General Terms And Conditions

I.

Scope of application

1.

Quotations, sales and deliveries by the contractor are made on the basis of these general terms and conditions of business, supply and payment. The contractor’s conditions of purchase or other unilaterally contradictory agreements are only considered to be accepted if they are confirmed by the contractor as an addendum to these general terms and conditions of business, supply and payment.

2.

Reference to or acknowledgement by the customer with reference to his conditions of purchase is hereby expressly repudiated.

II.

Quotations and conclusion of an agreement

1.

Notwithstanding contradictory written or oral agreements, the contractor’s quotations are nonbinding until accepted by the customer and can therefore be revoked by the contractor at any time before receipt of the customer’s written declaration.

2.

Notwithstanding contradictory written or oral agreements, customers’ quotations / orders shall be confirmed by the contractor in writing, by fax or in text form insofar as delivery or invoicing does not take place immediately.

3.

If alterations to the order are subsequently requested by the customer, these alterations are only effective if the contracting parties come to a mutual agreement regarding the alterations.

4.

The definitive quality of the delivery items owed by the contractor shall be the information contained in his specifications.

Information contained in catalogues, brochures, circulars, advertisements, illustrations and price lists does not determine the quality of the delivery items unless it is expressly included in this specification with reference to the specification.

5.

Information contained in the contractor’s specifications for determining the quality of the delivery items shall not constitute a guarantee, in particular it shall not constitute a guarantee of durability.

The acceptance of guarantees and the procurement risk requires express agreement between the parties in which it is expressly declared that a guarantee and/or the procurement risk is accepted.

III.

Delivery/ Delivery delay/ Force majeure / Reservation of self-delivery

1.

Insofar as this is not otherwise agreed orally or in writing, the delivery period shall be the delivery deadline specified in writing in the order confirmation. Insofar as the customer has not provided all documents, approvals, releases, etc. to be supplied by the customer at least one month before the delivery deadline set down in writing, the delivery deadline set down in writing shall be extended by one month beginning from the point in time at which the above documents, approvals, releases, etc. have been received in full by the contractor. 

2.

The delivery deadline shall be deemed as complied with if the delivery item has left the contractor’s works by the expiry of the deadline, or in case of collection by the customer if the contractor has informed the customer of its readiness for despatch.

3.

Notwithstanding contradictory agreements, the customer is obliged in case of on-call delivery agreements to determine delivery schedules covering at least six months in advance and to call for goods in accordance with the determined delivery schedules in good time before the respective delivery deadline. Should the customer not comply with this obligation or not comply as agreed, the contractor is entitled to make the call or organise the scheduling himself, to deliver the goods or to withdraw from the agreement after having set a reasonable deadline. The right to demand compensation due to breach of duty is not excluded by withdrawal.

4.

Compensation claims against the contractor due to delivery delays or due to services not provided are excluded insofar as gross negligence or premeditation on the part of the contractor, his executive staff or vicarious agents is not involved. This limitation of liability does not apply in case of the culpable infringement of significant contractual obligations (cardinal obligations) for which the contractor is accountable.

The amount of compensation for damage is limited to those that are foreseeable and typical for the contract in cases severe violations of contract caused by ordinary negligence.

Compensation due to production downtimes and/or lost earnings is excluded in cases of ordinary negligence.

This limitation of liability applies accordingly for the conduct of the contractor’s vicarious agents and subcontractors.

Liability for injury to life, limb and health remains unaffected by the above limitation of liability.

Any right to withdrawal to which the customer may be entitled due to such circumstances remains unaffected by this limitation of liability.

5.

If, after conclusion of the agreement, the contractor is prevented from fulfilling his obligations through the occurrence of unforeseen, unusual circumstances which could not be anticipated despite the exercising of reasonable care appropriate to the circumstances, in particular breakdowns, official sanctions or intervention, delays in the supply of major raw materials, energy supply problems etc., the delivery deadline shall be extended commensurately. Should delivery become impossible due to these circumstances the contractor is freed from his delivery commitment.

This regulation also applies in case of lock-outs and strikes.

Should the contractor demonstrate that despite careful selection of his suppliers and despite conclusion of the necessary agreements on appropriate terms he has not received a delivery from a supplier in good time, the delivery deadline shall be extended by the delay period caused by the non-punctual delivery by the supplier. In the case that delivery by the supplier is impossible the contractor is entitled to withdraw from the contract. The contractor undertakes to cede to the customer any claims against the supplier to which he is entitled due to the unpunctual or non-delivery.

If the above impediments last longer than one month the customer is entitled to withdraw from the contract with regard to the as yet unfulfilled part.

Should the delivery time be extended in the above cases or should the contractor be freed from his obligation to supply, any resulting compensation claims and rights of withdrawal on the part of the contractor with the exception of the right to withdraw expire after one month.

The contractor may only cite the circumstances described here if he has promptly informed the customer of said circumstances.

6.

Termination of the contractual relationship due to delivery delay requires default on the part of the contractor and additionally requires the setting of an appropriate deadline with the threat that the contractual relationship shall not be continued by the customer after the deadline set has expired.

IV.

Packaging and despatch

The contractor is obliged to provide the customary packaging. His liability with regard to packaging and despatch is limited to premeditation and gross negligence as far as no injury to life, limb and health is involved. The contractor’s right to raise a plea of contributory negligence on the part of the customer remains unaffected.

V.
Reservation of title

1.

The goods supplied remain the property of the contractor until the sale price is paid in full.

2.

The customer is entitled to sell on the reserved goods in the normal course of business; pledging or transfer by way of security is, however, only permitted with the approval of the contractor. The customer is obliged to secure the rights of the contractor in case of resale of the reserved goods on credit.

3.

The customer hereby cedes claims of the customer’s arising from the resale of the reserved goods to the contractor; the contractor accepts the cession. Regardless of the cession and the contractor’s right to seizure, the customer is entitled to seizure as long as he fulfils his obligations towards the contractor and his financial situation does not deteriorate. At the request of the contractor the customer shall supply the information on the ceded claims necessary for seizure, in particular a list of debtors with names and addresses, the amount of the claims and the date of invoicing, and inform the debtors of the cession.

4.

Any processing and treatment of the reserved goods is performed by the customer for the contractor without creating any obligation for the contractor. In the case of processing, combination or mixing of the reserved goods with other goods not belonging to the contractor the contractor is entitled to a co-ownership share of the new item which is created proportional to the invoice value of the reserved goods in relation to the remaining processed goods at the time of processing, combination or mixing.

If the contractor acquires sole ownership of the new item, the contracting parties agree that the customer shall grant the contractor co-ownership of the new item proportional to the invoice value of the processed, combined or mixed reserved goods and shall keep this co-ownership share for the contractor free of charge.

5.

If the reserved goods are resold immediately together with other goods either without or following processing, combination or mixing the cession in advance agreed above shall apply only to the amount of the invoice value of the reserved goods which are resold together with the other goods.

6.

The customer shall immediately inform the contractor about foreclosure measures by third parties on the reserved goods or claims ceded in advance and shall hand over the documentation necessary for intervention.

7.

The authorisation of the contractor to dispose of the reserved goods and to collect the ceded claim lapses in case of arrears on the part of the customer, in case of bill or cheque protests and financial collapse – in particular in case of application for a composition or for insolvency by the customer. In these cases the contractor is in particular entitled to take possession of the reserved goods and the customer is obliged to hand over the reserved goods to the contractor. Redemption constitutes withdrawal from the contract only if this is expressly stated.

8.

It is hereby clarified that in cases of cheque financing the title to the delivery items only passes to the customer following complete redemption of the draft and payment of the amount of the draft to the contractor.

9.

If the customer falls into arrears with his payments to the contractor twice within six months and/or if the customer is insolvent and/or his insolvency becomes apparent on the basis of objective criteria the contractor is entitled to demand the return of the delivery item and, in case of resale, to collect claims ceded to the contractor directly from the customer’s buyer.

The contractor is entitled to assert the handing over of the delivery items by the customer without being obliged to declare his withdrawal from the agreement.

10.

The contractor undertakes to release the securities he is entitled to under the above provisions insofar as their value exceeds the claim by 10 % or more. Which securities the contractor releases shall be decided by the contractor at his sole discretion.

VI.

Notice of defects/Defects

1.

The customer’s obligations to inspect and report defects are defined in Section 377 of the German Commercial Code (HGB).

2.

In case of larger deliveries of similar goods the entire batch delivered can only be rejected as defective if the defects have been detected by means of a recognised representative sampling process.

  

3.

The contractor shall be given the opportunity to ascertain reported defects in situ.

VII.

Miscellaneous compensation claims

1.

Compensation claims against the contractor due to miscellaneous breaches of duty by the contractor, in particular duty of care and/or due to obligations similar to a legal transaction are excluded if not caused by gross negligence or premeditation and/or culpable infringement of major contractual obligations (cardinal obligations) and/or injury to life, limb or health by the contractor or his assistants or vicarious agents.

The amount of compensation for damage is limited to those that are foreseeable and typical for the contract in cases severe violations of contract caused by ordinary negligence.

Liability due to production downtimes and/or lost earnings is excluded in case of ordinary negligence.

The aforementioned limitation of liability also applies accordingly to the behaviour of the supplier's subcontractors and vicarious agents.

2.

This limitation of liability in accordance with paragraph (2) applies correspondingly to wrongful claims. Liability in accordance with the Product Liability Act remains unaffected by this provision.

3.

Compensation claims arising from miscellaneous breaches of duty provided for in this section which are not based on a material defect expire within one year following the conclusion of the year in which the claim has arisen and the contractor has been made aware of the circumstances upon which the claim is based or must have become aware of said circumstances in the absence of gross negligence. The maximum periods provided for in Section 199 Clauses 2 and 3 of the German Civil Code (BGB) continue to apply.

This limitation of expiry deadlines does not apply to compensation claims due to gross negligence or premeditation, in case of culpable infringement of major contractual obligations (cardinal obligations), injury to life, limb and health and liberty and also infringement of the Product Liability Act by the contractor or his assistants or vicarious agents.

VIII.

Industrial property rights

1.

Compensation claims against the contractor, his assistants or vicarious agents arising from the infringement of trade marks, patents, patent applications, utility and design patents and copyrights are excluded insofar as they are not due to gross negligence or premeditation on the part of the contractor, his assistants of vicarious agents or insofar as the non-infringement of the above industrial property rights was guaranteed by the contractor.

This limitation of liability does not apply in case of the culpable infringement of major contractual obligations (cardinal obligations) by the contractor, his assistants or vicarious agents.

The amount of compensation for damage is limited to those that are foreseeable and typical for the contract in cases severe violations of contract caused by ordinary negligence.

Liability due to ordinary negligence does not include liability due to production downtimes and lost earnings.

This limitation of liability applies correspondingly for the conduct of the contractor’s vicarious agents and subcontractors.

2.

The customer’s right to withdraw due to the infringement of the above industrial property rights remains unaffected. 

3.

Insofar as the contractor can be held liable for the infringement of the industrial property rights of third parties the customer has only proven said defective title if a legally valid judgement has been made against him in this regard. The right of the customer to inform the contractor of the dispute remains unaffected by this provision.

IX.

Suspension of expiry in case of negotiations

Negotiations regarding claims due to material defects or other compensation claims are only deemed to be ongoing if the parties have declared that they will negotiate about such claims. 

X.

Conditions of payment

1.

Payments are due by the agreed payment deadline. If no date-related deadline has been determined, payments are due on receipt of the invoice or a corresponding payment plan. Insofar as the receipt of the invoice or the payment plan is uncertain, payments are due on receipt of the contractor’s goods and services.

2.

In case of outstanding contractor’s invoices, payments made cover the respective oldest claim due insofar as this claim is not a claim against which the customer has asserted a right of retention.

3.

If the customer is in payment arrears from previous deliveries by the contractor and/or the customer suffers a significant deterioration in his financial situation subsequent to conclusion of the contract which endangers the contractor’s claim for reciprocation, the payment must be made matching payment with delivery of the delivery items. The customer can avert the matching of payment with delivery by providing security to the amount of the sale price with regard to the relevant delivery.

4.

The customer is not entitled to offset the contractor’s claims as long as these claims have not been deemed to be undisputed or legally binding.

XI.

Place of fulfilment/ Place of jurisdiction/ Applicable law

1.

Notwithstanding contradictory arrangements, the place of fulfilment for deliveries, services and payment is the contractor’s domicile.

2.

The exclusive place of jurisdiction for all disputes arising from the contractual relationship existing between the parties upon which these goods and services are based is the contractor’s domicile. The contractor is, however, entitled – but not obliged – to sue the customer at the customer’s domicile.

3.

German law applies to the legal relationship between the parties with regard to the agreed goods and services with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

4.

Supplementary agreements, reservations, alterations and amendments shall be made in writing.

5.

Should a provision of these general conditions of business, delivery and payment or a provision as part of other agreements with regard to the delivery contract be or become ineffective this shall not affect the effectiveness of all other provisions or agreements.

XII.

Product limitations

1.

The contractors products are intended for plant biotechnology and laboratory research purposes only and are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in food, in drugs, medical devices, or cosmetics for humans or animals, or for general commercial purposes. Buyer acknowledges that the products have not been tested by the contractor for safety and efficacy in food, drugs, medical devices, cosmetics, commercial or any other purposes. No product purchased from the contractor shall be considered to be food, drugs, or cosmetics.