General Terms and Conditions of Business of Indivumed GmbH for the Sale of Goods

  1. Scope
    1. The following General Terms and Conditions of Business for the sale of goods and services (hereinafter referred to as the “goods”) shall apply to all sales of goods by Indivumed GmbH (hereinafter referred to as “INDIVUMED”) to the Buyer, unless INDIVUMED and the Buyer have expressly agreed otherwise in writing.
    2. These General Terms and Conditions of Business shall apply to all current and future purchase contracts and/or purchase agreements between INDIVUMED and the Buyer.
    3. By means of its placing of an order, irrespective of the form, the Buyer accepts these General Terms and Conditions of Business to the full extent.
    4. All deviating terms proposed by the Buyer are rejected by INDIVUMED and are not binding for it, unless INDIVUMED has expressly agreed to the deviating terms in written form.
  2. Offer and order
    1. Unless the respective order stipulates otherwise, the offer from INDIVUMED is binding for 21 working days.
    2. Each order must be placed in writing, either per fax or e-mail.
    3. Within the meaning of § 151 BGB (German Civil Code), the Buyer hereby dispenses with the receipt of an order confirmation which is implied in the consignment of the goods.
  3. Price of the goods
    1. The price of the goods corresponds to the price indicated by INDIVUMED in its offer or, if no price was indicated, the price which is indicated by INDIVUMED in the price list applicable at the time of the acceptance of the order.
    2. All prices indicated by INDIVUMED are ex works, unless indicated otherwise by INDIVUMED in the price lists or otherwise agreed in writing between the Buyer and INDIVUMED. If INDIVUMED states that it is prepared to supply the goods from a location other than the business premises of INDIVUMED, the Buyer is obliged to bear all transport, packaging and insurance charges of INDIVUMED.
    3. All prices are exclusive of the applicable value-added tax, customs duties and other charges which are to be borne by the Buyer, unless otherwise agreed in writing.
  4. Payment terms
    1. Unless it has been otherwise determined in the offer, the Buyer shall pay for the goods within 30 days of the invoice 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 Buyer that the Buyer must furnish a letter of credit issued by a recognised 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 Buyer falls into arrears with its payments, INDIVUMED is entitled to set the Buyer a final payment deadline at its own discretion, notwithstanding all other rights or means of legal redress that it may be entitled to, and terminate the contract or a specific order after the fruitless expiry of the stipulated period or temporarily cease further deliveries to the Buyer and charge the Buyer interest at 8 % p.a. above the LIBOR rate on the amount still outstanding until payment has been made in full.
  5. Packaging, delivery and date of delivery
    1. Unless otherwise agreed in writing, INDIVUMED may specify the transport route and means of transport for the goods to be delivered at its sole discretion.
    2. Unless otherwise agreed in writing, delivery dates are not binding.
    3. 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 Buyer bears the costs for the return shipment to the full amount.
  6. Passing of the risk

    The risk of damage or loss of the goods shall pass to the Buyer as soon as the goods are made available to the Buyer or are handed over to the carrier in the case of delivery.
  7. Obligations of the Buyer, restriction on use
    1. The Buyer must use the goods under strict compliance with the written product information provided by INDIVUMED and adhere strictly to all instructions and product information, which have been issued by INDIVUMED for the goods, irrespective of whether in verbal or written form; this applies among other things to all information regarding storage, handling and use of the goods.
    2. The goods from INDIVUMED must not be used for diagnostic or therapeutic purposes. The product information issued by INDIVUMED does not represent any medical, health care or other specialist recommendations.
  8. Warranty and liability
    1. INDIVUMED warrants within the meaning of § 434 BGB that all items delivered within the scope of these General Terms and Conditions of Business are free of material and manufacturing faults and conform to the applicable specifications. For clarification, it is expressly pointed out that the term “warranty” in these General Terms and Conditions of Business is not to be construed as just any guarantee, in particular – and this applies without restriction – not as a guarantee in accordance with § 443 BGB. Furthermore, INDIVUMED does not give any further warranties or guarantees, either expressly or implicitly.
    2. The Buyer shall inspect the goods without delay after receipt and notify INDIVUMED in writing of any defects of the goods.
    3. Defects which were not apparent even during a proper inspection are to be notified to INDIVUMED by the Buyer without delay.
    4. In the event of a warranty claim, the subsequent performance (remedial work or delivery of new goods) 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 wilful 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 Buyer and whose breach would endanger the achievement of the contractual purpose and compliance with the terms of the contract and on which the Buyer may rely on, (material contractual obligation) and here 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 catalogues, brochures, publications and other 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. The goods from INDIVUMED are by nature experimental in design and are used exclusively for research purposes. INDIVUMED accepts no liability for damages caused by improper handling of the goods, by improper storage of the goods or by using the goods in the household or on humans and animals.
  9. Acts of God
    1. Neither INDIVUMED nor the Buyer 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.
  10. Confidentiality

    INDIVUMED and the Buyer 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 contract. All offers and – in order to exclude any doubts – all prices as well as product 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 delivery of goods to the Buyer.
  11. Applicable law, place of jurisdiction
    1. The contract concluded between INDIVUMED and the Buyer and these General Terms and Conditions of Business shall be governed and interpreted in accordance with German law without recourse to its choice of law rules and to 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 Buyer or these General Terms and Conditions of Business, 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 Buyer.
  12. Severability

    The provisions of this contract including the General Terms and Conditions of Business are severable. Should a provision of this contract or the General Terms and Conditions of Business 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 Buyer, 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 Buyer 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.