General Terms and Conditions of Business and Sale of PreOmics GmbH

  1. General
    1. These General Terms and Conditions of Business and Sale are integral part of the agreements concluded by PreOmics GmbH, Am Klopferspitz 19, D-82152 Planegg/Martinsried (“Seller”) regarding deliveries and services. Unless specifically agreed otherwise, all offers, deliveries and services are provided exclusively on the basis of these terms and conditions. Within an existing business relationship these terms and conditions shall become part of the contract even if the Seller does not expressly refer to their inclusion again.
    2. Terms and conditions of the Customer or third parties shall not apply, even if the Seller does not disagree separately. Even if the Seller refers to a writing containing or referring to terms and conditions of the customer or a third party, this does not state consent with validity of those terms and conditions. Any terms and conditions of the Customer may only be deemed accepted if so stated in writing by the Seller.
  2. Conclusion and content of contract
    1. All offers of the Seller are categorically not binding and subject to change. Orders placed by the Customer require written order confirmation by the Seller in order to take effect. An order of the Customer shall also be deemed accepted without stated in writing if it is executed by the Seller. All ancillary agreements and subsequent changes of contractual agreements are subject to Seller’s confirmation.
    2. Specifications concerning the product or service to be supplied and the related graphical representations shall not be fully authoritative. The Seller reserves the right to make any change in material or design customary in commerce or which is a technical improvement provided that such change does not impair the use for the purpose stated in the contract.
    3. All documents concerning the offering remain the property of the Seller and may not be reproduced or made accessible to third parties without written consent. Copyrights and other intellectual property rights remain unaffected.
  3. Terms of delivery and dispatch
    1. Unless specifically agreed otherwise, the times and dates of delivery of goods and performance of services shall be deemed to be only approximate. The delivery period shall commence on the date the order is confirmed by the Seller, or, if the Customer is obligated to pay in advance, the date payment is received. If shipment has been agreed, delivery periods and dates refer to the time of handover to the forwarding agent, carrier or any other third party commissioned with the transport.
    2. Insofar as handling (e.g. use, storage, disposal) and purchase, sale, transport and cross-border delivery of the Seller´s products are subject to relevant national and international provisions, Seller’s dispatch of goods and rendering of services are subject to the prior performance of Customer’s obligations arising from those provisions.
    3. Notwithstanding of his rights arising from the damage caused by default, the Seller can demand an extension of delivery and performance dates or a postponement of delivery and performance dates by the period during the customer does not fulfill his contractual obligations towards the Seller.
    4. In cases of force majeure and in the event of other circumstances which could not be foreseen at the time the contract was concluded (e.g., operational breakdowns of any kind, difficulties in obtaining materials or energy or in obtaining deliveries from suppliers, delays in transport, strikes, measures taken by authorities), for which Seller is not responsible and which substantially hinder the delivery or render it impossible, the Seller shall be entitled to withdraw from the contract, unless the circumstances are of a temporary nature only. In the case of circumstances of a temporary nature, the dates and periods of delivery and performance shall be extended or prolonged by the duration of such circumstances plus a reasonable startup time. If, owing to the delay, the Customer cannot be reasonably expected to accept the goods or services, he is entitled to withdraw from the contract by making a declaration in writing to this effect and sending it to the Seller without delay. No claims for damages shall be allowed in the cases mentioned in the foregoing. But in every case, the Seller is obligated to notify the Customer without delay of the unavailability of goods and services.
    5. Unless specifically agreed otherwise, all goods shall be delivered on CIF terms (as defined in Incoterms 2010). If delivery of the goods is delayed due to circumstances which the Customer is responsible for, the risk of loss shall pass to the Customer from the day the goods are ready for dispatch.
    6. If the Seller is in default with a service or delivery or if a delivery or service becomes impossible for him, for whatever reason, the liability of the Seller is limited to damages in accordance with clause 6 of these General Terms and Conditions of Business and Sale.
  4. Prices and terms of payment
    1. Pricing for the agreed goods and services shall be based on the relevant price lists of the Seller as amended from time to time, unless Customer-specific prices have been agreed between the parties.
    2. Unless agreed otherwise, all prices are quoted CIF (Incoterms 2010), not including statutory value-added tax as valid at the time concerned.
    3. Unless agreed otherwise, payment shall be made without deduction within 14 days of the date of the invoice. Notwithstanding the foregoing, the Seller may withhold shipments until advance payment or satisfactory security is received. Cheques and bills of exchange are accepted in lieu of payment, pending full payment of the debt.
    4. The Seller is entitled to demand interest on arrears at the statutory rate until full payment has been made. This does not exclude the assertion of further damages.
    5. Moreover, notwithstanding Customer’s provisions to the contrary, Seller is entitled first to set off payments against Customer’s older debts. Customer shall not be entitled to withhold payment on account of Customer’s counterclaims or to set it off against such counterclaims unless such counterclaims are uncontested or recognized by declaratory judgment.
    6. If, after concluding the contractual agreement with the Customer, circumstances become known to the Seller which tend to substantially undermine confidence in Customer’s willingness or ability to pay, Seller is entitled, notwithstanding agreements to the contrary, to make the deliveries and services contingent on advance payment or satisfactory security or after setting a reasonable period for payment or security, to withdraw from the contract.
    7. Facts, which questioned the solvency of the Customer, are in particular permanent seizures or other enforcement measures in the Customer's assets as well as the application for or the opening of insolvency proceedings of the Customer or the cessation of insolvency proceedings over the customer's assets for lack of assets.
  5. Software
    1. In the event that software is required for the operation of the products, the necessary software will be provided to the Customer by the Seller. The installation of the software is carried out by a service engineer of the Seller.
    2. If software is required for the operation of the products, the Seller grants the customer with the conclusion of this contract a royalty-free, non-exclusive, locally limited to the country of delivery and temporally unlimited license, to use the software the Seller provides to the Customer under this agreement solely for the internal business purposes on the hardware products the Seller provides the Customer hereunder.
    3. The license to use the software is limited to the Customer. The Customer agrees to hold in confidence and not to transfer, license, loan or otherwise make available in any form to third parties the software and related documentation provided hereunder. The Customer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software provided hereunder without prior written consent of the Seller. The Customer may not create derivative products to the licensed software or authorize such actions by third parties.
    4. The Seller’s products may only be used by the Customer with the software provided by Seller. Required updates of the software, which implement technically necessary adjustments to the software, are provided to the customer free of charge and are installed by the Seller or one of his commissioned service engineers. In contrast, upgrades to the software that add new features may be offered to the customer for a fee.
  6. Warranty
    1. The Customer agrees that all products offered by the Seller may be used exclusively for research purposes and may only be used in the country of delivery. Any deviating use of the Seller's products is excluded and waives any warranty or liability of the Seller.
    2. Seller warrants its goods upon passing of the risk to be free of material defects. The goods are free from material defects if they have the agreed quality or the quality described in Seller’s current catalogues or specifications in the Seller´s offer. It is also a material defect if the agreed installation by the Seller has been carried out improperly. Seller further warrants its services to be of a workmanlike quality.
    3. This warranty does not apply to goods which have been repaired or altered by other than authorized representatives of Seller, which have been subject to misuse, negligence or accident or which have been operated or maintained or inspected other than in the strictest accordance with the applicable manuals, protocols or instructions furnished by Seller.
    4. The goods supplied shall be carefully inspected by the Customer for obvious defects immediately after their arrival. The goods shall be deemed to have been accepted, unless Seller receives a written notice of defects within seven (7) calendar days of delivery. If, despite careful inspection, defects are not recognized, this period of notice shall apply from the time of discovery of the defects. Moreover, damage to the packaging and other obvious damage that occurred to the goods in transit shall be compulsory reported to the carrier, haulage contractor or other person charged with the execution of the dispatch at the moment the goods are delivered.
    5. In case of defects, the Seller is obligated to remedy them or to supply goods free from defects within a reasonable period of time, the choice being left to the Seller. The Customer shall not have the option of withdrawing from the order or reducing the purchase price until the removal of defects fails or does not take place within a reasonable period.
    6. At the Seller’s request, goods found to be defective shall be returned carriage paid and properly packed. Seller's instructions regarding the required packaging and choice of logistics service provider are to be followed by the Customer. The necessary freight return costs will be refunded by Seller if the notice of defect is justified.
  7. Liability
    1. Liability of the Seller shall be excluded to the extent damage has been caused by slight negligence. However, if the damage in the above case has been caused by violation of material contractual duties, so-called “cardinal duties” (necessary condition for proper performance of the contract and on whose fulfillment the Customer, therefore, may routinely rely), in particular such duties the violation of which endangers the attainment of the contract's purpose, the liability of the Seller – in contrast to the provision above – shall not be fully excluded but shall be limited to the damage typically foreseeable for this type of contract.
    2. The Seller shall assume no liability whatsoever for the quality and validity of data generated by the use of products from the Seller. If the Customer passes to third parties data that was generated with products supplied by the Seller, then the Customer shall indemnify the Seller against all claims asserted by third parties against the Seller directly or indirectly due to the quality and validity of the data generated.
    3. Limitation of liability under clause 7.1 and 7.2 above shall not apply in case of injury to life, body or health and/or if the Seller has assumed a respective guarantee and/or to the extent the product liability law applies.
  8. Reservation of title
    1. The Seller reserves the title to the goods until payment for them is made in full (conditional commodities). This also applies to all future deliveries, even if the Seller does not explicitly refer to it again.
    2. The Customer is obliged to treat the conditional commodities with care as long as ownership has not yet passed to him. In particular, he is obliged to sufficiently insure the conditional commodities at his own expense against theft, fire, water and other damage. If maintenance and inspection work has to be carried out, the Customer must also bear this at his own expense.
    3. If the Customer defaults on his payments, the Supplier is entitled to bar the Customer from using the conditional commodities and to take them back at Seller’s discretion. Taking back the goods constitutes a withdrawal from the contract only if the Seller expressly declares this to be the case. If the Seller takes back the goods, the Seller is authorised to sell them, the net proceeds being set off against the accounts payable by the Customer.
    4. In the event of seizure of the reserved goods by third parties, particularly in the event of attachment, the Customer shall indicate that it is Seller’s property and inform the Seller forthwith. The Customerr is not entitled to pledge and transfer by way of security the reserved goods.
  9. Limitation period
    1. Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. This period shall not apply to claims for damages by the Customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the Seller or his vicarious agents, which shall become statute-barred in accordance with the statutory provisions in each case.
    2. The limitation periods aforementioned also apply to contractual and non- contractual claims for damages of the Customer, which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases.
  10. Concluding clauses
    1. The commercial resale of Seller’s products or the commercial sale of processed or altered products of the Seller requires prior written consent of the Seller. The Customer shall indemnify the Seller against all claims asserted by third parties against the Seller directly or indirectly due to the commercial resale of Seller´s products or the sale of altered products of the Seller.
    2. The customer undertakes not to remove the names, logos and other markings attached to the Seller's products.
    3. The place of performance for all obligations arising from the contractual relationship and the legal venue for any disputes arising from the contractual relationship is the registered office of Seller.
    4. The legal relationships between Seller and Customer are subject exclusively to the laws of Germany. The United Nations Convention on Contracts of the International Sale of Goods shall not apply.
    5. If individual provisions of the present Terms and Conditions or parts thereof are or become null and void, this shall not affect the validity of the remaining portion or of the remaining provisions. The same applies mutatis mutandis, if the contract should prove a loophole.