General Terms of Sale and Delivery

§ 1 General – Scope

(1) Our Terms of Sale and Delivery shall apply exclusively to all quotations, and contracts for the delivery of goods and services (“Products”) by Invitek Molecular GmbH and ALS Life Sciences Portugal SA (hereinafter collectively referred to as “Sellers”). We do not admit regulations on the contrary or terms differing from our Terms of Sale and Delivery, unless we have expressly agreed to their validity in writing. Our Terms of Sale and Delivery do also apply if we execute the delivery to Buyer unreserved although we know about regulations on the contrary or terms of the Buyer differing from our Terms of Sale and Delivery.
(2) Our Terms of Sale and Delivery do only apply to entrepreneurs in terms of § 310 Para. 1 German Civil Code.
(3) Our Terms of Sale and Delivery do also apply for all future businesses with the Buyer.
(4) Sellers retain the right to change these General Terms of Sale and Delivery at any time.
 

§ 2 Offer – Offering Documents

(1) If the order can be qualified as offer in accordance with § 145 German Civil Code or § 230 Portuguese Civil Code, Sellers either confirm the order in writing within 3 (three) business days or by delivery of the Products.
(2) Sellers shall retain full title and copyright of illustrations, drawings, costing and other documents. This shall also apply for such written documents, which are marked as being “confidential“. For the transfer to any third party, the Buyer requires our express written agreement.
 

§ 3 Delivery, acceptance

(1) Products will be delivered Ex Works or if agreed upon differently in accordance with the INCOTERMS 2010, unless not specified differently in the order acknowledgment or herein.
(2) Ordering/ delivery of unchilled goods
Orders for unchilled goods valued above € 250 are delivered free inside Germany and Portugal. A shipping fee of € 30 will be charged for orders with a net value up to € 250. Transportation charges will be invoiced to Buyer for all deliveries outside of Germany and Portugal. Sellers will use their best efforts to consider Buyer’s requests regarding choice of transport carrier. Should the Buyer have its own account with transport carrier, Sellers will use this account if notified at the time of order. For order values below € 500 an additional handling fee of € 50 will be charged to Buyer outside of Germany.
(3) Ordering/ delivery of chilled goods
Inside Germany and Portugal chilled goods are delivered only from Monday through Thursday. A shipping fee of € 30 will be charged for the delivery of chilled goods with a net value up to € 250. Outside of Germany and Portugal transportation charges will be invoiced to Buyer for all deliveries. For order values below € 500 an additional handling fee of € 50 will be charged to Buyer outside of Germany and Portugal.
(4) At Buyer’s option Sellers will cover the delivery with transportation insurance; Buyer shall bear the arising costs and expenses.
(5) Buyer shall inspect all Products immediately upon receipt thereof and shall notify Seller in writing of any latent defects without undue delay, in case of hidden defects with immediate effect upon discovery thereof.
 

§ 4 Prices and Payment

(1) Prices will be calculated according to the pricing list effective at the time of the delivery date and are exclusive of Value added Tax. All payments shall be in Euro (€). Sellers do not grant discounts.
(2) Sellers’ invoices are payable and due 30 days upon issuance of the invoice.
(3) Sellers retains full right to change its prices if cost reductions or increases occur after the conclusion of the contract, especially as a result of labour agreements of material price changes. For those, Sellers will provide evidence to the Buyer upon request.
(4) Buyer shall have the right to set off only if the underlying counterclaims have been conclusively determined by a court, are indisputable or were expressly acknowledged by Sellers. Furthermore, Sellers are entitled to exercise the right to set off insofar as Sellers’ counterclaim is based on the same contractual relationship.
(5) In the event of late payment, Buyer shall pay an interest rate of 8 % above the respective Basis Interest Rate.
 

§ 5 Delivery Period

(1) Buyer acknowledges that shipment dates provided by Sellers are only estimates. In the event of delays in delivery due to interruption of operation, official order or via major, company shutdowns, labor disputes, or other impediments which are outside the Sellers’ responsibility which affect the Sellers or its suppliers, the date of shipment shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Sellers to any liability or penalty. In this case, claims for damages by the Buyer are excluded.
(2) The Sellers shall be entitled to fulfil partial delivery as far as this does not fall below a reasonable minimum. The Buyer is obligated to examine the delivery receipt. Any objection shall be immediately filed in writing, otherwise the receipted quantity delivered is considered to be accepted.
(3) Sellers’ business hours are on weekdays from 8:00 am to 7:00 pm Central European Time. Outside normal working hours the Buyer can order per e-mail (order@invitek.com). For stock products: orders are shipped within 24 hours.
(4) There is no minimum order value for orders placed directly with Sellers.
(5) If Buyer is in default of acceptance or if Buyer culpably breaches other duties to cooperate, Sellers are entitled to claim any and all damages arising out of or resulting from such default or breach, including, but not limited to, possible additional expenditures. The right for further claims is reserved.
(6) If the requirements of § 5 are met, the risk of accidental break-up or accidental degradation of the Product is transferred to Buyer at the moment the Buyer got into default of acceptance.

§ 6 Warranties and Warranty Period

(1) Claims of Buyer due to defects require that he has properly fulfilled its due duties to inspection and objection in accordance with §§ 377 et seqq. German Commercial Code.
(2) If Product is defective, Buyer shall promptly notify Sellers in writing of such defect and Sellers shall, at its expense and option, either (i) repair the Product or (ii) replace the Product. In case of repair of defects Sellers shall bear all expenses for the purpose of repairing the defects, especially transport, work and material expenses as far as those are not increased by the fact that the Product has to be placed at another place than the place of delivery. Title and risk of loss to any Product returned to Sellers for repair or replacement shall pass to Sellers upon carrier’s receipt of the Product.
(3) If Sellers fails to either repair the defective Product or deliver a new Product pursuant to § 6 (2), Buyer is authorized to i) withdraw from the contract and/or ii) abate the price of the Product.
(4) The statute of limitation for claims and rights due to defects is one year.
 

§ 7 Liability

(1) Nothing in this Agreement limits or excludes the Sellers liability for:
a. willful misconduct or gross negligence on Sellers’ part or by Sellers’ agents or assistants in performance of the Services;
b. culpable damage to life, body or health;
c. where liability cannot be limited or excluded by Applicable Laws.
and in such circumstances, the Sellers is liable according to the provisions of applicable law.
(2) The Sellers will not be liable to the Buyer for any indirect loss whatsoever, including consequential loss, loss of profits, economic loss, business interruption or any losses not reasonably foreseeable by either party at the time of entering into this Agreement and therefore the Sellers’ liability for such damages shall be limited to the typically predictable damage.
(3) The Sellers’ aggregate liability in respect of claims based on events arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, will in no circumstances exceed an amount equal to the total fees payable by the Buyer to the Contractor under this Agreement.
(4) Any other liability not expressly provided herein shall be disclaimed and excluded.

§ 8 Retention of Title

(1) Sellers shall retain the ownership and title of the Products until Buyer has paid any and all account receivables and discharged all claims arising from the business relationship. If Buyer is in breach of the contract, in particular in delay with its payment obligations, Sellers is entitled to claim for surrender of the Products. Any such claim for surrender shall not be considered as a rescission of this contract; Sellers shall be entitled to reserve the right to rescind. However, any distraint with regard to the Products shall always be considered as a rescission of this contract. Upon repossession of the Product Sellers is entitled to utilize them; the utilization proceedings shall be credited against the commitments of the Buyer – reasonable utilization expenses to be deducted.
(2) Buyer is obliged to handle the Products with care; especially, Buyer is obliged to insure the Products at its own costs against damage by fire, water and theft adequately for the reinstatement value. As far as maintenance and inspection works are required, the Buyer shall carry them out at its own expenses in due time.
(3) In case of enforcement proceedings and other interventions of third parties, Buyer shall inform Sellers promptly in writing, subject to Sellers’ right file a suit in accordance with § 771 ZPO (German Civil Process Order). As far as the third party is not able to reimburse the juridical and extra juridical expenses of a suit in accordance with § 771 ZPO, Buyer is liable for the incidental loss.
 

§ 9 Application Area and Licenses

Sellers’ application-technological guidance in written and spoken form as well as in testing is based on the best of knowledge, however, is valid as a non-binding reference note, also relating to possible trademark rights of third parties, and do not liberate the Buyer from its own testing and if necessary, validation of the delivered goods from the Sellers for their applicability in the intended procedures and purposes. Application, usage, and handling of the Products are carried out outside the controlling possibilities of Sellers and are therefore Buyer’s responsibility. The enclosed product descriptions, safety instructions and recommendations as well as products inserts shall be considered. Any unauthorized modification of the described purpose and/or change of the product itself or of the information material occurs at Buyer‘s risk. Sellers’ products are designed for use in scientific research unless indicated otherwise. Any use of the Sellers’ products for human medical treatment, for diagnostic purposes, or as pharmaceuticals shall only be permitted if such application is allowed pursuant to the statutory regulations applicable both to the Buyer and the user and, insofar as necessary, also an approval of the competent authority has been granted. In addition, such application of Sellers’ products shall require the prior written consent of the Sellers. Explicit instructions for use stated on the package (e.g. ”in vitro Diagnosticum”) shall be deemed to be written approval of Sellers; such shall not, however, replace any governmental approvals which are necessary in the user’s country.

 

§ 10 Jurisdiction – Place of Performance

(1) This contract shall be governed by the laws of the Federal Republic of Germany, excluding the Convention on Contracts for the International Sale of Goods and the principles of law rules thereof.
(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Berlin.