General terms and conditions of BIORON GmbH (03/2009)
I General information – Scope – Warning
- Deliveries and performance from BIORON shall be executed solely in accordance with the following standard terms of contract. These standard terms of contract shall apply to transactions conducted with businessmen and entrepreneurs in compliance with § 14 BGB (Federal Statutes at Large). These standard terms of contract shall apply to all future transactions between the partners to the agreement, without special further reference. They shall also apply to future agreements even if BIORON does not explicitly quote the terms, in particular when BIORON having knowledge of alternative terms of purchase or of terms deviating from the standard terms of delivery or performance stipulated in the contract. You have already been notified of the standard terms of contract by means of our standard forms as well as via e-mail messages and publications in the Internet. The scope of application of these standard terms of contract shall also be valid in all supplier countries
- BIORON products are exclusively designed for application within the research and laboratory sector. A usage in connection with persons, animals, in households or in other forms of private use is forbidden. The application of the products in the diagnostic or therapeutic sector is forbidden. The resale of BIORON products to private individuals is not permitted. BIORON shall not be liable for damage to objects or injury to persons caused by improper application, treatment or storage. We draw special attention to the regulations stated in Sections VII. to IX. Unless explicitly stated, no licence or immunity under any patent is either granted or implied by the sale of any of our products. BIORON does not warrant that the resale or use of its products delivered will not infringe the claims of any patents, trademarks or copyright covering use of the product itself, or its use in combination with any other products, or its use in the operation of any process. Furthermore, the purchaser assumes all risks of patent, trademark or copyright infringement associated with any such use, combination or operation.
- Some of the BIORON products may be toxic or hazardous and are therefore designated as such in compliance with the statutory regulations. An omission of safety hazard warnings on the labels of BIORON products does not mean that the respective product is harmless. BIORON also draws special attention to the regulations defined in Sections VII. to IX here.
- BIORON has the intent to supply solely to commercial enterprises, public research-, analytical laboratories and educational facilities. Customers who do not belong to this specified clientele shall be obliged to provide BIORON with information pertaining to the status and/or business operations of their company res. person on establishment of contact res. placement of order. If the relevant information is not furnished, BIORON shall be exempted from any liability resulting thereof. BIORON shall be entitled to reject orders if there is a possibility that their products may be used in an unauthorized manner.
II Tenders and Conclusion of Agreement – Performance
- BIORON tenders to the prospective customer shall be subject to confirmation. The placing of an order by the customer shall be binding. The acceptance of the order will follow within four (4) weeks by means of the dispatching of a confirmation of order or unconditional execution of the consigned deliveries or performance.
- The technical data and descriptions in the respective product information or advertising material from BIORON shall not present a guarantee for the quality or durability of goods delivered or supplied by BIORON. Warranties will not be furnished unless these have been explicitly agreed upon in separate contracts.
- In connection with the above mentioned Paragraph 2 BIORON draws particular attention to the fact that BIORON gives all information related to the origin, state, nature, condition, quality and the manufacturing process of the primary product and.In this context, BIORON is mostly depending and relying on the information, promises, assurances, confirmations and certificates provided by its suppliers. BIORON at its stage of production is not able to conduct extensive product testing with all products. As for these reasons it is not possible to trace back in every single case, BIORON denies all liability in that respect.
- In the case of sales in accordance with samples or specimens, this shall merely describe the professional compliance with the sample or specimen, but shall not be a guarantee for the composition or durability of the goods to be delivered by BIORON or the performance to be executed.
III Prices – Terms of payment – Default of payment
- The prices determined by the conclusion of the respective agreement, in particular the prices stipulated in the order form res. the confirmation of order in EURO shall be valid. If a price is not explicitly defined, the prices, which are valid at the time when the agreement is concluded in accordance with the current BIORON price list, should be valid. The statutory value-added tax valid on the day of delivery shall be added to the defined prices.
- The products shall be delivered ex factory. The prices shall include the costs of packaging required for the regular shipment of goods together with the reimbursement for the disposal of the sales-, and transport packaging. The prices do not include transport costs or costs for a transportinsurance, if this has not been previously agreed upon. The terms of packaging and transport must be concluded separately for goods to be delivered abroad.
- BIORON shall reserve the right to modify prices in a reasonable manner if alterations in costs e.g. due to wage settlements, price increases by suppliers, fluctuations in the monetary exchange rates or other important reasons should arise after the conclusion of the agreement.
- Invoices received from BIORON must be paid within ten days from receipt of the invoice minus two percent (2%) discount, if no other terms have been concluded. The customer shall be in default of payment after the expiry of the settlement date stated in the invoice in compliance with § 286 Section 2 No. 2 BGB (Federal Statutes at Large). In compliance with § 288 BGB (Federal Statutes at Large) default interest will be calculated from the day of expiry of the settlement date with reservation to assertion of further claims.
- The customer may only exercise the option of offsetting or retention if his counter-claims have been legally justified and BIORON have neither recognized nor disputed the claims within two (2) weeks of notification.
- If the customer should not pay invoices due, after the term of credit has expired, or if the financial circumstances of the customer should deteriorate following the conclusion of the agreement or if Bioron should receive unfavorable information pertaining to the customer that queries the solvency of the customer, BIORON shall be justified in taking measures to procure the entire residual amount from the customer and via an amendment of the payment terms concluded advance payment or collateral security or immediate settlement of all its claims. This shall apply, in particular, if the customer does not meet his payments, or a cheque from the customer is dishonoured, a bill of draft furnished by the customer shall not be redeemed, a bankruptcy process relating to the assets of the customer has been petitioned or initiated or when insolvency proceedings have not been initiated due to insufficient assets.
IV Time of delivery and performance – Default
- The validity of delivery schedule shall be considered roughly stated if a fixed delivery date has not been concluded in writing. However, when BIORON has exceeded determined delivery schedules due to justifiable circumstances, the customer shall have the option to withdraw from the agreement after an additional respite following the fruitless expiry of a reasonable period stated by the customer. The withdrawal from the agreement must be furnished in writing.
- BIORON shall only be in default following the expiry of a reasonable additional respite of time. In cases of Force Majeure (Act of God) and other unforeseeable, extraordinary circumstances, which cannot be influenced by BIORON such as like disturbance in operation as a result of fire, water and similar circumstances, breakdown of production systems and machinery, exceeding the term of delivery or failure to deliver on the part of suppliers together with interruptions in operation due to a shortage of raw materials, energy or working force, strikes, shut-out, problems with the acquisition of transport, traffic disturbance, official administrative measures, BIORON – as far as BIORON is hindered to fulfil its obligations not due to its own fault – shall be entitled to postpone delivery or performance until the extraordinary circumstances have been alleviated and shall be granted a reasonable respite. If delivery or performance should be delayed by more than two months hereby, both BIORON and the customer shall be entitled to furnish written notice of withdrawal from the agreement under the ruling out of claims to indemnification with regard to the bulk amount influenced by the disturbance in delivery.
- In every case of default the liability of BIORON to pay compensation is limited by the stipulation of the regulations in Section VIII No. 1 to 6.
- BIORON is entitled to furnish partial deliveries or performance within the scope of the agreed times of delivery and performance if this is acceptable to the customer.
V Passing of risk – Handling of packaging
- Risk and costs shall pass to the customer upon shipment in so far as no deviating provisions have been defined. The risk of accidental perishing, loss or destruction and of incidental deterioration of the object of delivery passes to the customer on surrender of the consignment to the haulage company (even in the case of deliveries which have been insured against transport damage by BIORON).
- Packaging and containers may not be used for other purposes or for storage of other products. They are exclusively intended for the transport of goods delivered by BIORON. Labels may not be removed. BIORON will not take one-way packaging back. The customer must dispose of this packaging in the authorized manner. In particular it must be ensured that emptied containers must not be employed for the storage of other materials. The disposal costs have been included into our prices by means of a corresponding compensation (Section III. Paragraph 2., Regulation 2). If another deviating provision has been concluded, BIORON shall inform the customer or a third party who will accept the packaging in accordance with the statutory legislation pertaining to packaging disposal in return for reasonable remuneration.
VI Customer obligations – Reservation of title
- BIORON shall retain title to the delivered products until the entire payment of the purchase price and all pending additional, current or future demands resulting from business relations with the customer has been settled. The settlement of the in an outstanding invoice and the acceptance of the balance of another invoice shall not affect the reservation of title.
- The customer shall be obliged to treat the purchased goods carefully, in particular he shall be obliged to insure the goods with the cost price against loss and damage and destruction, e.g. against damage caused by fire, water and theft at his own costs. The customer shall cede his claims resulting from the insurance policies to BIORON at once. BIORON shall accept the assignment of the claims herewith.
- The customer may neither pledge nor give as a security the goods for which BIORON has the reservation of title. However, he shall be entitled to sell the delivered goods within the scope of a correct business transaction in accordance with the following terms. The previously mentioned justification shall not hold in as far as the customer transfers or pledges claims against his contractual partner, resulting from the resale of the goods, to a third party or has concluded an effective prohibition of assignment in advance.
- The customer shall immediately assign to BIORON all – including future and contingent – accounts receivable to be acquired from a resale of the goods delivered by BIORON for the securing of the fulfilment of claims dealt with in Section VI No. 1 together with all ancillary rights at a sum of 110% gross of the value of the delivered goods which will take precedence over the residual sum of his accounts receivable. BIORON shall accept the assignment herewith.
- As long as and as far as the customer settles his payment obligations to BIORON, he shall be entitled to the collection of claims assigned to BIORON within the scope of the regular management. However, he shall not be entitled to conclude an current accounts agreement to a third party or prohibition of assignment with his customers in relation to these claims or to transfer or pledge these to third parties. If in contrast to regulation 2 a current account agreement should exist between the customer and the purchaser of BIORON’s reservation goods, the previously assigned claim shall also relate to the accepted balance as well as to the existing balance in the case of insolvency of the purchaser.
- On demand of BIORON the customer shall be required to establish the accounts receivable which he has assigned to BIORON separately and to notify his debtors of the assignment with the request to pay all outstanding invoices to BIORON up to the value of the claims to the customer. BIORON shall be entitled to notify the debtors of this arrangement at any time and to collect the claims, if necessary. However BIORON will only make use of this authorization if the customer fails to meet his financial obligations or is in default, or when an insolvency process has been initiated against the customer, or the customer ceases to pay the invoices. If one of the aforementioned cases should arise, BIORON can demand that the customer notifies BIORON of the assigned claims and the debtors thereof in detail and furnishes all relevant information pertaining to the collection of the accounts receivable and hands over the respective documents.
- In the case of seizures or any other interference of third parties, the customer shall immediately (without undue delay) inform BIORON in writing in order to enable BIORON to react in an appropriate manner and, if necessary, to bring an action according to § 771 Code of Civil Procedure.
- BIORON shall be obliged to release all securities furnished by the customer, if he requires, in the event when realisable value of the securities should exceed BIORON’s account receivables from the customer by more than twenty percent (20%).
- In the case of customer behaviour which is contrary to the terms of the agreement, in particular in the case of default of payment exceeding ten percent (10%) of the balance due for a not insignificant period of time, BIORON – irrespective of further outstanding or pending (compensation) claims – shall be entitled to withdraw from the agreement and demand return of the goods delivered. BIORON shall be authorized to reprocess the returned goods in the required manner. The profits resulting from the reprocessing of the goods must be credited to the outstanding accounts payable to BIORON by the customer minus the appropriate reprocessing expenses.
VII Duties on receiving of incoming goods – Rights of customer in case of non-conformity
- The customer is obliged to subject the delivered goods to the customs control on receiving, immediately.
- Obvious defects, delivery of wrong goods, and variation in quantity must be reported to BIORON by the customer immediately (without undue delay), or must be reported in writing within seven (7) days, at the latest from the receiving of the goods. Hidden defects must be reported to BIORON in writing within a period of eight (8) days following the discovery of non-conformity. Notice of hidden defects in quality or quantity shall be excluded and shall be deemed belated after three (3) months beginning with the passing of the risk to the customer according to Section V No. 1,in the case of the hidden defects were reasonably recognizable. In the case of a belated or not appropriate notice of defect according to Section VII, the customer shall loose all rights to indemnification, except if the defect was fraudulently concealed by BIORON.
- In the case of non-conformity of goods supplied by BIORON, BIORON shall only be obliged to rework the goods or deliver goods free from defects (subsequent fulfilment of contractual obligations). If BIORON is not prepared to carry out reworking or is not in a position to fulfils these measures, due to the fact that the time to get these measures could be prolonged for reasons for which BIORON is responsible or if the reworking or fulfilment of the obligations should not succeed for other reasons, the customer shall be entitled to withdraw from the contract or to demand a reduction of the purchase price. A reworking shall be deemed to have failed following the third unsuccessful attempt if no other measures have been stipulated. If the customer has incurred damage or suffered from futile expenditures resulting from non-conformity of goods delivered by BIORON, the liability of BIORON in this case is stipulated in Section VII No. 1, Section VIII No. 1 to 6 and Section IX.
VIII Rights and obligations of BIORON
- A liability on the part of BIORON for damage or futile expenditures – irrespective of the legal basis – shall only arise in the case where the damage or futile expenditures:
- have been caused by BIORON or by one of their authorized personnel or subcontractors by means of culpable violation of a significant contractual obligation or
- are due to a grossly negligent or intentional violation of obligations on the part of BIORON or one of their subcontractors.
- In compliance with Section VIII No. 1 Letter a) and b) BIORON shall not be liable for damage or futile expenditures, which have been caused by consulting measures or information provided, were not settled separately, but solely in the case of intentional or grossly negligent breach of obligations, in so far as the breach of duties has not led to material defect according to § 434 BGB in the goods delivered by BIORON.
- If BIORON should be liable for the violation of a fundamental contractual duty in compliance with Section VIII No. 1 letter a), without evidence of gross negligence or intent, the liability to compensation shall be limited to the foreseeable and typically arising damage. In this case BIORON shall not be held liable for loss of profit to the customer and also not for unforeseeable consequential damages. The previously mentioned limitations in accordance with regulations 1 and 2 are equally applicable for damages resulting from gross negligence or intent on the part of BIORON personnel or authorized persons.
- BIORON shall not be liable for consequential loss of the customer, which arise because of assertion of a claim to contract penalties of a third party.
- If BIORON shall be liable for the infringement of a fundamental contractual obligation in compliance with Section VIII No. 1 letter a), without evidence of gross negligence or intent, their liability is limited to the sum of 1,0 Mio Euros per event of damage. BIORON shall be obliged to effect and maintain an insurance to cover claims up to 1.5 million Euros.
- The liability limitations mentioned in Section VIII No. 1 to 3 shall not apply if BIORON’s liability is in compliance with the regulations contained in the Product Liability Law, or when claims have been raised due to loss of life, injury to body or health, or when BIORON has guarantied a special property; BIORON shall only be liable for such damage which is covered by the property.
- Bioron is not liable to pay an extent compensation other than stipulated in Section VIII No. 1 to 4, irrespective of the nature of valid claims. This especially applies to damage claims resulting from negligence in the course of conclusion of the agreement in compliance with § 311 Section 3 BGB, violation of contractual duty in compliance with § 280 BGB or due to claims in tort in compliance with § 823 BGB.
- In the case the liability for damages is excluded or limited in compliance with Section VIII No. 1 to 5, this shall also apply for all personal liability for damages of the staff, personnel, colleagues, representatives and subcontractors as well as vicarious agents employed or engaged by BIORON.
IX Limitation of claims
- Customer claims pertaining to defects in goods delivered by BIORON or relating to unauthorized performance on the part of BIORON – including claims for compensation and claims to replacement of futile expenditure – shall be limited to a period of two (2) years from the beginning of the statutory limitation period, in as far as no other provisions have been defined in the following Section IX No. 2 and 3.
- If BIORON has provided incorrect consulting that is not invoiced separately (1) either without delivering goods in connection with incorrect consulting or (2) without incorrect consulting creating a defect of the goods delivered because of incorrect consulting (§ 434 BGB), the respective claims of the customer shall be subject to a limitation period of one year from the beginning of the statutory limitation period. Claims raised by the customer against BIORON resulting from the violation of contractual, pre-contractual or statutory obligations pertaining to substances delivered by BIORON which do not exhibit non-conformity in compliance with § 434 BGB shall also be subject to a limitation period of one year from the beginning of the statutory limitation period.
In so far as the mentioned breach of obligations is responsible for non-conformity of products delivered by BIORON in compliance with § 434 BGB because of wrong consulting or advice, claims dealt with shall be subject to the same statutory period of limitation as contained in Number 1 above.
- The provisions covered by sections 1 and 2 shall not apply to the limitation of claims resulting from loss of life, injuries to body and health as well as the limitation of claims in compliance with the legislation pertaining to product liability. Furthermore, they shall not apply to the limitation of claims submitted by BIORON’s customers made on the basis that non-conformity of substances delivered by BIORON has been fraudulently concealed or a contractual obligation has been intentionally violated or in cases of gross negligence. The statutory term of limitation shall apply to limitation in the case of any of these aforementioned cases.
X Assignment and Transfer of Claims
Contractual obligations of BIORON or claims raised against BIORON, in particular resulting from non-conformity of products delivered by BIORON or from the breach of contractual obligations on the part of the BIORON cannot be completely or partially transferred or pledged to third parties without the explicit written agreement of BIORON; § 354 a of the Handelsgesetzbuch (Code of Commercial Law) shall be untouched by these measures.
XI Place of performance – Place of jurisdiction – Applicable law – Trade stipulations
- The Place of performance and the sole place of jurisdiction for all claims between BIORON and business or legal entities of a statutory company or where statutory fund assets are involved is Ludwigshafen/Rhein; in so far as there are no mandatory statutory regulations in contradiction to these measures. However, BIORON shall also have the right to initiate legal proceedings against a customer in the District Court at the place of jurisdiction of the customer.
- Exclusively the legislation of the Federal Republic of Germany shall apply to the legal relations between BIORON and the customer, as is customary between German businessmen and which can be effectively agreed upon within the respective supplier countries (see Section I of these terms of sales). The application of regulations pertaining to the Unified international Purchase Laws (CISG – UN Purchase Law) and the German Private Law is explicitly excluded.
- In so far as trade stipulations have been agreed in compliance with International Commercial Terms (INCOTERMS), the latest edition of the INCOTERMS shall be valid (currently INCOTERMS 2000).
XII Final provisions
- Should one of the above mentioned provisions be invalid, partially invalid or excluded by a special agreement, this shall hereby not affect the validity of the remaining provisions.
- BIORON will store the data of its customers within the scope of their mutual business relations in accordance with the legislation of the Federal Republic of Germany relating to data protection.
The Managing Director of BIORON GmbH