Terms and Conditions

All deliveries and services are subject exclusively to the following terms and conditions, even if we do not contradict conflicting terms and conditions of the customer. Terms and conditions of the customer apply only insofar as specifically accepted by us in writing.

I. Offers/Conclusion of Contract:

1. All offers are subject to confirmation. Contractual agreements of any type are only legally binding when confirmed by us explicitly, or if the subject matter of the agreement has been executed. The goods that are offered by us are determined for laboratory respectively research purposes only and will not be sold to private individuals. The customer’s orders will only be accepted, if the customer can prove that he is entitled to buy our goods. Our order confirmation governs the content of the contract and is the decisive reference.

2. Our samples are non-binding demonstration samples of general character and in no way binding as to specific characteristics of the product. Analysis data and other details pertaining to our products, in particular information presented in our offers and other publications in the form of diagrams, illustrations, quality-, quantity-, weight- mass- and performance data only apply for reference purposes and do not represent a specification of quality as far as this is not explicitly guaranteed in writing. As far as no limits concerning an admissible divergence are fixed in the order confirmation and the limit for an admissible divergence does not arise from explicitly accepted customer specifications, at any rate, the divergence that is customary within an industry is admissible. The quality, suitability, qualification, functioning and designated use of our products is defined exclusively in our specifications and technical qualifications. Public statements, praise or advertising by us or third persons do not constitute specifications concerning the quality of the products.

3. Guarantees pertaining to the quality or durability of our products must be specifically denoted as such in the order confirmation. In case of the delivery of samples or specimen, the quality of those samples shall not be deemed to be guaranteed unless this is explicitly determined in the order confirmation.

II. Delivery Periods, Non-performance:

1. Delivery periods and delivery dates not explicitly denoted as mandatory in the order confirmation shall always be deemed approximate. They refer to the time of dispatch and are complied with upon notification of readiness for dispatch. After the expiry of a delivery period or delivery date the customer is entitled to set an adequate time limit for the delivery. If we fail to deliver within the set time limit we will be in default. Delivery periods do not begin, before the customer has submitted the relevant documentation required and not before we received an advance payment provided that such a payment was agreed upon in writing.

2. In the case of force majeure, such as business disruption of any kind, official orders, delays of transport, lawful strikes, war, lockouts unexpected events at the time of conclusion of the contract that we were unable to prevent despite reasonable care in the circumstances of the individual case, regardless of whether this has occurred with us or with our suppliers or subcontractors (subject to our own receipt of delivery), such as war, natural disasters, breakdowns, lawful strikes, lockouts or official orders, these delivery times/ dates shall be extended for the duration of the hindrance and a reasonable start-up time. If such hindrance prevents performance for more than four months, both parties may withdraw from the contract. If delivery should become impossible or unreasonable as a result of the aforementioned circumstances through no fault of our own, we are entitled to withdraw from the contract in whole or in part because of the part not yet fulfilled. The customer shall have no claims for damages against us in this case. Any statutory rights of withdrawal shall remain unaffected.

3. Should we be in delay with the delivery for other reasons or should our delivery become impossible for other reasons, we shall be liable for damages only according to clauses VII.3. and VII.4. Damages caused by default that we have to compensate shall be limited to 0.5% of the value of the products not delivered or only partly delivered, for each complete week we are in delay. However, the damages shall not exceed a maximum of 5% of the value of the same delivery.

4. We are entitled to partial deliveries and partial services as is customary in the trade, unless the partial delivery or service is unreasonable or excluded by contract for the customer.

5. Each delivery shall be deemed to be an independent commercial transaction. For contracts concerning consecutive deliveries the requested delivery scheduling shall be of approximately equal monthly batches. The customer shall submit his request at latest four weeks prior to the beginning of the month of the respective delivery. Should such a request or delivery scheduling not be submitted in due time, we are entitled, after having unsuccessfully set a time limit to submit the request or delivery scheduling, to determine the delivery scheduling and to deliver the contract goods. Alternatively, instead of determining the schedule and delivering the goods, we may, at our own choice, refuse performance of the outstanding obligation and demand compensation.

III. Passing of Risk and Shipping:

1. In all cases, the passing of risk to the customer takes place with the handing over of the goods to the carrier or freight-forwarder, at latest, however, by the time the goods are leaving our warehouse. Should the shipment be delayed despite our readiness for dispatch for reasons beyond our control, the passing of risk takes place with the notification of our readiness for dispatch. Storage costs incurred after the passing of risk have to be borne by the customer.

2. Mode of shipment and packing are at our discretion. All shipping costs have to be borne by the customer unless the parties agreed on something different. The decisive freight rates, tariff rates and other fees are those that are valid as per the day of the dispatch. If the parties did not agree upon something else, the goods will only be insured against damage in transit and other risks upon the customer’s explicit request and at his expense.

3. Should the customer refuse to accept the goods, or should the dispatch of the delivery be delayed for other reasons for which the customer is responsible, the risk with respect to the products will pass with the beginning of the default of acceptance by the customer. Storage costs that incurred following the passing of risk have to be borne by the customer. We are entitled to demand storage costs in the amount of 0.5% of the amount of the invoice per month, unless the customer can prove that a lesser damage has occurred. We are at liberty to claim an actual higher damage. Moreover, we can set the customer a time limit of 14 days and, after the period has lapsed without success, we are entitled to withdraw from the contract or claim compensation for non-fulfillment.

IV. Prices:

1. Delivery shall be made on the basis of the price lists applicable at the time the contract is concluded on the basis of the price as agreed at conclusion of contract. Prices are, unless otherwise agreed, net prices in euros „ex works“ (Incoterms 2010) in Hamburg without packing excluding statutory value-added tax and any other taxes and fees incurred for the execution of the order.

2. Discounts as well as other deductions beyond any written agreement are not permitted.

3. If changes occur in circumstances after conclusion of the contract that are material to the determination of the fee, including but not limited to the cost of materials, wages, transport and public duties we are required to pay, in a manner that is neither foreseeable nor attributable to us, we reserve the right to adjust our prices in the same proportion. Insofar as the aforementioned circumstances lead to a reduction of costs, we undertake to reduce our prices in the same proportion vis-à-vis the customer. Cost increases or cost reductions shall be justified to the customer upon request. In the event of a price increase of more than 10 % since conclusion of the contract, the customer shall have the right to withdraw from the contract.

V. Default/Set-off/Retention/Offset within a Corporate Group/Assignation:

1. Our invoices can be transmitted by electronic measure as well.

2. The purchase price is payable within 30 days after invoice date. If payment is not effected within this payment period we are entitled, without reminder, to demand default interest in the amount required by law. The right to claim further damages is not excluded by this clause.

3. Offsetting with counterclaims of the customer or the retention of payments due to such claims, is only permitted if the counterclaims are uncontested, ripe for decision or legally established.

4. We are entitled to setting off such claims against the customer that our interlocking enterprises, particularly the parent company, affiliated companies and subsidiary companies are entitled to including such claims of the interlocking enterprises of the customer against us, as far as this is legally admissible.

5. The customer is not entitled to assign claims arising in this contract to third persons without our prior written consent.

6. In the event the customer is in default in payment, even if it is just one installment, or if we become aware of circumstances that may cast justified doubt on the credit worthiness of the customer, our entire claims become due. This also applies if those circumstances already existed at the time of the order of the goods, but were not known to us and did not have to be known to us. Furthermore, in such cases, we are entitled to demand payment in advance for all outstanding deliveries; the customer is obliged to pay in advance.

VI. Reservation of Title:

1. The following retention of title serves to secure all of our existing current and future claims against the customer from the ongoing business relationship existing between the parties, including all current account balance claims (hereinafter „secured claims“). All goods delivered by us remain our property until full payment of all secured claims. Goods and the goods taking their place covered by the retention of title according to the following provisions are hereinafter referred to as „reserved goods“.

2. The customer is obliged to sufficiently insure the goods against the common risks.

3. If goods which are subject to reservation of title are processed and converted we are considered to be the manufacturer in terms of § 950 BGB (German Civil Code), without the creation of any obligations for ourselves. Processed and converted goods are deemed to be goods subject to reservation of title according to clause VI.1. If the customer produces a new product or a mixed stock or entity by processing, converting, combining and mixing the goods that are subject to reservation of title with goods that are owned by someone else, this new product, stock or entity is owned jointly by us at the ratio of the invoice value of the good that is subject to reservation of title at the time of the delivery and the value of the other good at the time of processing, converting, combining or mixing. The co-ownership share is deemed to be a good that is subject to reservation of title according to clause VI.1. In the event that no such acquisition of ownership should accrue to us, the customer hereby assigns its future ownership or – in the ratio mentioned above – its co-ownership to the newly created item or to the mixed asset to us as security in advance. We accept this assignment.

4. If the reserved goods are joined or inseparably mixed with other items to form a single item, and if one of the other items is to be considered the main item within the meaning of section 947 BGB, the customer hereby assigns pro rata co-ownership of the single item in advance to us in the ratio of the value of the reserved goods (final invoice amount including value-added tax) at the time of delivery to the value of the main item (final invoice amount including value-added tax). We accept this assignment. The co-ownership interest shall be deemed reserved goods pursuant to clause VI.1.

5. The customer is obliged to store the good that is subject to reservation of title for us free of charge. At our request we must be permitted access to the respective storage location for the purpose of stocktaking or for adequate marking of the goods. Prior to full payment of the secured claims, the reserved goods may neither be pledged to third parties nor assigned as security. The Customer is obliged to inform us without delay of any seizure of the goods that are subject to reservation of title or of any other detriment to our rights by third parties stating all details that will enable us to take all legal actions possible against this.

6. Provided that the customer resells the goods in the ordinary course of business in accordance to his normal general terms and conditions and that he stipulates a reservation of title corresponding to the extent of our reservation of title and provided that it is secured that the customer’s claims deriving from the resale according to clause VI.7 are passed to us, the customer may resell the goods that are subject to reservation of title.

7. In case of resale of reserved goods the customer hereby assigns any resulting claim against the purchaser to us as security, as well as those claims that take the place of the reserved goods or otherwise arise with respect to the reserved goods, such as insurance claims or tort claims from loss or destruction, including all current account balance claims. We accept this assignment.

8. The customer is not entitled to assign those claims to third persons without our prior written consent.

9. The assignment of the claim deriving from the resale is only effected in the amount of the invoice value of the goods delivered by us in case the customer resells our goods subject to reservation of title in conjunction with other goods that were not delivered by us. The assignment of the claim deriving from the resale is only effected according to the value of our co-owner’s share in case of a resale of goods that are owned jointly by us and someone else according to clause VI.3. and 4.

10. If a current account relationship pursuant to section 355 of the German Commercial Code (HGB) exists between the customer and its purchasers, the claim assigned to us by the customer in advance also relates to the acknowledged balance, and in the event of insolvency of the customer, to the then existing „causal“ balance. Subject to revocation, the customer is entitled to collect the claims due from resale according to clause VI.6. and 9.

11. In case the customer fails to fulfill his contractual obligations, or if we become aware of circumstances that may considerably reduce the credit worthiness of the customer,

a. we are entitled to forbid resale, processing, converting of the goods that are subject to reservation of title as well as combining and mixing those goods with other goods;

b. we may withdraw from the contract; in this case, the right of the customer of possession of the goods that are subject to reservation of title expire and we are entitled to reclaim possession of those goods; in this case and for this purpose, we are entitled to enter the customer’s premises, as well as, at the cost of the customer and irrespective of his other obligations to pay, to realize them at the best by private sale or by auction; after deduction of our costs, the proceeds of this realization will be deducted from the customer’s liability towards us; any surplus of this realization will be paid to the customer;

c. on inquiry, the customer must disclose the names of the debtors of the claims that have been assigned to us, in order that we can disclose the assignment and collect the assigned claims; immediately after receipt of payment of claims that have been assigned to us, the proceeds have to be forwarded to us, if and as soon as our claims against the customer are due;

d. we are entitled to revoke the accorded direct debit authorization.

12. In case the value of the securities that we are entitled to exceeds our claims by more than 15%, we are, upon request of the customer, obliged to release securities at our own choice.

VII. Warranty/Statute of Limitations:

1. The Goods we delivered have to be thoroughly inspected at once after the delivery, even if samples were delivered. In the event the goods are defective, the customer has to give notice of the defect in writing and without delay, however, reaching us no later than 7 days after the date of delivery. Otherwise, the goods shall be deemed to be approved. The customer has to give notice of the defect in writing after having detected the defect, reaching us immediately, no later than 7 days after the date of the detection of the defect, in the case the defect was not visible at the first inspection. The delivered goods are intended exclusively for laboratory research respectively for research purposes. Liability for any other usage, for example for medical-therapeutical or diagnostical purposes, is excluded.

2. We will render supplementary performance at our choice by rectification of defects or by replacement if notification of defects is legitimate and timely. Supplementary performance does not include either the expansion of the defective item or reinstallation if the supplier was not originally contracted for installation. The customer shall only be entitled to claims for damages due to defects provided our liability is not excluded or limited in accordance with clause VII.3 and VII.4. Further claims for defects or other claims than those set forth in this clause VII. are excluded.

3. The warranty period is one year from delivery or, if acceptance is required, from acceptance. This does not affect the statutory limitation periods in cases of fraudulent concealment as well as claims of delivery recourse pursuant to sections 478, 479 BGB.

4. We shall only be liable for gross negligence and intent and in the event of a breach of a material contractual obligation, the fulfillment of which enables the proper implementation of this contract in the first place, and upon the fulfillment of which the customer regularly may rely („cardinal obligation“). For slightly negligent breach of a cardinal obligation, our liability is limited to the typical damage foreseeable at the conclusion of the contract. These liability limitations and exclusions do not apply to fraudulent concealment of defects, the assumption of a guarantee or a procurement risk, the liability under the Product Liability Act and for bodily injury (injury to life, limb or health). This does not entail a change in the burden of proof to the detriment of the customer. Insofar as our liability is limited or excluded, this also applies to the liability of our employees, representatives or agents.

5. With the exception of claims arising from tortious acts, claims for damages of the customer for which liability is limited under this provision shall lapse one year from the start of the statutory limitation period.

6. The customer is obligated to assert and enforce all possible claims against our distributor before being entitled to assert claims against us. For this purpose, we are obliged to assign warranty claims and claims for damages to our customer that we have against our distributor. The customer is obligated to enforce such claims by legal action. The customer is only entitled to assert his claims according to clauses VII.4. and VII.5. against us, if the assertion and enforcement of the claim against our distributor is without success.

VIII. Advice:

We try to give technical advice concerning the utilization of our goods or of the goods we distribute, respectively, to the best of our knowledge. This advice is free of charge and does merely constitute our experienced data that is not to be considered as warranted; the advice does not create claims against us, namely not concerning protected privileges of third parties. In particular, the customer is not discharged from examining the qualification/adequateness by himself. In case the customer nevertheless has claims for damages, clauses VII.4. and VII.5. apply.

IX. Place of Performance, Applicable Law and Jurisdiction:

1. The place of performance for all delivery and payment obligations is Hamburg.

2. If we are claimant, place of jurisdiction for all conflicts arising from the business relations is, of our own choice, Hamburg or where the registered office of the customer is situated, otherwise it is always our place of business. Legal provisions concerning exclusive jurisdiction remain unaffected.

3. This choice of forum applies provided that the customer is a merchant or has no general jurisdiction in Germany. The contract is exclusively subject to German law. The CISG and other current or future intergovernmental or international treaties, even after having been adopted to German law, do not apply to this contract.

X. Final Provisions:

It will be without prejudice to the rest of the clauses, if individual clauses of these Terms and Conditions or of the Contract are or become invalid. In place of the invalid clause, a clause that corresponds to its purpose and meaning is deemed to be agreed. The same applies to possible loopholes in the contract.

Hamburg, January 2017, BIOMOL GmbH

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