A. Scope of application
The following General Terms and Conditions (hereafter referred to as »AGB«) shall apply to all contractual business relations between provitro AG (hereafter referred to as »the Company«), on the one hand, and third parties (hereafter referred to as »Contractual Partner« or »Supplier«).
AGB shall be considered as legally accepted by the Contractual Partner or Supplier once a contract has been signed by the latter. AGB shall be valid also for future contracts even in cases in which no explicit reference to AGB has been repeated. Deviations from AGB shall not be effective unless such deviations have been confirmed in writing by the Company.
An explicit objection is hereby raised to General Terms and Conditions of Contractual Partners. They shall not be applicable unless the Company’s consent to their validity has been expressed in writing.
B. Supplies made by the Company
I. Quotation, placing of order, acceptance of order
All Company’s offers are without engagement and subject to confirmation with regard to price, quantity and date of delivery. Placing of orders with and confirmation by the Company shall be in writing for legal validity. This demand for the written form shall equally apply to any amendment or modification or collateral agreement to the Company’s original quotation.
The Company shall remain the holder of rights of ownership, exploitation and copyrights on submitted drawings and other illustrations, descriptions as well as on other offer-related documents. Contractual Partners shall not be permitted to make said documentation accessible to a third party. This shall apply in particular to documents classified »Confidential« by the Company. Contractual Partners intending to pass said documentation to third parties shall obtain beforehand the Company’s formal consent. Pricing is based on the current price list. Quoted prices are ex works or storeroom plus packaging and freight costs and value-added tax as is valid on the day of billing. Customs duties, tax as well as other fiscal or public charges, as the case may be, shall be borne by the Contractual Partner who will as well be responsible for cost of assembly or installation of equipment.
A flat rate of € 21.00 will be charged for shipment within the territory of the Federal Republic of Germany and of € 19.00 for refrigeration, if necessary, whereas real costs will be charged for deliveries to destinations outside Germany. A mark-up of € 20.00 will be charged for small-volume purchases worth up to € 150.00.
Invoice amount minus 2 % cash discount shall be due and payable within ten days from invoice date, while the full invoice amount shall be due and payable within 30 days from invoice date. Invoice amounts for services provided by the Company shall be excluded from cash discount but shall be fully payable immediately on receipt of the invoice. Punctuality of payment shall be counted by the date of credit entry to the Company’s account.
The Company is authorised, for all their business transactions, to charge 5 % p.a. interest from the date of maturity. After 30 days from date of invoice, the company shall have the right to respond to delay of payment by charging interest of at least 8 % p.a. above the current base rate relative to the interest rate with which the Company has been charged for advance in current account.
Offset with the Contractual Partner shall be permissible only in a case of an undisputable and thus legally valid counterclaim. For cross-border deliveries requiring compliance with international trade or customs rules, the Contractual Partner shall take care at his own expense of proper observance of such rules.
II. Delivery and service periods
The delivery periods and deadlines quote by the Company shall be of non-committal nature unless otherwise agreed in writing. Delay in delivery not caused by the Company shall extend delivery deadlines in an adequate manner. This shall apply in particular to any delay due to force majeure and other events with an impact on compliance with agreed delivery deadlines (plant interruption, strike, lockout or interruption of transport routes). It shall also apply to adverse events on the premises of suppliers or sub-suppliers to the Company. Should such delay-causing problem persist over a period of more than three months, both the Company and the Contractual Partner shall have the right to withdraw from the contract, after an adequate grace period had been agreed and expired. Should non-observance of a committed delivery and/or service deadline be attributable to the Company’s fault, the Contractual Partner may assert a claim for compensation which shall be limited to 5 % maximum of the invoice amount for the service or delivery affected.
The consignment earmarked for delivery shall be stored at the expense and risk of the Contractual Partner if shipment is delayed on request of the latter or for any reason for which the latter is responsible. The Company’s ready-for-shipment announcement shall be legally equivalent to shipment proper. Storage costs will be charged according to the current price list. The risk of accidental loss shall be borne by the Contractual Partner as soon as the Company has handed over the consignment to a forwarding agent, carrier or any other person or institution designed for transport. Said risk, at the latest, shall be borne by the Contractual Partner on physical delivery, which shall as well apply to partial delivery or situations in which after-sale services have been agreed, such as installation of equipment supplied or training of the Contractual Partner’s personnel.
Goods for delivery may be insured If requested by the Contractual Partner, goods for delivery may be insured for coverage of theft, breakdown, transport, fire and water damage or other insurable risks. The Contractual Partner shall specify the desired insurance coverage to the Company on acceptance of the quotation. Such request shall be made in written form.
The risk of accidental loss of the consignment or part of it shall be borne by the Contractual Partner as of the ready-for-shipment date if causative circumstances for delay of shipment have to be attributed to the latter. Minor shortcomings or defects shall not justify refusal of acceptance by the Contractual Partner. Partial deliveries shall be permissible. The Contractual Partner shall undertake at his own expense and risk to return transport packs to the Company.
III. Liability for defects
Claims for compensation shall expire one year after delivery to the Contractual Partner. Any claim for reduction of purchase price or withdrawal from the business concerned shall be ruled out once the claim for compensation has become statute-barred. The duties of investigation and notification of defects shall apply according to §§ 377, 378 HGB (German Commercial Code). Any defect or shortcoming detected by proper investigation, including faulty or insufficient delivery, shall be notified within three days.
Once defects or shortcomings have been established, the Company shall have the right to determine repair or other remedial action or shipment of faultless items. The Contractual Partner shall have the right to undertake remedial action only if the Company has been informed beforehand in written form and if a reasonable period of time for compensation has expired during which the Company would have had an opportunity for remedial action either by themselves or through sub-suppliers. Other ways of settlement shall be limited to situations forcing the Contractual Partner to exercise a right for self-help to avert disproportionate damage, e.g. due to unacceptable delay.
Claims for compensation, as may be raised against the Company by the Contractual Partner, shall be ruled out in the following cases of defect or damage: non-observance of the Company’s operational or maintenance instructions, inappropriate use, faulty assembly by the Contractual Partner or third parties, natural wear, incorrect or negligent treatment, use of unsuitable tools, chemical, electrochemical or electric effects, inadequate modification or repair by the Contractual Partner or third parties without prior authorisation by the Company, unauthorised exchange of components or other change or use of supplies not in conformity with original specifications.
The same shall apply to cases of inappropriate storage or mistakes in start-up. Additional claims of the Contractual Partner, on whatever legal grounds (in particular claims for compensation relating to violation of ancillary contractual duties, unauthorised acts or other liability in tort and claims for cost and efforts, with exception of claims according to § 439, Section 2, BGB
[German Civil Code] shall be ruled out unless other conclusions may be justified. This shall apply, for example, to claims for damage outside the item supplied and claims for compensation for loss of profit.
The aforementioned exclusion of liability shall not apply in situations in which it would rule out or limit compensation for damage to life and limb or health due to culpable violation of duty by the Company or their legal representative or vicarious agent. It shall not apply either in situations in which it would result in disclaiming or limitation of liability for other damage due to the Company’s or their legal representative’s or vicarious agent’s wilful or severely negligent violation of duty. The Company’s liability for culpable violation of major contractual duties shall be limited to damage volumes predictable in common practice of contractual business relations. Liability shall not be excluded in cases of liability for damage to persons or material according to product liability law.
IV. Other liability contexts
Other claims – for whatever legal arguments (especially claims for violation of ancillary contractual duties, illicit acts, delay, impossibility) shall be ruled out. This shall particularly apply to claims resulting from damage unrelated to a physical delivery and claims for compensation for lost profit. Exemption from liability shall not apply to damage attributable to wrongful intent or gross negligence by the Company or their representative or vicarious agent. It shall not apply either to situations in which it would result in ruling out or limiting compensation for culpable damage to life and limb or health. The Company’s liability for culpable violation of major contractual duties shall be limited to damage volumes predictable in common practice of contractual business relations. Liability shall not be excluded in cases of liability for damage to persons or material according to product liability law.
Supplies made by the Company shall be covered by a liability insurance policy that has to be taken out at the supplier’s expense.
Claims raised in compliance with product liability laws of countries other than Germany shall be limited to the Company’s product liability insurance and its coverage versus such claims. Claims beyond such limitation shall be covered by the Contractual Partner at his own expense.
V. Reservation of ownership
The items supplied (hereafter referred to as »reserved goods«) shall remain at the Company’s disposal until all contractual requirements have been met by the Contractual Partner. The Contractual Partner has no right to pledge or transfer reserved goods for security or any other purpose. The Contractual Partner shall undertake to treat and handle such goods with due care and to take out insurance reinstatement policies to cover damage and loss due to fire, water and theft. The Contractual Partner shall be responsible for proper servicing and maintenance of such goods.
In the case of the Contractual Partner’s default in payment, the Company shall have the right to take back reserved goods at their own expense. Take-back does not imply withdrawal from the contract. Should an order of attachment (levy of execution) be issued into reserved goods, the Company should be informed without delay to provide the latter with an opportunity for filing an action of intervention according to § 771 ZPO (German Code of Civil Procedure). The Contractual Partner shall be obliged to the Company for reimbursement of legal expenses, as the case may be.
Should the Company’s right of disposal be invalidated due to connection or intermixing, it shall be agreed between the two contracting parties that the Contractual Partner’s ownership of the new coherent product is transferred by relative value to the Company and henceforth is stored free of charge by the Contractual Partner for the Company.
The Contractual Partner shall undertake provident assignment to the Company of all claims resulting from resale of reserved goods up to the relative value of the latter, which assignment shall be accepted by the Company. The Contractual Partner shall inform his resale partner of the assignment if so requested by the Company. The Contractual Partner is authorised to collect payment for resale.
C. Supplies made to (received by) the Company
Orders placed by the Company must be in written form for legal validity. Agreed deadlines shall be binding. The Company shall have the right to respond to delay of delivery by charging the supplier with a penalty per working day of delay amounting to 0.1 % relative to the total price up to an overall amount of 5 % of said total price. The Company reserves the right to withdraw from the contract and claim compensation, following an adequate grace period, if the supplier has to bear responsibility for non-performance of an agreed deadline.
The risk of accidental loss of a consignment shall not be borne by the Company until handover. The supplier shall take out at his own expense an insurance policy for the subject of supply.
The Company shall have free choice of demand between repair of defects or re-supply of a flawless item. If remedial action is chosen to repair a defect detected by the Company or any of their partners, the Company may ask for such remedial action to be performed on the premises of the supplier. If in such case defective goods have to be returned for repair to the supplier, the latter shall bear all related expenses. On completion of repair, the goods concerned shall be sent back to the Company or another appointed partner at the expense of the supplier.
Payment shall be due minus 2 % discount within ten days from receipt of invoice or without any discount within 30 days. The supplier shall not have the right to assign claims on the Company to a third party.
Rules that may exist in the supplier’s standard terms and conditions regarding simple or extended reservation of ownership are explicitly rejected. Such rules are considered null and void for business with the Company. For border-crossing transactions for which international customs or other trade provisions may have to be observed, such observance shall be the supplier’s responsibility at his own expense. Customs duties, fees, tax or other public charges shall be borne by the supplier. The same shall apply to expenses for assembly and installation of equipment.
D. Final clause
Contracts between the Company, on the one hand, and Contractual Partners and/or suppliers, on the other, shall be performed in conformity with German law and with explicit exclusion of provisions formulated in the Viennese Convention on Contracts for International Sale of Goods (CISG).
Berlin shall be the sole jurisdictional venue for settlement of any dispute that may result from business transactions with the Company.
Should any individual provision or any part of any provision, as established in these General Standard Terms and Conditions be or become void, illegal or unenforceable, the validity of the remaining provisions hereof shall in no way be affected. In such case the void and/or illegal and/or unenforceable provision or provisions shall be replaced by relative provisions coming as close as possible to the sense and spirit and purpose of this agreement. In the case of a gap, such gap shall be filled with a provision which had been agreed had the problem been considered beforehand. This shall apply also to cases in which ineffectiveness of a provision is based on normal performance or timing. In such case, the provision formulated in the first place shall be replaced by a provision as close as possible to intended and legally permissible performance and timing.