General Terms and Conditions of Business (AGB)
for the sale of goods by Abberior GmbH, represented by its Managing Director, Dr Gerald Donnert, Hans-Adolf-Krebs-Weg 1, 37077 Göttingen
I. General matters
- Our General Terms and Conditions of Business (AGB) form the sole basis for the offer, the order, and the contractual relationship. Terms and conditions of business that deviate therefrom, are contrary thereto, or supplement them, do not form part of the contract, even if we are aware of them, unless their application is expressly consented to.
These General Terms and Conditions of Business apply to all current and future business relations with persons who enter into a contract in the exercise of their commercial or independent professional activities (business professionals) or public law legal entities or special funds under public law as well as to business relations with consumers.
Consumers are natural persons with whom one enters into a business relationship, but to whom commercial or independent professional activity cannot be attributed. If these rules only apply to a business professional then this contractual/business partner will be designated as a "business professional." If the rules herein apply to a consumer, then the contract/business partner will be designated as a "consumer." If no distinction is made, then the provisions/rules apply to all contracts/business partners, and consequently to all "customers."
- Our offers are always subject to confirmation and nonbinding. We reserve the right to make technical changes in a manner that is reasonable to the customer. Any of our offers that are attached or contained in catalogues technical data sheets or product documentation, or product descriptions that are made orally and/or illustrations, drawings, information concerning weight and dimensions, are nonbinding unless they are expressly designated as binding. We retain ownership rights and copyrights to price quotes, drawings, and any other documents originating from us. These documents may not be shared with third parties.
Upon ordering goods the customer makes a binding declaration that it wishes to acquire and/or receive the ordered goods. We are entitled to accept the offer to enter into a contract that is contained in the order within two weeks after receipt thereof. Acceptance can either be made in writing or by making delivery of the goods to the customer. Ancillary agreements, changes and supplements require our approval in text form.
- The customer is obligated to help facilitate our work so that we can undertake performance in a timely fashion and carry it through to completion without interruption. If we are making products based on the requirements of the customer or based on data or quality samples provided thereby, then it is especially important that the customer ensure that we receive all materials, aids, documents, and information necessary to fill the order in a timely fashion before the agreed-upon delivery date. The customer is to inform us of any safety risks associated with the materials it gives us or with other devices it has made available to us. Moreover, if available, the customer is to give us the data sheets or safety data sheets. We will work based on the assumption that the materials, aids, documents, and information as well as the facts referred to thereby are correct and complete. The customer is to set up the necessary operating conditions and free access thereto at its own cost for the agreed-upon scope of performance. We are entitled to subcontract work out but remain responsible for the performance to be rendered. If we have misgivings about work proposed to us by the customer (e.g. concerning safety regulations), we can refuse to take it on.
- Our products are exclusively intended for scientific research. Any resale for commercial purposes or the use thereof for medical or diagnostic purposes requires our written approval. Violation of these provisions will be prosecuted under criminal law.
II. Prices and payment conditions
- In the absence of an agreement to the contrary, the prices are ex works, including loading at the factory, however excluding packaging and insurance, unless an express offer was made therefor. Prices include VAT in the current statutory amount. Any other possible official charges are not included in the price quote and are to be borne by the customer. We at Abberior GmbH are not required to point out such charges. The current price list at the time of contract conclusion applies. We are bound for four months after the placing of an order by the applicable price at the time of contract conclusion and/or the placing of the order. If more extended delivery deadlines and/or time periods are agreed to, then current prices apply in the absence of individual agreements otherwise. In the absence of agreements to the contrary, the customer is responsible for the packaging and shipment costs. In the absence of written instructions on the part of the customer, we determine the manner of shipping and the delivery service that will undertake shipment.
- The customer is obligated to make cash payment without deductions at our designated place of payment. Unless agreed to otherwise, all of our invoices are payable without deductions 30 days from the date of invoicing. This also applies to invoices for partial delivery.
If the customer does not pay by the agreed-upon date and/or within the aforementioned time period, then it is in default of payment. During the default period the interest on the amount owed for business professionals is in the amount of eight percentage points above the prime lending rate in accordance with § 247 BGB (Bürgerliches Gesetzbuch = German Civil Code). However, customers are only charged interest of five per cent above the prime lending rate. We reserve the right to demonstrate and bring claims against customers for more extensive damages due to default.
- We expressly reserve the right to refuse commercial paper and checks. We only accept them if they are covered and the money is transferred. Discount, check and exchange expenses are to be borne by the customer and are immediately due.
- When dealing with business professionals, a public law legal entity or a special fund under public law, we retain title to all delivered goods until payment of the entire amount due arising out of the current business transaction. In this case a business professional already assigns to us, at the time of contract conclusion, all claims arising out of resale or any other legal ground against its buyer together with all ancillary rights as security in the full amount. We hereby accept the assignment. After assignment the business professional is authorised to collect the claim. We retain the right to ourselves collect the claim as soon as the business professional does not properly meet its payment obligations or is in default of payment. If the value of the items delivered for which we hold a reservation of title that serves as security exceed the entire amount of the claim by more than 20 %, then, at the request of the business professional, we are obligated to release security in an amount equivalent to that exceeding what is owed us. The processing or reworking of the goods by the business professional always takes place in our name and on our behalf. If processing takes place together with items not belonging to us then we acquire joint ownership in the new items in proportion to the value of the item sold to the other processed items. The same applies if the item sold is mixed with other items not belonging to us. In the case of consumers we retain ownership of the goods until they are fully paid for. The item sold and/or the work may not be pledged or transferred for purposes of security by the customer until it is fully paid for. In the case of security as well as attachment or other dispositions by third parties the customer is to promptly inform us thereof. If the customer acts in violation of the contract, especially in the case of payment default, we are entitled to take back the goods after the granting of a grace period and the customer is obligated to give them to us. The implementation of reservation of title, as well as the attachment of the item sold, is not to be regarded as contract rescission.
We are entitled to only deliver after advance payment without giving reasons therefor.
- If the business professional defaults in payment then, after having established a reasonable grace period, we are entitled to damages in the amount of 25 % of the sales price and/or the contractual fees and to undertake invoicing therefor. The business professional is expressly entitled to provide proof that the damages or a reduction in value have not taken place or are substantially less than the lump sum.
- The customer is obligated to promptly inform us if third parties seek to attach the goods, e.g. in the case of a pledge, as well as if any damage occurs to the goods or they are totally destroyed. The customer is also to promptly notify us if there is a change in ownership in the goods as well as if it changes its own place of residence. The customer is obligated to treat the goods with care.
- We are entitled to rescind the contract and seek return of the goods if the customer acts in violation of the contract, especially if it defaults in payment or violates a duty under the aforementioned number of this provision.
- The customer only has a right to set-off if its counter-claim is legally binding or uncontested.
III. Delivery/Passing of the risk of loss
- Delivery dates are only binding if they have been confirmed in writing by us. A condition for the start of the time period for delivery is that the customer has procured all necessary documents, authorisations, clearances, and has provided all parts required of it. The delivery deadline has been met if the item to be delivered has left our factory by the time of the expiration of the delivery deadline or the customer has notified us that it is to be sent. If acceptance of delivery is to take place, then the acceptance date is determinative, in the alternative notification of willingness to accept unless the customer is justified in refusing to accept.
- In the case of delays in delivery and performance due to force majeure and due to events that make delivery substantially more difficult or impossible – especially including strikes, lockouts, official decrees, even if these occur in regard to our suppliers or sub-suppliers – then we are also not responsible for bindingly-agreed to time periods and deadlines even if such events occur at a time during which we are already behind in delivery. We will promptly inform customers of our unavailability and promptly refund consideration provided by the customer. We are entitled to postpone performance and/or delivery for the duration of the hindrance in addition to a reasonable start-up time or to rescind that part of the contract that has not been fulfilled or has only partially been fulfilled. If the hindrance lasts more than three months then we are entitled, after the setting of a reasonable grace period, to rescind the contract in respect to the unfulfilled portion thereof. If the time for delivery is prolonged or if we are freed from our obligations, this does not give rise to any claims for damage on the part of the customer. We only have recourse to the aforementioned circumstances if we give the customer prompt notice thereof.
- In the case of contracts with business professionals, public law legal entities, or special funds subject to public law, the passing of the risk of accidental loss and of the accidental impairment of the goods takes place at the time they are handed over and/or delivery thereof is accepted. In the case of a shipment purchase this occurs upon delivery of the goods to the forwarding agent, the carrier, or the other person or institution designated to undertake transport. The passing of the risk of loss also takes place in the case of partial deliveries or if we have supplemented our performance, e.g. by assuming the shipping costs or delivery and setup. If and to the extent acceptance occurs, this is determinative for the passing of the risk of loss. This must promptly be undertaken on the acceptance date, in the alternative after notification of readiness to take delivery. The customer may not refuse acceptance of delivery due to the existence of a minor defect.
- The passing of the risk of loss takes place regardless of whether or not the customer has delayed acceptance of delivery.
- If delay in shipment of the item to be delivered takes place at the wish of the customer, then we have a claim to reimbursement of past and/or current costs incurred by storage, beginning one month after notice of readiness for shipment. If storage takes place in our factory, we have a claim to at least 0.5 % of the invoice amount per month. We are entitled, after the setting and unsuccessful passing of a reasonable time period, to otherwise dispose of the item to be delivered and to deliver it to the customer within a reasonably extended time period.
- Partial deliveries, to the extent they are reasonable for the customer, are permissible.
- In the case of defects in goods or services we initially, based on our choice, guarantee customers rectification of defects or substitute delivery. We have ownership of replaced parts. The customer is obligated to store goods that have been complained of at its own cost for a reasonable period of time.
- If the substitute performance is unsuccessful or if a reasonable time period set for us in order to repair or replace passes without effect, then the customer can choose between a lowering of the amount paid (reduction in price), based on its choice, or a cancellation of the contract (rescission). However, the customer does not have a right of rescission in the case of minor contract violations, especially in the case of minor defects.
- In respect to apparent defects that can be identified during the course of a proper inspection – to the extent such an inspection is possible during the ordinary course of business – business professionals are to notify us of defects in writing within two weeks of receipt of the goods, customers within two months thereof. Otherwise the bringing of a claim for the defect is excluded. A timely dispatch is sufficient for meeting the deadline. The business professional bears the full burden of proof in regard to all conditions necessary for its claim, especially for the defect itself, for the time when the defect was identified, and for the timeliness of notification of the defect. In respect to defects that are not apparent and that cannot be identified through proper inspection, business professionals have two weeks to provide written notification thereof after their discovery, customers have a year. Otherwise the bringing of a claim for the defect is excluded.
- If, after subsequent performance proves ineffective as a remedy to a defect in title or quality, the customer chooses to rescind the contract, the customer does not acquire any claims for damages due to the defect. Damage claims based on any consequential harm caused by defect remain unaffected.
- We assume no liability for improper or technically inappropriate use, incorrect assembly and/or start-up by the customer or third parties, natural wear and tear, incorrect or careless handling, improper service and maintenance, unsuitable operating materials, defective construction work, unsuitable building areas, chemical, electrochemical or electrical influences, unless we are responsible therefor.
We are not responsible for any product attributes unless we have undertaken an explicit written guarantee therefor. We make no assurances that products delivered by us correspond to the customer’s contractual and/or application goals.
- If the customer or a third party incorrectly undertakes repairs, we are not responsible for the consequences thereof. The same applies to modifications of the delivered item without our prior consent.
- If the use of the delivered item infringes on domestic industrial property rights or copyrights, we will procure the right of continued use for the customer at our cost or modify the delivered item for the customer in a reasonable fashion so that property rights are no longer infringed upon. If this cannot be done in accordance with economically reasonable conditions or within a reasonable period of time, the customer is entitled to rescind the contract. Under the aforementioned conditions we also have the right to rescind the contract.
Moreover, we will indemnify the customer against uncontested or legally binding claims of the affected owner of the property rights.
- The obligations put forth in the aforementioned number 7 concerning our obligations in the case that property rights or copyrights are infringed are conclusive and only exist if
a) the customer promptly informs us of claims for the infringement of property rights or copyrights,
b) the customer assists us to a reasonable extent in our defence against the claims that have been brought and/or facilitates our work in carrying out modification measures,
c) the customer allows us to undertake all measures concerning defence against the claims including extra judicial regulation thereof,
d) the legal defect is not based on a statement of the customer and
e) the infringement is not due to the fact that the customer independently modified the item delivered or used it in a manner contrary to contractual specifications.
- The customer is obligated to indemnify us against all third party damage claims due to any infringement upon property rights and rights of usage that arise out of the actions of the customer. If we manufacture products based on guidelines, data, or samples of quality provided by the customer, then the customer itself is to undertake a review to ensure that no third party rights are infringed upon thereby. The customer is obligated to indemnify us from any possible claims for compensation that arise out of and are brought due to the infringement of third party rights.
- The warranty period is for one year as from delivery of the goods and/or the rendering of services in the case of business professionals. For consumers the warranty period is for two years, as of delivery of the item purchased and/or acceptance of the work performance.
- We are liable according to the statutory provisions therefor, if the customer brings a claim for damages that is based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents.
- In the case of gross negligence of non-managerial employees, our liability is limited to that for damage to property and economic loss that is a foreseeable damage associated with the type of contract in question.
- In the case of mere negligence, we are only liable for damage to property and economic loss that occurs due to the violation of essential contractual duties. In this case our liability is also limited to foreseeable damages of the type of contract in question. Essential contractual duties are those after the fulfilment of which it first becomes possible to properly carry out the contract and upon which the customer generally relies and may rely.
- Any further liability for damages than that put forth in the following sections is – without regard to the legal nature of the claim brought – excluded.
- Liability due to culpable loss of life, bodily injury or impairment to health remains unaffected. Any unlimited liability based on the provisions of the product liability statute remains unaffected.
VI. Place of performance and place of jurisdiction
If the contracting partner is a merchant, attorney, a public law legal entity or a special fund subject to public law, then the exclusive place of jurisdiction for all controversies arising out of the contract is our headquarters. The same applies if the contracting partner does not have any general place of jurisdiction in Germany or the domicile or customary place of residence is unknown at the time the claim is brought.
VII. Applicable law
- The law of the Federal Republic of Germany applies. The provisions of the UN Convention on the International Sale of Goods do not apply.
- If any individual provisions of the contract with the customer, including these General Terms and Conditions of Business, are or become legally invalid in whole or in part then the validity of the remaining provisions remains unaffected. The fully or partially invalid provision is to be replaced by one that comes as close as possible to the economic purpose of the invalid one.
Göttingen, 15 March 2012