General Terms and Conditions (GTC) of MBP Medical Biomaterial Products GmbH

Only the following General Terms and Conditions (“Terms and Conditions”) apply to all sales and deliveries of MBP GmbH, which the Customer acknowledges by placing the order or accepting the delivery and/or service. Conflicting, deviating and/or supplementary terms and conditions of the Customer shall not apply, even if MBP does not expressly object to them. These Terms and Conditions shall also apply to all future transactions with the Customer.

1 Conclusion of Contract

(1) MBP’s offers are subject to change without notice.

(2) A contract shall not be concluded until the order has been confirmed by us in writing or processing of the order has commenced without separate confirmation. Agreements shall be governed exclusively by the content of the order confirmation, if any, and by these Terms and Conditions. Otherwise, oral agreements or commitments require written confirmation by MBP in order to be effective.

(3) MBP reserves the property rights, copyrights and industrial property rights to all offer documents as well as to all other documents and information to which the Customer has access. They may not be made accessible to third parties. In such a case, MBP reserves the right to claim damages.

(4) The Customer may not transfer rights from a contract concluded with him to third parties without the prior written consent of MBP. § Section 354a of the German Commercial Code (HGB) shall remain unaffected.

2 Obligations of the Customer to Cooperate; Deadlines and Dates

(1) Partial deliveries may be made by MBP for justified reasons, provided this is reasonable for the Customer.

(2) The delivery period shall commence on the day on which the order confirmation is issued. The necessary clarification of technical details shall extend the delivery period if necessary. In all other respects, delivery dates and delivery periods shall only be binding if they have been bindingly agreed upon and the Customer has provided MBP with all information and documents required for the performance of the services in a timely manner and has paid any agreed upon deposits in accordance with the agreement. In the event of additional or extension orders placed at a later date, the delivery periods and delivery dates shall be extended or postponed accordingly.

(3) Events that are unforeseeable, unavoidable and/or beyond the control of MBP and for which MBP is not responsible, such as force majeure, war, natural disasters, pandemics or labour disputes, shall release MBP from its obligation to deliver or perform in a timely manner for their duration. Delivery and performance deadlines or dates shall be extended or postponed by the duration of the disruption; the Customer shall be informed of the occurrence of the disruption in an appropriate manner.

(4) In the case of delivery items that MBP does not manufacture itself, the right to correct and timely self-delivery is reserved.

(5) Unless otherwise agreed, deliveries shall be made ex works (EXW Incoterms 2010).

(6) In the event of default in acceptance or the breach of other duties to cooperate by the Customer, MBP shall be entitled, without prejudice to its other rights, to store the delivery item appropriately at the risk and expense of the Customer or to withdraw from the contract in accordance with the statutory provisions.

(7) If MBP’s deliveries are delayed, the Customer shall only be entitled to withdraw from the contract if MBP is responsible for the delay and a reasonable deadline set by the Customer for delivery has expired without delivery.

3 Shipping, Transport Risk, Transport Insurance

(1) In the absence of any agreement to the contrary, the goods shall be shipped by an appropriate means of shipment in the usual packaging.

(2) In the event of a sale by delivery to a place other than the place of performance, the risk shall pass to the Customer upon handover of the delivery item to the carrier commissioned by MBP (or its own people commissioned by MBP to carry out the shipment), in the event of collection by the Customer upon handover to the Customer, and in the event of collection by third parties commissioned by the Customer upon handover to such third parties. If the Purchaser is in default of acceptance, the risk shall pass to the Purchaser upon the occurrence of the default of acceptance. If, in the case of agreed collection of the delivery item by the Purchaser or by third parties commissioned by the Purchaser, the handover is delayed for reasons for which the Purchaser is responsible, the risk shall pass to the Purchaser on the day of notification that the delivery item is ready for dispatch.

(3) At the request and expense of the Customer, MBP shall insure the shipment against transport damage.

4 Prices, Terms of Payment

(1) The confirmed offers or the price lists of MBP GmbH shall be decisive for the price. In the case of services and contract manufacturing, a final price may only be determined after sampling. All prices are ex works, excluding packaging, shipping and the applicable statutory VAT. Shipping and packaging will be charged additionally. Bills of exchange or cheques shall only be accepted by special agreement and free of charge and expenses for MBP on account of performance. The Customer shall bear any public charges, such as customs duties, incurred in connection with the introduction of the delivery item.

(2) If the agreed delivery date is more than four months after the conclusion of the contract and if unforeseeable cost increases with regard to the delivery item have occurred at MBP after the conclusion of the contract for which MBP is not responsible, MBP shall be entitled at its reasonable discretion to pass on the higher costs by increasing the agreed price accordingly on a pro rata basis

(3) Within the scope of continuing obligations concluded with the Customer, such as in particular long-term purchase agreements, MBP shall be entitled to increase its prices appropriately on January 1 of each calendar year to the extent that MBP has experienced cost increases with regard to the delivery item in the previous calendar year. MBP shall inform the Customer of the planned price increase in writing no later than eight weeks before it comes into effect.

(4) MBP shall be entitled to issue partial invoices for partial deliveries within the meaning of Clause 2 (3).

(5) Unless the parties have agreed otherwise in individual cases, each invoice from MBP shall be due for payment without deduction within 14 days of receipt of the invoice; if this period expires without payment, the Customer shall be in default. Payments by the Customer shall only be deemed to have been made when MBP can dispose of the amount.

(6) If MBP becomes aware of the risk of the Customer’s inability to pay, MBP shall be entitled to make outstanding deliveries only against advance payment or the provision of security. If the advance payments or securities have not been provided even after the expiry of a reasonable grace period, MBP may withdraw from individual or all affected contracts in whole or in part. MBP is at liberty to assert further rights.

5 Default of Payment

(1) In the event of default in payment, MBP shall be entitled to demand default interest at the statutory rate. The assertion of further damage caused by default shall remain unaffected.

(2) The Customer shall only be entitled to set-off if his counterclaim is undisputed, ready for decision or legally established. The Customer shall only be entitled to assert a right of retention if its counterclaim is based on the same contract as the claim of MBP and is undisputed, ready for a decision or has been established by a court of law.

6 Retention of Title

(1) The delivery items shall remain the property of MBP until all claims of MBP arising from the business relationship with the Customer have been paid in full. In the case of a current account, the reserved property shall serve as security for the balance due to MBP.

(2) The Customer may only sell the products subject to retention of title (“Retained Products”) in the ordinary course of business. The Customer shall not be entitled to pledge the Retained Products, to assign them as security or to make any other dispositions that would endanger MBP’s ownership. The Customer hereby assigns the claim arising from the resale to MBP; MBP hereby accepts this assignment. If the Customer sells the products subject to retention of title together with other goods, the assignment of the claim shall only be deemed to be agreed in the amount of the portion corresponding to the price agreed between MBP and the Customer plus a security margin of 10% of this price. The Customer is revocably authorised to collect the receivables assigned to MBP in trust for MBP in its own name. MBP may revoke this authorisation as well as the right to resell if the Customer is in default with material obligations such as payment to MBP; in the event of revocation, MBP shall be entitled to collect the claim itself.

(3) The Customer shall provide MBP at any time with all requested information about the Retained Products or about claims that have been assigned to MBP hereunder. The Customer shall notify MBP immediately of any access or claims of third parties to Products subject to retention of title and hand over the necessary documents. At the same time, the Customer shall inform the third party of MBP’s retention of title. The Customer shall bear the costs of defence against such seizures and claims.

(4) The Customer shall be obliged to treat the products subject to retention of title with care for the duration of the retention of title.

(5) If the realisable value of the securities exceeds the total claims of MBP to be secured by more than 10%, the Customer shall be entitled to demand release to this extent.

(6) If the Customer defaults on material obligations such as payment to MBP and MBP withdraws from the contract, MBP may, without prejudice to other rights, demand the return of the Retained Products and dispose of them elsewhere for the purpose of satisfying due claims against the Customer. In this case, the Customer shall immediately grant MBP or MBP’s agents access to the Retained Products and surrender them.

(7) In the case of deliveries to other legal systems in which the aforementioned retention of title provision does not have the same security effect as in Germany, the Customer shall do everything in its power to immediately provide MBP with corresponding security rights. The Customer shall cooperate in all measures, such as registration, publication, etc., which are necessary and conducive to the effectiveness and enforceability of such security interests.

(8) Insofar as MBP processes objects of the Customer by way of contract manufacturing, MBP shall be entitled to a contractor’s lien pursuant to § 647 of the German Civil Code (BGB) until the agreed remuneration for the work has been paid in full.

7. notice of defects

(1) The Customer’s rights due to defects of the delivery item require that the Customer inspects the delivery item after delivery and notifies MBP of any defects in writing without undue delay, however, no later than ten days after delivery; hidden defects must be notified to MBP in writing without undue delay after their discovery.

(2) In the event of any notice of defect, MBP shall be entitled to inspect and test the delivery item complained about. The Customer shall grant MBP the necessary time and opportunity to do so. MBP may also require the Customer to return the delivery item subject to complaint to MBP at its own expense. If a notice of defect by the Customer proves to be unjustified and if the Customer has recognised this before raising the notice of defect or has negligently failed to recognise this, the Customer shall be obliged to compensate MBP for all damages incurred in this connection, e.g. shipping costs.

8 Warranty

(1) At the time of transfer of risk, the delivery item shall have the agreed quality; this quality shall be measured exclusively in accordance with the specific agreements made between the parties in writing regarding the properties, features and performance characteristics of the delivery item.

(2) Information in catalogues, price lists and other information material provided to the Customer by MBP, as well as information describing the product, shall under no circumstances be understood as guarantees for a particular quality of the delivery item; such quality or durability guarantees must be expressly agreed in writing.

(3) MBP shall remedy defects at its own discretion either by remedying the defect free of charge for the Customer or by delivering a defect-free item free of charge (jointly referred to as “subsequent performance”). The Customer shall grant MBP the reasonable time and opportunity necessary for subsequent performance.

(4) Parts replaced by MBP shall be returned to MBP upon its request.

(5) The Customer’s rights due to defects shall be excluded in particular in the following cases: in the event of natural wear and tear or if damage to the delivery items occurs for reasons for which the Customer is responsible, in particular due to improper use or incorrect handling (e.g. defective storage).

(6) If the supplementary performance fails, is unreasonable for the Customer or MBP has refused it in accordance with § 439 para. 3 BGB (German Civil Code), the Customer may, at its discretion, withdraw from the contract in accordance with the statutory provisions or reduce the purchase price and/or demand damages in accordance with clause 9 or reimbursement of its futile expenses.

(7) The limitation period for the rights of the Purchaser due to defects shall be twelve months beginning with the delivery of the delivery item to the Purchaser. The limitation provisions of § 479 BGB remain unaffected. The statutory limitation periods shall apply to claims for damages of the Purchaser for reasons other than defects of the delivery item as well as to the rights of the Purchaser in case of fraudulently concealed or wilfully caused defects.

(8) The value of incoming goods and any lost profits from products provided shall not be insured by MBP. The Contractual Partner shall be obliged to insure itself in an appropriate amount against damage to the products provided by it against the risks of transport and storage. Upon written request, the Contractual Partner shall provide MBP with proof of insurance coverage within two weeks of receipt thereof. MBP shall not be liable for insufficient insurance coverage of the Products provided; its liability for damage to the Products provided in accordance with general principles shall remain unaffected thereby.

9. notification obligations, resale

The customer is obliged to notify us immediately of all incidents or near incidents involving our products, irrespective of whether they are reportable to the authorities under the respective applicable regulations for medical products. In the event of the resale of our products, the customer shall take appropriate measures to ensure that all applicable statutory provisions, in particular those for medical products, are complied with during and after the sale.

10 Limitation of Liability, Compensation for Damages

(1) MBP shall be liable in accordance with the provisions of the Product Liability Act or any other mandatory statutory liability provisions.

(2) In addition, MBP shall be liable without limitation for damages caused intentionally or by gross negligence by MBP or its legal representatives or vicarious agents, but in each case only in accordance with the statutory provisions.

(3) In the event of simple negligence, MBP’s liability for the breach of material contractual obligations shall be limited to the amount of damage typically foreseeable at the time of conclusion of the contract. In the event of simple negligence, MBP shall not be liable for the breach of non-essential contractual obligations. Material contractual obligations are rights and obligations whose fulfilment is essential to the performance of the contract and on whose compliance the Customer regularly relies or may rely, which follow from the nature of the underlying contract and which the contract is specifically intended to grant according to its content and purpose.

(4) The limitations of liability do not apply to: Damages resulting from injury to life, body or health that are based on an intentional or negligent breach of duty by MBP or an intentional or negligent breach of duty by MBP’s legal representatives or vicarious agents, as well as if and to the extent that MBP has assumed a guarantee.

(5) The Customer shall be obliged to take reasonable measures to avert and mitigate damages.

(6) The limitations of liability shall apply to all claims for damages, irrespective of the legal grounds, in particular also for liability due to tortious acts.

11 Product liability

If the Customer sells the delivery item, whether unchanged or changed, whether after processing, transformation, combination, mixing or blending with other goods, he shall indemnify MBP in the internal relationship from product liability claims of third parties if and to the extent that he is also responsible for the defect triggering the liability in the internal relationship of the parties.

12. statutory minimum wage

The contractors of MBP GmbH who are subject to the scope of German law confirm by accepting the order that they and, if applicable, their subcontractors pay the statutory minimum wage in the same scope.

13. partial invalidity clause

Should any provision of these terms and conditions be or become invalid, the remaining provisions of these terms and conditions shall remain unaffected. An ineffective provision or a provision that has become ineffective shall be replaced by a provision that corresponds to the economic and legal sense of the ineffective provision or the provision that has become ineffective.

14. final provisions

(1) Amendments and supplements to the contract and/or these terms and conditions as well as collateral agreements must be made in writing. This shall also apply to any amendment of this written form requirement.

(2) Unless otherwise agreed, the place of performance for deliveries and services shall be Neustadt-Glewe.

(3) The statutory provisions of the Federal Republic of Germany shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

(4) The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship of the parties shall be Schwerin. However, MBP shall be entitled to sue the Customer at any other statutory place of jurisdiction.