General Terms and Conditions of Sale and Delivery

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF IN.VENT DIAGNOSTICA GMBH
(HEREINAFTER REFERRED TO AS “IN.VENT”)

Valid: June 1, 2019

1. General – Scope

1.1 The following general terms and conditions of sale and delivery apply to all sales and deliveries of in.vent, unless otherwise stated in these terms and conditions, in the text of the order confirmation or in agreements in individual contracts between the parties. In addition, the INCOTERMS® 2010 of the International Chamber of Commerce in Paris or respectively in the current version at the time of delivery or performance apply in cross-border traffic.

1.2 Conflicting or deviating general terms and conditions of the buyer are hereby expressly contradicted. They shall only become part of the contract if in.vent expressly agrees to them in writing.

1.3 These general terms and conditions of sale and delivery shall also apply if in.vent carries out the delivery to the buyer without reservation in the knowledge of conflicting or deviating terms and conditions of the buyer.

1.4 All agreements concluded between in.vent and the buyer for the execution of the sales of goods must be in writing. This also applies to a waiver of the written form requirement.

2. Prices, order quantities and delivery dates

2.1 Deliveries and purchase prices are understood to be free carrier (FCA). All prices are exclusive of VAT.

2.2 Price information (including any discounts) and other conditions in catalogues, brochures and price lists only reflect the status of the issue. Orders of the buyer are understood to be valid based on prices and conditions on the day of receipt of the order at in.vent. in.vent informs the buyer of the relevant current prices and conditions.

2.3 in.vent shall indicate surcharges for shipping as well as additional costs (e.g. for small quantities) in the invoice.

2.4 Fixed delivery periods do not exist. Delivery dates are non-binding.

2.5 in.vent reserves the right and timely self-delivery.

3. Delivery, transfer of risk

3.1 The choice of shipping method is reserved for in.vent. in.vent executes the contract of carriage and informs the buyer. When sending frozen samples, in.vent calculates the amount of coolant required according to the time estimated by the shipping company plus 24h. Packaging, freight, customs duties, taxes and coolant will be charged to the buyer.

3.2 Upon dispatch of the order or the handover to the transport company, the risk of accidental loss or accidental deterioration of the products passes to the buyer.

3.3 If the Seller is in default, he shall be liable for damages incurred by the Buyer only in the event of intent and gross negligence. Further legal claims of the buyer remain unaffected.

4. Limitation of use

4.1 Goods delivered by in.vent may contain products whose use is subject to patent or licensing restrictions by the Buyer. Details of such restrictions can be found in the relevant catalogue, the package leaflet or, where applicable, the in.vent website. These can also be requested by the buyer before and after the conclusion of the contract at in.vent.

4.2 The products supplied by in.vent are not medicinal products and may not be used in their entirety or in parts on or in the human or animal organism. Applications are limited to diagnostic research and development, as well as to the production of IVD / bioanalytics or to the production of products for it.

4.2 To the extent applicable medical device regulations – to which the use of the Products are subject to – require this, the Products may only be operated or applied in accordance with the intended use, specifications and indications specified in the offer or as specified in the Certificate and/or the Operator Manual (“Purpose”). Should the buyer make changes to the products, this is done on his own responsibility. in.vent accepts no liability to the buyer and does not guarantee legal or regulatory conformity with regard to products that are operated or applied and/or modified contrary to their intended purpose and/or with other products/components combined.

5. Force majeure, contractual obstacles

Force majeure of any kind, unforeseeable operational, traffic or shipping disruptions, fire damage, floods, unforeseeable shortages of power, energy, raw materials or auxiliary materials, strikes, lockouts, official orders or other Obstacles for which parties are not responsible for performance, which make the production, dispatch, delivery, acceptance, delay or unreasonable, release in.vent from the obligation to deliver or accept the defect for the duration and extent of the disruption. This also applies if the circumstances occur with suppliers. If the delivery or acceptance is exceeded by more than 8 weeks as a result of the disruption, both parties are entitled to withdraw from the contract and there are no claims for damages in this respect.

6. Notice of defects and claims for defects

6.1 in.vent and the Buyer will fulfil their contractual obligations with the care of a regular businessman. The buyer must carefully inspect the received goods for quantity, quality and defects immediately upon arrival. He has to claim obvious defects at in.vent, in writing at the address in.vent Diagnostica GmbH, Neuendorfstr. 17, 16761 Hennigsdorf, and immediately, but at the latest within 10 calendar days after the arrival of the goods, stating sample numbers, invoice number and invoice date. Hidden defects must also be reported immediately, at the latest within 10 calendar days after the defect has been identified.

6.2 At in.vent’s request, the Buyer shall send in.vent documents such as delivery notes and packing slips in the original or in copy, as well as any signatures on packages or to forward the goods to in.vent for professional rectification of the good.

6.3 in.vent shall be liable for the absence of defects within a period of 12 months in the event of timely, duly collected and justified complaints of defects. In his justification for defects, the buyer shall describe the defect in such a way that in.vent is able to retrace the defect. The statutory limitation period valid in Germany applies if in.vent has fraudulently concealed the defect.

6.4 In the event of defective goods, in.vent may first repair or resupply at its choice (subsequent performance). in.vent has the right to repeat a failed subsequent performance. in.vent may refuse subsequent performance if it entails disproportionate costs.

6.5 Claims of the buyer due to defects are excluded in the case of non-substantial material defects. In particular, this is the case with a negligible material defect where the value or suitability for ordinary use is of an insignificant reduction.

6.6 If the subsequent rectification has failed, is refused, unreasonable or if the buyer has unsuccessfully set a reasonable time limit for subsequent performance by in.vent or if a time limit is not necessary, the buyer is entitled to demand a reduction or to withdraw from the contract.

7. Withdrawal and damages instead of performance

7.1 If in.vent does not perform a service due or does not comply with the contract (“breach of duty”), the buyer is only entitled to withdraw from the contract or to compensation instead of performance, a) if it is a significant breach of duty by in.vent, b) if he asks in.vent in writing to improve the service within a reasonable period in accordance with the nature of the service, and c) if in.vent has not performed within that period.

7.2 Unaffected by this section 7, the statutory provisions of the German Civil Code (BGB) in force at the time of performance apply.

7.3 If in.vent has not performed or has not performed in accordance with the contract within the period set by the Buyer, in.vent may request the Buyer to declare whether he continues to insist on the provision of the service, subject to a reasonable period of time. Until the buyer’s decision has been made, in.vent is not obliged to perform.

7.4 In cases of the purchase of consumer goods, the rights of the buyer in accordance with Section 478 (recourse of the entrepreneur) and 479 BGB (limitation of claims for recourse) remain unaffected.

8. Liability

8.1 Liability of in.vent – regardless of the legal reason – shall only occur if the damage is caused by slightly negligent breach of a fundamental contractual obligation or is due to gross negligence or intent on the part of in.vent.

8.2 Claims for damages under the Product Liability Act, as well as for injury to life, body or health or due to the assumption of a guarantee remain unaffected.

8.3 Insofar as in.vent’s liability is excluded or limited, this also applies to the personal liability of its employees, representatives and vicarious agents.

8.4 in.vent is also only liable for the loss of data and programs and their recovery within the scope of this clause 8. in.vent shall not be liable for such damages if and to the extent that the buyer has not taken adequate precautions against data loss, in particular by making backup copies of all programs and data. The making of backup copies must be carried out at the usual intervals in the buyer’s area of activity but should be carried out at least once a day.

9. Payment

9.1 Payment must be made within 14 calendar days from the invoice date.

9.2 in.vent reserves the right to use payments to settle the oldest claims due plus the default interest and costs accrued thereon, in the order of costs, interest, receivables.

9.3 The Buyer may only offset against claims of in.vent by written declaration to in.vent if his counterclaim is undisputed or if a legally binding title exists.

9.4 The assertion of a right of retention due to non-recognised or not legally established counterclaims is excluded, insofar as these claims are not based on the same contractual relationship.

9.5 in.vent has the right to refuse delivery if, after the conclusion of the contract, it becomes apparent that its right to payment of the delivery is jeopardised by the buyer’s inability to perform. This right to refuse performance shall be waived if the payment is effected or if the buyer provides reasonable security. in.vent has the right to set the buyer a reasonable period of time during which the buyer must either make the payment for delivery and provide a security for the delivery. After the expiry of the period, in.vent has the right to withdraw from the contract. In addition, in the above-mentioned case of the loss of the buyer’s assets, in.vent has the right to provide the delivery of goods only against advance payment or performance of an adequate security.

10. Late payment

10.1 If the buyer is in default with a payment, a cheque is not properly cashed, no compensation is made in the SEPA company direct debit procedure or if a significant deterioration occurs in the financial circumstances of the debtor, all outstanding Claims, including any deferred claims by in.vent against the buyer, are due for immediate payment.

10.2 If the Buyer is in default with the payment or exceeds the agreed payment target in the case of a mutual trading transaction, interest of nine percentage points above the applicable base interest rate shall be due. in.vent reserves the right to claim compensation for further damage.

11. Retention of title

11.1 in.vent reserves the title to the delivered goods until all payments from the business relationship with the buyer have been received. in.vent’s property also extends to new products resulting from the processing of the goods subject to retention of title. The processing is carried out for in.vent as a manufacturer. In the case of processing, combination or mixing with items that do not belong to in.vent, in.vent acquires co-ownership in proportion to the invoice value of its reserved goods to the invoice values of the other materials.

11.2 The retention of title shall remain in force even if the relevant claim(s) of in.vent is included in a current account and the balance is drawn and recognised.

11.3 in.vent is entitled to withdraw from the contract and to take back the goods in the event of a breach of contract by the buyer, in particular in the event of a delay in payment. The attachment of the goods subject to retention of title by in.vent always means the declaration of withdrawal from the contract.

11.4 The buyer must treat the reserved goods with care. He is obliged to insure the reserved goods at his own expense against fire, water and theft damage sufficiently at the new value, and already assigns his compensation claims under these insurance contracts to in.vent.

11.5 In the event of attachments or other interventions by third parties, the buyer must notify in.vent immediately in writing so that in.vent can bring an action for third-party opposition (Section 771 of the Code of Civil Procedure). Insofar as the third party is not able to reimburse in.vent for the legal and extrajudicial costs of an action pursuant to Section 771 of the German Civil Code (ZPO), the buyer shall be liable for the loss incurred by in.vent.

11.6 The buyer is entitled to resell the goods in the ordinary course of business; however, he already assigns all claims in the amount of the invoice value (including VAT) from the sale of the goods, including bills of exchange and cheques, to secure the respective claims to in.vent. In the case of disposals of goods in which in.vent has co-ownership, the assignment is limited to the share of the receivables corresponding to its share of co-ownership. The buyer remains entitled to collect these claims even after the assignment. The power of in.vent to collect the claim itself remains unaffected by this. However, in.vent is obliged not to collect the claim as long as the buyer fulfils his payment obligations to in.vent, does not default on payment and, in particular, no application for the opening of insolvency proceedings has been filed. If this is the case, in.vent may require the buyer to inform him of the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents and to inform the third parties of the assignment.

11.7 If the delivery item is delivered to a place outside the Federal Republic of Germany as intended or brought to such a place by the buyer, the following applies primarily to paragraphs 11.1 to 11.6: The buyer will ensure that the retention of title is effectively protected by in.vent in the country in which the delivery item is located or to which it is to be transported. Insofar as certain actions are necessary for this purpose (e.g. a special marking of the delivery item or a local register entry), the buyer will carry them out in favour of in.vent. Should in.vent be requested to cooperate, the buyer will inform in.vent immediately. In addition, the buyer will inform in.vent about all essential circumstances that are important in the context of the widest possible protection of in.vent’s property. In particular, he will provide in.vent with all documents and information necessary to enforce these property rights.

12. Resale and submission

12.1 The Buyer is obliged to comply with the Law against Unfair Competition and, if applicable, medical device law regulations on his own responsibility in the event of resale or supply.

12.2 The buyer is obliged to observe that products supplied by in.vent are not medicinal products and may not be used in their entirety or in parts on or in the human or animal organism. Applications are limited to diagnostic research and development, as well as to the production of IVD / bioanalytics or to the production of products for it.

12.3 Without the prior express written consent of in.vent, it is not permitted to use protected trademarks of in.vent for goods of foreign manufacture or for processed original goods.

12.4 The buyer is also obliged to sell or hand over the delivered goods only in full (i.e. including packaging, package leaflets, user manuals, warnings, etc.) in the event of resale.

12.5 The Buyer is advised that goods or delivery items (and, if applicable, the know-how contained in them) may be subject to export or import control. Each Party is responsible for complying with the relevant export and import control regulations.

13. Confidentiality and data protection

13.1 The Contracting Parties undertake to provide any information that may be made available to them in connection with this Agreement or any other occasion in connection with the Business Relationship which is designated as confidential or which may be classified as a business or trade secrets, to keep them secret and to not record them or to exploit them in any way, to the extent not necessary for the purpose of the contract. If confidential information is to be disclosed as a result of a decision or order of a public authority, a court or in accordance with mandatory legal or regulatory provisions, the other party shall, to the extent permitted, inform in writing and without delay; furthermore, the party obliged to disclose will do its utmost to ensure that the confidential information is kept confidential by the body concerned.

13.2 in.vent undertakes to comply with applicable data protection regulations and in particular the provisions of the GDPR and the BDSG. All human biomaterials are delivered to the buyer in an anonymised form by in.vent. Access to personal identification data by the buyer is never possible. Personal identification genetic tests on the supplied materials are excluded at any time. All human biomaterials distributed by in.vent are ethically recovered in accordance with the applicable regulations, taking into account the Declarations of Helsinki and Taipei. Ethics votes and declarations of consent are only available if this is required by the national regulations of the country of origin, taking into account the way in which samples are taken.

14. Place of performance, place of jurisdiction, applicable law, other

14.1 Place of performance is Hennigsdorf.

14.2 Neuruppin is the exclusive place of jurisdiction for all disputes between the parties arising out of or in connection with this Agreement or their business relationship.

14.3 Should individual provisions of the contract be or become ineffective or void in whole or in part, this shall not affect the validity of the remaining provisions. Instead of the invalid or void provisions, the legally effective provision that comes closest to the economic purpose of the invalid or void provisions shall apply. The same applies in cases of a gap.

in.vent Diagnostica GmbH
Neuendorfstr. 17
16761 Hennigsdorf
Phone: +49 3302 55199-0
inventdiagnostica.de