Alpha Orthotics Terms and Conditions

Sales Terms and Conditions for customers

Area of Application

1.1 To the extent that there are no contrary terms expressly agreed in writing, the following general terms and conditions of business (hereinafter, "GTCs") exclusively apply to all delivery of goods ordered from Alpha Orthotics Corporation, (hereinafter, "Alpha Orthotics"). Terms and conditions of business of the purchaser that are to the contrary to or deviate from the GTCs of Alpha Orthotics are not recognized, unless Alpha Orthotics expressly agrees to their applicability in writing. Without any reservation, the GTCs of Alpha Orthotics are applicable even if Alpha Orthotics undertakes a delivery with knowledge of the terms and conditions of business that are contrary to or deviate from these GTCs.

1.2 The following GTCs of Alpha Orthotics exclusively apply in respect of companies, partnerships and other legal entities under applicable law.

2. Offer, Contract Conclusion, Sales Brochures

2.1 Offers, sales brochures, etc. of Alpha Orthotics are non-binding and represent an invitation to the purchaser to deliver an order to Alpha Orthotics.

2.2 Any order signed by the purchaser is a binding offer that Alpha Orthotics can accept within 4 weeks from its receipt by Alpha Orthotics, through a written order confirmation or by delivery.

2.3 The contract comes into existence upon the sending off of the written order confirmation of Alpha Orthotics to the purchaser or upon the shipping of goods by Alpha Orthotics.

3. Prices, Payment

3.1 The prices of the respective current price list are applicable.

3.2 All quotations of Alpha Orthotics are in US Dollars, exclusive of the applicable local, national and international taxes, custom charges, duties, consular fees and transportation and delivery costs.

3.3 The purchaser is to bear all tariffs, consular fees and other taxes raised based on domestic and foreign regulations, duties, fees, etc., along with the costs associated with any orders and the shipping and handling thereof. The purchaser warrants to Alpha Orthotics that its order conforms to all applicable local and international laws, regulations and rules, including without limitation, tax laws, custom duties, consular fees, import/export (or re-import/export) controls, of applicable authorities within or without the United States.

3.4 Alpha Orthotics shall arrange for adhering to foreign packaging, weighing and customs regulations, to the extent that the purchaser provides exact information for this in a timely manner. The purchaser is to bear the associated extra costs.

3.5 To the extent that nothing else is agreed in writing, all invoices of Alpha Orthotics are due for payment upon the purchaser's receipt and are to be settled immediately (but at latest within 10 days) after receipt, without any deduction. The place of payment is the registered place of business of Alpha Orthotics indicated on the invoice.

3.6 If the purchaser is in delay with its payment, Alpha Orthotics is entitled to require annual interest in the amount of 8% or the highest rate of interest permissible under applicable law. Moreover, Alpha Orthotics is entitled to or assert any other claims or additional damages under applicable law.

3.7 The purchaser is not entitled to withhold payments based on counterclaims or offset payments with counterclaims, unless the counterclaims are undisputed or or ordered by a valid and final judicial or arbitral determination.

4. Delivery Dates, Force Majeure

4.1 If the purchaser does not perform its cooperation obligations and/or advance payments in a timely manner, the delivery dates are to be correspondingly postponed. Upon any violation of a cooperation obligation by the purchaser (particularly non-acceptance of the goods), Alpha Orthotics is entitled to require compensation for the damages and additional expenditures arising therefrom.

4.2 If Alpha Orthotics is in delay, the purchaser can require compensation for each completed week of delay in the amount of 0.5% (but at the most of a total of 5%) of the portion of the price that is allotted to the delayed delivery.

4.3 Upon a delay in delivery due to any unforeseeable event that is outside the sphere of influence of Alpha Orthotics (e.g., any strike or lawful lockout, any operational disturbance, any delay in the procurement of materials based on any non-punctual delivery by any Alpha Orthotics suppliers – including Alpha Orthotics itself - that is not attributable to Alpha Orthotics, any civil war, any act of terrorism, any natural catastrophe, any import or export prohibition, any scarcity of energy or raw materials), the agreed periods for delivery are to be extended for the duration of the hindrance. If, as a consequence of an act of force majeure, it is permanently impossible (but at least for a period of time of four months) for Alpha Orthotics to make a delivery, it will be released from its delivery obligation. In any such event, the purchaser is entitled to withdraw from the contract.

5. Place of Performance, Shipment, Passage of the Risk

5.1 To the extent that nothing else is agreed in writing, the place of performance is the registered place of business of Alpha Orthotics in Tiburon, California.

5.2 If, at the request of the purchaser, Alpha Orthotics itself or a third party assigned by it undertakes the shipment of the goods, the choice of the means and routes of transportation are at the discretion of Alpha Orthotics. Packaging and shipment expenses will be invoiced to the purchaser separately, unless, based on an express agreement, such costs are contained in the prices of Alpha Orthotics. Deliveries will be insured only at the express request of the purchaser and at its charge.

5.3 The risks of loss and of the deterioration of the goods pass to the purchaser at the point of time at which the goods leave the distribution warehouse of Alpha Orthotics or, where shipment has been made, upon the delivery to the forwarder, freight carrier or collector (also for transport with the purchaser's means of transportation). If the shipment is delayed by the purchaser, the risk passes to the purchaser upon the notification of readiness for shipment by Alpha Orthotics.

6. Retention of Title

6.1 Until full payment, the goods that are delivered remain in the ownership of Alpha Orthotics. If there are ongoing invoices, the goods secure all balances due to Alpha Orthotics.

6.2 To the extent that the realizable value of the security rights of Alpha Orthotics continuously exceeds the amount of all secured claims by more than 10%, Alpha Orthotics, at its choice, may release a corresponding portion of its security rights.

6.3 Until full payment to Alpha Orthotics, the purchaser is not entitled to pledge or convey for security the goods delivered by Alpha Orthotics. Nonetheless, if a third party acquires rights to the secured property, then the purchaser hereby assigns to Alpha Orthotics all its rights to the secured property that arise thereby. The purchaser is obligated to immediately inform Alpha Orthotics if, regarding the secured property, any pledge, seizure or other disposition takes places on the part of a third party.

6.4 The purchaser is entitled to resell the goods delivered by Alpha Orthotics in the ordinary course of business, provided that the purchaser have either received payment in full from the customers or have obtained customer’s agreement in writing acknowledging the title reservation of title to the goods of Alpha Orthotics till the full payment is made to it

7. Rights of the Customer upon Defects

7.1 For the determination of any defects, the purchaser must immediately examine the goods after receipt of delivery and, if an obvious defect appears, notify Alpha Orthotics of same in writing within one week of the receipt of the delivery. THE MERCHANDISE AND RELATED SERVICES OFFERED FOR SALE ARE PROVIDED “AS IS”. NO WARRANTIES OR REPRESENTATIONS OF ANY NATURE ARE EXTENDED NOR CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, INCLUDING, BUT NOT LIMITED TO, EXPRESS OR IMPLIED WARRANTY, WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF NON-INFRINGEMENT.

7.2 The purchaser must notify Alpha Orthotics of any non-obvious defects at the latest within one year of the receipt of the delivery. If the customer neglects the exclusion periods set forth in Sections 7.1 and/or 7.2, the goods will be deemed to be approved, with the consequence that the customer loses its defect rights under Sections 7.3 and 7.5.

7.3 If the goods turn out to be unsatisfactory, at its choice, the customer can require the elimination of the defect or the replacement with a defect-free item, at the option of Alpha Orthotics and subject to applicable costs that may be charged by Alpha Orthotics.

7.5 The customer shall be entitled to a refund of purchase price paid (if any) or reduction of price for the defective goods, if the defect is material and Alpha Orthotics elects not to repair or replace the goods.

7.6 The purchaser is not entitled to any rights that are based on defects that are only of a visual nature, were caused by normal wear and tear, or were caused by handling of the goods by the purchaser or a third party that did not correspond to the guidelines of the operating instructions or other written recommendations on use on the part of Alpha Orthotics (e.g., improper use, maintenance or storage).

7.7 The claims of the purchaser are time-barred one year after receipt of the delivery of the goods.

7.8 If an expendable part (e.g., a tape binding) possesses an average life span that is shorter than the period of limitation under this provision, the defect rights of the purchaser are to be asserted within the average life span.

8. Liability

8.1 Without limitation, Alpha Orthotics is liable for willful misconduct and gross negligence.

8.2 Unless otherwise provided herein, Alpha Orthotics’s liability shall be limited to the purchase price of the goods sold by Alpha Orthotics which give rise to the damage.

8.3 Liability for indirect, consequential, special and unforeseeable damage, such as, by way of example only, damage resulting from defects, lost profit, the loss of an opportunity to make savings and financial loss pursuant to the claims of third parties shall be excluded EVEN IF ALPHA ORTHOTICS SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF ALPHA ORTHOTICS.

9. Intellectual Property Rights

9.1 Without limitation, Alpha Orthotics reserves all ownership rights, industrial property rights and copyrighted rights to use in all illustrations, ideas, know-how, trade secrets, designs, technical specifications and other documents (hereinafter, "Documents"). The Documents may be made accessible to third parties only after the previous written consent of Alpha Orthotics.

9.2 If a third party asserts claims against the purchaser for infringement of valid U..S registered copyright, trademark or patent arising from use of the goods sold by Alpha Orthotics as specified by Alpha Orthotics, Alpha Orthotics shall, at its choice and at its expense, either acquire a right to use for the relevant goods, change the goods in such a way that there is no longer a violation of the intellectual property right or exchange the goods. To the extent that this is not possible or reasonable as determined by Alpha Orthotics, the purchaser is entitled to statutory withdrawal or reduction rights. Damaged claims exist only in accordance with the conditions of Section 8. All claims of the purchaser are time-barred in the period specified in Section 7.7.

9.3 The obligations of Alpha Orthotics under Section 9.2 are applicable only to the extent that the purchaser immediately informs Alpha Orthotics in writing of any claim that is asserted by a third party, it does not itself admit the violation and Alpha Orthotics possesses the right to engage in all preventive measures and settlement negotiations. If the purchaser discontinues the use of the goods for reasons related to damage reduction or other important reasons, then it must point out to the third party that no acknowledgement of a violation of an intellectual property right is connected with this.

9.4 Any claim of the purchaser is barred to the extent that the purchaser itself was responsible for the intellectual property right violation, it was caused by the use of the goods that was not foreseeable by Alpha Orthotics, or it was caused by the fact that the goods were modified by the purchaser or were used together with products that were not supplied by Alpha Orthotics.

10. Applicable Law, Place of Performance, Area of Jurisdiction, Savings Clause

10.1 Any amendment or supplement to these GTCs requires written form.

10.2 For all legal relationships between Alpha Orthotics and the purchaser, the internal laws of the State of California without regard to its conflict of law principles.

10.3 .The purchaser consents to the jurisdiction of the federal and state courts in the State of California, United States with respect to enforce the arbitration provision hereof, and the purchaser waives any claim of lack of jurisdiction, improper venue or inconvenient forum.

The purchaser agrees that any controversy or claim relating the purchase of merchandise or related services on this site, shall be resolved exclusively by final and binding arbitration under the rules of the American Arbitration Association then in effect, in its offices in San Francisco, California of the Untied States. The language of the arbitration shall be English. Judgment upon the arbitration award may be entered in any court having jurisdiction.

10.4 Should any individual provisions of these General Terms & Conditions of Business or parts hereof be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of these General Terms & Conditions of Business. In place of the invalid provision the parties shall insert a valid provision which from a factual, legal and commercial perspective replicates as closely as possible the invalid provision. The same procedure shall be followed should these General Terms & Conditions of Business prove not to contain a provision which they should contain. The purchaser agrees that the General Terms and Conditions contained and referenced herein represent the entire understanding between Alpha Orthotics and the customer with respect to the order and purchase, and supersede any prior or contemporaneous, conflicting or additional understanding or communications, unless otherwise agreed by parties in writing and signed by Alpha Orthotics.

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