| 1. |
Application |
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These
terms and conditions apply to all contracts, deliveries and other
services, including consultancy services, in business dealings with
non-consumers within the meaning of § 310 sub-section 1 German Civil Code.
Buyer's purchasing terms are hereby contradicted. |
2. |
Quotations
and conclusion
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2.01 |
The
quotations contained in our catalogues and sales documents and - to the
extent not expressly designated as binding - in the Internet are always
subject to change without notice, i.e. only to be understood as a request
for a quotation. All agreements made between ourselves and Buyer for the
purpose of performance of a contract shall be recorded in
writing.
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2.02 |
To
the extent that our sales employees or agents make oral side-agreements or
give assurances exceeding the written agreement, they shall always require
our written confirmation.
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2.03 |
The
aforementioned regulations shall not apply to oral declarations by the
management or by persons with unrestricted authorisations from
us.
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2.04 |
We
reserve the ownership rights and copyrights to illustrations, drawings,
calculations and other documents; they may not be made accessible to third
parties. This shall in particular apply to written documents designated as
"confidential"; Buyer shall require our express approval before forwarding
them to third parties.
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2.05 |
If
facts, in particular arrears in payment with a view to former deliveries
giving rise to the claim to the purchase price being at risk as a result
of lack of solvency on the part of Buyer according to due commercial
discretion, become known to us after conclusion of the contract, we shall
be entitled to demand advance payment or corresponding collateral from
Buyer at the latter's choice, setting a suitable period for so doing, and
to withdraw from the contract in the event of rejection, invoices for part
deliveries already effected being made due for payment
immediately.
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2.06 |
The
minimum order value is currently EUR 75.00 plus statutory Value Added Tax.
For orders under this limit, we charge a handling flat rate to the amount
of EUR 15.00, if not expressly agreed to the contrary. If an order
contains articles from Invitrogen with an order value under EUR 720.00
net, the handling flat rate shall amount to EUR 30.45. For orders via our
web shop, the handling flat rate shall not be charged.
For Invitrogen
articles which have to be sent refrigerated, we shall further charge a
refrigeration flat rate to the amount of EUR 30.45 for an order value
under EUR 1,850.00.
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2.07 |
If
an order is cancelled by Buyer before delivery of the goods, we shall be
entitled to charge Buyer all the costs incurred by the cancellation. This
shall in particular apply to costs of cancellation and withdrawal charged
to us by our suppliers. Returns of goods free of defects may only be done
to our warehouse carriage paid with our express approval. For the costs
incurred by us, we shall be entitled to charge up to 10% of the value of
the goods, albeit no less than EUR 15.00 plus VAT, or to deduct said
amount from the credit as a handling flat rate. |
3. |
Delivery
periods and arrears
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3.01 |
To
the extent that no assurance designated on our part as being binding
exists, a delivery period shall only be deemed agreed approximately. It
shall commence with the date of clarification of all technical and other
details of the order, production of all and any necessary documents and,
if applicable, the agreed down-payment. It shall be extended by the period
in which Buyer is in arrears with its contractual duties within an ongoing
business relationship, also from other contracts.
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3.02 |
Part
services and part deliveries shall be admissible to a reasonable extent.
We may only charge down-payments to a suitable extent.
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3.03 |
A
performance or delivery period shall be suitably extended - also within
arrears - in the occurrence of force majeure and all unforeseen obstacles
occurring after conclusion of the contract for which we are not answerable
(in particular, also disturbances of operation, strikes, lock-outs or
transport disturbances) to the extent that such obstacles can be proven to
have a considerable influence on the planned performance or delivery. This
shall also apply if these circumstances occur with our previous suppliers,
downstream suppliers or sub-contractors. We shall notify Buyer of the
start and end of such obstacles as soon as possible. Buyer can then demand
a declaration from us whether we wish to withdraw from the contract or
deliver within a reasonable period. If we do not make the declaration
without delay, Buyer can withdraw from the contract. In such a case,
claims to damages shall be ruled out.
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3.04 |
With
regard to punctual deliveries, we shall only be liable for our own
culpability and that of our vicarious agents. We shall not be answerable
for culpability of our previous suppliers. However, we engage to assign
any claims to damages against the previous suppliers to Buyer.
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3.05 |
In
the event of delay in delivery, Buyer shall be obliged, at our request, to
declare within a suitable period whether it still insists on delivery or
withdraws from the contract due to the delay and/or demands damages in
lieu of performance. |
4. |
Dispatch
and passage of risk
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4.01 |
Route
and means of dispatch shall be at our choice. Additional costs caused by
dispatch wishes of Buyer shall be charged to the latter. Goods shall be
insured at Buyer's request and expense. To the extent that nothing to the
contrary results from the order confirmation, "delivery ex works" shall be
deemed agreed.
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4.02 |
Risk
shall pass to Buyer with hand-over of the goods to the forwarder -
regardless of whether it has been commissioned by Buyer, Manufacturer or
us. This shall also apply to part and pre-paid deliveries. In the event of
delivery with our vehicles, risk shall pass to Buyer as soon as the goods
have been provided to it at the place stated by it.
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4.03 |
If
dispatch or agreed collection is delayed at Buyer's request or through
Buyer's fault, the goods shall be stored at Buyer's expense and risk. In
such a case, notification of readiness for dispatch shall be equated to
dispatch. The invoice for the goods shall be due for payment immediately
upon start of storage. |
5. |
Prices
and payment
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5.01 |
Prices
shall apply ex works or warehouse plus packaging, freight and other
dispatch costs and flat rates pursuant to Section 2.06, as well as the
valid Value Added Tax in each case.
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5.02 |
If
delivery or service is to take place 4 months after conclusion of the
contract or later, Contracting Parties agree to re-negotiate the price in
the event of a change in costs, wages etc..
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5.03 |
We
shall be entitled to demand down-payments if our service is delayed over
and above the agreed period through no fault of ours.
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5.04 |
If
not agreed to the contrary, our deliveries and services shall be due for
payment without deduction after 30 days; deduction of discount shall
require our specific written agreement. Payments shall always be used to
settle the oldest due outstanding items, plus default interest incurred
thereon. Assured discounts shall not be granted if Buyer is in arrears
with the payment of earlier deliveries.
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5.05 |
Payments
in so-called cheque and bill proceedings shall always require specific
agreement. Credits for bills and cheques shall be less expenditure with
value date on the day on which we can dispose of the equivalent
value.
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5.06 |
Regardless
of the term of all and any bills accepted and credited, our claims shall
become due for payment immediately if payment terms are not complied with
or facts giving rise to the conclusion that our claims to the purchase
price are at risk as a result of lack of solvency on the part of Buyer
become known.
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5.07 |
If
Buyer falls into arrears in payment or fails to honour a bill upon
maturity, we shall be entitled to take the goods back, if applicable to
have access to Buyer's premises and to remove the goods. We can also
forbid sale and removal of the commodities delivered. Taking back shall
not represent a withdrawal from the agreement.
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5.08 |
In
the cases of sub-sections 5.06 and 5.07, we can revoke the direct debit
authorisation (sub-section 6.05) and demand advance payments for
outstanding deliveries. However, Buyer can avert these legal consequences
and also those stated in sub-section 5.07 by providing a security to the
amount of our jeopardised claim to payment.
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5.09 |
Default
interest shall be charged at 12% p.a. above the basic rate of interest (§
247 German Civil Code). It shall be charged higher or lower if we can
prove encumbrance with a higher rate of interest or Buyer can prove a
lower encumbrance, as the case may be.
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5.10 |
Rejection
of retention of payment shall be ruled out if Buyer knew the defect or any
other reason for complaint. This shall also apply if it remained unknown
to it as a result of gross negligence, unless we have deceitfully withheld
the defect or other reason for complaint or have assumed a guarantee for
the property of the object. Setoff shall only be admissible with
undisputed or legally effective counterclaims. A right of retention from
earlier or other transactions of the ongoing business relationship cannot
be claimed. Apart from this, payment may only be retained on account of
defects and other complaints to a suitable extent.
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5.11 |
All
and any collaterals agreed can be removed from the net amount by us by a
guaranty. |
6. |
Retention
of title
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6.01 |
We
reserve title to the goods until complete payment of the purchase price.
For goods which Buyer purchases from us in the course of an ongoing
business relationship, we reserve title until all our claims from the
business relationship, including the claims originating in future - also
from contracts concluded simultaneously or later - have been settled. This
shall also apply if individual or all claims have been put together by us
in one invoice and the balance has been drawn and recognised. If liability
for a bill is substantiated by us in connection with the payment of the
purchase price by Buyer, the right of retention shall not expire before
honouring of the bill by Buyer as drawee. In the event of arrears in
payment of Buyer, we shall be entitled to take back the goods following a
caution, Buyer shall be obliged to return them.
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6.02 |
If
the conditional commodities are combined with other goods by Buyer,
co-ownership of the new object shall accrue to us in the ratio of the
value of the invoice of the conditional commodities to the invoice value
of the other goods and the value of processing. If our ownership expires
due to combining, blending or processing, Buyer transfers the rights
accruing to it to the extent of the invoice value of the conditional
commodities as early as conclusion of the contract and shall keep them on
our behalf free of charge. The ownership rights originating thereby shall
be deemed conditional commodities within the meaning of sub-section
6.01.
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6.03 |
Buyer
shall inform us immediately of any interventions by third parties against
the conditional commodities and the assigned claims. It may only sell the
conditional commodities in the customary course of business at its normal
terms and conditions of business and as long as it is not in arrears,
provided the claims from the resale pass to us pursuant to the following
sub-sections 6.04 to 6.05. It shall not be entitled to further disposals
of the conditional commodities. Installation of the goods into a
construction shall also be deemed resale.
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6.04 |
Buyer's
claims from the resale of the conditional commodities are here and now
assigned to us. We accept this assignment. They shall serve securing to
the same extent as the conditional commodities. If the conditional
commodities are sold by Buyer together with other goods not supplied by
us, the claim from the resale shall be assigned in the ratio of the
invoice value of our goods to the other goods sold. In the sale of goods
to which we have co-ownership shares pursuant to sub-section 6.02, a part
corresponding to our share of co-ownership shall be assigned to
us.
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6.05 |
Buyer
shall be entitled to collect claims from resale unless we recall the
collection power in the cases stated in sub-section 5.08. Upon request by
us, Buyer shall be obliged to notify its customers of the assignment to us
straight away - insofar as we do not do this ourselves - and to give us
the documents and information necessary for collection, possibly entailing
the names and addresses of debtors. Buyer shall under no circumstances be
entitled to further assignment of the claim. Assignment by means of
genuine factoring shall only be permitted to Buyer under the precondition
that this is notified, stating the factoring bank and the accounts of
Buyer kept there and the yield from the factoring exceeds the value of our
secured claim. Our claim shall become due for payment immediately upon
crediting of the yield of the factoring.
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6.06 |
Insofar
as the value of the conditional commodities is of the essence, it shall
result from our invoice value. We engage to release collateral accruing to
us upon request by Buyer to the extent that its realisable value exceeds
the claims to be secured by 30%. |
7. |
Notification
of defects, guarantee and warranty
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7.01 |
We
shall only be liable for defects within the meaning of § 434 German Civil
Code as follows: Buyer shall examine the goods received for quantity and
property without delay. Obvious and/or recognised defects, short
deliveries and wrong deliveries shall be notified in writing after no
later than 14 days, in any case before processing or installation.
Further-reaching obligations of the merchant pursuant to §§ 377 German
Commercial Code shall remain unaffected.
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7.02 |
If
Buyer establishes defects on the commodities, it may not dispose thereof,
i.e. they may not be divided, resold or processed, until an agreement on
the handling of the notification of defects has been achieved or
proceedings for securing of evidence have been carried out by an expert
commissioned by the Chamber of Industry and Commerce at Buyer's registered
office.
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7.03 |
Buyer
shall further be obliged to grant us the opportunity of establishing the
defect notified on site or, at our request, to provide us with the object
giving rise to complains or samples thereof; in the event of culpable
rejection, warranty shall be forfeited.
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7.04 |
We
shall assume no warranty for damage to be put down to unsuitable or
improper use, faulty assembly, commissioning, amendment or repair not
carried out by us, faulty or negligent treatment or natural wear and
tear.
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7.05 |
In
the event of justified complaints, we shall be entitled to set the nature
of subsequent performance (replacement delivery, after-working) taking the
nature of the defect and Buyer's justified interests into
account.
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7.06 |
The
expenditure necessary for subsequent performance, in particular transport
and travel expenses, shall not be borne by us to the extent that it is
based on the fact that the purchased commodity has been taken to a place
other than the location of the professional activity or commercial branch
establishment of the recipient after receipt, unless such move corresponds
to the intended use of the object. Claims to recourse pursuant to §§ 478,
479 German Civil Code shall remain unaffected.
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7.07 |
Claims
to defect in quality shall be barred by limitation after 12 months. This
shall not apply to the extent that law provides for longer periods
pursuant to §§ 438 sub-section 1 no. 2 (buildings and objects for
buildings), § 479 (claim to recourse) and § 634a sub-section 1 no. 2
(building defects) German Civil Code.
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7.08 |
Section
8 (General limitation of liability) shall apply to claims to
damages. |
8. |
General
limitation of liability
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8.01 |
Claims
to damages and reimbursement of expenditure of Buyer (hereinafter Claims
to Damages), regardless of the legal reason, in particular due to breach
of duties from a contractual relationship and from tort, are ruled out.
This shall not apply in cases of assumption of a guarantee or a
procurement risk. This shall further not apply to the extent that we are
cogently liable, e.g. according to the Product Liability Act, in cases of
gross negligence, on account of injury of life, limb or health, as well as
infringement of cardinal contractual obligations. The claim to damages for
infringement of cardinal contractual obligations shall however be limited
to the foreseeable damage typical for the contract to the extent that we
cannot be charged with gross negligence or there is liability on account
of injury of life, limb or health. A change of the onus of proof to the
detriment of Buyer shall not be connected therewith.
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8.02 |
This
regulation shall apply accordingly to Buyer.
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8.03 |
Reference
to chemicals: We consult you to the best of our knowledge within the
possibilities granted. Our information, recommendations and tips do not
release you from the necessity to examine our products under your own
responsibility for suitability for the purposes envisaged by you. Existing
laws and directives shall be complied with in all cases. This shall also
apply with regard to all and any protective rights of third
parties.
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| 9. |
Data
protection |
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Buyer
is hereby informed that we process the person-related data obtained in the
course of the business relationship pursuant to the provisions of the
Federal Data Protection Act. |
10. |
Place
of performance, place of jurisdiction, applicable law
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10.01 |
Place
of performance and exclusive place of jurisdiction for deliveries and
payments (including cheque and bill actions) as well as all and any
disputes arising shall be the registered office of our company in 58239
Schwerte or of our branch involved in the contract, to the extent that
Buyer is a merchant, legal entity under public law or public-law special
fund. However, we shall also be entitled to sue Buyer at its place of
jurisdiction.
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10.02 |
The
contractual relationships shall be regulated exclusively according to the
law valid in the Federal Republic of Germany, excluding UN purchase
law. |
