General Terms and Conditions of BioFluidiX GmbH
§ 1 General Regulations
a.) This general terms and conditions apply to the execution of deliveries and services (in the following: deliveries) by BioFluidix GmbH (in the following BIOFLUIDIX) upon order of its clients (in the following: client). These are therefore also valid for all future business relations even though they have not been again explicitly agreed upon. These general terms and conditions are considered as agreed upon at the latest upon acceptance of deliveries by BIOFLUIDIX. Contradicting or deviating general terms and conditions of the client are only valid, in case BIOFLUIDIX has explicitly agreed to them in written form. If this is not the case, BIOFLUIDIX explicitly objects to contradicting or deviating conditions of the client.
b.) BIOFLUIDX claims to retain all copyrights and proprietary exploitation rights without restrictions for all offers, drawings and other documents (in the following: documents). The documents may only be made available for third parties upon written approval in advance by BIOFLUIDIX and have to be immediately returned upon request if the order is not placed.
c.) Partial deliveries are permissible as far as this is reasonable for the client.
d.) The special contract conditions for sales of goods (section B.) are valid for all business relationships of BIOFLUIDX that concern the delivery of goods to the client as subject of the contract.
e.) The special contract conditions for development services and prototype manufacturing are valid for all business relationships of BIOFLUIDX that concern as subject of the contract the provision of development services, the execution of feasibility studies or the manufacturing of prototypes on behalf of the client.
§ 2 Contract closure
The content of the contract for service provision or sales is determined by the order submitted to BIOFLUIDIX by the client. The contract is established by the purchase order confirmation of BIOFLUIDIX which is the only valid version of the contract. If not agreed otherwise in writing this general terms and conditions will become part of every contract and all deliveries will be provided subject to the following conditions only.
§ 3 None-Availability Provision
In case that the agreed delivery cannot be provisioned due to none-availability, BIOFLUIDIX reserves the right to withdraw from the obligation to fulfill the contract at non-availability. In this case BIOFLUIDIX is obligated to inform the client immediately about this non-availability and to promptly return any advance payments or any other contributions to date.
§ 4 Delivery and Time Scale
As far as the contractual obligations comprise the delivery of a product or a prototype, delivery conditions are ex works (EXW) according to the Incoterms. On request of the client BIOFLUIDIX can deliver the product to any desired delivery address at additional cost. In case a delivery period has been agreed, it will begin after all contractually relevant technical questions have been resolved between the parties. This requires the collaboration of the client.
§ 5 Conditions of Payment
a.) All prices, including costs for packaging, are prices ex works (EXW). Costs for delivery have to be carried by the client if not agreed otherwise in written form in the individual case.
b.) The contractually agreed price is due without any deductions immediately after delivery, if not agreed otherwise in written form in the individual case. In the case of continuing obligations, the agreed payment is due on the first day of every month.
c.) For the delivery of development services or the manufacturing of prototypes (see part C. Conditions for development services and prototypes of this GTCs), a payment in advance of 50 % of the complete order value is due. In this case the processing of the order starts only after receipt of the pre-payment
d.) All given prices are net-prices unless stated otherwise.
e.) If the client is in arrear with payments, partly or completely, BIOFLUIDIX is entitled to collect interest for the indebted amount at an interest rate of 5% above the basic rate of interest unless the client proves that no or only limited loss was caused for BIOFLUIDIX. Additionally BIOFLUIDIX may claim damages in case of a higher loss for the indebted amount.
f.) Any right of redemption by the client will solely be accepted in case of an existing title or if it has been accepted by BIOFLUIDIX. The client is just authorized to withhold payments in case that the reason for the counter-claim lays within the same contract.
§ 6 Obligations for Cooperation by the Client
a.) In case of any change to the clients name, legal status, billing address, location of the head office, bank details and basic changes of the financial situation (especially in connection with any insolvency proceedings), the client or an authorized agent is obliged to immediately inform BIOFLUIDIX in writing about these changes.
b.) Without any particular request from BIOFLUIDIX, the client is obliged to inform BIOFLUIDIX about any information that is necessary for the delivery and/or for the configuration of the delivery. When there are test-liquids, samples or any other parts required for the completion of the delivery that are not part of the contractual delivery, the client has to supply a sufficient amount of such parts free of charge.
§ 7 Expressly warranted properties and Intended Use
Expressly warranted properties assured by BIOFLUIDIX, are solely valid under the condition of intended use of the product which especially requires regular service, cleaning and maintenance. The parties are fully aware that an intended use explicitly excludes the use under extreme conditions and/or the use of exceptional media (for example the use of abrasive or chemically aggressive liquids, which will lead to faster wear; dipping the piezo actuator or electronic components in liquids; use of the products in outdoor environment; use at extreme temperatures; use in corrosive environment or others).
Expressly warranted properties are only those properties given by the product-specifications according to the product datasheet, or other technical specifications which have been confirmed by BIOFLUIDIX in writing. The use of the products for printing, dosing or coating tasks using liquid media which have not been approved by BIOFLUIDIX (e.g. in an experimental analysis) or which are not explicitly named on the product datasheet, has to be considered as not-intended use in general.
§ 8 Additional deliveries
BIOFLUIDIX commits itself to provide the contracted deliveries as stated in the purchase order confirmation. Any deliveries exceeding this volume or any modifications, which are in between or subsequently desired by the client, have to be considered as an independent order and will be charged separately. Additional deliveries may be for example:
• servicing and installation activities as well as briefing and training of external personal (if not already included in the scope of delivery)
• diagnosis and elimination of malfunctions respectively faults in service, which occurred due to improper treatment or other circumstances, for which BIOFLUIDIX cannot be made responsible
• adaptation requests to the delivery by the client, which are no part of the original contract
• consultations and support in the use of the products requested by the client
Payments for such additional deliveries are due immediately after the requested additional deliveries have been supplied by BIOFLUIDIX and the invoice has been delivered.
§ 9 Place of Performance, Jurisdiction and applicable Law
a.) Unless agreed differently in the purchase order confirmation, Freiburg i. Br., Germany shall be the place of performance for all contracts concluded with BIOFLUIDIX.
b.) As far as the client is a fully qualified merchant as per the German Commercial Code, a legal person under public law or public special business property, the jurisdiction for all disputes directly or indirectly resulting from the contract shall be Freiburg i. Br., Germany. However, BIOFLUIDIX shall also have the right to sue the client at his habitual jurisdiction.
c.) The law of the Federal Republic of Germany is applicable to these General Terms and Conditions and to all legal relations between BIOFLUIDIX and the client without applying the UN sales law. In so far as the law of the Federal Republic of Germany refers to the law of another country or to international law, for instance the UN Convention of International Sales of Goods (CISG), this reference is expressly considered as ineffectual.
§ 10 Concluding Conditions
a.) Any additional amendments or changes to the contract are only valid if confirmed by BIOFLUIDIX in writing. This includes especially the expressly warranted properties of any product and the written form requirement.
b.) If individual regulations of these GTCs are contradictory to the delivery and payment conditions stated in the purchase order confirmation in written form, the conditions stated in the purchase order confirmation shall apply.
c.) In case any regulations of these GTCs are excluded in the contract or should be void, be it in whole or in part, the remaining parts of this General Terms and Conditions shall still be effective. In addition any applicable statutory provisions shall be considered. The respective German text of these GTCs shall prevail.
B. Terms of business for sales of goods
§ 1 General Regulations
a.) The special contract conditions for sales of goods apply to all business relations of BIOFLUIDX which concern the delivery of goods to the client as subject of the contract.
b.) The general terms and conditions of BIOFLUIDX as given above (part A) shall apply categorically and exclusively, if no other regulations are constituted individually by the terms of business for sales of goods or the purchase order confirmation
§ 2 Warranty
a.) Possibly existing faults or deficiencies of the delivery must be documented and reported in written form to BIOFLUIDIX immediately after delivery of the goods to the client. Warranty claims concerning any deficiencies expire if the claim has not been filed with BIOFLUIDIX within one week after receipt of the delivery.
b.) In the case there is a fault or deficiency of the delivered product, BIOFLUIDIX has the choice to eliminate the faulty condition by either repair or replacement. In the case of repair, BIOFLUIDIX is obliged to carry all costs for transport, work and materials in so far, as these costs are not increased, because the product has been moved to a different location from the delivery address as agreed in the contract. If repair or replacement has not eliminated the faulty condition satisfactorily, the client has the choice to withdraw from the contract or to request a reduction of the purchasing price.
c.) The warranty claim expires after a period of twelve months from the date of delivery. In the case of a substitute delivery the period of expiration remains unaffected according to §§ 478 and 479 German Civil Code (BGB).
d.) Any warranty claim becomes invalid in the case a seal on the good attached by BIOFLUIDIX prior to delivery has been broken. Before announcing any warranty claims, the client has to deliver proof that the seals are still intact.
§ 3 Disclaimer
a.) In cases of deliberate intention or gross negligence by BIOFLUIDIX, any representatives or vicarious agents, as well as culpably caused injuries to life, limb or health BIOFLUIDIX shall be liable according to the legal conditions. However, the liability of BIOFLUDIX is restricted to the foreseeable damage typical to the contract in cases of gross negligence. Apart from this, BIOFLUIDIX is only liable according to the German product liability law, in cases of culpable violation of central contractual obligations or if a defect was fraudulently concealed or the quality of the item delivered was guaranteed. The claim for damages when violating essential contractual obligations is however restricted to the foreseeable typical damage from the contract.
b.) All regulations of the preceding para. a.) apply for all claims for damages (especially for compensations besides performance and compensations instead of performance) despite any legal foundation, especially because of deficiencies, the breach of obligations under the contract or liability in tort. They apply as well for the claim for reimbursement of fruitless expenses. All liabilities for delay is excluded to the fullest extent permitted by law.
c.) The regulations above shall not shift the burden of proof to the prejudice of the client.
§ 4 Retention of Title
a.) Any delivered product remains full property of BIOFLUIDIX until all obligations of the client have been completely fulfilled (retention of title).
b.) Up to this point, especially until full payment of the sales price, the client is obliged to treat the product carefully.
c.) The client has the right to sell the product in an ordinary business act. In this case however, the client already assigns all claims, which result out of this sale to his customers or a third party, to BIOFLUIDIX up to the amount of any outstanding payments according to the invoice including value added tax (VAT). This is independent of the fact whether the sale might has taken place after modifications had been carried out. The client remains authorized to collect this debt after the assignment. BIOFLUIDIX´s authorization to collect payments remains unchanged, however BIOFLUIDIX assures not to collect any payments as long as the client meets all obligations of the contract towards BIOFLUIDIX and no application for opening of an insolvency process has been made, or a suspension of payment has occurred. If this is the case, BIOFLUIDIX may demand that the client shall disclose all assigned claims and their debitors, provide all information necessary for collection, inform the debitor (third party) about the assignment and hand over to BIOFLUIDIX any relevant documents.
d.) Processing or modification of the product by the client occurs always in the name of BIOFLUIDIX. When in the course of processing, the product becomes part of equipment not owned by BIOFLUIDIX, BIOFLUIDIX acquires a share of ownership of the new product in the ratio of the value (invoice plus VAT) which the product had to the other parts prior to processing. Apart from, this the same regulations shall apply for the product resulting through processing as for the product delivered subject to retention of title.
e.) When in the course of processing, the product is inseparably mixed with equipment not owned by BIOFLUIDIX, BIOFLUIDIX acquires a share of ownership of the new product in the ratio of the value (invoice plus VAT) which the product had to the other mixed parts prior to processing. When the integration of the product occurs in a way that the new product into which it has been integrated must be considered as the main product of the client, then the client shall transfer a relevant share of ownership onto BIOFLUIDIX. Thus, the client acts as custodian over the so developed co-ownership for BIOFLUIDIX.
f.) In the case of seizure or other intervention by a third party, the client has to inform BIOFLUIDIX immediately, to enable BIOFLUIDIX to file a law suit according § 771 German civil lawsuit order (“Zivil Prozeß Ordnung” -ZPO). If the third party is unable to reimburse the judicial or out of court costs of a lawsuit according to § 771 ZPO to BIOFLUIDIX, the client shall be liable for the loss incurred by BIOFLUIDIX.
C. Terms of business for development services and prototype manufacturing
§ 1 General Regulations
a.) The special contract conditions for development services and prototype manufacturing apply for all business relations of BIOFLUIDX which concern the delivery of development services, the execution of feasibility studies or the manufacturing of prototypes on behalf of the client as subject of the contract.
b.) The general terms and conditions of BIOFLUIDX as given above (part A) shall apply categorically and exclusively, if no other regulations are constituted individually by the terms of business development services and prototype manufacturing or the purchase order confirmation
§ 2 Conclusion of the Contract and Specification Sheet
a.) For the conclusion of a contract for development services or prototype manufacturing a preceding written offer of BIOFLUIDIX is mandatory, which at least contains the scope of delivery but usually, however, a development plan and a specification sheet as appendix. For long-term offers a development plan with milestones and partial deliveries shall be established as appendix. Oral offers are excluded and have no validity.
b.) Subject of the BIOFLUIDIX offer is exclusively the development service described fully within the offer and its corresponding documents as well as, if applicable, the prototype developed and realized in the frame of the offer. After the order is placed by the client, objections of defectiveness of the delivery due to incompleteness of the development plan, the specification sheet or the prototype are illegitimate.
c.) BIOFLUIDIX delivers the development service with utmost care, the special know-how of its employees and under consideration of the current state of the art. However, BIOFLUIDIX does not provide any warranty for the results of the development, especially its commercial usability and the freedom of errors. The obligation by BIOFLUIDIX to fulfill the contract is in any case restricted to the agreed scope of delivery and the warranted properties stated in the purchase order confirmation and the specification sheet (see also “§ 4 material defects”).
d.) If the scope of the offer is an experimental investigation, a feasibility study or a consulting service, the contract is fulfilled as soon as BIOFLUIDX executed all tasks according to the purchase order confirmation and the results are documented for the client in an adequate manner. There exists no obligation to reach certain results or specific technical functions in this case.
§ 3 Realization, scope of delivery and acceptance criteria
a.) Exclusively the order placed with BIOFLUIDIX in the version of the purchase order confirmation of BIOFULIDIX is relevant for obligations of the contract to deliver development services or the manufacturing of a prototype, respectively.
b.) The client is obligated to provide BIOFLUIDIX with all necessary information for the realization of the development service or the manufacturing of the prototype. Especially information concerning technical requirements and needs, any claim about the capability, design, visual and surface feel, used materials and the intended use of the good must be provided. After placing the order, the client may not rely on the argument that, for what reason ever, BIOFLUIDIX was not provided with all necessary information to realize the development or the manufacturing of the prototype, respectively.
c.) The scope of delivery and acceptance criteria for the executed development in the order is specified in the purchase order confirmation of BIOFLUIDIX. The client is responsible to inspect the results of the development and to admonish them if the results are considered to be unsatisfactory. The development service is presumed to be accepted if any deficit is not admonished within 30 days after delivery.
d.) If in the context of the development order BIOFLUIDIX did manufacture a prototype, the client is responsible to investigate the prototype for defects (e.g. integrity, function and absence of deficits, the visible and technical correspondence with the specification sheet, capabilities, etc.). The prototype is presumed to be accepted if any defect is not admonished within 30 days after delivery.
e.) Prototypes are no products of BIOFLUIDIX in the sense of the law on product liability, but only results of a development work which was executed for the client in the context of a development service. Insofar BIOFLUIDIX acts as an agent of the client to realize the prototype and not as the manufacturer of the prototype. Therefore, the client is responsible himself that all legal regulations are met when using the prototype in the context of his own research and development activities.
§ 4 Defects
a.) The legitimation of the client concerning defects on a development service executed by BIOFLUIDIX after placing the order follows the GTCs of BIOFLUIDIX and the legal regulations.
b.) A defect or deficiency in law is not given, if the development service executed by BIOFLUIDX after placing the order is in accordance with the development plan and the specification sheet which the client has accepted once.
Minor deviances that have no influence on the functionality and capability of the good in respect to the usage known by BIOFLUIDX are not being considered as defect.
c.) If the client did not sufficiently stated precise specifications concerning used materials, capabilities, design, visual and surface feel, etc., the client may not object that BIOFLUIDIX only delivered average type and quality regarding the known intended use of the good by the client.
d.) Any damage compensation claims of the client are excluded, if the good to develop is in accordance to the development plan and specification sheet. Minor deviations that have no influence on the functionality, visual appearance and capability of the good regarding the intended use known by BIOFLUIDIX justify no deviation of accordance.
e.) Concerning possible defects caused by latent deficits of the development result or the prototype respectively, BIOFLUIDIX is only liable for deliberate intention or gross negligence. Any liability for ordinary negligence is excluded.
§ 5 Industrial and Intellectual Property Rights, Ownership in Development Results and Prototypes
a.) All rights in the development service and prototype delivered by BIODLUIDIX as well as all drawings and descriptions and rights in software produced in the context of the development are exclusively with BIOFLUIDIX. The filing of industrial and intellectual property rights and the commercial use of the development results are exclusively reserved to BIOFLUIDIX.
b.) Tangible models and prototypes which were produced for the client in the context of the development are the property of the client with the following limitation: to preserve the confidentiality of the development results (see § 6 confidentiality), the transfer of models or prototypes to third parties by the client is only permissible after a period of five years following the delivery or with the written approval of BIOFLUIDIX also at an earlier point in time. Placing the prototype on the market is not permitted.
c.) The publication of the development results or the transfer of results to third parties requires the written approval of BIOFLUIDIX. The reproduction of prototypes is not permitted in any case.
d.) The client obtains a non-transferable right to use the development results and prototypes within the scope of its own research and development activities for the contractually agreed purpose.
§ 6 Confidentiality
The contractual parties commit themselves to hold all information given by the other party in the context of executing the contract strictly confidential, not give them to third parties and not publish them. Particularly this concerns the content of the specification sheet, the results of the development as well as the technical realization and design and functional range of prototypes. The public presentation or the transfer of prototypes to third parties respectively is therefore especially due to confidentiality reasons not permitted.