General Terms and Conditions of Indivumed GmbH

  1. Scope
    1. The following General Terms and Conditions shall apply to any provision of biospecimen, data and/or services (jointly hereinafter the “Supplies”) by Indivumed GmbH (hereinafter referred to as “INDIVUMED”) to the Recipient, unless INDIVUMED and the Recipient have expressly agreed otherwise in writing with regard to any or all topics addressed herein, as the case may be.
    2. These General Terms and Conditions shall apply to all current and future provision agreements on Supplies between INDIVUMED and the Recipient.
    3. By means of its placing of an order, irrespective of the form, the Recipient accepts these General Terms and Conditions to the full extent.
    4. All deviating terms proposed by the Recipient are rejected by INDIVUMED and are not binding for it, unless INDIVUMED has expressly agreed to the deviating terms in written form.
  2. Quotation and Order; Subcontractors
    1. Unless stipulated otherwise therein, the offer from INDIVUMED stated in a quotation shall be binding for 21 working days.
    2. Each order must be placed in text form or writing, either per fax or e-mail.
    3. Within the meaning of § 151 BGB (German Civil Code), the Recipient hereby dispenses with the receipt of an express order confirmation which shall be implied in the consignment of the ordered Supplies.
    4. INDIVUMED shall be entitled to subcontract any or all of its obligations to perform the Supplies provided always that such subcontractors shall, in the reasonable opinion of INDIVUMED, be capable of performing the Supplies to the same standards as INDIVUMED. Where reasonable, INDIVUMED shall notify the Recipient of any subcontractors being used in the provision of the Supplies, the Recipient shall have the right to refuse or accept all subcontractors. INDIVUMED shall have the right to make any changes to the Supplies which are necessary to comply with any applicable law or safety requirement, or which otherwise do not materially affect the nature or quality of the Supplies, subject always to providing the Recipient with reasonable written notice of any such changes.
  3. Packaging, Delivery and Date of Delivery
    1. Unless otherwise agreed in writing, delivery shall be ‘FCA / Free Carrier‘ (Incoterms 2010).
    2. Unless otherwise agreed in writing, INDIVUMED may specify the transport route and means of transport for the Supplies to be provided at its sole discretion.
    3. Unless otherwise agreed in writing, delivery dates are not binding.
    4. The packaging is to be carried out in accordance with the applicable laws and industry standards. The packaging material can be returned to INDIVUMED, provided that the Recipient bears the costs for the return shipment to the full amount.
  4. Compensation for Supplies
    1. Any compensation for supplies corresponds to the amounts indicated by INDIVUMED in its quotation or, if no amount was so indicated, the amount which is indicated by INDIVUMED in the general compensations scheme applicable at the time of the placement of the order.
    2. With regard to shipment costs, all compensations indicated by INDIVUMED are FCA / Free Carrier (Incoterms 2010), unless indicated otherwise by INDIVUMED in the quotation or otherwise agreed in text form or writing between the Recipient and INDIVUMED. If INDIVUMED states that it is prepared to provide Supplies from a location other than the business premises of INDIVUMED, the Recipient shall bear all respective transport, packaging and insurance charges of INDIVUMED.
    3. All amounts stated are exclusive of any applicable value-added tax, customs duties and other charges which are to be borne by the Recipient, unless otherwise agreed in text form or writing.
  5. Payment Terms
    1. Unless it has been otherwise determined in the quotation, the Recipient shall pay the compensation as well as any shipment and insurance costs for the Supplies within 30 days of the invoice date being issued by INDIVUMED. Payment is to be made preferably by credit transfer. Cheques are only accepted after the prior written consent of INDIVUMED. Bills of exchange are not accepted and are not accepted as fulfilment of the obligation to pay.
    2. An agreement may be reached between INDIVUMED and the Recipient that the Recipient must furnish a letter of credit issued by a recognized bank or insurance company. In this case the letter of credit must be issued in accordance with the current version of the Uniform Customs and Practices for Documentary Credits, ICC Publication No. 500.
    3. In the event that the Recipient falls into arrears with its payments, INDIVUMED is entitled to set the Recipient a final payment deadline at its own reasonable discretion, notwithstanding all other rights or means of legal redress that it may be entitled to, and terminate the concerned contract or a specific order after the fruitless expiry of the stipulated period, or to temporarily cease further deliveries to the Recipient, and charge the Recipient interest at 8 % p.a. above the LIBOR rate on the amount still outstanding until payment has been made in full.
  6. Passing of the Risk

    The risk of damage or loss of the Supplies shall pass to the Recipient as soon as the Supplies are made available to the Recipient or are handed over to the carrier in the case of delivery ordered by the Recipient.
  7. Import Documents and Authorizations

    The Recipient is obliged to obtain in due time all import documents and authorizations required under respective local law and to support INDIVUMED in providing all statements mandatorily to be made by INDIVUMED itself in this respect. INDIVUMED shall be entitled to terminate the contract without any further obligation or liability towards the Recipient in case such documents are not duly provided.
  8. Obligations of the Recipient, Restrictions on Use of Biospecimen and Data
    1. Recipient shall adhere to all bindingly applicable international and local laws and regulations when handling any biospecimens/and or data provided by INDIVUMED and shall release and hold INDIVUMED harmless from and against any sanctions imposed on INDIVUMED due to Recipient and/or its collaborators or clients infringing upon any such law or regulation.
    2. The Recipient must use the Supplies under strict compliance with any accompanying written information provided by INDIVUMED and adhere strictly to all instructions and information which have been issued by INDIVUMED for the Supplies, irrespective of whether in verbal, text or written form; this applies among other things to all information regarding storage, handling and use of the Supplies.
    3. Any biospecimens provided by INDIVUMED are experimental by nature, may only be used for legally permissible research and development purposes, and shall for precaution be treated with due care and as being potentially infective.
    4. Any biospecimens provided by INDIVUMED must not be transplanted, infused, or transferred into a human body.
    5. Any biospecimens provided by INDIVUMED must not be used for diagnostic and/or therapeutic purposes. Any accompanying information issued by INDIVUMED does not represent any medical, health care or other specialist recommendations.
    6. Any analytical data provided by INDIVUMED are supportive research data only and are not released for diagnostic and/or therapeutic purposes.
    7. To any clinical data provided by INDIVUMED the Recipient shall receive a non-exclusive usage right only and solely for the purpose covered by the respective order.
  9. Warranty and Liability
    1. INDIVUMED warrants within the meaning of § 434 BGB (German Civil Code) that all Supplies delivered within the scope of these General Terms and Conditions conform to the applicable and agreed specifications. For clarification, it is expressly pointed out that the term “warranty” in these General Terms and Conditions is not to be construed as any guarantee and in particular – and this applies without restriction – not as a guarantee in accordance with § 443 BGB (German Civil Code). Furthermore, INDIVUMED does not give any further warranties or guarantees, either expressly or implicitly.
    2. The Recipient shall inspect the Supplies without delay after receipt and notify INDIVUMED in writing of any deviations from agreed specifications.
    3. Deviations from agreed specifications which were not apparent even during a proper inspection are to be notified to INDIVUMED by the Recipient without delay.
    4. In the event of a warranty claim, the subsequent performance (remedial work or delivery of new Supplies) is to be carried out at the discretion of INDIVUMED.
    5. THE LIABILITY OF INDIVUMED FOR INTENTIONAL FAULT, FOR GROSS NEGLIGENCE ON THE PART OF THE BOARDS OR SENIOR EXECUTIVES, FOR CLAIMS ON THE BASIS OF THE GERMAN PRODUCT LIABILITY ACT FOR CULPABLE INJURY TO LIFE, BODY AND HEALTH AS WELL AS THE FRAUDULENT CONCEALMENT OF DEFECTS IS GOVERNED BY THE STATUTORY PROVISIONS. IN ADDITION, THE LIABILITY IS LIMITED AS FOLLOWS: A) INDIVUMED IS ONLY LIABLE FOR WILLFUL INTENT AND GROSS NEGLIGENCE. B) IN THE EVENT OF GROSS NEGLIGENCE, INDIVUMED IS ONLY LIABLE FOR FORESEEABLE DAMAGES WHICH ARE TYPICAL FOR THIS TYPE OF CONTRACT. C) IN THE EVENT OF ORDINARY NEGLIGENCE, INDIVUMED IS ONLY LIABLE IN THE EVENT OF A BREACH OF A CONTRACTUAL OBLIGATION WHOSE FULFILMENT ONLY MAKES POSSIBLE THE PROPER PERFORMANCE OF THE CONTRACT CONCLUDED BETWEEN INDIVUMED AND THE RECIPIENT AND WHOSE BREACH WOULD ENDANGER THE ACHIEVEMENT OF THE CONTRACTUAL PURPOSE AND COMPLIANCE WITH THE TERMS OF THE CONTRACT AND ON WHICH THE RECIPIENT MAY RELY ON (MATERIAL CONTRACTUAL OBLIGATION), AND IN SUCH CASE ALSO ONLY FOR FORESEEABLE DAMAGES WHICH ARE TYPICAL FOR THIS TYPE OF CONTRACT. D) ALL CLAIMS BECOME STATUTE-BARRED IN ONE YEAR FROM THE PASSING OF THE RISK.
    6. All information which is contained in publications, offered in print or electronic media, has been collected by INDIVUMED to the best of its knowledge. INDIVUMED accepts no liability whatsoever for any errors or misprints.
    7. INDIVUMED accepts no liability for damages caused by improper handling and/or use of Supplies and/or by improper storage of Supplies.
  10. Acts of God
    1. Neither INDIVUMED nor the Recipient shall be liable for failure to perform one of their obligations (with the exception of the obligation to pay), if the non-performing party proves that: a) the non-performance was attributable to an obstacle that was outside its control, and b) as appears reasonable, it could not have been expected from it to know the obstacle and its consequences for the ability of the non-performing party to fulfil the contract at the time of conclusion of the contract, and c) as appears reasonable, it could not have been able to avoid or overcome the obstacle or its consequences.
    2. The non-performing party must notify the other party as soon as practically possible of such an obstacle and its consequences for its ability to fulfil the contract. If the reasons for the non-performance continue longer than six months, each party shall be entitled to terminate the contract in writing.
  11. Confidentiality

    INDIVUMED and the Recipient undertake to treat all confidential information which they have received from the other party on a strictly confidential basis and use it only for the purposes of fulfilment of the respective contract. All quotations and – for the exclusion of doubts – all compensation amounts as well as Supplies and application specifications and manufacturing records shall be regarded as confidential information. This obligation to maintain secrecy shall continue to be binding for a period of three years after the last provision of Supplies to the Recipient.
  12. Applicable Law, Place of Jurisdiction
    1. The contract concluded between INDIVUMED and the Recipient and these General Terms and Conditions shall be governed and interpreted in accordance with German law without recourse to its choice of law rules and under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980).
    2. All disputes arising from or in connection with the contract concluded between INDIVUMED and the Recipient or these General Terms and Conditions, including all disputes about the conclusion of the contract and its binding effect, amendment and termination, shall be settled in the law courts of the City State of Hamburg, Germany.
    3. INDIVUMED is entitled to assert any claims in a court at the principal place of business of the Recipient.
  13. Severability

    The provisions of any contract including the General Terms and Conditions are severable. Should a provision of such contract or the General Terms and Conditions be invalid or unenforceable, the validity and enforceability of the remaining provisions remain unaffected. The invalid or unenforceable provision or the gap in the provisions shall be replaced or filled by INDIVUMED and the Recipient, insofar as this is legally possible and permissible, with a valid and enforceable provision which comes closest to the agreement which would have been reached between INDIVUMED and the Recipient at the time of conclusion of the contract if they would have known about the necessity of such an adaptation at the time of the conclusion of the contract.

Version: August 11, 2019