General Terms and Conditions

General Terms and Conditions of Delivery and Payment

Biomex GmbH
(Hereinafter referred to as “Biomex”)

For use in business transactions with entrepreneurs and legal entities under public law (hereinafter referred to as “Customer” or “Purchaser”)

Status: July 2022

General

Deliveries, services and offers of Biomex shall be made exclusively on the basis of these General Terms and Conditions of Delivery and Payment.
Unless otherwise agreed, these General Terms and Conditions of Delivery and Payment shall apply in the version valid at the time of the Customer’s order or, in any case, in the version last communicated to the Customer in text form as a framework agreement also for future contracts of the same type, without Biomex having to refer to them again in each individual case.
Deviating, conflicting or supplementary terms and conditions of the Customer shall not be recognized by Biomex unless Biomex expressly agrees to their validity in writing.

(1) Offers and Conclusion of Contract

All offers are subject to change and non-binding unless expressly stated otherwise by Biomex in the offer.
An individual contract shall only come into existence upon written order confirmation by Biomex or upon delivery of the goods by Biomex.
Information provided by Biomex regarding the subject matter of the delivery or service (hereinafter referred to as “Goods”) (e.g. weights, dimensions, performance values, load capacity, tolerances and technical data) as well as representations of the Goods shall only be approximate unless exact conformity is required for the intended contractual purpose.
Biomex retains exclusive ownership and intellectual property rights to cost estimates, drawings and other documents. These may not be made accessible to third parties.
Upon request, the Customer must immediately return all documents related to the offer and destroy any copies made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

(2) Prices and Terms of Payment

Prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be invoiced separately.
Unless otherwise agreed in writing, prices for deliveries within Germany are to be understood DAP (Incoterms® 2020) – Customer address, Germany, plus the applicable statutory VAT. Prices for deliveries outside Germany are to be understood EX WORKS (Incoterms® 2020) – Biomex headquarters, Siemensstraße 36, Heidelberg, Germany.

If the period between order confirmation and delivery exceeds four months and prices increase due to rising raw material costs, wages, transport costs or other reasons beyond Biomex’s control, the prices valid on the delivery date shall apply.

(3) Delivery and Delivery Time

Delivery shall be made DAP Customer address, Germany (Incoterms® 2020) for deliveries within Germany. Delivery shall be made EX WORKS Biomex headquarters, Siemensstraße 36, Heidelberg, Germany (Incoterms® 2020) for deliveries outside Germany.
Delivery periods and dates indicated by Biomex shall always be considered approximate unless a fixed period or date has been expressly agreed. Agreed delivery periods begin on the day the order confirmation from Biomex is received by the Customer.
Agreed delivery dates shall be extended by periods during which unforeseen obstacles or circumstances beyond Biomex’s control delay the fulfillment of the order. The same applies if Biomex itself is not supplied on time or not properly supplied through no fault of its own.
Furthermore, Biomex shall be entitled to make partial deliveries if the partial delivery is usable for the purchaser within the scope of the contractual intended purpose and the delivery of the remaining ordered goods is ensured. The partial deliveries shall be invoiced separately in each case; the costs incurred for this will be communicated to the purchaser upon conclusion of the contract.

(4) Creditworthiness of the Customer

The unconditional creditworthiness of the Customer is a prerequisite for Biomex’s obligation to deliver. If Biomex becomes aware after conclusion of the contract that Biomex’s claim to payment is endangered due to the Customer’s insufficient financial capacity, Biomex shall be entitled to demand advance payment or security.
If the Customer does not provide payment or security within a grace period of one week, Biomex shall be entitled to withdraw from the contract and claim damages.

(5) Transfer of Risk, Acceptance

The transfer of risk of accidental loss and accidental deterioration of the Goods shall be governed by the agreed Incoterms® 2020. If no Incoterms provision applies, the statutory provisions shall apply.
If the purchaser is in default of acceptance, fails to perform an act of cooperation, or if delivery is delayed at the purchaser’s request or for other reasons for which the purchaser is responsible, Biomex shall be entitled to charge storage costs for each commenced month after the delivery deadline in the amount of 0.5% of the net price of the delivery, but not more than a total of 5% of the value of the delivery, unless the purchaser proves that a lower damage has occurred. The right to prove higher damages and Biomex’s statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The purchaser shall be permitted to prove that BIOMEX has suffered no damage or only significantly lower damage than the aforementioned lump sum.

(6) Export Control

The delivery items may be subject to the export control regulations of the Federal Republic of Germany, the European Union, the United States of America, or other countries. For this reason, every conclusion of a contract shall be subject to the condition that no prohibition of delivery/performance exists under the applicable customs regulations and that the respective required official permits, approvals, or other documents that Biomex may require for the performance of the contract are granted. In the event of a subsequent export of the delivery item abroad, the customer shall be solely responsible for compliance with the statutory provisions.

(7) Return of Goods and Incoming Goods Inspection

There is no right to return goods delivered in accordance with the contract. The Customer must inspect the goods immediately upon receipt with regard to the agreed contractual properties. Section 377 of the German Commercial Code (HGB) shall apply accordingly.

(8) Payment Terms, Set-Off

Unless otherwise agreed, payment of the purchase price shall be due upon invoicing and at the latest upon receipt of the goods. Payments must be made without any deduction. The Customer shall be in default if payment is not made within 30 days after the due date, whereby the date of receipt of payment by Biomex shall be decisive.
Set-off against counterclaims of the Customer or withholding of payments due to such claims shall only be permitted if the counterclaims are undisputed, legally established or arise from the same order.

(9) Retention of Title

The delivered goods shall remain the property of Biomex until the complete fulfillment of all claims to which Biomex is entitled against the purchaser, irrespective of the legal grounds (hereinafter referred to as “reserved goods”). This shall also apply if payments have been made for specifically designated claims.
Until revoked, the purchaser shall be entitled to use or resell the reserved goods in the ordinary course of business under its normal business conditions, provided that the purchaser has agreed on a retention of title with its contractual partners; the right of resale shall cease if the purchaser is in default. The purchaser hereby assigns to Biomex in advance the claims arising from the resale of the goods.
However, the purchaser shall remain entitled to collect the claims assigned to Biomex in advance. Biomex may revoke this authorization at any time. By virtue of the authorization to collect, the purchaser shall not be entitled to assign the claims. In the event that the reserved goods are located abroad, the purchaser undertakes to cooperate in all necessary measures and declarations in order to provide Biomex with securities equivalent to the retention of title.
Biomex undertakes, at its discretion, to release the securities to which it is entitled upon the purchaser’s request insofar as their value exceeds the claims to be secured by more than 20%.
In the event of conduct by the purchaser in breach of contract, in particular non-payment of the purchase price when due, Biomex shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. The demand for return shall not simultaneously constitute a declaration of withdrawal; rather, Biomex shall be entitled merely to demand the return of the goods and to reserve the right of withdrawal. If the purchaser does not pay the purchase price when due, Biomex may assert these rights only if Biomex has previously set the purchaser a reasonable deadline for payment without success, or if setting such a deadline is dispensable under the statutory provisions. In the event of a justified demand for return, Biomex shall be entitled, for this purpose, to enter the purchaser’s business premises during its usual business hours and take possession of the reserved goods. Biomex shall furthermore be entitled to sell the reserved goods privately, auction them, or otherwise dispose of them, with the proceeds credited against the purchase price. The costs arising therefrom shall be borne by the purchaser.

(10) Liability for Defects

The goods supplied by Biomex are intended solely for the use expressly described by Biomex. Beyond this, Biomex provides no warranties whatsoever, in particular no implied warranties, regarding any other use or the condition of the goods.
The goods delivered must be carefully inspected immediately after delivery to the purchaser or to the third party designated by the purchaser. In particular, contractual properties of the goods expressly warranted by Biomex must be examined by the purchaser. The goods shall be deemed approved by the purchaser with regard to obvious defects or other defects which would have been recognizable during an immediate and careful inspection if Biomex does not receive a written notice of defects within 7 working days after delivery. With regard to other defects, the goods shall be deemed approved by the purchaser if Biomex does not receive the notice of defects within 7 working days after the time at which the defect became apparent; if the defect was already obvious at an earlier point in time during normal use, this earlier point in time shall be decisive for the beginning of the notification period. At Biomex’s request, goods complained about shall be returned to Biomex carriage paid and in suitable packaging.
The purchaser shall be entitled to claims for defects in accordance with the statutory provisions in the event of defects in the delivered product. All defective delivery items or services shall be supplied again by Biomex, provided that such goods are available to Biomex. If the required goods are not available to Biomex, Biomex shall only be obliged to refund the purchase price. Biomex’s right to refuse subsequent performance under the statutory conditions shall remain unaffected.
The purchaser shall be entitled to withhold payments to an extent that is in reasonable proportion to the material defects that have occurred; this requires that there can be no doubt as to the justification of the notice of defects. The purchaser may not withhold payments if its claims for defects are time-barred.
Biomex shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor, and material costs, in accordance with the statutory provisions if a defect actually exists. Otherwise, Biomex may demand reimbursement from the purchaser for the costs arising from the unjustified request for remedy of defects (in particular inspection and transport costs), unless the absence of a defect was not recognizable to the purchaser.
Liability for defects shall not apply to natural wear and tear, nor to damage that has occurred after the transfer of risk as a result of faulty or improper handling of the goods.
In the event of a replacement delivery not being made within the required period, the purchaser may demand a reduction of the purchase price only after previously setting a deadline without success.
Claims of the purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with section (13) and shall otherwise be excluded.

(11) Intellectual Property Rights

If a third party asserts justified claims against the purchaser due to the infringement of intellectual property rights by goods supplied by Biomex and used in accordance with the contract, Biomex shall be liable to the purchaser within the period specified in (13) No. 1 as follows:
1.1. Biomex shall have the option, at its own expense, either to obtain a right of use for the respective goods, to modify them so that the intellectual property right is not infringed, or to replace them. If this is not possible for BIOMEX under reasonable conditions, the purchaser shall be entitled to the statutory rights.
1.2. The scope of the claim for damages shall be determined in accordance with (12).
1.3. The obligations set forth in the preceding section 1 shall apply to Biomex only if and insofar as the purchaser immediately informs Biomex in writing of the claims asserted by the third party, does not acknowledge any infringement, and Biomex retains the right to take all defensive measures and conduct settlement negotiations. If the purchaser ceases further use of the delivery for reasons of damage mitigation or other important reasons, the purchaser shall be obliged to inform the third party that the cessation of use does not constitute an acknowledgment of an infringement of intellectual property rights.
The purchaser may not assert any claim if and insofar as the purchaser is responsible for the infringement of intellectual property rights.
The purchaser shall likewise have no claim if and insofar as the infringement of intellectual property rights is caused by:
3.1. specifications provided by the purchaser,
3.2. an application not foreseeable by Biomex,
3.3. modification of the goods by the purchaser, or3.4. use of the goods together with products not supplied by Biomex.
In the cases set out in sections 3.1–3.4, the purchaser shall indemnify Biomex against claims by third parties.

(12) Other Liability

Unless otherwise provided in these General Terms and Conditions of Delivery and Payment, including the following provisions, Biomex shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
Biomex shall be liable for damages – irrespective of the legal grounds – within the framework of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, Biomex shall be liable, subject to statutory limitations of liability (e.g. diligence in one’s own affairs; insignificant breach of duty), only
2.1. for damages resulting from injury to life, body or health,
2.2. for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, Biomex’s liability shall be limited to compensation for the foreseeable damage typically occurring. Indirect damages and consequential damages resulting from defects of the delivered goods shall furthermore only be compensable insofar as such damages are typically to be expected when the delivered goods are used as intended.
The limitations of liability resulting from section (12) No. 2 shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault Biomex is responsible for under statutory provisions. They shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed, nor for claims of the purchaser under the Product Liability Act. The above provisions do not involve any change in the burden of proof to the detriment of the purchaser.
In the event of a breach of duty that does not consist of a defect, the purchaser may only withdraw from or terminate the contract if Biomex is responsible for the breach of duty. A free right of termination of the purchaser (in particular pursuant to §§ 650, 648 German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
Claims for damages for other losses resulting from the breach of ancillary obligations or non-essential obligations in cases of simple negligence shall be excluded.
Claims for damages arising from delay that are based on simple negligence shall be excluded; the statutory rights of the customer after the expiry of a reasonable grace period shall remain unaffected.
Biomex shall not be liable for indirect damages resulting from defective delivery, such as production downtime, loss of profit, or increased consumption of materials.
Liability for loss of data shall be limited to the typical recovery costs that would have arisen if regular backup copies appropriate to the risk had been made and adequate virus protection had been used.

(13) Limitation Period

In deviation from Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. The statutory special provisions regarding limitation pursuant to Section 438 (1) Nos. 1 and 2, (3), Sections 444 and 445b BGB shall remain unaffected.
The above limitation periods under sales law shall also apply to contractual and non-contractual claims for damages of the purchaser based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the purchaser pursuant to Section (13) No. 2 sentence 1 and No. 2.1 as well as under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

(14) Packaging and Transport

Biomex shall be responsible for packaging the goods for transport. For deliveries of goods outside Germany (cf. Section 3 No. 1, Ex Works delivery), the customer shall be responsible for the proper execution of the transport. This applies in particular to goods for which a cold chain must be strictly maintained.

(15) Governing Law, Jurisdiction, Arbitration

If declarations are required to be made in writing, this shall include fax and electronic form.
Unless expressly agreed otherwise, the place of performance shall be the registered office of Biomex in Heidelberg, Germany.
If the customer has its registered office within the European Union, German jurisdiction shall apply to legal disputes between the parties. The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be Heidelberg, Germany. However, Biomex shall also be entitled to bring an action at the principal place of business of the purchaser. Mandatory statutory provisions regarding exclusive places of jurisdiction shall remain unaffected by this provision.
If the customer has its registered office outside the European Union, legal disputes between the parties arising from the contractual relationship shall be decided by an arbitration tribunal. The arbitration proceedings shall be conducted in accordance with the Arbitration Rules of the International Chamber of Commerce (ICC). The language of the proceedings shall be English. The place of arbitration shall be Mannheim, Germany. The chairman of the arbitration tribunal must be a German fully qualified lawyer with the qualification for judicial office.
All legal relationships between the purchaser and Biomex shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
If the contract or these General Terms and Conditions of Delivery and Payment contain any gaps, those legally valid provisions shall be deemed agreed which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery and Payment if they had been aware of the gap in the provisions.