General Terms and Conditions of Sale and Delivery of DIANOVA GmbH
All supplies, services and offers of dianova, a limited liability company for biochemical, immunological and microbiological diagnostics (hereinafter referred to as “Seller”), shall be exclusively made or performed by virtue of these General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTC”). These GTC shall be an integral part of all agreements entered into between the Seller and its contractual partners (hereinafter referred to as “Customer” or “Buyer”) on the supplies and services offered by him. They shall likewise apply to all future supplies, services or offers to the Customer in their applicable version, even if not agreed separately. The GTC shall only apply to merchants.
Any General Terms of Business of the Customer or third parties shall not apply, even if the Seller does not expressly repudiate their validity in individual cases. If the Seller refers to a letter containing or making reference to the General Terms of Business of the Customer or a third party, this does not constitute acknowledgement of the validity of such General Terms of Business.
The Seller’s products are intended for research and diagnostic purposes and use by recognized institutions. Purchases made by the Buyer shall be in exercise of his commercial or self-employed professional activity.
2. Offer and Conclusion of Contract
All offers made by the Seller are without obligation and non-binding, unless they have been explicitly defined as binding or include a specific acceptance period. The Seller may accept orders or contracts within fourteen days after receipt.
The legal relationship between the Seller and the Buyer shall be exclusively governed by the written purchase contract, including these GTC. The purchase contract reflects in full all agreements between the contracting parties on the subject matter of agreement. Verbal statements on the part of the Seller prior to entering into said contract shall not be legally binding and verbal agreements made between the contracting parties shall be replaced by the written contract, unless it is explicitly stipulated that they continue to be binding. Alterations and amendments to the agreements made, including these GTC, shall be required in writing in order to be effective. With the exception of company managers and authorized signatories, no employees of the Seller shall be entitled to enter into deviating verbal agreements. Transmission via fax shall suffice to satisfy the written form requirement, otherwise transmission via telecommunication, especially via e-mail shall generally not suffice. Agreements entered into between the Seller and the Buyer exclusively using telecommunication tools (e-mail) (electronic business), the written form shall be replaced with the implementation of the technical steps required by the Seller which result in the conclusion of an agreement.
Details given by the Seller regarding the object of supply or service (e.g. weights, dimensions, use value, concentration, tolerances and technical data) as well as representations thereof (e.g. drawings or illustrations), shall be said to be proximate in nature, unless exact compliance is necessary for the usage stipulated in the contract. They shall not constitute any guaranteed characteristics and shall only be viewed as descriptions or depictions of the supply or service. Usual deviations or deviations due to statutory provisions or which constitute technical improvements as well as replacement of components by equivalent parts shall be permissible, unless they impair the usage stipulated in the contract.
The Seller shall reserve the title and/or copyright to all his offers and quotations as well as drawings, illustrations, calculations, brochures, catalogs, technical instructions, models, scientific texts and other documents or tools provided to the Customer. The Customer shall not make accessible or disclose these objects to third parties or copy or use them or have them copied or used by third parties without the explicit consent of the Seller. At the Seller’s request, the Customer shall return all objects and destroy any copies thereof if he no longer needs them in the course of his ordinary business or if negotiations do not result in the conclusion of an agreement.
3. Prices and Terms of Payment
Prices shall apply for the scope of services and supply specified in the order confirmation. Additional or special services shall be invoiced separately. Prices are in EURO ex works plus packaging, statutory VAT, customs for export deliveries as well as fees and other public charges.
Insofar as the agreed prices are based on the list prices of the Seller and the supply is scheduled for a date that is more than four months from conclusion of agreement, the right to invoice deliveries according to the list prices applicable at the time of delivery shall be reserved (minus the agreed percentaged or fixed discount as applicable).
Unless otherwise agreed in writing, invoiced amounts are due for payment without deduction within thirty days of receipt of invoice. In case of doubt the invoice shall be considered as received on the third calendar day following invoicing. The receipt of the payment by the Seller shall be decisive for the date of payment. Checks shall only be deemed as payment after cashing. Should the Customer be in default of payment, the Seller shall be entitled with effect from the due date to demand interest at a rate of 8 percentage points per annum above the base rate of the European Central Bank; this shall not affect the assertion of higher interests and further damages in case of default. The Buyer is entitled to prove that no loss or some lesser loss has been incurred as a result of the default.
The Customer shall only be entitled to offset counterclaims or retain payment due to such claims insofar as the counterclaims are undisputed or have been determined as final and absolute. The Buyer shall only be entitled to a statutory right of retention or refusal of performance if the claims are undisputed or determined as final and absolute and originate from the same contractual relationship with the Seller. Assignment of counterclaims as specified in this section to third parties shall be precluded.
The Seller shall be entitled to provide outstanding supplies or execute services only against payment in advance or provision of security if after entering into contract he becomes privy of circumstances which raise serious doubts as to the creditworthiness of the Customer or endanger the payment of outstanding accounts by the Customer to the Seller which are due under the respective contractual relationship (including other individual contracts for which the same master agreement applies).
4. Delivery and delivery time
Deliveries shall be ex works. Deadlines or dates for deliveries and services indicated by the Seller shall be viewed as proximate, unless a fixed deadline or a fixed date has been explicitly confirmed or agreed. Insofar as shipment has been agreed, delivery deadlines and dates relate to the time of handing over the products to the forwarder, freight carrier or the appointed transport company.
The Seller may – without prejudice to his rights accruing as a result of default on the part of the Customer – demand that the Customer extend the times allotted for supply and services or postpone the deadlines for supply and services for the duration of the period during which the Customer fails to fulfill his contractual duties towards the Seller.
The Seller shall not be liable for the impossibility of supply or for delays in supply insofar as these are attributable to force majeure or other events not foreseeable at the time the contract was concluded (for example; stoppages and interruptions of whatever kind; difficulties in procuring material; transport delays; strikes; lawful lockouts; lack of workers, energy or raw materials; difficulties in procuring the necessary official approvals; official actions or non-delivery, incorrect or untimely delivery by suppliers) for which the Seller is not responsible.
If as a result of such events it becomes materially difficult or impossible for the Seller to provide supplies or services and said impediment is not merely of temporary duration, the Seller shall be entitled to rescind the contract. In the case of impediments of temporary duration, the times allotted for supply and services shall be extended or the deadlines for supply and services postponed for the duration of the impediment plus a reasonable lead time. Insofar as it is no longer reasonable as a result of the delay for the Customer to accept the supply or service, the Customer may give immediate written notice to the Seller to rescind the contract.
The Seller shall only be entitled to part-deliveries if
• the part-delivery can be used by the Customer in line with the contractually specified intended use,
• the delivery of the remaining goods ordered is ensured and
• the Customer does not suffer from significant additional costs incurred hereby (unless the Seller declares his willingness to bear these costs).
If the Seller is in default with a supply or service or a supply or service is impossible , irrespective of on what grounds, the liability for damages on the part of the Seller shall be limited according to Clause 8 of these GTC.
5. Place of fulfillment, dispatch, packaging, transfer of risk, acceptance
Place of fulfillment for all obligations arising from the contractual relationship shall be the registered office of the Seller, unless otherwise stipulated.
The method of dispatch and packaging lie within the discretion of the Seller.
The risk shall be transferred to the Customer at the time at which the subject matter of delivery is handed over to the forwarder, freight carrier or a third party appointed to carry out the shipment at the latest. This shall likewise apply to part-deliveries or if the Seller has committed to provide other services. If shipment or hand-over is delayed as a result of a circumstance which is attributable to the Customer, risk will pass to the Customer with effect from the date on which the Seller is ready to ship and has notified the Customer thereof.
Storage costs incurred after transfer of risk shall be borne by the Customer. For goods stored on the Seller’s premises, the storage costs are 0.25% of the invoice amount of the subject matter of delivery stored per completed week. The right for assertion and proof of further or lower storage costs shall be reserved.
The Seller shall only insure shipment against theft, breakage, transport, fire or water damages or other insurable risks at the express request and at the expense of the Customer.
Insofar as acceptance is required, the purchased goods shall be viewed as accepted if
• delivery or part-delivery has been completed,
• the Seller has notified the Customer of implied acceptance pursuant to this Clause 5, Section 6 and requested the Customer to accept the goods,
• twelve days have elapsed since delivery or the Customer has started to use the purchased goods and six working days have elapsed since delivery in this case, and
• the Customer has failed to accept the purchased goods within said period for another reason than a defect notified to the Seller which significantly impairs the use of the purchased goods or makes their use impossible.
The warranty period shall be one year and shall start as from the date of delivery or, if acceptance is necessary, from the date of acceptance.
Upon delivery to the Customer or an authorized third party appointed by him, the supplied items must be immediately carefully inspected. The goods shall be viewed to have been approved if the Seller has not received notification of defect with regard to evident defects or other defects which were recognizable during immediate and careful inspection, within seven working days following delivery of the subject matter of delivery or otherwise seven working days after detection of the defect or the time when the defect was recognizable to the Customer during normal use of the subject matter of delivery without further inspection according to the provisions set out in Clause 2, Section 2, Sentence 6. On request of the Seller, the claimed subject matter of delivery must be returned freight-paid to the Seller. In the event of justified notification of defects, the Seller shall reimburse the costs of the most favorable shipping method; this shall not apply if the costs increase because the subject matter of delivery is at another location than the location specified for the intended use.
In the event of material defects in the supplied items, the Seller must repair or replace these within an appropriate period of time as he so chooses. The Customer may rescind the contract or demand appropriate reduction of the purchase price in the event of failure, i.e. impossibility, unreasonableness, denial or unreasonable delay of repair or replacement.
If a defect was occasioned by the Seller, the Customer may demand compensation pursuant to the stipulated conditions as set out in Clause 8.
In the event of defects in components delivered by other manufacturers which the Seller is unable to remedy for licensing or factual reasons, the Seller shall assert his warranty claims against the manufacturers and suppliers for the account of the Customer or assign these claims to the Customer as he so chooses. Based on other conditions and by virtue of these GTC, warranty claims against the Seller for such defects shall only be said to exist if the legal enforcement of the aforementioned claims against the manufacturer or supplier has been unsuccessful or is futile, for instance due to insolvency. For the duration of the proceedings, the statute of limitation of the respective warranty claims of the Customer against the Seller is suspended.
The warranty shall not apply if the defect is based on the fact that
• the technical specifications and instructions for use as specified by the Seller and/or the manufacturer have not been observed,
• alterations of any kind have been made or
• the object of purchase has not been used or treated properly.
7. Property Rights
In accordance with this Clause 7, the Seller shall guarantee that the subject matter of delivery is free of third party industrial property rights or copyrights. Either contracting party shall notify the other contracting party forthwith if claims due to infringement of such rights are asserted against it.
In the event that the subject matter of delivery infringes a third party industrial property right or copyright, the Seller shall alter or replace the subject matter of delivery at his expense and as he so chooses such that no third party rights are infringed any longer and the subject matter of delivery continues to meet its contractually agreed functions, or procure the right of use for the Buyer through conclusion of a license agreement. If he does not succeed within an appropriate period of time, the Customer shall be entitled to rescind the contract or reduce the purchase price accordingly. Any compensation claims on the part of the Customer are subject to the restrictions set out in Clause 8 of these General Terms and Conditions of Delivery.
In the event of infringements of the law through products from other manufacturers supplied by the Seller, the Seller may assert his claims against the manufacturers and sub-suppliers for the account of the Customer or assign these claims to the Customer as he so chooses. In such cases claims against the Seller by virtue of this Clause 7 shall only be said to exist if the legal enforcement of the aforementioned claims against the manufacturers or sub-suppliers has been unsuccessful or is futile, for instance due to insolvency.
8. Liability for damages due to default
The liability for damages on the part of the Seller, irrespective of on what legal grounds, especially as a result of impossibility, delay, defective or wrong delivery, breach of agreement, infringement of duties during contract negotiations or tort, insofar as attributable to fault, shall be limited in accordance to this Clause 8.
The Seller shall not be liable
a) in the event of slight negligence of his bodies, legal representatives, employees or other vicarious agents;
b) In the event of gross negligence of his non-executive employees or other vicarious agents, other than infringement of essential contractual obligations. Essential contractual obligations shall be the duty to ensure timely, defective-free delivery as well as the duty to provide advice, to provide protection and the duty of care, intended to allow the Customer the contractually agreed use of the subject matter of delivery or protection of limb and life of the Customer’s employees or third parties or the property of the Customer against significant damage.
Insofar as the Seller is liable for compensation pursuant to Clause 8 (2), this liability shall be limited to damages which the Seller has anticipated as a result of a breach of agreement or which he should have anticipated under consideration of the circumstances he was aware of or should have been aware of applying the usual care. Liability for indirect damage and consequential damage resulting from defects in the subject matter of delivery are only eligible for damages insofar as such damages can be typically expected when the subject matter of delivery is used for its intended purpose.
In the event of liability for slight negligence, the liability of the Seller for property damage and personal injury shall be limited to the insurance cover sum; this shall likewise apply to infringements of essential contractual obligations.
The above disclaimers and liability restrictions shall apply to the same extent to all bodies, legal representatives, employees and other vicarious agents of the Seller.
Insofar as the Seller provides technical information or advice and said information or advice is not part of the contractually agreed scope of services owed by him, this shall be free of charge, all liability being excluded.
Restrictions pursuant to this Clause 8 shall not apply for liability on the part of the Seller as a result of willful intent, guaranteed characteristics, in cases of injury to life, limb or health or claims under the Product Liability Act.
9. Data protection
The Seller shall instruct the Customer that the data collected at the time the agreement is concluded are collected, processed and used by the Seller in compliance with the data protection provisions for fulfilling the contractual obligations. The Buyer may contradict processing or use of the data for advertising purposes at any time.
10. Reservation of title
The following agreed reservation of title shall safeguard all present and future claims of the Seller against the Buyer arising from the existing supply relationship entered into between the contracting parties. Until complete payment of all secured claims, the goods delivered by the Seller to the Buyer shall remain the property of the Seller. The goods as well as the goods replacing them which are subject to the reservation of title pursuant to this Clause are hereinafter referred to as reserved goods.
The Buyer shall keep the reserved goods free of charge for the Seller.
The Buyer shall be entitled to process or sell the reserved goods within the ordinary course of business until an enforcement event occurs (Clause 8). Pledges and chattel mortgage shall not be permitted.
If the Buyer processes the reserved goods, it shall be agreed that processing is in the name and on behalf of the Seller as manufacturer and the Seller shall acquire direct ownership or – if material of several owners is processed or the value of the new item is higher than the value of the reserved goods – co-ownership (part-ownership) of the goods in the ratio of the value of the reserved goods to the value of the new item. In the event that no such ownership arises on the part of the Seller, the Buyer here and now assigns his future ownership or – in the aforementioned ratio – co-ownership of the new item to the Seller by way of security. Should the reserved goods be inseparably combined with other items to produce a uniform item and any of the other items be viewed as the main object, the Seller shall assign to the Buyer, insofar as the main object belongs to him, the co-ownership of the uniform item in the ratio as set forth in Sentence 1.
The Buyer shall assign here and now by way of security to the Seller the claims against the purchaser arising from resale of the reserved goods and in the event of the Seller’s co-ownership of the reserved goods in the ratio of the corresponding co-ownership share. The same shall apply to other claims replacing the reserved goods or otherwise arising from the reserved goods, such as insurance claims or claims from tort in the event of loss or damage. The Seller revocably authorizes the Buyer to collect claims assigned to the Seller on his own behalf for the account of the Seller. This collection authorization may be revoked by the Seller only in the case of an enforcement event.
In the event of third parties having access to the reserved goods, in particular by way of pledges, the Buyer shall immediately point out the ownership of the Seller and notify the latter accordingly in order to enable enforcement of his property rights. Insofar as the third party is not in a position to reimburse all court or out-of-court costs arising in this connection, the Buyer shall be liable for these vis-à-vis the Seller.
Upon request, the Seller shall release the reserved goods or the goods or claims replacing them as he so chooses, insofar as their value exceeds the secured claims by more than 50%.
In the event that the Seller rescinds the contract (enforcement event) due to any behavior that is contrary to the agreement on the part of the Buyer, e.g. payment default, he shall be entitled to demand surrender of the reserved goods.
11. Final clause
At the discretion of the Seller, the place of jurisdiction for all disputes arising from the business relationship between the Seller and the Customer shall be Hamburg or the registered office of the Customer. Hamburg shall be the exclusive place of jurisdiction for all suits against the Seller. This provision shall not affect any compelling statutory provisions on exclusive venues.
The relations between the Seller and the Customer are exclusively subject to the law of the Federal Republic of Germany, ousting the UN Convention on the International Sale of Goods (CISG).
In the event that a provision of the agreement or these General Terms and Conditions of Delivery proves to contain a gap, this omission shall be filled with a legally permissible provision which as closely as possible approaches the economic intent of the agreement and the purpose of these General Terms and Conditions of Delivery and which the contracting parties would have agreed upon if they had given thought to this issue.
General Terms and Conditions of Delivery last amended: February 01, 2011
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