IBA Lifesciences GmbH Terms & Conditions

As of October 2020

I. General Provision

All our present and future sales, deliveries, and other services shall be exclusively subject to the following sales, delivery and payment terms if the customer is a merchant, within the meaning of Sec. 14 German Civil Code (BGB) unless agreements to the contrary have individually been made in writing with the customer. Any deviating, conflicting or amending general terms and conditions of the Customer or any third parties shall not apply even if they have not been expressly rejected and/or we make delivery to the customer without reservation.
Individual agreements made with the customer in individual cases (including side agreements, supplements, and amendments) shall in any case take precedence over these Terms and Conditions. Subject to proof to the contrary, a written contract or written confirmation shall be authoritative for the content of such agreements.
The customer may only assign his claims against us to third parties with our prior written consent. § 354a HGB remains unaffected.
We are authorized to collect, store, process and use the personal data entrusted to us by the customer within the scope of the intended purpose of the contract and in compliance with the applicable data protection laws.

II. Formation of the Contract

Our offers are subject to change and non-binding, even if we have provided the customer with additional documents (calculations, drawings, descriptions, etc.) to which we reserve all rights.
In principle, only the units listed in our price list valid at the time the contract is concluded, which is attached to the contract as an annex, are available.
Contracts are only concluded through our written order confirmation or delivery.
We reserve the right to make minor deviations from our information on dimensions, weights, properties, and quality.

III. Delivery and Shipment

Delivery times are non-binding information and are only approximate unless we have recognized them as binding in exceptional cases in writing.
Unless otherwise agreed in individual contracts, the place of performance shall be our place of business. Shipment takes place ex works in Göttingen or ex warehouse in St. Louis, MO, USA unless otherwise agreed in writing or confirmed by us in writing.
We determine the method of dispatch unless the customer gives us written instructions against the assumption of costs.
Should we, at the request of the customer, send the goods to a destination other than that specified in Section III.2., the transport shall be at the risk and expense of the customer. Risk passes to the customer already when the goods are handed over to the person responsible for the transport, even where our own employees carry out the transport.
We are entitled to partial deliveries. Each partial delivery can be charged separately. In the case of agreed orders on call, the call must be made at least 2 weeks before the desired delivery date.
Should the customer be in default of acceptance, or should the dispatch be delayed due to reasons for which the customer is responsible, or should he be in breach of any other duties of co-operation, we shall be entitled to demand reimbursement of the damage suffered, including any extra expenditure. In such case, the risk of incidental loss or incidental deterioration of the goods shall also pass to the customer at the point in time at which the latter falls into default.
In the event of a default by the customer with respect to his acceptance, we shall furthermore be entitled to refuse to make delivery after having set the customer a reasonable period for acceptance and such period having elapsed to no avail, to withdraw from the contract and to claim lump sum damages. However, the customer is allowed to prove that no damage occurred at all or that the damage which occurred is substantially lower than the lump sum. We shall not be prevented from claiming further damages or asserting any other claims.

IV. Prices and Payment

The prices listed on our price list include packaging costs plus the applicable sales tax and any customs duties, taxes, and other fees.
The customer bears the shipping / transport costs, unless otherwise agreed in writing.
Unless a fixed price has been agreed, we reserve the right to make reasonable price changes due to changes in purchase, wage, material and distribution costs for deliveries that are made three (3) months or later after the conclusion of the contract. If the price increase is more than 10%, the customer can withdraw from the affected (partial) service within two (2) weeks after notification of the price increase.
Unless otherwise agreed in writing, our invoices are payable no later than 30 days after the invoice date and delivery or acceptance of the goods. The customer is then automatically in default without the need for a separate reminder. The place of performance for all payment obligations of the Customer is our place of business.
However, even in the context of an ongoing business relationship, we are entitled at any time to carry out a delivery in whole or in part only against prepayment. We declare a corresponding reservation at the latest with the order confirmation. In the case of our custom-made products, we are particularly entitled to charge up to 50% of the estimated costs before production begins.
In the event of default of payment, we are entitled to demand default interest of nine percentage points above the respective base interest rate of the European Central Bank. The assertion of further damages or other claims by us is not excluded.
Unless otherwise agreed in writing, our invoices are to be paid in Euro (EUR). We only accept checks and bills of exchange on account of performance. Discounts and expenses especially related to exchange rates and exchange rate fluctuations when paying with foreign currency are borne by the customer.
We are entitled to request payment security or refuse delivery if, after conclusion of the contract, facts become known which give rise to sufficiently justified doubts as to the creditworthiness of the customer to the effect that the our claim for payment or its claim to counter-performance may be at risk. Sufficiently justified doubts are in particular: The opening or the application for the opening of insolvency proceedings at the customer's premises, an unsuccessful attempt at foreclosure, the submission of uncovered checks or false statements by the customer which represent his creditworthiness better than the actual circumstances. The right to refuse performance shall cease to apply as soon as the counter-performance is affected, or appropriate security is provided. We may set a reasonable deadline for this. After the unsuccessful expiry of this period, we may withdraw from the contract.

V. Warranty Rights

Any claim of the customer due to defects of the goods is subject to customer‘s compliance with the obligation to examine the delivered goods and to notify us of a material defect in accordance with Sec. 377 German Commercial Code (HGB). We are to be notified immediately in writing, with proper specification of the nature and scope of the alleged defects. Deviations in quantity, insofar as they do not represent partial deliveries, or incorrect deliveries must be reported in writing at the latest two (2) weeks after receipt of the goods. Hidden defects must be reported in writing immediately after their discovery. If these notification deadlines are not met, all warranty claims shall expire.
We do not waive our right to object that a notice of alleged defects was not timely made or specified by reason, in the event, we have negotiated with the customer or examined the goods.
Defects with respect to a part of the delivered goods shall not entitle the customer to allege a defect with respect to all the goods delivered. In addition, the customer shall not be entitled to withhold payments because of possible defects.
Our responsibility for defects, in our sole discretion, shall be limited to elimination of the defect (Nachbesserung) or the delivery of a flawless item. In the event of delivery of flawless goods (Nachlieferung), the customer shall return the defective goods in accordance with the statutory provisions. Subsequent performance does not include either the removal of the flawless item or its reinstallation if we were not originally obliged to install it. Our right to refuse subsequent performance under the statutory conditions remains unaffected. In the event where we are not able or ready to repair or to replace the goods, the customer shall only be entitled at his sole discretion to request a reduction of the purchase price or to cancel the contract. Where the defect is only insignificant, the customer shall not be entitled to a right of cancellation.
If a defect is due to our fault, the customer may demand compensation for damages or expenses under the conditions specified in Section VI.
Statements made by us with respect to the delivered goods, in particular, description of the goods and statements concerning their quality and construction shall not be deemed to be guaranteed features unless the statements are expressly designated as guaranteed features. We shall be liable in the agreed scope for the lack of any guaranteed feature of the goods. Where a guarantee agreement, if any, does not specify any legal consequences, these shall derive from the statutory provisions.
In deviation from the provision of Sec. 438 para. 1 no. 3 BGB, the warranty period for material and legal defects is one (1) year from delivery or, if acceptance is required, from acceptance. This period shall apply to claims for which mandatory statutory periods are prescribed and to claims for which deviating periods are listed in Section VI. below.

VI. Liability for Damages in Case of Fault

Our liability for damages, irrespective of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this Section VI if, and to the extent, the liability depends on fault.
We are not liable in the case of simple negligence of our organs, legal representatives, employees or other vicarious agents, as far as it is not a violation of essential contractual obligations, i.e. such contractual obligations upon the performance of which the contract partner must necessarily and may rely on by reason of the nature of the contractual relationship. Essential contractual obligations are regularly the obligation to timely delivery of the ordered goods or performance of the ordered services, its freedom from defects of title as well as such material defects which impair its functionality or usability more than only insignificantly, as well as consulting, protection and care obligations which are intended to enable the Customer to use the ordered goods in accordance with the contract or which are intended to protect the life or limb of the customer's personnel or to protect its property from substantial damage.
Insofar as we are liable for damages, this liability shall be limited to damages which we foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen when applying normal commercial care. Indirect damages and consequential damages resulting from defects of the delivery item are furthermore only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended.
Customers, who utilize our products for industrial production, do that at their own peril. Since we cannot anticipate or control the possible procedures and processes for such an industrial application of the products, any and every form of warranty or liability is rejected, save as provided otherwise by statutory laws. Our application instructions in such cases are only to be considered as recommendations, which do not commit us in any way.
The above exclusions and limitations of liability shall apply to the same extent in favor of our organs, legal representatives, employees, and other vicarious agents.
The foregoing provisions do not entail any reversal of the burden of proof.
Limitations and exclusions of liability in accordance with the provisions of the above clauses V. and VI. do not apply to:
a. Damages resulting from injury to life, body or health, which are based on a grossly negligent breach of duty by us or an intentional or negligent breach of duty by a legal representative or vicarious agent of us;
b. other damages resulting from a grossly negligent breach of duty on our part or from an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of us;
c. the liability in accordance with the Product Liability Act;
d. cases where we have given a guarantee of quality.

VII. Force Majeure

We shall not be liable for any impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, epidemics or pandemics, shortage of labor, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure of, incorrect or untimely delivery by suppliers) for which we are not responsible. Insofar as such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of a temporary nature, i.e. lasts longer than four (4) weeks, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or performance deadlines shall be extended, or any agreed delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period.

VIII. Retention of Title and other Rights to the Delivered Goods

We reserve title to the goods we have delivered until the customer has settled all current and future claims from his business relationship with us. The reserved goods may neither be pledged nor assigned by way of security until the secured claims have been paid in full. The customer is only authorized to sell the goods subject to retention of title in the ordinary course of his business.
The retention of title extends to the full value of the products resulting from processing, mixing, or combining our goods, whereby we are considered the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. In addition, the same applies to the resulting product as to the goods delivered subject to retention of title.
The customer already now assigns his claims from the resale of the goods subject to retention of title to us in the amount of our invoice to secure our claims from our business relationship with him. The customer will primarily offset payments that he receives from the sale of our reserved goods against the part of the total claim not assigned to us unless the payer expressly determines otherwise.
As far as retention of title exists in our favor or claims of the customer have been assigned to us, the customer is obliged to provide the information necessary to safeguard our rights. This applies in particular to seizures or other access by third parties to our goods or claims assigned to us. The cost of an intervention to secure our rights of retention of title shall be borne by the customer.
Upon revocation, the customer is authorized to collect the claims assigned to us. Our right to collect assigned claims ourselves remains unaffected by this. However, insofar as the customer duly fulfills his payment obligations to us, his performance is otherwise given and we do not assert any rights from the retention of title in accordance with g), we will not collect.
Insofar as and as soon as the value of the securities given to us exceeds the amount of our claims by more than 10%, we are obliged to reassign to the corresponding extent.
If the customer acts contrary to the contract, we are entitled to demand that the goods be returned due to our retention of title and to take them into our custody at the customer's expense. In such a case, a withdrawal from the contract is only given if we expressly declare this in writing. If the customer does not pay the purchase price, we can only assert the aforementioned rights if the legal requirements for withdrawal are met.
With the fulfillment of our claims, including all ancillary claims, the securities are transferred to the customer without any special transfer back.
Unless otherwise agreed in individual contracts, the customer may not resell sold goods, deliveries or other services to commercial third parties or grant third parties commercial rights of use (e.g. through licensing) of the goods, deliveries or other services without our prior consent.
For sake of clarity, and unless otherwise agreed in an individual contract, we do not grant the customer any exclusivity on the products, goods, deliveries, or other services sold. Instead, we reserve all rights, including, but not limited to, the right to manufacture or sell the same products, goods, deliveries, and other services with identical contents to third parties.

IX. Compliance with Laws, Third Party Rights and Export Control

Our products are intended to serve scientific research. We developed them for these purposes. Use of our products for human medical or diagnostic purposes, or as a medicinal product, is only permitted if such use is permitted in accordance with the statutory regulations applicable to the customer and the user and, if necessary, an approval from the responsible authorities has been obtained. In addition, such use of our products requires our prior written consent. Express instructions for use on the packaging are equivalent to written consent; however, they do not replace official approvals that are required in the user's country.
The customer is also aware that the ordered goods may be subject to export and import as well as other legal restrictions and/or other permit requirements. The customer is exclusively responsible for complying with any export and import control regulations, other legal restrictions and/or obtaining any related permits at his own expense.
When commissioning a contract work (custom product) such as the recombinant production of proteins or the production of biological molecules, if necessary in accordance with GMP, the following clause also applies and becomes part of the contract: In our capacity as a contractor, we do not check whether we are violating third-party property rights in connection with the execution of the contract work. As the customer of the commissioned work, the customer assures that the products manufactured by us do not violate any property rights or other rights of third parties. He also guarantees that he has obtained all permits / licenses from the proprietor of the property rights required by us to manufacture the products. Should the rights of third parties be infringed during this commissioned work, the customer must compensate us for the damage suffered by the contractor as a result of this legal infringement and indemnify us to this extent from any third-party claims based on the infringement of property rights.
If the customer places an order, he implicitly confirms that he has all the necessary permits. We are nonetheless entitled to request any evidence.
The customer shall not be entitled to any rights or claims against us if the contract cannot be performed as intended due to conflicting legal provisions, in particular any conflicting export or import regulations, we shall nevertheless be entitled to payment of the agreed purchase price for the goods or the agreed remuneration for agreed services.
If the performance of the concluded contract violates any legal provisions or rights of third parties (e.g. regulations concerning the use of the goods, export or import regulations or copy rights) and these violations result in our liability , the customer shall be obliged to indemnify us accordingly or, if this is not possible, to compensate us for any damages.

X. Information and Cooperation Duties of the Customer

The customer shall inform us at all times of any infringements of copy rights, trademark rights, patents, licenses or similar rights of us of which the customer has become aware, and shall cooperate with us in order to avert any such infringements of rights. We shall be exclusively and finally competent to decide on the adequate measures.

Furthermore, we are to be informed by the customer, insofar as possible and insofar as the latter is aware of the same, of possible risks of damage, which could arise from our products. These include in particular experience of the customer with our products or with competitor products with the same or comparable features, in so far as the customer obtains knowledge of the same.

XI. Set-off; Retention and Assignment

The customer shall only be entitled to exercise rights of withholding where his counter-claims have been undisputed, judicially decided and are final and legally binding, or where the same are recognized by us or are of the same contractual relationship.
The customer shall not be entitled to any statutory right of retention or of refusal of performance.

XII. Governing Law and Jurisdiction; Miscellaneous

The contractual relationship between the parties is subject to and governed by the laws of the Federal Republic of Germany excluding the conflict of law provisions of the international private law as well as the United Nations Convention On Contracts for the International Sale of Goods (CISG).
Provided that the customer is a merchant, a legal entity under public law or a special fund under public law or does not have a general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction and venue with respect to all disputes arising out of or in connection with the business relationship between the parties shall be Göttingen, Germany. However, we are also entitled to sue the customer in any other court of competent legal jurisdiction. Any mandatory laws providing for exclusive places of jurisdiction and venue shall remain unaffected from this provision.
Any amendment or supplement to any contract having once come into force including these Terms and Conditions have to be made in written form. This shall also apply for any amendment to this clause prescribing the written form.
Insofar as the contract or these Terms and Conditions contain loopholes, the legally effective provisions which the parties would have agreed in accordance with the economic objectives of the contract and the purpose of these Terms and Conditions if they had been aware of the loophole shall be deemed agreed to fill these loopholes.