (90) days from the date of shipment.
Aesculap’s warranty hereunder shall not apply if: (i) a Product is not used in accordance with its instructions or if it is used for a purpose not indicated on the labeling; (ii) any repairs, alterations or other work has been performed by Customer or others on such item, other than work performed with Aesculap’s authorization and according to its approved procedures; or (iii) the alleged defect is a result of abuse, misuse, improper maintenance, accident or the negligence of any party other than Aesculap. The warranty set forth herein is conditioned upon proper storage, installation, use and maintenance in accordance with applicable written recommendations of Aesculap. The warranty furnished hereunder does not extend to damage to items purchased hereunder resulting in whole or in part from the use of components, accessories, parts or supplies not furnished by Aesculap. All warranties exclude periodic maintenance and repair or replacement of parts due to normal wear and tear.
Aesculap’s sole obligation and Customer’s sole remedy shall be to repair or replace, at Aesculap’s option, any defective component or Product and pay transportation expenses for such replacement. Customer shall provide labor for the removal of the defective component or item and installation of its replacement at no charge to Aesculap. Customer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or breach of warranty is discovered by Aesculap upon receipt of any returned item, the item will be returned to Customer at Customer’s expense and Customer will reimburse Aesculap for the transportation charges, labor and associated charges incurred in testing the allegedly defective item.
Aesculap warrants that any repair or refurbishment service that it performs will be performed in a workmanlike manner in accordance with industry standards. This warranty shall expire ninety (90) days following the completion of such service. The sole and exclusive remedy for a breach of this warranty shall be the re-performance of such service at no charge to Customer.
Except as expressly provided herein, Aesculap makes no warranty of any kind, expressed or implied with respect to any products, parts or services provided by Aesculap including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Products distributed, but not manufactured, by Aesculap are not warranted by Aesculap and Customer must instead rely on the representations and warranties, if any, provided directly to the Customer by the manufacturer of such Product. The sole and exclusive remedy for breach of any warranty is limited to the remedies provided in the paragraphs above. No agent, employee or other representative of Aesculap has the right to modify or expand the warranties herein, and no such modification or expansion should be relied upon by Customer.
Miscellaneous:
- Except as expressly provided herein, no changes to the Agreement or these Terms, or waiver thereof, shall be effective unless in writing and signed by both parties. Any failure by Aesculap to enforce any of its rights hereunder shall not be deemed to be a waiver of such rights, and Aesculap may, at its option, from time to time, enforce any of its rights herein. This Agreement binds Customer and its permitted successors and assigns.
- Aesculap will use its reasonable efforts to fill orders, but Aesculap shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, priorities, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, or other causes beyond its reasonable control. Customer agrees that in such events Aesculap may allocate Products among all customers, without liability.
- The Products are sold subject to Pennsylvania law, and any dispute or claim arising out of or relating to the Agreement, these Terms, or the sale of Product (“Claim”) shall be governed by the laws, but not the law of conflicts of law, of the Commonwealth of Pennsylvania. Such Claim shall be tried by a court and not a jury. Customer expressly and unconditionally waives its rights to a jury trial in any such Claim.
- Aesculap shall promptly deliver written notice or verbal, followed by written, notice of any recall of Product. Should the recall require Products be removed from the market, Aesculap shall, to the extent reasonably possible and at Aesculap’s option, replace any such recalled Products as soon as practicable with comparable Products not subject to such recall or repair any such recalled Products and return them to Customer.
- Customer may not change, adulterate, obscure, remove or deface trademarks, tradenames or labels appearing on any Product of Aesculap.
- Aesculap shall not be liable to customer for any indirect, incidental, special, consequential or punitive damages (including any damage for lost profits) arising out of or in connection with furnishing of products, parts or service hereunder, or the performance, use of, or inability to use any products, parts or service, or otherwise, whether based in contract, warranty, tort, including without limitation, negligence, or any other legal or equitable theory. Aesculap’s total liability for any claim or action shall not exceed the purchase price of the products out of which such claim or action arose.
- If the pricing hereunder constitutes a discount or other reduction in price under section 1128(b)(3)(a) of the social security act 42 U.S.C. 1320a-7b(b)(3)(a), and 42 C.F.R. § 1001.952(h), Customer shall disclose the discount or reduction in price to the full extent required under any state or federal program that provides cost or charge based reimbursement to Customer for products covered herein. This act requires, among other things, that Customer fully and accurately report on any claim or request for payment it submits to Medicare and Medicaid the actual purchase price paid by Customer for products, net of any discounts, rebates or allowances provided hereunder. Customer may also be required, upon request, to provide documentation of the discount or other reduction in price to the Secretary of Health and Human Services.
Shipping: Freight charges will be prepaid by Aesculap and added to the Customer’s invoice. Unless otherwise stated in an agreement, all shipments of Products will be made F.O.B. Origin. When expedited delivery, specialized service, or alternate transportation modes are requested, or if requests are inconsistent with efficient distribution practices, an additional charge to cover the premium expense will be added to the invoice. Aesculap will make partial shipments, which Customer shall accept and pay for at the prices specified on the invoice. Shipment schedules are approximate and are as accurate as conditions permit on the date such schedule is prepared. Aesculap assumes no liability for unforeseen delays in delivery of Products. Aesculap will provide proof of delivery upon request.
Damage or Loss in Transit: Identity of items and extent of damage or loss must be noted on Customer’s copy of the delivery document by the agent of the transportation company. If damage is discovered after receipt of shipment, notify the transportation company immediately and request that inspection be made and an inspection report rendered. Customer must report concealed shortages or damages within shipments to Aesculap Customer Support within 3 business days of delivery or credit will not be allowed. In addition, Customer must provide Aesculap with a copy of Customer’s claim request accompanied by a delivery receipt or an inspection report upon which the transportation company has properly noted such damage or loss, and Aesculap will issue a credit for the loss or damage and file a claim with the carrier. If such information is not received within 10 days of delivery, no credit will be issued.
Count and inspect your freight before the carrier departs. Damaged merchandise should not be accepted. Please forward all information to Attn: Distribution, Aesculap, Inc., 615 Lambert Pointe Drive, Hazelwood, MO 63042-2609.
For Order Placement Aesculap welcomes orders by telephone, fax, e-mail or electronically. For telephone orders, please call (800) 282-9000. Faxed orders should be sent to 610-791-6886. For repair orders, please call Aesculap Technical Services at (800) 214-3392.