General Terms and Conditions of Business of Microdissect GmbH
§ 1 Scope of Application, Data Protection
(1) Where the Purchaser is a trader within the meaning of § 14 of the German Civil Code (BGB) all contracts between ourselves and the Purchaser shall be governed exclusively by the following general terms and conditions of business or any revised version thereof in force at the time of purchase. We do not accept any terms of the Purchaser which deviate from the following terms except where we have expressly consented to their application in writing.
(2) Insofar as is necessary for the handling of our business we are entitled to store and process the Purchaser’s data in electronic form to the extent permitted by data protection laws (in particular §28 of the German Data Protection Act).
§ 2 Quotations, Orders, Cancellation
(1) Our quotations are not binding in terms of price, quantity, delivery date and delivery capability; our written order acknowledgment shall be definitive in terms of determining the date upon which the contract is made, the scope of supply and the delivery date.
(2) Where confirmed orders are changed, delayed or cancelled by the Purchaser we retain the right to invoice the Purchaser for works performed by ourselves or by third parties and/or materials subject to our usual payment terms.
§ 3 Supply, Transfer of Risk
(1) We are entitled to change and to improve the goods without informing the Purchaser prior to such change or improvement provided that neither the shape nor the function of the goods are changed permanently.
(2) Except where otherwise agreed we shall deliver the goods EXW (ex works) our principle place of business.
(3) Delivery by installment and the submission of corresponding invoices is permissible provided that this is not unreasonable for the Purchaser.
(4) The commencement of the delivery term quoted shall be subject to clarification of all technical matters and proper and timely performance by the Purchaser of his obligation.
(5) Where we fail to deliver upon an agreed delivery date and such failure is caused by an act or omission on our part the Purchaser shall grant us an extension in writing of not less than 4 weeks. Where delivery is still non-forthcoming and the Purchaser desires to rescind the contract or demand damages in lieu of performance the Purchaser shall prior thereto set a final and reasonable deadline in writing expressly indicating his intention. The Purchaser is obliged at our request to declare within a reasonable period whether he shall rescind the contract due to the delay in delivery and/or demand damages in lieu of performance or insist upon performance.
(6) Where the Purchaser is in default of acceptance we shall be entitled to store the goods at the risk and cost of the Purchaser. Delivery shall be deemed upon notification of readiness for shipment and interest shall accrue in accordance with § 5 (3) below from the date of such notification .
§ 4 Force Majeure
In the event of force majeure we are entitled to suspend performance of our obligation to deliver. Where there is a considerable change in the circumstances prevalent at the formation of the contract, we reserve the right to rescind the contract. Force Majeure shall include any circumstance, for which we are not responsible, which renders supply or performance difficult or impossible, irrespective of whether the circumstance occurs at our premises or the premises of a supplier or vicarious agent.
§ 5 Prices, Payment Terms
(1) Our prices are EXW (Incoterms 2000, 6th Review) our principle place of business. Our prices do not include packing costs, insurance, freight, customs duties and taxes nor do they contain turnover tax unless agreed otherwise.
(2) Where the delivery or performance date is more than 4 months after the contract date we are entitled upon timely notification to the Purchaser and prior to delivery or performance to adjust the price in such a manner as is necessitated by any general price development beyond our control (e.g. exchange rate fluctuations, currency regulations, customs duties changes, increases in material and production costs) or by changes of suppliers. For supplies of goods or services within four months from the contract date the contract price shall apply in any event.
(3) Except where otherwise agreed the Purchaser shall pay the price within 30 days of delivery of the goods or performance of the works without deduction. Upon expiration of the deadline aforesaid the Purchaser shall be deemed in default of payment in accordance with § 286 sub-paragraph. 2 No. 2 of the German Civil Code (BGB) and interest in the amount of 8% above the respective base interest rate p. a. shall accrue. Where payment is received within 14 days of the invoice date a 2% discount shall be granted to the Purchaser.
(4) We reserve the right to request part payment or payment in advance when the Purchaser places an initial order or where the Purchaser’s registered office is overseas or the goods are to be supplied overseas or where we have reason to doubt that
the Purchaser will remit payment in full and on time. Where one of the aforesaid circumstances occurs after the contract date we are entitled to revoke the payment term agreed and to declare that payment be immediately due.
(5) The Purchaser shall only be entitled to offset uncontested counterclaims or claims which are res judicata. The Purchaser shall further only be entitled to exercise a right of retention where such right is based on the same legal transaction. The Purchaser is not permitted to assign its claims to third parties.
§ 6 Retention of Title
(1) Ownership of the goods shall not pass to the Purchaser until the price has been paid in full.
(2) Where the goods become commingled with other materials, then we shall be the owner of the resulting product until the price of the goods has been paid in full.
(3) Notwithstanding sub-paragraph (1) aforesaid the Purchaser is permitted to dispose of the goods in the ordinary course of business, but all proceeds of sale shall be transferred to us and shall be provisionally held in trust for us, to the extent of the unpaid balance of the price.
(4) In the event that the above retention of title clauses are void or unenforceable according to the law of the state/country in which the goods are situated, the collateral security which corresponds to the retention of title in that state/country is deemed to be agreed. The Purchaser shall be responsible for undertaking any necessary steps required to found and maintain comparable rights or securities.
§ 7 Quality, Guarantee
(1) The goods shall correspond solely to the quality described in our product descriptions, specifications and labelling. Any representations made in public, during sales talk or in advertisements shall not constitute in any way a description of quality of the goods. It is the responsibility of the Purchaser to test our products and services as to their suitability for the purpose intended. Unless otherwise agreed all goods are exclusively designed for research only. Liability for any other use other than research is thereby excluded.
(2) The extent of our liability for the description and particulars of our goods or services is limited to the terms and conditions set out in each individual contract. Our goods description and particulars only describe the quality of our goods and services and do not constitute a guarantee within the meaning of § 443 of the German Civil Code (BGB). Any guarantee must be in writing. A declaration of guarantee shall only be effective where the content of the guarantee, the duration and territory of its application is sufficiently described. We reserve the right to make technical changes in the course of our product development.
§ 8 Liability for Defects
(1) The goods supplied by us correspond to the German regulations and standards currently in force. We give no guarantee that the goods comply with other national regulations. Where the goods are to be put into operation overseas it is the responsibility of the Purchaser to ensure that the goods are in conformity with the relevant legal requirements and standards and where required to make appropriate adaptations.
(2) The Purchaser shall not be entitled to make a claim based on defective delivery or performance where the reduced value or merchantability of the goods delivered or services supplied is nominal.
(3) Where the goods delivered by us are defective and the Purchaser has immediately notified us of the same in writing as required under § 377 of the German Commercial Code (HGB) we shall at our option deliver a replacement or remedy the defect. The Purchaser shall grant us a reasonable period of not less than 10 days to carry out the same.
(4) The Purchaser is entitled to demand reimbursement of the costs incurred by reason of the replacement delivery or remedying of the defect insofar as such costs are not increased due to the subsequent transportation of the goods delivered to a location other than the original shipment location unless the purpose for which the goods are intended requires the same.
(5) In the event that we are not in a position to remedy the defect or deliver a replacement the Purchaser is entitled to rescind the contract or to demand a reasonable reduction in the purchase price. Rescission of the contract is only permissible where the Purchaser prior thereto sets a final and reasonable deadline in writing expressly indicating his intention.
(6) The Purchaser shall retain a right or recourse against us within the meaning of §478 of the German Civil Code (BGB) insofar as the Purchaser has not agreed terms with its customer which exceed the statutory liability for defects.
§ 9 Damages
(1) Except where otherwise provided below any claim of the Purchaser for damages other than those claims set out in § 8 aforesaid are hereby excluded irrespective of the legal grounds upon which it is based. Accordingly we do not accept liability for any damage not incurred by the goods themselves nor do we accept any liability for loss of profit or any other pecuniary loss suffered by the Purchaser. To the extent that our contractual liability is excluded or limited, such exclusion or limitation shall apply in relation to the personal liability of employees, representatives and vicarious agents.
(2) The aforesaid limitation of liability shall not apply where the damage incurred has been caused by wilful default or by gross negligence, where personal injury has been suffered or where the damages claim is based on product liability law.
(3) Where we are in negligent breach of a material term of the contract our liability to compensate damage to property shall be limited such loss as was typically foreseeable at the time the contract was made. A material term of the contract shall be any term which places the Buyer in the legal position provided for under the contract in terms of its content and purpose and any term which must be complied with in order to ensure proper performance of the contract and upon the performance of which the Buyer relied or could be reasonably expected to rely.
(4) Beyond the aforesaid we shall only be liable to the extent of our insurance coverage insofar as we are insured against the damage which has been incurred and subject to payment of the insurance benefit.
(5) Any other liability in damages is hereby excluded.
(6) Any assignment of the Purchaser’s claims provided for in §§ 8 and 9 above is not permitted.
§ 10 Limitation
The limitation period for claims based on paragraphs 8 and 9 aforesaid is 1 year. The limitation period aforesaid shall not apply in relation to claims brought under § 9 sub-paragraph 2 and where longer limitation periods are prescribed by law (e.g. for structures §§ 438 s.1. No. 2 (BGB), rights of recourse § 479 (BGB) and building defects § 634a s.1 No.2 (BGB)), as well as in relation to claims based on personal injury or wilful or gross reckless default or to claims for damages under the product liability laws.
§ 11 Other Matters
(1) Any changes or additions to and/or termination of these terms must be in writing.
(2) In the event that any provision of this agreement shall be found to be invalid, the validity of the remaining conditions shall remain unaffected. The parties undertake to agree a valid replacement provision which shall correspond as closely as possible to the commercial purpose of the invalid provision.
(3) For purchasers whose corporate domicile is situated within the territory of the European Union the forum for the institution of proceedings shall be Herborn, Germany. For purchasers whose corporate domicile is situated outside the territory of the European Union we retain the right however to sue the Purchaser before any competent court.
(4) All legal dealings between the Purchaser and ourselves shall be governed by the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods, CISG.