Terms and Conditions

1.1

The following General Terms and Conditions apply, to the exclusion of all others, to all offers, deliveries, and services of Oxyphen GmbH (hereinafter “Oxyphen”) in the absence of any other expressly written agreement.

1.2

The contract shall be concluded upon receipt of written confirmation from Oxyphen with the accepted order confirmation.

1.3

These General Terms and Conditions shall be binding if they are declared applicable in the offer or the order confirmation. General Terms and Conditions of the ordering party shall not be applicable, even if referred to by the same.

2.

Deliveries and services provided by Oxyphen shall be definitively listed in the order confirmation, including any supplements thereto..

3.1

The price for the goods shall be the price stated in the order confirmation or master contract.

3.2

Oxyphen reserves the right to make later changes to the price stated in the order confirmation for order confirmations with a delivery date more than four months after the date of receipt thereof. Should the ordering party not accept the price increase, the previously concluded contract shall be void.

3.3

All prices are quoted net, ex works Lottstetten (Incoterms® 2020), including normal packaging, without any deductions, and plus any sales tax that may be due.

4.1

Payments shall be made by the ordering party in accordance with the agreed payment terms at Oxyphen’s domicile, without any deduction of discounts, expenses, taxes, levies, fees, customs duties, and the like.

4.2

Should the ordering party default on payment, all of its payment obligations arising from the business relationship with Oxyphen shall become due for immediate payment. In this event, Oxyphen shall be entitled to require payment of interest at the statutory rate from the relevant date onwards. It reserves the right to prove that greater damage has been incurred.

4.3

The ordering party may not retain payments, especially not in the event of delays in delivery or complaints. The ordering party shall be entitled to offset payments only if its counterclaims have been definitively established as final and absolute by a court of law and acknowledged by Oxyphen or are uncontested.

5.1

Oxyphen shall continue to hold the title to the entire delivery until it has received in full the payments set out in the order confirmation.

5.2

Until such time as the title has passed over to the ordering party, the following shall apply: (a) the ordering party shall be the custodian of the goods entrusted to it by Oxyphen; (b) the ordering party shall not be entitled to encumber the goods in any way; (c) the ordering party shall keep the goods separate from its own goods and those of third parties and in such a manner as to ensure that they can be clearly identified as goods belonging to Oxyphen.

5.3

The ordering party shall take out insurance to ensure that the goods from Oxyphen in its possession that are subject to reservation of title are adequately insured against (natural) disasters.

The ordering party shall take out insurance to ensure that the goods from Oxyphen in its possession that are subject to reservation of title are adequately insured against (natural) disasters.

6.1

In the absence of any other written determination by Oxyphen, every order shall be shipped ex works Lottstetten (Incoterms® 2020) in accordance with the delivery terms.

6.2

The distribution of transport costs shall be based on the delivery terms set out in Section 6.1. All costs, including those for freight and transport insurance and for export, transit, import and other consents, shall thus be borne by the ordering party. The ordering party shall likewise bear the costs of all kinds of taxes, levies, fees, customs duties and the like that are levied in connection with the contract.

6.3

The transfer of perils shall be based on the delivery terms set out in Section 6.1. The perils and all associated risks shall thus pass over to the ordering party when the goods are made available at Oxyphen’s premises.

6.4

Should the shipment be delayed at the ordering party’s request or for other reasons for which Oxyphen is not responsible, the perils shall pass over to the ordering party at the point when the latter is notified of readiness for dispatch. From this point onward, the deliveries shall be stored and insured at the ordering party’s expense and risk.

7.1

The delivery period shall begin on the day on which the order confirmation is sent and be deemed to have been adhered to if the goods have left Oxyphen’s warehouse by the end of the delivery period. Statements on Oxyphen’s delivery times shall not be binding unless they are agreed in writing in the contract as binding delivery deadlines.

7.2

The delivery deadline shall be extended appropriately if, through no fault of Oxyphen, impediments should arise at Oxyphen’s premises or those of third parties, e.g., in the event of force majeure or if the delivery by the manufacturer or sub-supplier is delayed or defective.

7.3

Oxyphen shall not be liable for delays to deliveries and services that arise based on unforeseeable and exceptional events and on events that make delivery either significantly difficult or impossible. Such events shall entitle Oxyphen to defer deliveries for the duration of the impediment plus an appropriate start-up period or to withdraw from the contract, either in whole or in part, due to the as yet unfulfilled part.

7.4

Should the impediment last longer than three months, the ordering party shall be entitled, having set an appropriate extra deadline that is hereby set at four weeks, to withdraw from the contract in respect of the as yet unfulfilled part.

7.5

Part deliveries shall be permitted. Every part delivery shall be deemed to be a transaction. Complaints relating to this transaction shall have no influence on the further execution of the contract unless the partial fulfillment of the contract is not of interest to the ordering party.

7.6

The ordering party shall have no rights and claims due to delays in delivery or the provision of services other than those expressly stated in this Section 7.4. This restriction shall not apply to unlawful intention or gross negligence on the part of Oxyphen but shall apply to unlawful intention or gross negligence on the part of auxiliaries.

8.1

Subject to clauses 9.2 and 9.3, Oxyphen shall for a period of 12 months from the delivery date exchange or credit the ordering party for goods or parts of goods that have significant defects due to faulty materials or faulty processing (“Warranty”). Oxyphen shall be free to choose between replacement and issuing a credit note.

8.2

The warranty shall apply only: (a) to goods manufactured by or by order of Oxyphen; (b) in the event that the ordering party has provided information in writing within 3 days of identification of the defect or of the day on which it should have become aware of the defect; (c) in the event that Oxyphen is given an appropriate opportunity to check the goods; (d) and Oxyphen acknowledges the arising of a situation that is covered by the warranty.

8.3

In the following cases the warranty shall not apply: if (a) the defect arises due to normal wear and tear, intentional damage or negligence; (b) the ordering party makes changes to these goods without the written permission of Oxyphen; (c) Oxyphen has disclosed the defect to the ordering party.

8.4

The ordering party shall carefully check the goods for faultlessness and completeness immediately upon receiving them. Warranty claims due to obvious defects shall be excluded if they are not brought to Oxyphen’s attention within one week of receipt of the goods.

9.1

All cases of breach of contract and their legal consequences and all claims of the ordering party, regardless of their legal reason, are definitively regulated in these conditions. Excluded in particular are all not expressly stated claims for compensation, annulment of the contract, or withdrawal from the contract.

9.2

This exclusion of liability shall not apply to unlawful intention or gross negligence on the part of Oxyphen but shall apply to unlawful intention or gross negligence on the part of auxiliaries. For the rest, this exclusion of liability shall not apply if its application is opposed by mandatory law.

9.3

Without prejudice to other clauses in the agreement, Oxyphen shall not be liable to the customer under any circumstances for loss of profit, loss of earnings, loss of interest or loss in company value, for the loss of or damage to data, for any breakdown in or interruption to the customer’s business operations or for economic, special, or indirect damage or loss, or for consequential damage.

10.

Oxyphen shall at all times retain all rights, title and claims to all trademarks, copyrights, patents or patent applications, know-how, design, all utility models, trade names and all other intellectual property or intellectual property rights (whether registered or not), which exist in or in connection with the goods and/or services and the manufacture of the goods (including Oxyphen’s technology, know-how and processes used in the manufacture of the goods) and to any reports, manuals, specifications or materials prepared or provided by Oxyphen (“Intellectual Property”).

11.1

The place of jurisdiction is Oxyphen’s registered office. Oxyphen shall however be entitled to take legal action against the ordering party at the latter’s registered office.

11.2

The legal relationship is subject to the substantive law of Germany and court of jurisdiction is Freiburg im Breisgau with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (“Vienna Sales Convention”).

12

These conditions and any additional written agreements made at the point of conclusion of the contract are complete and replace all previous oral or written agreements.