General Terms and Conditions
The present General Terms and Conditions shall apply to all business relations of BIOSAXS GmbH (hereinafter referred to as «BIOSAXS») with its customers (hereinafter referred to as «PARTNER») for BIOSAXS' technologies, licenses and services (hereinafter referred to as «PRODUCT»). The Terms & Conditions shall only apply if the PARTNER is an entrepreneur (§ 14 of the German Civil Code (German: Bürgerliches Gesetzbuch) (BGB)), a legal entity under public law or a special fund under public law.
BIOSAXS Terms & Conditions shall apply exclusively. Any diverging, conflicting or additional general terms and conditions of PARTNER will only become a part of the agreement if and in so far as BIOSAXS has expressly given its consent to the application thereof. The aforementioned consent is required in any case, also if, for example, BIOSAXS, having knowledge of PARTNER's general terms and conditions, providing the delivery without reservation.
Any individual agreements reached with the PARTNER in the individual case (including collateral agreements, supplements and changes) shall always take priority over these Terms & Conditions. The content of such agreements shall be subject to a written contract or the written confirmation. BIOSAXS reserves the right to change or amend its Terms & Conditions without prior notice. The changes and amendments to the Terms & Conditions will be send to PARTNER and are published on BIOSAXS' website biosaxs.com and will come into force unless PARTNER objects in writing within two weeks after reviewing the amended Terms & Conditions.
- Information about BIOSAXS' products provided on BIOSAXS' website does not constitute an offer.
Unless otherwise agreed in writing in the individual case, the offers made by BIOSAXS shall be subject to change without notice and not binding. This shall also apply if BIOSAXS has handed over catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in an electronic form – to PARTNER, to which BIOSAXS reserve property rights and copyrights. PARTNER's orders are subject to acceptance by BIOSAXS and an agreement is considered to be concluded upon receipt of BIOSAXS' written Confirmation of Order or upon delivery of the PRODUCTS. When sending an order to BIOSAXS, PARTNER effects a binding offer. BIOSAXS reserves the decision to accept this offer. BIOSAXS will declare receipt of PARTNER's offer within reasonable time (maximum 4 weeks) via e-mail. If PARTNER's offer is not accepted BIOSAXS will inform PARTNER.
- BIOSAXS agrees to supply the PRODUCT to PARTNER for internal research purposes only. PRODUCT shall mean all PRODUCTs provided by BIOSAXS. PARTNER agrees to obtain all necessary third party rights for information disclosed to BIOSAXS and for the use of the PRODUCT. The PRODUCT will be used in accordance with applicable laws and regulations.
- Intellectual property rights and any right to use the delivered PRODUCT for commercial purposes stay with BIOSAXS. If the purchased PRODUCT incorporate intellectual property or software BIOSAXS grants to PARTNER a non-exclusive, non-transferable, non-sublicensable license to use the PRODUCT for internal research purposes after full and final payment of the agreed enumeration. Partner has in principle no right to the source code. All rights to and titles in any materials, information and content not expressly sold hereby are, to the fullest extent permitted by law, retained by BIOSAXS.
- PARTNER will provide the samples as agreed for the Services (“MATERIAL”). The MATERIAL is owned by PARTNER and will continue to be owned by PARTNER after it is transferred to BIOSAXS. Nothing herein shall be deemed to grant rights in any intellectual property of PARTNER whether technologies, know-how or patents and no license to the MATERIAL is granted by this Agreement. The MATERIAL will not be sold, redistributed or released by BIOSAXS to any third parties or entities for any purpose.
- PARTNER shall be obliged to treat as confidential the information disclosed to the PARTNER by BIOSAXS and/or on behalf of BIOSAXS and knowledge, inter alia, of a technical, commercial or organizational nature gained in the course of the performance of a agreement between the parties. Such information may only be used in so far as this is required in order to exercise a licence and/or perform an agreement. The same shall apply to the transmission of such information to third parties. This obligation to use the information only within the scope described above must also be imposed on all employees of the PARTNER and other third parties to whom such information is to be disclosed. This obligation to maintain confidentiality shall not apply to information which
- PARTNER has lawfully received or receives lawfully from third parties, as can be proved, who in turn have received this information lawfully and are not bound to secrecy,
- was already generally known upon conclusion of this agreement, as can be proved, or
- has subsequently become generally known without acting in breach of the obligations under this agreement,
- PARTNER has worked out independently, as can be proved,
- has to be disclosed due to mandatory statutory or administrative regulations. PARTNER will inform BIOSAXS thereof immediately after learning of such mandatory disclosure.
- BIOSAXS does not guarantee the suitability of the PRODUCT for any applications. BIOSAXS makes no representations or warranties express or implied.
The PARTNER has to acquire on his own all-necessary licenses for the use of the PRODUCT if not otherwise agreed in writing. The PARTNER will hold BIOSAXS harmless for any claims on damages, which occur during the PARTNER's use of the PRODUCT.
Notification of alleged defect must be made to BIOSAXS in writing within two (2) weeks of discovery. PARTNER shall return the defective PRODUCT, or part(s) thereof, properly packaged, postage or shipping costs prepaid to BIOSAXS. Loss or damage during shipment shall be at the risk of PARTNER.
Any liabilities of BIOSAXS under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
- Concerning providing services the following provisions shall apply: The subject-matter of the order is the agreed service and not a certain outcome. Agreed all-inclusive prices only include the services expressly stated in the offer. Any additional costs which become necessary through no fault of BIOSAXS will be charged separately. Charges and costs for travelling or relating to compliance with official requirements at the place of performance (training, installation, technical support) shall be borne by the PARTNER. If BIOSAXS pay such charges and costs for PARTNER, BIOSAXS shall be reimbursed immediately for such charges and costs upon submission of proof plus an expense allowance of 5%. The external scientists or employee assigned to render the service will be chosen by BIOSAXS. PARTNER will only have a right to provision of services by a certain employee or scientists if this has expressly been agreed in writing. The naming of a project manager or contact person in the text of the offer does not meet these requirements. PARTNER shall not be entitled to give any instructions (Weisungsrecht) to the employees or scientists assigned by BIOSAXS.
Times for performance will be extended by the period of time during which BIOSAXS is prevented from providing services or effecting performance owing to circumstances beyond BIOSAXS control as well as by a reasonable start-up period after the end of the impediment. Said times shall also be deemed to be extended by the period of time during which, in violation of the agreement, PARTNER fails to fulfil any of its duties to cooperate, e.g. if PARTNER fails to provide information, give access or make necessary employees available.
Unless otherwise agreed in writing in the individual case, place of performance for all services rendered by BIOSAXS shall be BIOSAXS's registered office. If services are rendered at PARTNER's place of business, PARTNER shall provide appropriate premises and technical equipment after consultation with BIOSAXS. If services are rendered elsewhere, PARTNER shall rent the premises at its own expense and make the required technical equipment or laboratory places available on the spot.
- Unless otherwise agreed in a particular case, BIOSAXS prices current at the time of conclusion of agreement shall be valid on the basis ex works (“EXW” according to INCOTERMS 2010) in the Federal Republic of Germany, in EURO exclusive of VAT at the rate in force. The prices are exclusive of expenses, packaging-, import-, export-, transport- and insurance costs, as far as not otherwise agreed in the individual case.
PARTNER shall make payments (plus VAT if applicable) by latest 14 days upon receipt of BIOSAXS' invoice. Receipt of payment is deemed received upon its complete and unconditional credit to BIOSAXS' account. Place of payment is Hamburg, Germany. BIOSAXS accepts payment by wire transfers. All other methods of payment must be expressly agreed to by BIOSAXS.
- No failure or omission in the performance of any of BIOSAXS' contractual obligations shall create liability, if such failure or omission is the result of acts of God, war, riot, accidents, compliance with any action or restriction of any government or agency thereof, strikes or labour disputes, limitations of transportation, inability to procure materials required to the performance of the contract or any other factor or circumstance beyond BIOSAXS' control hereto. In this case BIOSAXS will give written notice to PARTNER within fourteen days of BIOSAXS' knowledge of such occurrence.
- Should single provisions of these Terms & Conditions be or become invalid, entirely or partly, this shall not affect the validity of the remaining provisions. The Parties agree to replace the invalid provision by a valid provision which comes as close as possible to the economic intention the Parties had in mind when drafting the invalid provision. The same shall apply in case of gaps in the Terms & Conditions.
- No waiver, amendment or modification of any contract between BIOSAXS and PARTNER shall be valid, enforceable or binding upon BIOSAXS unless expressly agreed to in writing. Waiver of this form requirement shall be in writing too. Application of any contradicting term or condition by PARTNER is rejected.
- Unless expressly specified otherwise in writing, any legal relationship between BIOSAXS and PARTNER, including these Terms & Conditions, shall be governed and construed in accordance with the laws of the Federal Republic of Germany. The venue for any disputes arising out of or regarding any legal relationship between BIOSAXS and PARTNER, including these Terms & Conditions, shall be Hamburg, Germany.
- Failure of either Party to insist upon or enforce strict performance of any provision of these Terms & Conditions will not be construed as a waiver of that provision or any other provision nor future right or provision. Neither shall the course of conduct between BIOSAXS and PARTNER nor shall the trade practice modify any provision of these Terms & Conditions.
- BIOSAXS may save and process any data relating to PARTNER, to the extent necessary for the purpose of the execution and implementation of the agreement and as long as BIOSAXS is required to keep such data in accordance with applicable law. BIOSAXS shall have the right to submit personal data relating to the PARTNER to credit agencies, to the extent necessary for a credit check, subject, however, to the PARTNER's consent in each individual case. BIOSAXS shall not make available any personal data of PARTNER to other third parties without the express consent of PARTNER, except to the extent that a disclosure is required under applicable law. BIOSAXS shall not be permitted to collect, submit to any third party or otherwise process personal data of PARTNER for any purpose other than those set forth in this Section 14.
- It is recognized and understood that any results, inventions, know-how, technologies and/or any intellectual property rights of either Party existing as of the Effective Date are and remain such Party's sole property and are not affected by this Agreement.