General Terms and Conditions of Sale and Delivery of Active Bioscience GmbH
1.1 The company´s present and future business relation shall be governed exclusively by our General Terms and Conditions of Sales and Delivery set forth hereinafter unless otherwise agreed upon in writing in the individual case.
1.2 Deviating declarations and terms and conditions of business of the Purchaser shall not be binding on us even if we do not object thereto upon conclusion for the contract. There shall be binding only if expressly acknowledge by us in writing.
2. Order and Order Confirmation
2.1 All our offers are non-binding regarding price, quantity, manufacturing. Indicated measurements and weights are subject to tolerance which is customary in the trade. We reserve the right to make changes to construction and material. An order shall be deemed accepted only after we will have confirmed acceptance in writing or supplied the goods.
2.2 Side agreements, warranties and other agreements shall be legally effective only of expressly confirmed by us in writing.
3.1 Delivery dates and periods shall be approximate and non-binding, unless they are agreed upon in writing and expressly identified as being binding.
3.2 In the event of non-compliance with a delivery date which has been confirmed as being binding, the Purchaser may grant as a reasonable additional period of not less than six (6) weeks indicating that after expiration of the additional period our performance will no longer be accepted. In the event that delivery is not made during the additional period of time, the purchaser may rescind the contract by written declaration. He shall be entitled to claim damages only if intent or gross negligence is involved on our part or on the part of our statutory representatives, executives or agents employed for performance. Liability pursuant to § 287 German Civil code (BGB) shall be excluded.
3.3 We shall be entitled to make partial delivery to a reasonable extent.
4.1 Shipments within Germany are free of charge. Shipping prices for shipments outside Germany are only on request. Prices for special shipments which have to be cooled by ice or dry ice are also on request. Customers who may want to use their own forwarding company must inform us in writing accordingly. In the absence of a special agreement in writing, we may choose the mode and the means of shipment. Upon the Purchaser's express request and at his cost and expense, we can insure the goods against damage in transit on request.
4.2 The risk shall pass to the Purchaser upon delivery of the goods to the forwarding agent, the carrier or to any other person or organisation designated for the transport. This applies also if shipment is not made from the place or performance or within the same locality.
4.3 If shipment is delayed for any reason for which the Purchaser is responsible, the risk shall pass to the Purchaser on the day on which the goods are ready for shipment.
5. Notice of Defect and Warranty
5.1 The duty of inspection relates to the whole delivery.
5.2 Notices of defect must be made immediately, but not later than eight (8) days after receipt of the goods and be addressed directly to us in such a manner that we can check the defectiveness and the justification of the complaint. Complaints made orally or over the telephone must be confirmed by the Purchaser in writing by registrated letter, telefax or email.
5.3 Hidden defects may be asserted only within a reasonable period of time and must be complained of within eight days after discovery pursuant to paragraph 5.2.
5.4 If the complaint in respect of a defect has been filed in time and if it is justified, we shall be obligated to provide goods in replacement at no cost. The purchaser shall be entitled to rescind the contract with respect to the defective item supplied or to claim reasonable reduction of the purchase price therefore only in the event of express refusal or failure of replacement of the goods.
5.5 We do not assume any warranty for products which are not stored according to the storage conditions indicated on their packs or delivery notes.
5.6 The above conditions include the warranty for our goods in a final manner. In particular, the Purchaser may claim damages for defective goods - for any legal reason whatsoever - only of intent or gross negligence of involved on our part or on the part of our statutory representatives, executives, agents employed for performance and/or vicarious agents. In the case of gross negligence our liability shall be limited to the foreseeable damage. This exclusion and or limitation applies also to any person liability of our statutory representatives and staff members. However, it does not apply to characteristics warranted by us within the meaning of sections 459II, 480 II BGB.
6.1 Our contractual and statutory liability (for example, for default, impossibility, culpa in contrahendo, breach for an obligation other than by delay or impossibility, tort, etc.) shall be limited to intent and gross negligence on the part of our statutory representatives, executives, agents employed for performance and vicarious agents. In the case of gross negligence, our liability shall be limited to foreseeable damage unless a cardinal duty has been violated.
6.2 This exclusion and/or limitation of liability applies also to any personal liability of our statutory representatives and staff members.
6.3 Our products are intended only for in vitro use and for purposes for research. They are not intended for application to human beings and, in particular, they may not be used for the preparation of or as an ingredient of meals, food, medicines or household articles. To the extent that specific characteristics and fitness of the products for a contractually agreed purpose of use have not been confirmed by us in writing, any advice with respect to application even if given to one's best knowledge shall, in each and any case, be non-binding.
6.4 To the extent that we are liable or to the extent that exclusion or limitation of liability is impermissible. In whole or in part, the amount of liability, except for intent and gross negligence, shall be limited to our maximum insurance amount which presently is EUR 50.000.-.
7.1 Supplied goods which are free from defects may not be returned, in whole or in part, unless this has been clearly agreed upon and conformed by us at least over the telephone or by email. Returns shall be made to the address indicated by us.
7.2 Supplied goods which are free from defects will be taken back and/or compensated for through credit note only if they are in perfect condition.
8.1 The prices indicated in the catalogue or confirmed in writing shall be applicable exclusively. Our prices include the costs of packaging, but not the Value Added Tax.
8.2 The invoice amounts shall be payable without deduction within thirty (30) days after invoice date at the latest.
8.3 If the Purchaser defaults in payment, we shall be entitled to chargeÂ default interest at the rate of three per cent (3%) per annum above the discount rate of the German Federal Bank. The interest shall be higher or lower if we prove a higher interest rate charged or if the Purchaser proves a lower interest rate charged.
8.4 The Purchaser waives exercise of any right of retention on the basis of earlier or other business transactions effected within framework of the current business relation. Any offsetting against counterclaims shall be permissible only to the extent that the same have not been contested or have been conformed by a non-appealable declaratory judgement.
9. Retention of Title
9.1 The goods supplied shall remain our property until full payment has been made for all claims which are or will be due to us under the business relation with the purchaser or, in the event of payment by check or letter of exchange, until payment thereof. In the event that the current account method is used, the retained title shall be deemed to secure the balance due to us.
9.2 The Purchaser shall be entitled to resell the goods in the ordinary course of business. The right shall be come extinct in the event of cessation of payments. The Purchaser here and now assigns to us all claims and ancillary rights due to the Purchaser from resale. We herewith accept this assignment. Subject to revocation at anytime, the Purchaser shall be entitled to collect the assigned claims. The authority to collect payments shall terminate without express revocation of the purchaser stops payments. Upon ourÂ request, the Purchaser shall inform us without delay to whom he sold the goods and which claims are due to the Purchaser under the sale, and he shall, at his own cost and expense, issue to us a notarial instrument for the assignment of the claim.
If the Purchaser includes the claim resulting from resale into a current account for his customer, the current account claim is assigned in full. After balancing, it shall be replaced by the recognised balance up to an amount equal of the original current account claim.
9.3 Any processing of products supplied shall be made for us with exclusion of acquisition of title pursuant to section 950 BGB and without commitment on our part. The processed product shall serve as security for us in an amount equal to the invoice value of goods which are subject to reservation of title.
9.4 In the event of processing by the Purchaser together with goods other than our goods, we shall be co-owners of the new item pro rata in the same proportion which the value of the goods which are subject to reservation of title bears to the value of the other processed products at the time of processing. The new item resulting from processing shall be deemed to be subject to reservation of title within the meaning of these Terms and Conditions.
9.5 The purchaser shall not be entitled to make any other disposition of the goods which are subject to reservation of title or of the items co-owned by us. The Purchaser shall immediately give notice of any attachment of or other impairment of rights in and to the goods or claims owned by us, in whole or in part.
9.6 If the purchaser defaults in payment or if he otherwise fails to fulfill his obligation under the reservation of title, we can demand that the Purchaser returns the foods which are subject to reservation of title, we can demand that the Purchaser returns the goods which are subject to reservation of title. Repossession of the goods which are subject to reservation of title shall be deemed rescission of the contract only if expressly so declared by us.
9.7 To the extent that the value of the securities furnished to us exceeds our claims by more than fifteen per cent (15%) in total, we shall insofar, upon the Purchaser's request, release an/or retransfer securities at our choice.
10. General Contractual Bases
10.1 If any of the foregoing provisions is invalid, this shall not affect the validity of the remaining provisions hereof. However, interpretation shall strive to establish a valid provision which approaches the original intendment of the valid provision.
10.2 Place for performance for our deliveries and for payment shall be Hamburg.
10.3 Hamburg shall have jurisdiction over any and all disputes (including actions arising from bills of exchange or checks) if the Purchaser is a businessman possessing full commercial capacity (Vollkaufmann). We shall, however, be entitled to seize the courts which are competent for the Purchaser's place of business and/or the Purchaser's responsible branch.
10.4 All legal relations and legal transactions between us and the Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the Hague Convention Relating to a uniform Law on the International Sale of Goods and The Hague Convention Relating to a Uniform Law on the on the formation of Contracts for the International Sale of Goods as well as the UN-Convention on Contracts for the International Sale of Goods shall be excluded.