§1 General & Scope
These general terms and conditions of sale and delivery, hereinafter referred to as “Conditions”, apply to all orders placed by Infinite Visions GmbH, hereinafter referred to as “Careana”, regarding the delivery of products or the provision of services, excluding all other conditions. General terms and conditions, other conditions and deadlines of the contractual partner, hereinafter referred to as the “customer”, are not applicable unless they have been accepted in writing by Careana in individual cases.
Inquiries from Careana, hereinafter referred to as “offer”, are non-binding and are understood exclusively as an invitation to submit an offer.
A contract is only valid when Careana accepts the customer’s order either in writing or by fulfilling the contract, whichever occurs earlier. Orders may only be canceled with the written approval of Careana. If the customer wants a short-term delivery / service and Careana agrees to this, then the customer accepts that the invoice, together with the general terms and conditions of sale and delivery, forms the basis of the contract.
- Prices and Import restrictions
The price information, descriptions and technical information for products on the Careana.ch and Careana.com websites as well as in advertisements and brochures created by Careana are non-binding.
Unless otherwise agreed in writing, the effective price of the goods or services is stated in a valid offer made by Careana.
Careana reserves the right to change prices for deliveries that have not yet been carried out in the event of a significant change in the relevant calculation bases (in particular material and labor costs, as well as exchange rate fluctuations, etc.) between the conclusion of the contract and the delivery as agreed. Any price changes will be communicated to the customer as soon as possible.
Unless otherwise agreed in writing, the customer must acquire import licenses, certificates and other official approvals for product distribution at his own risk and expense.
- Payment terms
Unless otherwise agreed in writing, payment must be made as follows:
- Down payment of 50% of the total amount plus VAT upon order confirmation, which is payable within 10 (TEN) days.
- Remaining payment of the outstanding amounts plus VAT within 10 (TEN) days after delivery or collection of the goods.
The invoices are to be sent to the account specified on the invoice without any deduction in the invoice currency. Offsetting by the customer with claims against Careana is excluded in any case.
Careana reserves the right, in special cases, in particular but not exclusively in the case of a negative credit check of the customer or in the case of deliveries abroad, a higher deposit of up to 100% of the total amount plus VAT to claim.
The customer is immediately in default when the payment period expires. The default interest owed from this point on is 5% per year. The customer has to reimburse Careana for all verifiable costs that Careana or the agency provided by Careana incurred in collecting unpaid invoice amounts.
- Insolvency and breach of contract of Customers
Without prejudice to all other rights and remedies that Careana has, Careana (a) discontinue the delivery of products and / or the provision of services without assuming liability, (b) demand compensation from the customer and (c) accelerate the payment of all outstanding payments or sue if the customer, (i) enters into a voluntary agreement with its creditors, or is subject to an administrative order, files for bankruptcy or liquidation, is forced to liquidate, (ii) ceases or threatens to cease operations, (iii) does not meet its contractual obligations and does not remedy this situation within a period set by Careana or (iv) a bankruptcy trustee or receivership is appointed for the client’s assets.
Careana endeavors to the best of its knowledge and belief to deliver products and services on time. However, the deadlines are not binding. Careana will immediately notify the customer of any delay.
Orders that have been placed once are to be accepted by the customer even if there is a delay in delivery. In the event of a delay, the customer has no right to withdraw from the contract and / or to assert claims for damages.
Unless otherwise agreed in writing, partial deliveries or partial shipments are permitted.
If the customer does not accept the delivery of the product, Careana reserves the right in particular, but not exclusively, to (i) store the products and bill the customer for storage and other costs incurred, or (ii) after notifying the customer, resell the products at the highest attainable price and charge the customer the difference between the contract price and the price at which the product was resold, plus storage and sales costs.
- Passing of benefit and risk and Retention of title
Benefit and risk are transferred to the customer in accordance with the provisions of the respective contract and the applicable Incoterms specified in the contract.
Regardless of the delivery and the transfer of benefit and risk, Careana remains the owner of the products until Careana has received the full price of the products as well as all other amounts in connection with the contract concluded with the customer (“retention of title”). The customer undertakes to take part in measures that are necessary to protect Careana’s property; in particular, upon conclusion of the contract, he authorizes Careana to enter or note the retention of title in public registers, books or the like in accordance with the relevant legislation and to undertake all related formalities at the customer’s expense fulfill.
During the period of retention of title, the customer undertakes to treat the products in such a way that that they can be identified as owned by Careana. The customer will maintain the products at his own expense and, after delivery, must protect and insure them against all commercial risks at his own expense.
If the customer does not meet his payment obligations on time, Careana reserves the right to immediately reclaim all products delivered.
If a product is sold by the customer before the customer has paid in full, the customer undertakes to withhold the sales proceeds for Careana until the payment obligations have been fully met. Careana’s retention of title vis-à-vis the customer is not affected by the resale. The customer hereby assigns the purchase price claim from a resale to a third party to Careana and undertakes to notify the third party immediately prior to this assignment.
If the customer processes, combines or mixes with other items, Careana acquires co-ownership at the fraction that corresponds to the ratio of the invoice value of the Careana goods to that of the other items used by the customer at the time of processing, combination or mixing.
If the product is combined or mixed with a main item belonging to the customer or a third party, the customer hereby also transfers his rights to the new item to Careana. If the customer combines or mixes the product for a fee with a main item of a third party, he hereby assigns his compensation claims against the third party to Careana.
The customer is entitled to resell the goods subject to retention of title within the framework of an orderly business operation, but only within the framework of a reasonable price that must not be overpriced. If the customer sells for his part without receiving the full purchase price in advance or step by step against delivery of the object of sale, he has to agree a retention of title in favor of Careana in accordance with these conditions with his customer. The customer hereby assigns his claims from this resale as well as the rights from the retention of title agreed by him to Careana. At the request of Careana, he is obliged to notify the purchaser of the assignment and to provide Careana with the information and documents required to assert its rights against the purchaser.
The customer is only authorized to collect the claims from the resale despite the assignment as long as he duly fulfills his obligations towards Careana.
If the value of the securities provided to Careana exceeds Careana’s claims, Careana is obliged to release securities of Careana’s choice at the customer’s request.
- Exam and Acceptance / acceptance
Upon receipt of the products and / or provision of the services, the customer is obliged to check them for defects.
The customer is obliged to notify Careana of any defects immediately and in writing, but at the latest within 8 (EIGHT) hours of receipt of the products / provision of the services, or – in the case of hidden defects – immediately after their discovery. Otherwise the products or services are deemed to have been approved and accepted by the customer. If defects are not reported in due time, the customer loses all rights to warranty, compensation and contestation of the contract due to the defectiveness of the object of performance.
Timely notification of defects does not release the customer from his obligation to pay for and accept all products and / or services that he has ordered.
- Warranty and liability for Flaws
Careana hereby expressly assumes no guarantee or liability for defects in any of its products. In particular, Careana hereby advises that any sterile products must not be used in a sterile environment. Careana is responsible for every defect according to para 7 in good time. In particular, Careana’s warranty obligation does not apply to defects in the delivered products that can be traced back to (i) unauthorized, unsuitable or improper use of the products by the customer or third parties or (ii) negligence in the scope of the products by the customer or third parties or (iii) other reasons beyond Careana’s control. In the event of a warranty, Careana may, at its own discretion, replace, repair or redeliver the products or services or part thereof. All further claims of the customer, in particular claims for damages of any kind, are expressly excluded.
Returns to Careana as part of a warranty claim can only be made after written approval and after receipt of the relevant instructions from Careana. The shipping costs are to be borne by the customer. Returns are always at the risk and expense of the customer.
- General disclaimer and limit
All cases of breach of contract and their legal consequences as well as all claims of the customer, regardless of the legal reason for them, are conclusively regulated in these terms and conditions. In particular, all claims for damages, reduction in price, cancellation of the contract or withdrawal from the contract not expressly mentioned are excluded. In no case shall the customer have any claims for compensation for damage that did not occur on the delivery item itself, such as loss of production, loss of use, loss of orders, loss of profit, or other direct or indirect damage. This exclusion of liability does not apply if it is contrary to mandatory law.
- Higher violence
Unforeseeable operational disruptions, delivery deadlines exceeded or delivery failures by Careana’s suppliers, shortages of manpower, energy or raw materials, strikes, lockouts, difficulties in obtaining means of transport, traffic disruptions, official orders and all cases of force majeure release Careana for the duration of the disruption and to the extent of its effect from the obligation to deliver.
If the delivery of the goods is delayed by more than ninety (90) days as a result, each party is entitled to withdraw from the contract with regard to the quantity affected by the delivery disruption. Further claims by the parties are expressly excluded.
- packing material
MTS does not take back any packaging or transport material.
The customer has to dispose of the packaging material at his own expense. The packaging material can be in a foreign language.
The purchase contract can be terminated unilaterally by Careana.
The present conditions form an integral part of the respective contract between MTS and the customer.
Changes or additions to the contractual conditions require the written acceptance of Careana.
Should MTS fail to exercise or enforce its contractual rights, this does not count as a waiver of these rights and Careana can enforce or exercise these rights at any time later.
Without the written consent of Careana, the customer may not assign the contract or any rights or obligations arising therefrom.
- Compliance with Export control regulations
The fulfillment of the contract by Careana is subject to the condition that there are no obstacles to fulfillment due to national or international regulations of foreign trade law, in particular export control regulations, as well as no embargoes or other sanctions.
When passing on / reselling the products supplied by Careana to third parties in Germany and abroad, the customer must comply with the applicable provisions of national and international (re-) export control law. In any case, he has the (re-
) Comply with the export control regulations of Switzerland, the European Union and the United States of America.
If required for export control checks, Careana’s customer will immediately provide all information on the final recipient, final destination and intended use of the products delivered by Careana as well as the relevant export control restrictions.
The customer indemnifies Careana in full against all claims made by authorities or other third parties against Careana due to the customer’s failure to comply with the above export control obligations and undertakes to reimburse Careana for all damages and expenses incurred in this context, unless the customer is not responsible for the breach of duty.
- Should any provision of these terms and conditions be or become invalid or void, this shall not affect the validity of the remaining provisions. In the event that a provision is invalid or null and void, it must be replaced by an effective provision that comes as close as possible to the economic purpose of the invalid provision.
- Valid Law / Jurisdiction
Swiss law applies exclusively to all contracts and these conditions, excluding the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980.
The courts in Zurich are exclusively responsible for all disputes arising from the contracts and / or these conditions.
In the event of contradictions between this German version and the English version of these terms and conditions, the German version has priority.