The present General Terms and Conditions shall apply to all business relations of BIOSAXS GmbH, represented by the CEOs Dr. Dmitry Svergun and Dr. Tobias Gräwert, Notkestraße 85, Building 25a, 22607 Hamburg, Germany (hereinafter referred to as "BIOSAXS") with its customers (hereinafter referred to as "PARTNER") for BIOSAXS' technologies, licenses and services (hereinafter referred to as "PRODUCT").
EMBL (European Molecular Biology Laboratory, Meyerhofstrasse 1, 69117 Heidelberg, Germany) is Europe's flagship laboratory for the life sciences - an intergovernmental organisation with more than 80 independent research groups covering the spectrum of molecular biology. BIOSAXS is a spin-off of EMBL and EMBL is a shareholder of BIOSAXS and works closely with BIOSAXS e.g. in its Laboratories.
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.
In the event of any conflict or inconsistency between these Terms and Conditions and an offer and acceptance, the offer and acceptance of BIOSAXS shall prevail. Any individual agreements reached with the PARTNER in the individual case (including collateral agreements e.g. license agreements, supplements and changes) shall always take priority over these Terms & Conditions and, if applicable, over an offer or acceptance.
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 sent 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.
1. 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 a reasonable time (maximum 4 weeks) via e-mail. If PARTNER's offer is not accepted BIOSAXS will inform PARTNER.
2. 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 by PARTNER in accordance with applicable laws and regulations.
3. 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 transferred hereby are, to the fullest extent permitted by law, retained by BIOSAXS.
4. 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. BIOSAXS is only granted a license to be able to provide it services, if necessary. BIOSAXS has the right to hand the MATERIAL over to EMBL for providing its services. The MATERIAL will otherwise not be sold, redistributed or released by BIOSAXS to any other third parties or entities for any purpose.
5. 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 an agreement between the parties. Such information may only be used in so far as this is required in order to exercise a license 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.
6. BIOSAXS does not guarantee the suitability of the PRODUCT for any applications. BIOSAXS makes no representations or warranties express or implied for the PRODUCT.
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 from 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.
7. The liability of BIOSAXS, irrespective of its legal grounds, is excluded.
The exclusion of the liability shall not apply in cases in which BIOSAXS itself or its statutory representatives or those assisting it in performing its tasks breach duties with intent or due to gross negligence. This also applies in cases of culpable injury to life, body or health as well as breach of material contractual obligations or claims under the "Produkthaftungsgesetz" (Product Liability Act). In the event that a material contractual obligation is violated by BIOSAXS through a slightly negligent performance, BIOSAXS's liability for damages shall be limited to damages which are typically foreseeable. Material contractual obligations are duties (a) whose fulfilment makes the due performance of the agreement possible in the first place, (b) whose breach will endanger the achievement of the purpose of the agreement or (c) on the fulfilment of which the purchaser has relied and was entitled to rely.
PARTNER shall indemnify BIOSAXS against product liability claims by third parties.
8. 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.
9. 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 2020) 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 30 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.
10. PARTNER may not refer to the business relationship with BIOSAXS in advertising material, brochures, etc. without prior written consent of BIOSAXS.
11. 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 labor 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.
12. 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.
13. 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.
14. 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.
15. 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 15.
16. The Parties shall comply with (i) the European Regulation 2016/679 relating to the processing of personal data as of its date of application and (ii) any regulation relating to the processing of personal data applicable during the term of this agreement (altogether, "Applicable Data Protection Legislation"). The Parties commit in particular to:
(i) communicate to each other, personal data relating to data subjects only to the extent that the personal data have been legally collected and processed;
(ii) guarantee that it has duly informed data subjects in compliance with the Applicable Data Protection Legislation, and that, where required, it has obtained a valid consent from data subjects, in particular in relation to the processing made by the Parties for the purpose of these Terms and Conditions;
(iii) process the personal data for the sole purposes as strictly necessary for the performance of the agreement and as strictly agreed by the Parties;
(iv) share the personal data collected and processed as a result of the agreement only with third parties which would provide the same guarantees as the one defined hereunder;
(v) refrain from transferring personal data with third parties located out of the European Economic Area without having first obtained the other Party's consent; and
(vi) implement technical and organizational measures to ensure an adequate level of protection to the personal data processed;
(vii) delete all personal data after they are no longer necessary for the purpose of the agreement or upon request of the other Party.
17. PARTNER will be solely responsible for paying all taxes (including sales, use, consumption, withholding, and value-added taxes and similar taxes), other than BIOSAXS's income taxes, that are imposed on or result from the PARTNER's purchase, license, or use of BIOSAXS products and services. If BIOSAXS is required by law to collect and remit any such taxes, BIOSAXS may invoice PARTNER for such taxes and PARTNER agrees to pay the invoiced amount to BIOSAXS. If PARTNER is required by the respective jurisdiction where the products are used, or where services are provided, to withhold taxes from payments to BIOSAXS, PARTNER may withhold from the total amount due to BIOSAXS the minimum amount required. PARTNER may only withhold taxes related to a payment at the time of such payment. PARTNER must then promptly pay that amount to the appropriate tax authority and provide BIOSAXS with an official receipt for the payment within 60 days of PARTNER's payment.
18. PARTNER shall comply with all applicable national and international (re-)export control laws and regulations (e.g. embargo and/or dual-use regulations), particularly of the Federal Republic of Germany and the European Union. PARTNER shall follow all necessary procedures required by these laws and regulations, particularly applying for required (re-)export approvals at the appropriate export control authority. Goods and know-how acquired from BIOSAXS are for exclusive use for non-military and peaceful purposes only. Completion and execution of an agreement are subject to export control legal admissibility. In case of doubts regarding the export control legal admissibility, BIOSAXS will contact the competent authorities for the purpose of obtaining a "Nullbescheid" or other information without being liable for damages caused by delays.
19. 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.
Date: 2020-01-20