The following specific General Terms and Conditions (GTCs) apply to the sale and use of CONGEN product kits and services of CONGEN Biotechnologie GmbH.
Terms and Conditions of Sale and Delivery of Products of CONGEN Biotechnologie GmbH
1. General – Scope
1.1 The following general terms and conditions of sale and delivery apply to all CONGEN sales and deliveries, except as provided for in these conditions, in the text of the order confirmation or in other provisions or unless otherwise set out in individual contracts or otherwise agreed between the parties.
1.2 Conflicting or deviating general terms and conditions of the Buyer are hereby expressly rejected. They are only contractually valid if they are expressly agreed by CONGEN in writing in the particular case.
1.3 These General Terms and Conditions of Sale and Delivery apply, even if CONGEN, being aware that the Buyer’s conditions conflict with, or deviate from, these terms and conditions, makes delivery to the Buyer without reservation.
1.4 All agreements concluded between CONGEN and the Buyer for the sale of goods must be made in written form. This also applies to a waiver of the written form requirement.
1.5 These Terms and Conditions apply only in dealings with individuals, companies, legal entities subject to public law or special assets under public law (persons within the meaning of Section 310(1)(1) of the German Civil Code
[Bundesgesetzbuch – BGB][/Bundesgesetzbuch]).
2. Prices, quantities and delivery dates
2.1 Deliveries and purchase prices are ex works. All prices are exclusive of statutory value added tax.
2.2 Prices (including any discounts) and other conditions in the price lists only indicate the status at the time of publication. Orders of the Buyer are processed at the prices and under the terms and conditions valid on the day the order is received by CONGEN. CONGEN informs the Buyer of the respective relevant prices and terms and conditions.
2.3 A minimum order value is determined, unless separately agreed, from the respective valid stipulations (see 3.1).
2.4 There are no fixed terms of delivery. Delivery dates are not binding. They are only binding insofar as they have been confirmed by CONGEN in writing.
3. Postage and packing
3.1 CONGEN reserves the right to select the means of dispatch. Shipping costs are calculated as follows:
Germany less than €500, net – order value €15, higher net order value in principle free, unless otherwise stipulated below
EU less than €1000, net – order value €50, higher net order value in principle free, unless otherwise stipulated below.
Worldwide less than €1000, net – order value €75, higher net order value in principle free, unless otherwise stipulated below.
3.2 If the Buyer has special requests (e.g. express delivery, courier delivery, airmail etc.), the delivery costs are borne by the Buyer ex works without being cleared by CONGEN.
3.3 CONGEN is entitled to make partial deliveries to a reasonable extent and each partial delivery can be invoiced separately. In the case of call-off orders, the call-off must be carried out at least two weeks prior to the requested delivery date.
4. Usage restrictions
Deliveries of goods provided by CONGEN may contain products, the use of which by the Buyer is subject to patent or licensing restrictions. Details on such restrictions must be included on the respective package leaflet or, where appropriate, on the CONGEN website. In addition, these may be requested from CONGEN by the Buyer before and after conclusion of the contract.
5. Assumption of risk
Upon dispatch (even in case of delivery carriage-paid), the risk of destruction, loss or damage to the goods transfers from the person charged with the execution of the consignment to the Buyer on delivery of the goods, and in the case of default of acceptance on the part of the Buyer, at the latest on occurrence of the default.
6. Force majeure, contractual obstacles
Force majeure of all kinds, unforeseeable operational, transport or dispatch problems, fire damage, flood, unforeseeable shortages of power, energy and lack of raw materials or auxiliary materials, lawful strikes, lawful lockouts, administrative orders or other obstacles for which the party who is liable to make performance is not responsible and which will delay, prevent or render unreasonable the manufacture, dispatch, delivery or acceptance, provide an exemption from the obligation to deliver or accept for the duration and extent of the disruption. This also applies if the circumstances occur with regard to suppliers. The aforementioned circumstances may not be taken into account by the party who is liable to make performance, if they occur at a time when delivery is already delayed. If, as a result of the disruption, delivery or acceptance exceeds 8 weeks, both parts are entitled to cancellation and claims for compensation will not exist.
7. Notice of defects and claims for detects
7.1 CONGEN and the Buyer will satisfy their contractual obligations with the due diligence of a prudent businessman. The Buyer must carefully examine the received the goods immediately after arrival with regard to quantity, quality and defects. He/she must notify CONGEN of obvious defects in writing and without delay and no later than within 10 days of receipt of the goods, indicating the invoice number and invoice date. Notification of hidden defects must also be given without delay, i.e. no later than within 10 days of identification of the defect.
7.2 At the request of CONGEN, the Buyer must supply evidence, such as delivery notes and packing slips, in the original or as copies, to CONGEN for review, show any signatures appended to the packaging or submit the goods to CONGEN for proper repair.
7.4 In case of a defective product, CONGEN may first exercise the option for repair or redelivery (subsequent fulfilment). CONGEN is entitled to repeat a subsequent fulfilment which has failed to produce the desired effect. CONGEN may refuse to perform the subsequent fulfilment if this incurs disproportionate costs.
7.5 Claims brought by the Buyer on account of defects are excluded in the case of minor material defects. A minor material defect exists in particular if the value or suitability for a normal use is only insignificantly reduced.
7.6 If the subsequent fulfilment has failed to produce the desired effect, has been refused or is unreasonable, or if the Buyer has fruitlessly granted CONGEN a reasonable grace period for subsequent fulfilment, the Buyer is entitled to demand a price reduction or to withdraw from the contract. The right to request compensation or reimbursement for needless expenses is unaffected.
8. Withdrawal and compensation instead of service
8.1 If CONGEN fails to effect a due performance or the performance is not in accordance with the terms of contract (“breach of contract”), the Buyer is only entitled to withdraw from the contract or claim for damages in lieu of
the breach of contract by CONGEN is not insignificant,
he/she has requested CONGEN in writing to effect the performance within an appropriate deadline of at least 14 days, and
CONGEN has still not effected the performance within this period.
8.2 This Section 7 does not affect any legal provisions
in cases where the setting of a deadline is not required (i.e. when the obligor seriously and finally refuses performance; if circumstances justifying immediate assertion exist; in case of fixed-date transactions; if the obligor is not obliged to perform as performance is impossible or the obligor is not able to perform and, as a result, the obligee is entitled to withdraw from the contract; Section 323(2), Section 326(5), Section 281(2) of the German Civil Code
in cases where, as a result of the type of the breach of contract, a warning is required in lieu of setting a deadline (Section 323(3), Section 281(3) BGB);
in cases where withdrawal is permissible even before due date (Section 232(4) BGB);
in cases where, despite partial performance provided, withdrawal from the overall performance is permissible (Section 323(5) BGB);
in cases where withdrawal is excluded (Section 323(6) BGB);
in cases where the claim for performance is excluded due to claims for damages (Section 281(4) BGB); as well as
regarding the right of the obligor to reclaim the performance provided in the event that damages in lieu of performance are claimed (Section 281(5) BGB). When setting deadlines, it is of particular importance that the due performance for which the deadline has been set is described in detail (qualified setting of deadlines).
8.3 If CONGEN has not effected performance within the deadline set by the Buyer or has not effected performance in accordance with the contract, CONGEN may require the Buyer, within an appropriate deadline, to clarify whether he/she still demands provision of the service. CONGEN is not obligated to effect performance until the Buyer has made a decision.
8.4 In cases of sales transactions of consumer goods, the rights of the Customer under Sections 478 (Recourse of Entrepreneur) and 479 BGB (Limitation of claims asserting a right of recourse) remain unaffected.
9.1 CONGEN’s liability – irrespective of the legal basis – is limited to cases where the damage was caused by slightly negligent infringement of an essential contractual obligation or by gross negligence or intent on the part of CONGEN.
9.2 If CONGEN is held liable for an infringement of an essential contractual obligation without the existence of gross negligence or intent, liability is limited to the extent of the damage which CONGEN could typically expect to arise at the time the contract was concluded on the basis of the circumstances of which it was aware at this point in time.
9.3 Damage claims in accordance with the German Product Liability Act (Produkthaftungsgesetz) and the German Pharmaceuticals Act (Arzneimittelgesetz) and those due to the injury to life, limb and health or the assumption of a guarantee remain unaffected.
9.4 If the liability of CONGEN is excluded or limited, this also applies to the personal liability of its employees, representatives and vicarious agents.
10.1 Payment must be made within 14 days from the invoice date net.
10.2 CONGEN reserves the right to use payments to settle the oldest due outstanding accounts plus the default interest and costs accrued thereon; this will be done in the order of costs, interests, claims.
10.3 The Buyer can only offset claims by CONGEN by means of a written declaration to CONGEN if his/her counterclaim is uncontested or a non-appealable title has been obtained.
10.4 The assertion of a right of retention due to counterclaims which are either unacknowledged or have not become res judicata is excluded provided that these claims do not arise from the same contractual relationship.
10.5 CONGEN has the right to refuse delivery if after conclusion of the contract if it becomes apparent that its claim for payment of the delivery is jeopardised by the Buyer’s poor financial standing. This right to refuse delivery ceases once payment has been made or the Buyer has put up adequate collateral. CONGEN has the right to set the Buyer an appropriate deadline within which the Buyer has either to make payment upon delivery, or provide collateral for the delivery. Once the deadline has expired without success, CONGEN has the right to withdraw from the contract. In addition, CONGEN has the right in the above-mentioned event of the deterioration of the Buyer’s assets, to deliver the goods only on the basis of advance payment or the provision of appropriate collateral.
11. Late payment
11.1 If the Customer is in default of payment, a cheque cannot be properly cashed, the balance is not provided in the direct debit system or a significant deterioration of the debtor’s assets occurs, all open claims, including any deferred claims of CONGEN against the Buyer, become due for immediate payment.
11.2 Should the Buyer be in default of payment or if he/she exceeds the period allowed for payment in a mutual commercial transaction, interest will be charged at a rate of 8% p.a. above the currently valid base interest rate. CONGEN reserves the right to claim further damages.
12. Retention of title
12.1 CONGEN reserves ownership of the title of the delivered goods until the receipt of all payments resulting from the business relationship with the Buyer. The title held by CONGEN also extends to the new products created by processing the goods which are subject to reservation of title. The processing is performed for CONGEN in the capacity of a manufacturer. In the event of any processing, connection or blending or mixing with items which do not belong to CONGEN, CONGEN acquires co-ownership thereof in proportion to the invoice value of its goods which are subject to the retention of title relative to the invoice values of the other materials.
12.2 Retention of title will remain even if the relevant claim(s) of CONGEN is (are) included in an open invoice and the balance is drawn and acknowledged.
12.3 If the Buyer acts in a manner contrary to contractual obligations, in particular in the event of late payment, CONGEN is entitled to withdraw from the contract and take back the goods. The seizure of reserved goods by CONGEN always means the declaration of withdrawal from the contract.
12.4 The Buyer must handle the reserved goods with due care. He/she is obliged to insure the reserved goods adequately at his own expense against fire, water and theft damage at their new value and assign to CONGEN in advance his/her claims for compensation arising out of these insurance agreements
12.5 In the event of seizures or other action by third parties, the Buyer must notify CONGEN immediately in writing so that CONGEN may lodge a third-party action against execution (Section 771 of the German Code of Civil Procedure
[Zivilprozessordnung ZPO][/Zivilprozessordnung]). If a third party is unable to reimburse CONGEN for the court and out-of-court costs of a lawsuit according to Section 771 ZPO, the Buyer is liable for any losses CONGEN may incur.
12.6 The Buyer is entitled to resell goods as part of normal business operations; however, he/she assigns to us in advance all claims due to him/her, up to the final invoice amount (including value added tax), from the sale of goods, including bills and cheques, to secure CONGEN‘s respective claims. In the event of the sale of goods to which CONGEN has joint title, the assignment is limited to the proportion of the claims corresponding to their proportion of joint title. The Buyer is entitled to enforce these claims even after assignment. CONGEN‘s right to enforce these claims itself remains unaffected. CONGEN is, however, obliged to not enforce the claim as long as the Buyer meets his/her payment obligations to CONGEN, is not in default of payment, and is in particular not subject to any request for initiating insolvency proceedings. If this is the case, CONGEN may require the Buyer to disclose the assigned claims and their debtors, provide all information necessary for enforcement, surrender the necessary documents and notify the third party of the assignment.
12.7 If the delivered object is delivered as agreed to a destination outside the Federal Republic of Germany or transported by the Buyer to such destination, the following provisions have priority over Sections 11.1 to 11.6: The Buyer undertakes to effectively protect CONGEN‘s retention of title in the country where the delivered object is located or to which it is delivered. To the extent specific action is required (e.g. special labelling of the delivered object or any local registration), the Buyer is obliged to carry out such action in favour of CONGEN. If any cooperation of CONGEN is required, the Buyer informs CONGEN immediately Moreover, the Buyer informs CONGEN about any material circumstances of relevance to provide the widest range of protection of CONGEN’s ownership In particular, it makes all documents and information available to CONGEN which are required to enforce these rights of title. The provisions of this Section 12.7 apply accordingly if under the competent legislation a retention of title cannot be effectively agreed upon at the place where the delivered object is located, to put CONGEN into a legal position in which its interests and claims are protected in an equally effective or other appropriate manner, to the extent legally possible.
13.1 The Buyer is obliged to comply with the relevant laws, including but not limited to legislation on unfair competition and, where appropriate, statutory medicinal product provisions when reselling the goods
13.2 It is not permitted to utilise any of CONGEN’s protected brand names (trademarks) for goods manufactured by third parties or processed original goods without obtaining the prior express written consent of CONGEN.
13.3 The Buyer is obliged to sell or provide the supplied goods only in their completeness (i.e. including packaging, insert, operating manuals, warning instructions, etc.).
13.4 The Buyer is further notified that goods or delivery objects (and where appropriate the know-how contained therein) may be subject to import or export checks. All contractual parties bear the responsibility to comply with the relevant export and import control regulations. Moreover, the Buyer understands that the US export control laws also apply if the goods or delivery objects originate in whole or in part from the USA. This may happen even if the contract does not otherwise have any relation to the USA.
The contract parties undertake to keep confidential any information which may come to their knowledge in connection with this contract or as a result of their business relationship and which is marked confidential or, due to other circumstances, is identifiable as trade or business secrets, and not to record it nor use it in any other way to the extent such recording or use is not necessary for the contractual purpose.
15. Place of performance, place of jurisdiction, applicable law, miscellaneous
15.1 The exclusive place of jurisdiction is Berlin. CONGEN is, however, entitled to initiate proceedings against the Buyer in a location where a place of jurisdiction for him/her is justified according to the general provisions.
15.2 The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with this contract is Berlin.
15.3 The legal relationships of the parties arising from or connected with this contract are subject to the Law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 does not apply.
15.4 Should any of the individual provisions of this contract be or become completely or partially invalid or void, this will not affect the validity of the remaining provisions. Such invalid or void provisions are automatically replaced by a legally effective regulation which comes closest to the economic purpose. The same applies to any gap.
Services of CONGEN Biotechnologie GmbH
The following terms and conditions exclusively apply to all our offers and services and form an essential part of the contract. Deviating and additional agreements are only binding if we have confirmed them in writing. Silence on our part does not constitute consent. By the tacit acceptance of our general terms and conditions, the Client recognises our our terms and conditions and relinquishes his/her own.
2. Order acceptance
Our offers are not binding. A contract is effective only with a written confirmation of the order by us. Changes to the contract must be confirmed in writing.
3. Prices and payment terms and conditions
The prices are given in euros unless a different currency is agreed. We also invoice value added tax at the applicable statutory amount. We reserve the right, at the time the order is placed, to invoice up to 25% of the confirmed costs. This amount becomes due without deduction immediately on receipt of the order confirmation.
We are entitled to demand instalment payments from the Client according to the work performed. Instalment payments and the final invoice become due without deductions immediately on receipt. If the customer falls into arrears, we reserve the right to collect overdue fines. The right to claim further damages remains unaffected.
4. Obligations of the Client at the time of delivery of samples
The Client is responsible for the proper delivery of the samples sent for analysis. The condition of the samples must be such that the performance of the order is immediately possible. If, for the above-mentioned reasons, the performance of the order is not possible or is extremely difficult, the Client bears the resulting costs.
Samples submitted by the Client or samples obtained by us become our property insofar as they are necessary for performance of the order. Samples delivered by the Client are homogenised and representative subsamples are taken for the examination.
A retention sample of the homogenised sample is stored for at least two months. If the Client wishes non-homogenised samples to be retained, he/she must request this in writing. Samples which are not needed may be returned to the Client or disposed of. The Client bears the resulting costs.
Delivery dates and delivery periods are only binding if we explicitly confirm these in writing. Delivery periods commence on the day of confirmation of receipt of the sample in the laboratory, but not, however, before the samples are of the required quality.
Unforeseen events, such as force majeure, delivery or transport delays or industrial disputes release us from the duty to make timely delivery for their duration to the extent we are not responsible for such events. Delivery periods are extended by the duration of the disruption. If the disruption lasts for more than six months, either party may rescind the agreement. The Client has no claim to damages in this regard.
7. Transfer of risk
Unless otherwise stated in the order confirmation, delivery ex works is agreed upon.
The Client must inspect the delivered goods immediately upon receipt and promptly notify us of any defects in writing no later than one month after delivery or acceptance. Notification of hidden defects must be made immediately after discovery.
We will address any defects in the delivered goods according to our own choice by rectification or replacement delivery. If we are unable to rectify defects or redeliver within a reasonable time, the Buyer is entitled to withdraw from the contract or demand a reduction in the purchase price. Any further claims, in particular for loss of earnings, are excluded, unless otherwise specified in these terms and conditions.
9. Warranty for expert opinion and analyses
We process orders according to the state of the art and on the basis of the latest scientific findings or the standard that explicitly relates to the respective order. It is not possible to assume liability for a successful outcome. Insofar as subcontracts have been awarded, this also applies to subcontractors.
Objections to the test result are permitted within a period of one month from receipt by the Client. If a Client raises objections to our test result, the result is checked. We are entitled to have this test performed by third parties. On confirmation of the disputed result, the Client is liable for the costs of the retest. The test is otherwise amended free of charge.
The retest can only be performed if the condition of the sample or the goods being sampled are such that such a review is possible. We are only liable for damage demonstrably caused wilfully or as a result of gross negligence. The liability is limited to the rectification of damage which has been directly caused by acts or omissions in connection with the fulfilment of the order. It is limited to the amount of the order value.
The Client is obligated to indemnify us against any third party claims for damages in the case of restricted or unrestricted use of expert opinion, test certificates or reports. Claims of the Client due to improper performance of the order and claims for damages lapse after 6 months.
Any additional liability for damages beyond that stated in Sections VII and IX, regardless of the legal nature of the claims made, is excluded. The provision does not apply to claims under the German Product Liability Act (Produkthaftungsgesetz) or claims asserted due to the absence of assured properties, insofar the assured property was specifically intended to protect the Buyer against the incurred damage.
11. Retention of title
All goods supplied by us remain our property until full payment of the purchase price, including incidental costs. For the duration of the retention of title, the Buyer is not entitled to pledge the delivered goods as security or to transfer ownership of the goods by way of security. Should the Buyer, through combination with a movable property, through restructuring or processing, become owner of the goods, he/she thus transfers ownership of the resulting goods to us, subject to divergent agreements to secure the said claims, under simultaneous agreement that the Buyer shall hold these goods in custody for us free of charge.
The Buyer is entitled to sell the goods or the product manufactured therefrom as part of normal business operations. As a precaution, the claims against third parties arising from the resale of the goods are assigned to us in the amount of the original invoice amount. A separate agreement for each transaction is not necessary. As long as the Buyer fulfils his/her payment obligations to us, he/she is authorised to assert claims on our behalf.
However, we are entitled on request to inform and instruct the named third party in respect of the transfer of claim. In the event of default of payment, we are entitled to reclaim and otherwise dispose of the delivered goods on the basis of retention of title. In case of doubt, the exercise of this right does not constitute withdrawal from the contract. After payment has been made, the Buyer is provided with a new delivery date. If the value of the collateral exceeds the outstanding invoices by more than 20%, we will release the surplus amount at the request of the Buyer.
We reserve property rights and copyright to all representations, drawings, calculations and other documents. They may only be made available to third parties with our prior written consent.
In the case of expert opinion provided in accordance with the terms of the order, including parts thereof, the Client must obtain the written permission of the Contractor prior to disclosure to third parties or modifications to the text.
We undertake not to disclose, reproduce or utilise expert opinion, parts thereof, facts or documents in connection with the order without authorisation. The obligation to maintain confidentiality applies to all facts that are not common knowledge for the duration of the contractual relationship.
14. Place of jurisdiction, application of German law
The place of jurisdiction and place of performance for all disputes is Berlin, insofar as the contract was concluded with a registered trader, a legal entity under public law or a special asset under public law. This also applies if the Customer has no general place of jurisdiction in Germany or one party, after conclusion of the contract, has moved his/her usual place of residence outside the jurisdiction of the German Code of Civil Procedure. We are, however, also entitled to initiate proceedings against the customer in any other legal place of jurisdiction.
15. Partial invalidity
Should one or more of the provisions of these General Terms and Conditions or other parts of the contract be invalid, the remaining provisions remain unaffected. The respective invalid provision is replaced by a provision which corresponds to or is similar to the invalid provision in its economic outcome.