Terms and conditions

- only for business customers -

1. Scope of validity

(1) Parties and purpose. The following terms apply to the sale of goods (“delivery item”) by ChiruTec GmbH, Märkersteig 12–16, D-14974 Ludwigsfelde (“ChiruTec” or “we”), represented by our Swiss branch with a registered office at Höhenstrasse 33, CH-8127 Forch, to you as a customer domiciled as a resident or business in Switzerland, both for contracts concluded on our online shop or by phone, fax and/or email, provided nothing has been expressly agreed to the contrary in writing between you and us.

(2) No deviating provisions. The applicability of deviating provisions or provisions that exceed the scope of these provisions is hereby excluded. In particular, this pertains to the customer’s terms and conditions, even if ChiruTec accepts an order from the customer in which the customer refers to its terms and conditions and/or the customer’s terms and conditions are enclosed and ChiruTec does not object to their validity.

(3) Exclusive sales to business customers, proof of entrepreneurial status. We exclusively sell to people who carry out commercial or self-employed activities with the conclusion of the contract, and to legal persons under public law of special funds under public law. As such, we are entitled to require adequate evidence of your proof of entrepreneurial status prior to conclusion of the contract, namely with the provision of your VAT reg. no. or other applicable evidence. Information required for verification must be provided in full and truthfully.

(4) Medical devices as the delivery item. In the event that the delivery item is a medical device, as the distributor, ChiruTec assures compliance with the pertinent provisions for the distribution of medical devices.

For orders placed on the online shop

2. Registration for our online shop; processing of your personal data

(1) Registration, personal data. As a registered user, you can order goods on our online shop. As a register user, you will not be required to enter your personal data for each individual order. Instead, you will only need to log into your customer account using your email address and the password created upon registration prior to or within the context of each order. Registration does not constitute any duty to purchase goods offered on our website. Please refer to our privacy policy at https://shop-che.chirutec.com/saas/web/chirutec/c/datenschutzhinweise-footer.aspx to learn more about how we process your personal data. When you login, you will be required to select a personal username. Once your account has been approved, the password will be electronically sent to the email address stored on our system for you. You must keep your password secret and not share it with third parties, namely people outside your organisation or people within your company who are not entitled to rights of representation, in any case.

(2) Customer. You can enter all information required for an order, check the status of active orders and view your order history in your customer account. You can delete your account at any time by sending an email to user@chirutec.com. In the event that your personal information changes, you shall be responsible for updating it in your account. All changes can be made online under “My account” after logging in.

3. Conclusion of the contract

(1) Establishment of the contract. As a customer, you are able to order goods available in the online shop. Prior to the binding submission of an order, you can correct your entries using the standard keyboard and mouse functions. You can review all products selected using the “Add to shopping cart” button at the end of the order process in the order overview. Please carefully check all information entered during the order process in the order overview prior to the binding submission of the order and make any corrections or additions using the “Change address” button or the button to change products or the payment and shipping methods. The purchase request is deemed accepted once your click the “Place order” button.

(2) Order confirmation. Once your order is received, you will be sent an automatically generated email to confirm that we have received your order (order confirmation).

We will store the text from your order and send it in addition to these T&Cs once you place an order. For security reasons, we recommend that you print out the order information and applicable terms and conditions at the time the order was placed. Furthermore, we will store a copy of the contract that you can access free of charge in your password-protected customer account by entering your login details.

The contract may be concluded in either German or English.

For orders submitted by phone, fax or email

2. Registration; processing of your personal data

(1) Registration, personal data. As a registered customer, you can order goods from us. To this end, please send us your name, company address and evidence to verify your entrepreneurial status. Registration does not constitute any duty to purchase goods offered on our website. Please refer to our privacy policy at https://www.chirutec.com/datenschutzerklaerung/ to learn more about how we process your personal data.

3. Conclusion of the contract

(1) Establishment of the contract. As a customer, you can order goods featured in the product or offer lists by fax, email or phone. Your order is submitted once your click the “Place order” button.

(2) Order confirmation. Once your order is received, you will be sent an email to confirm that we have received your order (order confirmation).

We will store the text from your order and send it in addition to these T&Cs once you place an order. For security reasons, we recommend that you print out the order information and applicable terms and conditions at the time the order was placed. The contract may be concluded in either German or English.

4. Procurement risk, time limits

(1) Partial deliveries. Partial deliveries are permitted and solely the delivery costs for the initial delivery shall be payable.

5. Prices and payment terms

(1) Prices. All prices stated include delivery CPT the delivery address (Incoterm 2020).

(2) Net prices. All prices are stated net, subject to statutory VAT.

(3) Payment terms. Provided nothing has been agreed to the contrary, all payments are due immediately. In the case of payment by invoice (following a credit check), all payments must be transferred within 14 days after delivery and the invoice date without delay.

For orders placed on the online shop

(4) Payment methods. You can pay via PayPal, American Express, Mastercard, Visa, PostFinance, invoice and buy now. Payments shall be subject to the applicable payment terms of the payment provider.

For orders submitted by phone, fax or email

(4) Payment methods. You can pay by invoice and advance payment.

6. Late payment/offsetting and retention

(1) In the event that it becomes evident that the customer is insolvent after conclusion of the contract (e.g. if it goes bankrupt or is unsuccessfully impounded), we shall be entitled to cease the provision of our services until consideration is ensured (e.g. with advance payment). In the event that solvency cannot be ensured following a grace period, we shall be entitled to withdraw from the contract (Art. 38 of the Swiss Code of Obligations [OR]). Furthermore, we are granted the express right of withdrawal as per Art. 214(3) OR, whereby we shall be entitled to terminate the contract and reclaim the supplied purchase item if the customer defaults in payment of the purchase price. Our supply obligation shall be suspended for the duration of time for which the customer is in arrears with a due payment. The customer in arrears must reimburse us for all appropriate dunning costs.

(2) The customer shall only be entitled to offset claims other than its contractual counterclaims arising from the respective legal transaction or assert a right of retention if this claim is undisputed by us or legally valid.

7. Delivery/transfer of risk/acceptance/delays in acceptance

(1) Delivery. Delivery shall be carried out ex warehouse, which is also the place of performance for the delivery and any subsequent deliveries. At the request and expense of the customer, the goods may be sent to another destination (sale by dispatch). Provided nothing has been agreed to the contrary, we are at liberty to determine the shipment method (in particular, the transport company, dispatch route and packaging).

(2) Transfer of risk; Acceptance. The risk of accidental loss or accidental impairment of the goods shall be transferred to the customer at the latest when the goods are handed over. In the case that shipment was agreed, the risk of accidental loss or accidental impairment of the goods shall pass to the customer when the goods are handed over to the freight forwarder, the carrier or other persons or institutions selected to deliver the goods. If we are required to accept the goods, the transfer of risk for the goods shall rely on our acceptance thereof. Furthermore, the statutory provisions as per the Law on Contracts for Work and Services and the laws governing contracts of sale as per the Swiss Code of Obligations shall apply accordingly in the case of agreed acceptance. If the customer does not accept the goods within the specified period, the goods shall nevertheless be regarded as transferred and accepted.

(3) Delays in acceptance. In the event that the customer delays the acceptance of goods, fails to act in cooperation or delays performance of our delivery on other grounds, for which the customer is responsible, we shall be entitled to demand compensation for the losses incurred, including additional expenses (e.g. filing charges). All legal claims remain reserved.

8. Delivery disturbances/delivery period/consequences of delays

(1) Force majeure. Force majeure events pertain to all incidents outside of the respective contractual party’s scope of influence that prevent the fulfilment of its duties in whole or in part, including fire damage, floors, strikes and lawful lockouts, pandemics, endemics and operational disruptions or official orders for which the party is not responsible. In the event of force majeure, the affected contractual party shall be released from its delivery or acceptance duties for the duration thereof and in line with the extent of the repercussions. The affected contractual party must inform the other contractual party without delay of the emergence and elimination of force majeure events and apply its best efforts to remedy force majeure events and mitigate the impact thereof as much as possible. In the event of force majeure, the contractual parties shall agree and determine the plan of action with regard to whether the products that should have been delivered during the period of the force majeure event should consequently be delivered following the remedying thereof. Notwithstanding the above, both contractual parties shall be entitled to cancel the orders affected by the force majeure event in the case that the force majeure persists for over 4 weeks after the agreed delivery date. This shall not affect the entitlement of both parties to terminate for good cause in the event of an extensive period of force majeure.

(2) Transport damages. The customer must submit any complaints due to transport damages within 7 days.

(3) Delivery periods.

Orders placed on the online shop

The delivery period can be viewed on the online shop and is stated in the order confirmation.

Orders submitted by phone, fax or email

In order to find out the delivery period prior to submitting a binding order, the customer is advised to contact us in advance or look on the online shop. The delivery period is stated again in the order confirmation.

(4) Consequences of delays. In the event that we are unable to deliver within the period stated in the order confirmation for reasons for which we are not responsible (non-availability of the service), we shall inform the customer without delay and provide a new expected delivery date. If the service remains unavailable within the new delivery period, we reserve the right to terminate the contract in full or in part; in this case, we shall reimburse the customer for any payment received without delay. As the non-availability of the service in this case shall primarily be regarded as the result of non-timely delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obligated to provide the service in the individual case.

The date upon which our delivery is in default shall be determined according to statutory provisions. However, a reminder from the customer is required in all cases. If we delay delivery of the goods, the customer shall be entitled to demand reimbursement for the losses incurred as a result of the delay. The reimbursement for losses incurred as a result of the delay shall amount to a maximum of 5% of the delivery value for the goods delivered late. In each case, the buyer shall be required to prove that it incurred losses as a result of the delay. The buyer’s rights as per Section 10 of these Terms and Conditions and our statutory rights, in particular if we are released from our service obligation (e.g. due to the impossibility or unreasonableness of performance and/or subsequent fulfilment), shall remain unaffected hereby.

9. Notice of defects/claims for defects

(1) Inspection obligation and duty to report defects. The customer must check whether the delivered goods correspond to the contractually agreed quantities and properties without delay. Any defects identified must be reported to us without delay with reference to the order information and invoice number. The same applies to defects identified at a later date. The customer is not entitled to refuse delivery of the goods due to negligible defects. In order for the customer to exercise any warranty rights, the customer must duly fulfil all obligations to inspect the goods and report defects as per Art. 201 OR.

(2) Quality. ChiruTec assures that the delivered goods are in the agreed condition upon the transfer of risk. The condition of the goods is based on the condition specified in the listing and the product description referred to in the listing.

(3) Statute of limitations. Claims for defects on the part of the customer shall become statute-barred 12 months after delivery of the goods to the customer. The above shall not apply in the case of fraudulently concealed defects, warranty claims and claims due to injury to life, limb or health.

10. Limitation of liability

(1) Non-liability in certain cases. ChiruTec shall be liable for damages, to the extent that they were

a) caused by ChiruTec as a result of intent or gross negligence, or;

b) caused by ChiruTec as a result of slight negligence and can be attributed to breaches of essential duties, which jeopardise the achievement of the purpose of the contract, or the breach of duties, the fulfilment of which is required for proper performance of the contract and compliance with which the customer can rely on.

In all other cases, ChiruTec shall not assume any liability, irrespective of the legal grounds, apart from cases whereby liability is mandated by law, in particular due to injury to life, limb or health of a person, assumption of a warranty, fraudulent concealment of a defect, or according to the Product Liability Act. Warranties from ChiruTec shall exclusively be provided in the written form and identified as such.

(2) Limitation of liability. In the event of para. (1) b) ChiruTec shall solely be liable to the extent of damage typically foreseeable for this kind of contract.

(3) Further limitation of liability. In the event of damage caused by slight negligence, ChiruTec shall not be liable for indirect damages, consequential damages or lost profit. Furthermore, in the event of damage caused by slight negligence, the liability of ChiruTec shall be limited to the amount of net remuneration to ChiruTec as contractually agreed for the respective order.

(4) ChiruTec employees and contractors. The limitations of liability stipulated in paras. (1) to (3) shall also apply to any claims asserted against ChiruTec employees and contractors as well as breaches of duties by people (including to their benefit) for whom we are liable if they are at fault according to statutory provisions.

11. Final provisions

(1) Governing law. This legal relationship between the customer and us is governed by the substantive law of Switzerland. The application of the United Nations Convention on Contracts the International Sale of Goods (CISG) is hereby excluded.

(2) Place of performance. The place of performance is the address of the ChiruTec branch in Switzerland.

(3) Place of jurisdiction. Zurich is the sole place of jurisdiction. Furthermore, we reserve the right to take legal action against the customer at the competent court located in its place of domicile.

(4) Partial invalidity. If a provision in these Terms and Conditions is found to be void or unenforceable at present or in the future, this shall not affect the validity of remaining provisions. The contractual parties hereby agree to replace the void or unenforceable provision with an effective provision that conveys the financial intent of the original void or unenforceable provision. The same applies in the case of any regulatory gaps.

(5) Amendments. Any modifications or additions to these Terms and Conditions require the written form. The written form requirement also applies to the revocation of the written form requirement itself.

(6) Individual agreements. In certain cases, individual agreements concluded with the customer may supersede these Terms and Conditions (incl. ancillary agreements, addenda and amendments). The terms of these individual agreements are subject to a written contract or our written confirmation, in the absence of evidence to the contrary.

(7) Legal declarations. Legal declarations and notifications from the customer in relation to the contract *e.g. establishment of deadlines, notification of defects, termination or abatement of the contract) must be submitted in writing, namely in the written or text form (e.g. by letter, email or fax). Statutory formalities and further evidence, particularly in the case of doubts as to the legitimacy of the declaring party, shall remain unaffected by the above.

Version: March 2021