1.1. Trate AG quotations, deliveries, and other performance—including those in the future—vis-à-vis the persons named in section 1.2 shall be provided exclusively in accordance with this General Terms and Conditions (“GTC”). Trate AG does not recognize contrary or different Buyer terms not contained in Trate AG’s GTC unless Trate AG has expressly consented thereto in writing. This also shall hold true if, in knowledge of Buyer terms contrary to or different from this GTC, Trate AG performs a delivery to the Buyer unconditionally.
1.2. This GTC shall apply only to persons who in entering into the agreement are acting in exercise of their commercial or independent professional activity (“entrepreneurs”) and to legal entities under public law or a special fund under public law (“Buyer”). It shall not apply to individuals who enter into the agreement for a purpose that cannot be attributed to their commercial or independent professional activity (“consumers”).
1.3. Regarding third-party software from manufacturers other than Trate AG itself, any of the respective manufacturer’s own licensing terms shall take precedence. Trate AG shall make the respective manufacturer’s licensing terms available to the Buyer upon request prior to formation of the agreement.
2. Formation of agreement
2.1. The agreement shall be formed only when Trate AG confirms the Buyer’s order in writing or begins executing it. Ancillary agreements, oral declarations by staff or representatives, and changes to confirmed orders (including changes in delivery items) must be confirmed in writing by Trate AG in order to be effective.
2.2. Trate AG reserves the right to make changes in design and materials relative to the product description in the catalogue, provided that the contractually stipulated use of the goods is not substantially impaired or adversely affected and the Buyer can reasonably be expected to accept the change.
2.3. Trate AG retains all rights of ownership, copyrights, and industrial property rights (including the right to apply for such rights) to cost estimates, images, drawings, and other documentation; such documentation may be made accessible to third parties only if there is discernibly no need for confidentiality.
3.1. All shipments are made for the account and at the risk of the Buyer. Risk shall be transferred to the Buyer at the time when the shipment leaves Trate AG’s factory or warehouse. This shall apply even if only partial deliveries are made. If dispatch is delayed owing to circumstances for which Trate AG bears no responsibility, then the risk is transferred to the Buyer when notice is provided of readiness to dispatch.
3.2. Unless special arrangements are made concerning the shipping method, Trate AG shall choose the shipping method at its own discretion, assuming no guarantee that its method will be the safest, fastest, or least expensive. Damage suffered during transport must be reported to Trate AG and to the delivering carrier promptly and in writing, but no later than within five days.
3.3. If a loss of or damage to the delivery items from delivery of the goods to the Buyer by the transport company is externally evident to the Buyer, it shall be up to the Buyer to have the transport company attest to the loss or damage (notice of loss) and notify Trate AG of this promptly, attaching the attestation. The same shall apply if the Buyer discovers at a later time a loss or damage that initially was not externally evident.
3.4. If material defects are present in the goods, Trate AG shall have the option of remedying or curing the defect as subsequent performance or delivering new goods free of defects. If a defect is remedied, Trate AG shall bear all expenses required to remedy the damage, in particular the costs of transport, unless such costs were incurred through dispatching the goods to a place other than the place of performance. In the event of replacement delivery, Trate AG can demand that the Buyer return the defective items. The Buyer can withdraw from the agreement in connection with a minor defect only with Trate AG’s consent.
3.5. In the case of a purchase that is a commercial transaction for both parties, the Buyer must provide written notice of any kind of defects—except hidden defects—within seven working days (weekend shall not count as a working days) following delivery; otherwise, the goods shall be considered approved. Written notice of hidden defects must be provided within seven working days (weekend shall not count as a working days) following discovery; otherwise, the goods shall be considered approved in respect of such defects as well.
4. Prices and payment
4.1. All prices are indicated in Euro (€) and is shown in Trate AG’s written order confirmation or—if there is no written confirmation— the price shown in the customer price list (catalogue) valid on the date when the order is placed shall apply. The customer price lists produced by Trate AG can be modified by Trate AG at any time. It is up to the Buyer to obtain information from Trate AG concerning the prices valid on the day on which the agreement is entered into.
4.2. In the absence of stipulations to the contrary, payments shall be due in full within 30 days of the invoice date. Payment shall be considered made when Trate AG can dispose of the amount (receipt of payment). If the Buyer defaults on paying for an earlier delivery, the invoice amount shall be payable in full immediately (invoice date), notwithstanding the first sentence.
4.3. All costs incurred in connection with payment, in particular bank charges and other fees in addition to value-added tax, shall be borne by the Buyer and due immediately.
4.4. If the Buyer defaults on payment, Trate AG can demand default interest in the amount provided by law.
4.5. The Buyer may set off only if a final court judgment declares his counterclaims to be owed, such claims are uncontested, or Trate AG has acknowledged them.
5.1. The following provisions shall apply if the Buyer wishes to return any goods:
a) The following goods may never be returned:
• Goods that are temperature-controlled
• Goods that are derived from human tissue
• Goods that are custom-made
• Goods supplied in accordance with Buyer’s individual specifications, even if unopened
b) Any other Goods may not be returned for credit:
• if they or the wrapper is in any way defaced or damaged;
• if they have been removed from their wrapper or undergone any sterilization or disinfection process; or
• if 30 days have passed since the date of the invoice (“30-day Period”).
c) A copy of the invoice or delivery note must accompany all returns. Trate AG reserves the right to refuse credit if these documents are not included.
d) Goods returned for credit or exchange must be securely packaged for protection in transit. Credit or exchange will only be issued upon determination that the goods are in an acceptable condition.
e) Credit for returned goods will only be issued upon determination of acceptable condition, Trate AG’s decision being final regarding the condition of returned goods.
f) Once the 30-day Period has expired, only implants can be returned (and then only for exchange) up to 12 months after date of invoice. Implants can only be considered for exchange if they are in original, unopened packaging with at least one year shelf life left. Upon exchange, a credit will be made for the original price paid and the replacement implant will be invoiced separately and will incur standard carriage charges.
g) All returns must be shipped (prepaid) to: Trate AG, Seestrasse 58, 8806 Bäch , Switzerland. Phone: +41 44 202 19 19