General Terms and Conditions

1. Scope of application

These General Terms and Conditions apply to all contracts between BIOFLUIDIX GmbH and its customers.
These General Terms and Conditions apply exclusively to entrepreneurs, legal entities under public law or special funds under public law. An entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the exercise of his commercial or self-employed professional activity.
These General Terms and Conditions apply to all offers and services. They also apply to all future contracts with the customer, even if they are not expressly agreed again.
In case of a purchase contract between BIOFLUIDIX and customers who have their registered office or the branch entrusted with the contract outside of Germany (cross-border sales), the Special Terms and Conditions for International Sale shall apply primarily; the respective branch that concludes the contract in its own name is decisive. These General Terms and Conditions shall only apply insofar as the Special Terms and Conditions do not regulate an issue.

2. Customer’s terms and conditions

Any regulations in the customer's terms and conditions that contradict or deviate from the regulations of these General Terms and Conditions shall only apply if BIOFLUIDIX expressly agree to their validity.
If individual provisions of these General Terms and Conditions deviating from these General Terms and Conditions are agreed between BIOFLUIDIX and the customer, this shall not affect the validity of the remaining provisions of these General Terms and Conditions.

3. Structure

These conditions are divided into Part A concerning purchase contracts, Part B concerning maintenance services, Part C concerning repair services and Part D concerning common provisions.

Part A

Purchases

4. Offer/acceptance of order

BIOFLUIDIX’s offer is non-binding.
BIOFLUIDIX reserve the right to make changes and errors in the illustrations and drawings relating to its goods in brochures, advertising materials and price lists as well as the data contained therein, e.g. regarding material, dimensions, form retention, unless they are expressly designated as binding.
The customer is bound to an order two weeks after receipt by BIOFLUIDIX.
The contract is concluded either by sending its written order confirmation or with the fulfilment of the order, whichever comes first.

5. Delivery periods and non-availability of the goods

Any information about delivery times is always non-binding, unless they have been designated as binding.
Subject to Clause 3 below, the delivery period begins with the dispatch of the order confirmation by BIOFLUIDIX.
If the customer is obliged to procure certain documents, such as permits, releases, etc., himself or to make a down payment, the delivery period shall begin at the earliest at the time at which all documents to be procured by the customer have reached BIOFLUIDIX or a down payment to be made has reached us.
The delivery period shall be deemed to have been met if the goods have left the factory or readiness for dispatch has been notified by the time it expires.
If BIOFLUIDIX is unable to meet binding delivery deadlines for reasons for which BIOFLUIDIX is not responsible (non-availability of the service), BIOFLUIDIX shall inform the customer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, BIOFLUIDIX shall be entitled to withdraw from the contract in whole or in part; BIOFLUIDIX shall immediately refund any consideration already rendered by the customer. The case of non-availability of the service in this sense shall in particular be deemed to be the non-timely self-supply.
The occurrence of BIOFLUIDIX’s delay in delivery is determined in accordance with the statutory provisions. In any case, however, a reminder with a reasonable period of notice by the customer is required.
Its liability in the event of default in delivery is limited in accordance with Clause 27. In all other respects, the statutory rights of the customer and its statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

6. Partial deliveries, partial delay, partial impossibility

Partial deliveries are permissible and can be invoiced independently, provided that this is reasonable for the customer and he has an objective interest in the partial delivery.
In the event of a partial delay or partial impossibility, the customer may only withdraw from the entire contract or demand damages for non-performance of the entire obligation if the partial performance of the contract is of no interest to him.
In all other respects, the provisions of Clause 5 above shall apply accordingly in the event of partial default.

7. Delivery and transfer of risk

FCA (Incoterms 2010) from BIOFLUIDIX’s designated shipping facility applies to delivery and transfer of risk. The risk shall pass to the customer FCA even if BIOFLUIDIX bears the shipping costs in individual cases.
Irrespective of the agreed Incoterms clause, packaging will be charged according to expenditure.
If dispatch is delayed due to circumstances for which BIOFLUIDIX is not responsible or at the request of the customer, the risk shall pass to the customer from the day of notification of readiness for dispatch; however, BIOFLUIDIX shall be obliged, at the request and expense of the customer, to effect the insurance required by the customer.
If dispatch is delayed at the request of the customer, the monthly storage costs shall be charged to him starting one month after notification of readiness for dispatch locally usual storage cost.
If the goods are dispatched at the request of the customer, BIOFLUIDIX shall choose the dispatch routes and means of dispatch without assuming any warranty for the cheapest shipment.

8. Prices/Terms of payment

All prices are quoted in EURO plus applicable value added tax FCA (Incoterms 2010) from BIOFLUIDIX’s place of company, plus packaging and shipping costs unless otherwise expressly agreed.
Payments shall be free Supplier's place of payment within 30 days net.
In case of payment by bill of exchange, all expenses and costs will be charged.
Offsetting against counterclaims is only permissible if these have been valid and due counterclaims from the same contractual relationship, are legally established or are undisputed.
The customer is only entitled to withhold payments on the basis of valid and due counterclaims from the same contractual relationship.

9. Retention of title

BIOFLUIDIX retains title to the goods until the complete fulfilment of all – including future – receivables (including all ancillary claims such as financing costs, interest) arising from the business relationship with the customer if our right to the purchase price is not secured by other means (e.g. letter of credit).
The customer is obligated to handle the goods subject to retention carefully and to insure them sufficiently against fire and water damage and loss due to theft at its own costs.
BIOFLUIDIX undertakes to release the securities to which BIOFLUIDIX is entitled at the customer’s request and at our discretion if the realizable value of the securities exceeds the receivables of BIOFLUIDIX to be secured by more than 10%.
In the case of attachment, confiscation or similar and in the event of damage and/or loss of the items delivered, the customer must notify BIOFLUIDIX immediately; a breach of this obligation gives BIOFLUIDIX the right to withdraw from the contract. The customer bears all the costs that need to be incurred in particular within the framework of an objection by a third party to the successful rescission of a seizure and if applicable to a successful new purchase of the items delivered if they cannot be collected by third parties.
If BIOFLUIDIX has validly withdrawn from the contract, BIOFLUIDIX is entitled to take back the goods under retention of title if the taking back is threatened with a suitable period of time. The costs arising from the exercising of the right of retention, in particular for transport, will be borne by the customer. BIOFLUIDIX is entitled to utilize the goods under retention of title that BIOFLUIDIX takes back and to satisfy itself from their proceeds if the utilisation was threatened beforehand with an appropriate period of notice. If the proceeds should exceed the outstanding receivables from the contractual relationship, this surplus will be surrendered to the customer.
In the event that cash payment or advance payment has been agreed, ownership shall pass in full to the customer upon delivery. If BIOFLUIDIX agrees a deferment of payment with the customer or delivers to the customer despite knowledge of payment difficulties, BIOFLUIDIX waives the extended retention of title and delivers under simple retention of title.

10. Notice of defects, rights in case of material defects

The customer must inspect the goods immediately upon receipt and give written notice of all recognizable defects without undue delay, but at the latest within seven (7) days; otherwise the goods are deemed to be approved. Hidden defects must be notified in writing immediately after discovery, at the latest after seven (7) days; otherwise the goods shall also be deemed approved with regard to these hidden defects.
If no defect in the goods is found after a notification of defect by the customer, the customer shall bear the costs incurred by BIOFLUIDIX.
Claims for material defects do not exist in the case of defects,
which are attributable to circumstances occurring after the transfer of risk,
which are caused by improper use or improper service or repair work by the customer,
which are based on arbitrary changes by the customer,
which are attributable to normal wear and tear or normal deterioration, or
otherwise attributable to the sphere of the customer.

BIOFLUIDIX may charge for additional costs resulting from such malfunctions.

If the goods have a defect, BIOFLUIDIX may, at its discretion, either remedy the defect (repair) or deliver a defect-free item (replacement) as subsequent performance. In all other respects, the customer is entitled to the statutory rights of material defects. In all cases, the statutory special regulations remain unaffected when the unprocessed goods are delivered to a consumer, even if the consumer has processed them further. Claims from supplier regress are excluded if the defective goods have been further processed by the customer or another company, e.g. by installation in another product.
The customer must give BIOFLUIDIX the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained of for inspection purposes. In the event of a replacement delivery, the customer must return the defective goods to BIOFLUIDIX in accordance with the statutory provisions.
Complaints about partial services do not entitle the customer to reject the remaining services, unless the customer is entitled to withdraw from the entire contract due to the defective partial service.
If the customer asserts claims for damages, BIOFLUIDIX shall only be liable taking into account the following Clause 27.

11. Software, Intellectual property rights, Reverse engineering, Infringement

The supplied software that accompanies the product is subject to an end-user license agreement that has to be accepted before installation.
All other rights to the software and documentation including copies shall remain with BIOFLUIDIX or the software supplier. The customer shall not be permitted to issue sublicenses.
The provisions of Clause 9 above (reservation of title), Clause 10 (notice of defects, rights in the event of material defects) and Clause 27 (liability) shall also apply mutatis mutandis to the software. Clause 3 shall apply subject to the proviso that material defect rights in the software shall also not arise if the defect is attributable to the fact that the software is used in a hardware and/or software environment which does not meet the requirements specified by BIOFLUIDIX, as well as for changes and modifications which the customer has made to the software without being entitled to do so by operation of law, these General Terms of Delivery or on the basis of BIOFLUIDIX’s prior written consent.
All intellectual and industrial property rights, including, but not limited to, copyrights, trademarks and patents, incorporated in the goods, software, and/or accompanying documentation are and shall remain property of BIOFLUIDIX.
The customer shall not use observation, study, disassembly or testing of the purchased goods (reverse engineering) to acquire any trade secrets of BIOFLUIDIX contained in the goods.
In no case of infringement of third party industrial property rights BIOFLUIDIX will compensate the customer for loss of profit and other consequential damage.

Part B

Maintenance Services

12. Scope of this Part B

The provisions of this Part B apply to all supplemental maintenance services (maintenance or inspection) provided by BIOFLUIDIX.

13. Scope of services

The scope of the services to be provided shall be determined by BIOFLUIDIX's offer.
If during maintenance (maintenance, inspection or calibration) it is determined that repairs are necessary which exceed the agreed scope of services, this will be discussed with the customer on site. The further procedure requires a separate agreement in text form (in writing or by e-mail) to which the provisions of Sections B and C apply. In the event of possible changes to services, the signed assembly order may result in an additional or reduced charge.

14. Cost of material

The consumables and wear and tear parts required within the scope of maintenance shall additionally be charged according to actual expenditure, unless they are included in the scope of services in accordance with Clause 1.
The parts used shall be invoiced at BIOFLUIDIX's prices valid at the time of delivery.
No charge shall be made if the material is required under BIOFLUIDIX's warranty obligation and within the warranty period.

15. Obligations of the customer

The conclusion of a maintenance contract does not release the customer from the obligation to carry out the maintenance work prescribed in the operating and user manual, unless this maintenance work was expressly ordered from BIOFLUIDIX according to the underlying offer.
The maintenance personnel must be allowed access to the machinery and equipment during normal business hours / operating hours for the performance of announced maintenance work. The customer shall provide BIOFLUIDIX with any information requested about the machines and systems to be maintained and shall make the associated documents available to BIOFLUIDIX.

16. Time of maintenance

BIOFLUIDIX undertakes to carry out maintenance at the intervals specified in the offer for the objects specified therein.
BIOFLUIDIX shall inform the customer of the exact date of the maintenance at least one week in advance, unless a specific date has been agreed.
Should it not be possible for the customer to carry out the work on the scheduled date, BIOFLUIDIX must be notified at the latest seven (7) days before the scheduled date. In the event of late notification, the price shall be due in full if the maintenance technicians could not be employed elsewhere at the scheduled time, unless the customer is not responsible for the late notification.
If maintenance is delayed by measures within the scope of industrial disputes, in particular strikes and lockouts, as well as the occurrence of circumstances for which BIOFLUIDIX is not responsible, an appropriate extension of the maintenance period shall occur, provided that such obstacles are demonstrably of considerable influence on the completion of maintenance.
If the customer suffers any damages, the limitation of liability pursuant to Clause 27

17. Conclusion of contract, Prices

The maintenance contract comes into force with the order confirmation by BIOFLUIDIX.
A fixed price shall be agreed for each maintenance object and, if applicable, a fixed term specified in the order confirmation of BIOFLUIDIX.
The price for the work of the maintenance personnel plus applicable VAT, if any, is to be paid within thirty (30) days after date of the invoice.

18. Claims for breach of contract

If the agreed service is not performed completely and properly, BIOFLUIDIX shall make up for it or repair it free of charge.
If BIOFLUIDIX fails to fulfill its obligation to make good, rectify or rectify the damage, the customer shall be entitled to set a reasonable period of grace. If BIOFLUIDIX fails to meet this deadline, the customer may either demand a reduction or terminate the contract without notice. This also applies in the event of failure to repair the damage. The customer also has the right - if feasible - to have the work carried out by third parties and to demand compensation from BIOFLUIDIX for the necessary costs. BIOFLUIDIX's liability for damages shall be governed by Clause 27.

19. Other provisions

Extensions, relocations, partial renewals and other changes to the machines and systems may only be carried out by or in agreement with BIOFLUIDIX during the term of the maintenance contract.
If the customer leaves machines and systems to third parties, his obligation to pay the annual premium shall remain in force, unless the third party enters into this contract with BIOFLUIDIX's consent. Consent can only be refused by BIOFLUIDIX for important reasons.
BIOFLUIDIX may inspect machines and equipment when taking over the maintenance of machines or equipment not supplied by BIOFLUIDIX or when taking over the maintenance of machines and equipment that have been in operation or out of operation for a certain period of time. The costs of the inspection and any repair work will be invoiced separately to the customer.

Part C

Repair Services

20. Scope of this Part C

The provisions of this Part C apply to all repair services provided by BIOFLUIDIX, unless the services are provided under warranty. In this case, Part A applies.

21. Reaction model

If the customer has ordered the reaction model from BIOFLUIDIX, BIOFLUIDIX undertakes to make a technician available to the customer for on-site repair within the agreed reaction time after receipt of a fault report. The response time is extended by the time period during which it is determined whether it is possible to rectify the fault over the telephone or by remote control via internet.

22. Prerequisites for repair and provision by the customer

Before the start of the repair, all necessary preconditions must have been created on the part of the customer so that the work can be started and carried out without interruption immediately after arrival of the service personnel without danger to their life and health.
The customer has to take over in any case at his own expense:
Sample material for instruction in the intended use of the delivery item is provided,
appropriate lockable rooms for BIOFLUIDIX employees and the storage of materials.

23. Transport

If repairs cannot be carried out on the customer's premises, BIOFLUIDIX shall transport the object to be repaired to its premises and back to the customer's premises at the customer's expense.
The risk of accidental loss of the object during the outward and return transport as well as during storage and repair on BIOFLUIDIX's premises shall be borne by the customer. BIOFLUIDIX shall be liable with regard to the object exclusively within the scope of the provision in Clause 27 and 28.

24. Inspection and approval

The repair services provided by BIOFLUIDIX must be accepted by the customer immediately after completion of the work (acceptance period). Acceptance may not be refused due to insignificant defects.
BIOFLUIDIX shall be notified of any refusal to accept delivery within the acceptance period, otherwise the repair shall be deemed to have been accepted. Time, place, type and extent of the defect must be described in detail.
The repair work shall also be deemed to have been accepted if the customer uses the machine in repair in his business operations.
In the event of a delay in acceptance, the risk shall pass to the customer.
If the customer is in default of acceptance or violates other duties to cooperate, he shall be obliged to compensate for the resulting damage. In the event of a delay in acceptance, the customer shall pay a lump-sum compensation amounting to 10% of the order value. The customer reserves the right to prove a lesser damage.

25. Remuneration and cost of material

The repair takes place against payment according to time expenditure. The customer shall be charged the respectively valid hourly rates, including additional costs for overtime as well as work on Sundays and public holidays. Travel time and waiting time are considered working hours.
Costs for travel to and from the site, transport of luggage and tools as well as other costs arising in connection with the repair shall also be borne by the customer.
The material required within the scope of the repair will be charged additionally according to actual expenditure.
The parts used shall be invoiced at BIOFLUIDIX's prices valid at the time of delivery.
No calculation shall be made if the repair is carried out within the framework of BIOFLUIDIX's warranty obligation and within the warranty period.

Part D

General

26. Scope of this Part D

The provisions of this Part D apply to all contracts with BIOFLUIDIX.

27. Liability

BIOFLUIDIX is liable without limitation for damages resulting from injury to life, body or health which are based on a negligent breach of duty by BIOFLUIDIX or on an intentional or negligent breach of duty by its legal representative or vicarious agent, and in the case of statutory liability without fault, in particular in the case of express guarantee (Garantiehaftung).
BIOFLUIDIX is liable for other damages which are based on an intentional or grossly negligent breach of duty by BIOFLUIDIX or on an intentional or grossly negligent breach of duty by its legal representative or vicarious agent. In this case the liability is limited to the typical damage foreseeable at the time of conclusion of the contract.
In the event of intentional or negligent breach of an essential contractual obligation, BIOFLUIDIX shall only be liable for typically occurring damage that was foreseeable at the time the contract was concluded. An essential contractual obligation is such an obligation which makes the proper performance of the contract concluded with the customer possible in the first place and on which the customer has trusted and was allowed to trust and whose culpable non-performance endangers the achievement of the purpose of the contract.
In all other cases its liability is excluded.
Insofar as its liability is excluded or limited, this also applies to its employees, representatives and vicarious agents.

28. Limitation

In the case of supplier regress in the supply chain of a consumer goods purchase, in the case of statutory no-fault liability, in particular under the Product Liability Act and in the case of warranty liability, the statutory limitation period shall apply.
In the case of damages resulting from injury to life, body or health, which are based on a negligent breach of duty by BIOFLUIDIX or an intentional or negligent breach of duty by its legal representative or vicarious agent, in the case of other damages, which are based on an intentional or grossly negligent breach of duty by BIOFLUIDIX or on an intentional or grossly negligent breach of duty by its legal representative or vicarious agent, as well as for damages which are based on an intentional or negligent breach of essential contractual obligations under the respective contract by BIOFLUIDIX or its legal representative or vicarious agent, the statutory warranty period also applies.
In the case of a structure and in the case of an object which has been used for a structure in accordance with its normal manner of use and which has caused its defectiveness, and in the case of a structure whose success consists in the provision of planning or monitoring services for a structure, the limitation period shall be five years.
In all other cases the warranty period is one year.

29. Force Majeure

Any event, which is beyond the BIOFLUIDIX’s control, such as acts of nature (e.g. earthquakes), war, unforeseeable governmental or administrative actions (including governmental interruption and restriction/prohibition affecting the efficacy of the production and/or delivery of the goods), or strikes, shall relieve BIOFLUIDIX from its contractual obligations for the duration of such event or circumstance and to the extent of the effects resulting there from. If any such case occurs, BIOFLUIDIX shall inform the customer immediately indicating the presumable duration and extent of such contingency. BIOFLUIDIX shall promptly use all reasonable efforts to settle such contingencies so that the performance of its contractual obligations can be resumed as soon as possible.

30. Secrecy

Both parties shall maintain secrecy about all business matters and processes, in particular all secret data of one party relating to its economic condition and market behavior, as well as all technical data that are disclosed by a party during the performance of the contract and have been expressly and provably designated as confidential or secret by the disclosing party (“confidential information”). This does not include information which is demonstrably generally known or published at the time of disclosure, which belongs to the general technical knowledge, is of general state of the art or is individually known to the concrete party receiving it; the parties shall inform each other in text form of such prior individual knowledge without delay after disclosure.
The obligation to maintain secrecy shall not apply if and as soon as the confidential information becomes generally known after the date of disclosure without any action by a party that violates the confidentiality agreement, is individually disclosed to the specific party by third parties without such third parties in turn violating a confidentiality obligation with respect to the confidential information, is independently recognized or developed by the receiving party independently of the confidential information, is disclosed in writing to the public by the disclosing party or must be disclosed in accordance with mandatory statutory provisions. In the latter case, the receiving party shall inform the other party of the disclosure obligation without delay.
Except in the cases described in Clause 2 above, any disclosure to third parties, unless absolutely necessary for the execution of the contract, requires the express prior consent of the disclosing party. The receiving party shall be obliged to agree a corresponding obligation to maintain secrecy with his employees to the extent permissible under labour law and with authorised third parties.

31. Protection of Personal Data

The customer agrees that BIOFLUIDIX may store, use or process personal data in accordance with the provisions of the German Federal Data Protection Act and the General Data Protection Regulation to the extent necessary for the performance of this contract.

32. Place of Performance, applicable Law and Jurisdiction

Place of performance for deliveries and payments is Freiburg, Breisgau, Germany.
Any contracts shall be governed solely by the laws of the Federal Republic of Germany; in case of international purchase contracts the Special Terms and Conditions for International Sale shall govern applicable law.
The place of jurisdiction for all disputes in connection with the contract is the competent court at BIOFLUIDIX’s business seat in Freiburg, Breisgau, Germany. However, BIOFLUIDIX may also assert claims in the legal place of jurisdiction of the customer.

Version 1.0
Date 27/04/2020

Special Terms and Conditions
for International Sale
of BIOFLUIDIX GmbH

as of 27/04/2020

33. Scope of application

These Special Terms and Conditions for International Sale shall apply primarily to all purchase contracts between BIOFLUIDIX GmbH (“BIOFLUIDIX”) and those of its customers who have their registered office or the branch entrusted with the contract outside of Germany (cross-border sales); the respective branch that concludes the contract in its own name is decisive.
These Special Terms and Conditions apply to all contracts whose preponderant object is the supply of goods to the customer. Additional obligations assumed by BIOFLUIDIX do not affect the application of these Special Terms and Conditions.
In addition, the General Terms and Conditions shall apply insofar as these Special Terms and Conditions for International Sale do not regulate an issue even if the General Terms and Conditions are not particularly referenced in the offer or order confirmation.
These Special Terms and Conditions do not apply if the customer acquires the goods for personal, family or household use and BIOFLUIDIX knew or ought to have known this when the contract was concluded.
These Special Terms and Conditions apply to all offers of sale of BIOFLUIDIX. They also apply to all future contracts with the customer if reference is made in BIOFLUIDIX’s offer to these Special Terms and Conditions.

34. Customer’s Terms and Conditions

Any regulations in the customer's terms and conditions that contradict or deviate from the regulations of these Special Terms and Conditions of Business or the provisions applicable according to Clause 51.4 shall only apply if BIOFLUIDIX expressly agree to their validity.
If individual provisions of these General Terms and Conditions deviating from these General Terms and Conditions are agreed between BIOFLUIDIX and the customer, this shall not affect the validity of the remaining provisions of these General Terms and Conditions.

35. Formation of Contract, Scope of Agreement

BIOFLUIDIX’s offer is non-binding.
BIOFLUIDIX reserves the right to make changes and errors in the illustrations and drawings relating to its goods in brochures, advertising materials and price lists as well as the data contained therein, e.g. regarding material, dimensions, form retention, unless they are expressly designated as binding.
The customer is obligated to give notice in text form to BIOFLUIDIX before conclusion of contract

if the goods to be supplied are to be not only suitable for normal use or the customer orders on the assumption of a particular purpose or his expectations are based on public statements, advertising messages or other circumstances outside the formation of the concrete contract
if the goods to be supplied are to be used under unusual conditions or conditions presenting a particular risk to health, safety or environment or requiring a more demanding use or
if any atypical damage potential or any unusual amounts of loss, in particular exceeding the limits set in Clause 46 could be associated with the contract. This obligation applies only with relation to such use conditions, damage potential, or unusual extents of damage of which the customer is or ought to aware.
The customer’s order is irrevocable for two weeks after receipt by BIOFLUIDIX.
The contract is concluded by sending the order confirmation in text form (e.g. written or via e-mail). The actual delivery of the goods ordered, any other conduct of BIOFLUIDIX or silence on the part of BIOFLUIDIX does not allow the customer to assume the formation of the contract.
Particular wishes of the customer, namely particular expectations of the customer regarding the usage or the condition of the goods, guarantees or warranties with reference to the goods or the performance of the contract, as well as performance declarations, instruction manuals or security-related information requested by the customer in electronic or print form, require express confirmation in text form by BIOFLUIDIX in every case:
Confirmations of the contract produced by the customer are of no effect without any objection by BIOFLUIDIX being necessary. In particular, neither the actual delivery of the goods, any other conduct of BIOFLUIDIX or silence on the part of BIOFLUIDIX shall give rise to any belief by the customer in the relevance of his confirmation.
BIOFLUIDIX’s employees, commercial agents or other sales intermediaries are not authorized to dispense with the requirement of an order confirmation in text form by BIOFLUIDIX or to make promises which differ from its content or guarantees. If and to what extent such persons are authorized to make or receive declarations with effect for or against BIOFLUIDIX, is to be determined according to German law.
Amendments to the concluded contract always require confirmation in text form by BIOFLUIDIX.

36. Obligation of BIOFLUIDIX

Subject to a failure of delivery on part of his suppliers irrespective of a congruent covering transaction or to an exemption according to Clause 50, BIOFLUIDIX must deliver the goods specified in the order confirmation in text form and transfer the title in the goods. BIOFLUIDIX is not obliged to perform obligations not stated in the order confirmation in text form by BIOFLUIDIX or in these Special Terms and Conditions of International Sale, in particular BIOFLUIDIX is under no obligation if not explicitly agreed upon in text form to give information regarding the goods, to furnish documents or certificates regarding the goods, to deliver accessories, to install additional safety devices, to carry out assemblies or to advise the customer
BIOFLUIDIX’s obligations under the purchase contract with the customer are owed only to the customer. Third parties not involved in the formation of the contract, in particular the customer's clients, are not entitled to request delivery to be made to them or to assert any other claim arising from the customer’s contract with BIOFLUIDIX. The customer gives BIOFLUIDIX an unlimited indemnity against all claims made by contracting partners of the customer against BIOFLUIDIX invoking the contract made between BIOFLUIDIX and the customer. The customer's entitlement to take delivery continues to exist even if he assigns rights to third parties.
BIOFLUIDIX undertakes to deliver to the customer goods of the agreed kind and quantity which meet the common standards applicable in Germany and ensures that at the time of delivery the goods are free from rights or claims of private third parties which could prevent its use within the European Union.
Partial deliveries are permissible and can be invoiced independently, provided that this is reasonable for the customer and he has an objective interest in the partial delivery.

37. Delivery Periods

Any information about delivery times is always non-binding, unless they have been designated as binding.
Subject to Clause 3, the delivery period begins with the dispatch of the order confirmation by us.
If the customer is obliged to procure certain documents, such as permits, releases, licenses or any other authorizations or consents, himself and/or to submit letters of credit or to make a down payment, the delivery period shall begin at the earliest at the time at which all documents to be procured by the customer have reached BIOFLUIDIX or a down payment to be made has reached BIOFLUIDIX.
Compliance with agreed delivery time periods or delivery dates is subject to the customer's procuring any required documents, releases, permits, approvals, in sufficient time, making down-payments as agreed and performing all other obligations incumbent upon him properly and in good time and subject to no delay caused by pre-shipment inspections mandated by not German authorities. Moreover, agreed delivery time-periods begin on the date of the order confirmation in text form by BIOFLUIDIX. After informing the customer, BIOFLUIDIX is entitled to deliver earlier than at the agreed delivery time or to select the date of delivery within the agreed period for delivery.
The delivery period shall be deemed to have been met if the goods have left the factory or readiness for dispatch has been notified by the time it expires.
Without prejudice to its continuing legal rights, BIOFLUIDIX is entitled to fulfil its obligations after the delivery time periods or delivery dates agreed upon, if the customer is informed that BIOFLUIDIX will exceed the delivery time limit and of the time period for late performance. Subject to aforesaid conditions, BIOFLUIDIX is entitled to make repeated attempts at late performance. The customer can object to late performance within reasonable time, if the late performance is unreasonable. An objection is only effective, if it is received by BIOFLUIDIX before commencing late performance. BIOFLUIDIX will reimburse necessary additional expenditure, proven and incurred by the customer as a result of exceeding the delivery time to the extent that BIOFLUIDIX is liable for this under the provisions laid down in Clause 14.

38. Anticipatory Breach by Customer

Without prejudice to his continuing legal rights and without a previous notice to the customer being necessary, BIOFLUIDIX is entitled to suspend the performance of his obligations as long as, in the opinion of BIOFLUIDIX, there are grounds for concern that the customer will wholly or partly fail to fulfil his obligations in accordance with the contract. In particular, the right to suspend arises if the customer insufficiently performs his obligations to enable payment to BIOFLUIDIX or a third party or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the forthcoming delivery.
Instead of suspending performance BIOFLUIDIX is entitled at his own discretion to make future deliveries, even if confirmed, conditional on payment in advance. BIOFLUIDIX is not required to continue with performance of his obligations, if an assurance given by the customer to avoid the suspension does not provide adequate security or could be challenged pursuant to an applicable law.

39. Delivery and Transfer of Risk

FCA (Incoterms 2010) from BIOFLUIDIX’s shipping facility designated in BIOFLUIDIX’s order confirmation in text form applies to delivery and transfer of risk. The risk shall pass to the customer FCA even if BIOFLUIDIX bears the shipping costs in individual cases.
Irrespective of the agreed Incoterms clause, packaging will be charged according to expenditure.
If dispatch is delayed due to circumstances for which BIOFLUIDIX is not responsible or at the request of the customer, the risk shall pass to the customer from the day of notification of readiness for dispatch; if the customer cannot effect appropriate insurance cover for those stored goods because they are still at BIOFLUIDIX’s facilities, BIOFLUIDIX shall be obliged, at the request and expense of the customer, to effect the insurance required by the customer.
If dispatch is delayed at the request of the customer, the monthly storage costs shall be charged to him starting one month after notification of readiness for dispatch locally usual storage cost.
If the goods are dispatched at the request of the customer, BIOFLUIDIX shall choose the dispatch routes and means of dispatch without assuming any warranty for the cheapest shipment.
The customer undertakes to furnish BIOFLUIDIX with the data to apply for the customs formalities in reasonable time ahead and in writing or text form as required by law/customs, to take delivery of the goods either by customer itself or by a person nominated in writing by customer to BIOFLUIDIX at the delivery time without taking any additional period of time and at the place of delivery according to Clause 1 and shall fulfil all the duties imposed by the contract, by these Special Terms and Conditions of International Sale, by the rules of the ICC for the use of the agreed clause of the Incoterms 2010 and by statutory provisions. The customer is only entitled to refuse to take delivery of the goods if he declares the contract avoided in accordance with Clause 40.

40. Prices/Terms of Payment

All prices are quoted in EURO plus applicable value added tax FCA (Incoterms 2010) from BIOFLUIDIX’s designated shipping facility, plus packaging and shipping costs unless otherwise expressly agreed.
Irrespective of continuing obligations of the customer to guarantee or to enable payment, the customer undertakes to pay the agreed price for the goods in the currency specified in the written confirmation of the order transferring it without deduction and free of expenses and costs to one of the financial institutions designated by BIOFLUIDIX.
The payment to be made by the customer is in any event due for payment at the time specified in the written confirmation of the order or - if a time for payment is not indicated - on receipt of the invoice. The due time for payment arises without any further pre-condition and, in particular, does not depend on whether the customer has already taken delivery of the goods or the documents or has had an opportunity to examine the goods.
In case of payment by bill of exchange, all expenses and costs will be charged.
Offsetting against counterclaims is only permissible if these have been valid and due counterclaims from the same contractual relationship, are legally established or are undisputed.
The customer is only entitled to withhold payments on the basis of valid and due counterclaims from the same contractual relationship.

41. Security for the Purchase Price Claim

BIOFLUIDIX shall retain the title in the delivered products until the purchase price according to Clause 40.1 has been paid in full (herein after referred to as “Reserved Products”).
If such retention of title is not effective under applicable law, the parties shall agree on a functionally equivalent means of security and shall conclude an effective agreement for such security.
The customer is obliged to take all necessary measures to maintain this retention of title or functionally equivalent security interest recognized in the country of destination (customer’s registered office). If the customer breaches this obligation, this shall constitute a material breach of contract.
In the event of seizure, confiscation, damage and/or loss of the Reserved Products or the means of security, the customer shall notify BIOFLUIDIX immediately; a breach of this obligation shall entitle BIOFLUIDIX to declare the contract avoided. The customer shall bear all cost which had to be incurred for the successful cancelation of a seizure and, if applicable, for the successful replacement of the Reserved Products, insofar as they cannot be collected from third parties.
If BIOFLUIDIX has declared the contract avoided, BIOFLUIDIX shall be entitled to take back the reserved products if BIOFLUIDIX has given a reasonable notice of such taking back. The costs incurred by exercising the right to take back, in particular for transport, shall be borne by the customer. BIOFLUIDIX shall be entitled to dispose of the reserved products that have been taken back and to satisfy its claims from the proceeds thereof, provided that BIOFLUIDIX has given reasonable notice of such disposal beforehand. Should the proceeds exceed the outstanding claims from the contractual relationship, this surplus shall be paid to the customer.
In the event that cash payment or advance payment has been agreed, ownership shall pass in full to the customer upon delivery.

42. Conformity

Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods do not conform with the contract if the customer proves that, taking into account the terms in section III., at the time the risk passes the packaging, quantity, quality or the description of the goods is significantly different to the specifications laid down in the written confirmation of the order, or in the absence of agreed specifications, the goods are not fit for the purpose which is usual in Germany. Regardless of the stipulation established in sentence 1, the goods shall be deemed to conform with the contract to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
To the extent that the written order confirmation by BIOFLUIDIX does not contain an explicit statement to the contrary, BIOFLUIDIX is in particular not liable for the goods being fit for a purpose which is not usual in Germany or for complying with further reaching expectations of the customer or for possessing the qualities of a sample or a model or for their compliance with the legal regulations existing outside Germany, for instance in the customer's country. BIOFLUIDIX shall also not be liable for any non-conformity with the contract that did not exist at the time the risk has passed. To the extent that the customer, either himself or through third parties, initiates the removal of non-conformities without the prior consent of BIOFLUIDIX in text form, BIOFLUIDIX will be released from its liability.

43. Obligation to Examination, Notification of Non-conformity

The customer shall inspect the products and any documents delivered without delay after the acceptance or shall have them inspected.
The customer shall notify BIOFLUIDIX in text form without delay, at the latest within three (3) working days (Saturday is not a working day) after delivery of the products, of any noticeable lack of conformity of the products or documents and shall specify therein the exact nature of the lack of conformity in such a precise manner as to enable BIOFLUIDIX to effect remedy measures without need for further inquiries from the customer and to secure claims against BIOFLUIDIX’s suppliers and moreover as required by law.
Notice has to be giving directly to BIOFLUIDIX. BIOFLUIDIX’s employees, commercial agents or other sales intermediaries are not authorized to accept notices outside BIOFLUIDIX’s premises or to make any statements concerning lack of conformity with the contract or of title and its consequences.
The customer shall loose the right to invoke a lack of conformity of the products – even if discovered later – if he does not notify BIOFLUIDIX of such lack of conformity in text form (e.g. in writing or via email) within three (3) working days (Saturday is not a working day)of the time at which he noticed or should have noticed the lack of conformity, specifying the nature or the non-conformity, irrespective of the reasons given by the customer for the notification being delayed.
The customer’s notice of non-conformity must have been dispatched by the customer within the three working day period following delivery of the products or discovery of the lack of conformity; it is also necessary for BIOFLUIDIX to have actually received the notice of non-conformity dispatched in due time.
In the event of notice not having been properly given, the customer may only rely on remedies if BIOFLUIDIX has intentionally concealed the lack of conformity with the contract or the deficiency in title. Statements by BIOFLUIDIX as to the lack of conformity with the contract or as to the deficiency in title are for the purpose of explaining the factual position only, but do not entail any waiver by BIOFLUIDIX of the requirement of proper notice
If a non-conformity of the products cannot be established following the notice of non-conformity by the customer, the customer shall reimburse BIOFLUIDIX for the costs incurred in connection with the inspection of the products.
Without prejudice to the statutory obligations of the customer to give notice within reasonable time, the customer is obliged vis-à-vis BIOFLUIDIX to give notice to BIOFLUIDIX of any lack of conformity with the contract or any deficiency in title at the latest within one (1) year after taking delivery in accordance with section IV.-6.

44. Non-conformity of the Products

The customer shall give BIOFLUIDIX the time and opportunity required for the performance of the contract, in particular to hand over the rejected products for inspection purposes or to make the process or installed products accessible for this purpose.
Non-conformity does not apply in the case of defects,
which are attributable to circumstances occurring after the transfer of risk,
which are caused by improper use or improper service or repair work by the customer,
which are based on arbitrary changes by the customer,
which are attributable to normal wear and tear or normal deterioration, or
otherwise attributable to the sphere of the customer.

BIOFLUIDIX may charge for additional costs resulting from such malfunctions.

In the event that the products or documents lack conformity, BIOFLUIDIX shall be entitled to remedy such lack or conformity even after the agreed delivery period by repair or – in the event of a material breach of contract – by replacement delivery. The right to refuse performance under statutory conditions shall remain unaffected. In the event of a replacement delivery, the customer shall return the defective item to BIOFLUIDIX in accordance with statutory provisions.
If the non-conformity of the products or documents is not remedied within a reasonable period by repair or replacement, the customer may demand a reduction in the purchase price corresponding to the reduced value of the products.
BIOFLUIDIX shall be entitled to make the performance owed to the customer conditional upon the customer paying the purchase price due for the products already delivered, subject to the exercise of customer’s right of retention in respect of a proportion of the purchase price which is reasonable in relation to the breach of contract.
The delivery of substitute goods or repair does not lead to a recommencement of the limitation period.
The reduction of the price for the goods is limited to the damages suffered by the customer.
Further claims for performance are not available to the customer
Even in the event of a breach of contract, the customer’s claims for damages shall be limited in accordance with Clause 47 and shall otherwise be excluded.

45. Software, Intellectual property rights, Deficiency in Title, Reverse engineering, Infringement

The supplied software that accompanies the product is subject to an end-user license agreement that has to be accepted before installation.
All other rights to the software and documentation including copies shall remain with BIOFLUIDIX or the software supplier. The customer shall not be permitted to issue sublicenses.
Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods have a deficiency in title if the customer proves that the goods are not free from enforceable rights or claims of private third parties at the time risk passes.
Without prejudice to further legal requirements, third parties’ rights or claims founded on industrial or other intellectual property constitute a deficiency in title only to the extent that the rights are registered, made public and in legal force in the European Union and prevent the usual use of the goods in the European Union.
Regardless of the stipulation established in Clause 3, title to the goods shall be deemed not to be defective to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
The provisions of Clause above (reservation of title), Clause 10 (examination and notice of non-conformity), Clause 12 (non-conformity) and Clause 14 (liability) shall also apply mutatis mutandis to the software. Clause 3 shall apply subject to the proviso that non-conformity of the software shall also not apply if the defect is attributable to the fact that the software is used in a hardware and/or software environment which does not meet the requirements specified by BIOFLUIDIX, as well as for changes and modifications which the customer has made to the software without being entitled to do so by operation of law, these Special Terms of Delivery, the General Terms of Delivery or on the basis of BIOFLUIDIX’s prior written consent.
All intellectual and industrial property rights, including, but not limited to, copyrights, trademarks and patents, incorporated in the goods, software, and/or accompanying documentation are and shall remain property of BIOFLUIDIX.
The customer shall not use observation, study, disassembly or testing of the purchased goods (reverse engineering) to acquire any trade secrets of BIOFLUIDIX contained in the goods.
In no case of infringement of third party industrial property rights BIOFLUIDIX will compensate the customer for loss of profit and other consequential damage.

46. Avoidance of the Contract

In the event of a lack of conformity of the products or documents, the customer shall not be entitled to declare the contract avoided instead of a reduction of the purchase price, unless the lack of conformity constitutes a material breach of contract. If BIOFLUIDIX remedies the lack of conformity within a reasonable grace period set by the customer, which must be at least six weeks, there is no material breach of contract.
The customer is entitled to declare the contract avoided, if the respective applicable legal requirements are complied with, after he has threatened BIOFLUIDIX in reasonable time after the facts justifying the avoidance of the contract had occurred with avoidance of the contract in writing and an additional period of time of reasonable length for performance fixed in writing has expired to no avail.
If the customer claims delivery of substitute goods, repair or other performance, he is bound for a reasonable period of time to the chosen remedy, without being able to exercise the right of declaring the contract avoided.
In any event, the customer must give notice of avoidance of the contract within reasonable time after the additional period of time has expired in writing and to BIOFLUIDIX directly.
Without prejudice to his continuing legal rights, BIOFLUIDIX is entitled to avoid the contract in whole or in part if the customer objects to the application of these International Conditions of Sale, if the implementation or performance of the contract is prohibited by the law in whole or in part, if on grounds for which BIOFLUIDIX is not responsible the written confirmation of the order by BIOFLUIDIX is received by the customer more than fourteen (14) calendar days after its date of issue, if insolvency proceedings relating to the assets of the customer are applied for, or if for other reasons BIOFLUIDIX cannot be expected to fulfil his obligations by means which - taking into consideration his own interests and that of the customer as far as ascertainable and legitimate at the time of formation of the contract - are unreasonable, in particular in relation to the agreed counter-performance.
Without prejudice to his continuing legal rights, BIOFLUIDIX is entitled to declare the contract avoided in whole or in part after prior warning if the customer does not furnish BIOFLUIDIX with the data necessary to apply for customs formalities in due time, if without providing a justifiable reason he does not meet fundamental obligations due towards BIOFLUIDIX or towards third parties, if he has provided inaccurate information regarding his creditworthiness or to the extent that the cover given by a credit insurer is reduced on grounds for which BIOFLUIDIX is not responsible.

47. Liability of BIOFLUIDIX

Without waiving the legal requirements, BIOFLUIDIX is only obliged to pay damages due to the breach of obligations resulting from the contract with the customer, the contractual negotiations carried on with the customer or the business relation with the customer in accordance with the following provisions. These provisions apply equally for all of BIOFLUIDIX’s obligations to reimburse expenses.

The customer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency. The customer cannot claim damages as an alternative to other remedies.
BIOFLUIDIX is not liable for the conduct of suppliers, subcontractors, carriers or freight-forwarders, for damages to which the customer has contributed or for the consequences of customer interference with the security technology of the delivered goods. BIOFLUIDIX is not liable if the contract cannot be performed as agreed at the time of its formation due to subsequent statutory or sovereign measures. Neither is BIOFLUIDIX liable for impediments which occur, as a consequence of natural or political events, acts of state, industrial disputes, sabotage, accidents, terrorism, biological, physical or chemical processes or comparable circumstances and which cannot be controlled by BIOFLUIDIX with reasonable means. Moreover, BIOFLUIDIX is only liable to the extent that the customer proves that the executive bodies or members of staff of BIOFLUIDIX have deliberately or negligently breached contractual obligations owed to the customer.
In the event of liability, BIOFLUIDIX will compensate within the limits of Clause 47.4 the losses of the customer to the extent that the customer proves that he has suffered an unavoidable loss caused by the breach of obligations owed to the customer by BIOFLUIDIX and foreseeable to BIOFLUIDIX at the time of the formation of the contract in respect of the occurrence of the loss and its amount. Moreover, the customer is required to mitigate his loss as soon as a breach of contract is or ought to be known.
BIOFLUIDIX is not liable for loss of profit or damage to reputation. Moreover, the amount of damages for late or non-existent delivery is limited to 0.5 per cent for each full week of delay, up to a maximum of 5 per cent, and in case of remedies because of delivery of non-conforming goods and/or goods with a deficiency in title is limited to an amount of 200 per cent of the value of the non-conforming part of the contract. However, this Clause 47.4 does not apply to injury of life, body or health, to mandatory statutory strict liability without fault, to intentional concealment of the non-conformity or deficiency in title of the goods and to breaches of contractual obligations due to intent or gross negligence.
For breach of contractual, pre-contractual or obligations resulting from the business relation owed to the customer, BIOFLUIDIX is obliged to pay damages exclusively in accordance with the provisions of these Special Terms and Conditions of International Sale. Any recourse to concurrent bases of claim, in particular of a non-contractual nature, is excluded.
Equally excluded is any recourse against BIOFLUIDIX’s company organs, employees, servants, members of staff, representatives and/or those employed by BIOFLUIDIX in the performance of his obligations on grounds of breach of contractual obligations owed by BIOFLUIDIX.

48. Liability of Customer

Irrespective of continuing statutory or contractual claims, the customer is obliged to pay damages to BIOFLUIDIX as follows:

In the event of delay in payment, the customer will pay a lump sum of EUR 50,00, the costs of arbitral, judicial and extra-judicial means and proceedings, usual and accruing within the country and abroad, as well as (without evidence being necessary) interest at the rate applicable in Freiburg, Breisgau, Germany for unsecured short-term loans in the agreed currency, at least however interest at 9 per-cent points over the base rate of the German Federal Bank (Deutsche Bundesbank).
In the case of a late taking delivery of the goods by the customer by more than two (2) weeks, BIOFLUIDIX is entitled to claim damages without evidence being necessary of 5 per cent of the value of the goods to be delivered. In the case of a late taking delivery of the goods by the customer by more than six (6) weeks or an entire failure to take delivery as well as in the event of non-delivery due to a breach of contract by the customer, BIOFLUIDIX is entitled to claim damages without evidence being necessary of 20 per cent of the value of the goods to be delivered.
If the contract has been avoided by the customer without justification, BIOFLUIDIX is entitled, insofar as he consents to the avoidance, to claim damages without evidence being necessary in the amount of 20 per cent of the value of the goods to be delivered.

49. Limitation

In the case of supplier regress in the supply chain of a consumer goods purchase, in the case of statutory strict liability, the statutory limitation period shall apply.
In the case of damages resulting from injury to life, body or health, which are based on a negligent breach of duty by BIOFLUIDIX or an intentional or negligent breach of duty by its legal representative or vicarious agent, in the case of other damages, which are based on an intentional or grossly negligent breach of duty by BIOFLUIDIX or on an intentional or grossly negligent breach of duty by its legal representative or vicarious agent, as well as for damages which are based on an intentional or negligent breach of essential contractual obligations under the respective contract by BIOFLUIDIX or its legal representative or vicarious agent, the statutory warranty period also applies.
In all other cases the warranty period is one year.
Insofar as the limitation period may not already have barred the claim, claims for damages brought by the customer are excluded after six (6) months beginning with the rejection of the claim for damages by BIOFLUIDIX.

50. Force Majeure

Any event, which is beyond the BIOFLUIDIX’s control, such as acts of nature (e.g. earthquakes), war, unforeseeable governmental or administrative actions (including governmental interruption and restriction/prohibition affecting the efficacy of the production and/or delivery of the goods), or strikes, shall relieve BIOFLUIDIX from its contractual obligations for the duration of such event or circumstance and to the extent of the effects resulting there from. If any such case occurs, BIOFLUIDIX shall inform the customer immediately indicating the presumable duration and extent of such contingency. BIOFLUIDIX shall promptly use all reasonable efforts to settle such contingencies so that the performance of its contractual obligations can be resumed as soon as possible.

51. Notices, Form requirements, Place of Performance, applicable Law and Jurisdiction

All communications, declarations, notices etc. are to be drawn up exclusively in German or English.
Text form means written form and fax as well as electronic data transfer, e.g. e-mail.
The place of delivery results from Clause 1 and applies likewise to the delivery of substitute goods or the repair of delivered goods. The place of payment and performance for all remaining obligations arising from the legal relationship between BIOFLUIDIX and the customer is Freiburg, Breisgau, Germany. These provisions also apply if BIOFLUIDIX assumes the costs of money remittance, renders performance for the customer somewhere else or payment is to be made in exchange of documents or goods or in the case of restitution of performances already rendered. The agreement of other clauses of the Incoterms or of clauses such as "delivery free......." or similar ones shall not alter the place of performance for deliveries and payments.
The English version of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11/04/1980 applies to the legal relationship with the customer. Legal issues that are not regulated in this Convention or cannot be decided pursuant to its principles are subject to German law.
The place of jurisdiction for all disputes in connection with the contract is the competent court at BIOFLUIDIX’s business seat in Freiburg, Breisgau, Germany. However, BIOFLUIDIX may also assert claims in the legal place of jurisdiction of the customer.

Version 1.0
Status as of 27/04/2020