§ 1 General.
1. These general terms for sale and delivery shall be valid for all contracts concluded between the entity who places an order (customer) and CYTOBOX on delivery and sale of the products manufactured and/or delivered by CYTOBOX.
2. These general terms and conditions shall apply exclusively. No adverse or altered terms or conditions of the customer shall be binding, unless explicitly agreed by CYTOBOX. CYTOBOX herewith rejects any adverse or altered term or condition of the customer even in the event that CYTOBOX performs the services and/or delivers products without any reservation in knowledge of adverse or altered terms or conditions of the customer provided to CYTOBOX by confirmation letter or otherwise.
3. These general terms and conditions shall apply only for customers being either merchants in the course of business or public legal entities such as universities and public research institutes pursuant to § 310 section 1 German Civil Code.
§ 2 Offers and Specifications.
1. The offers of CYTOBOX are not binding, unless expressly stated otherwise in the order confirmation.
2. Purchase orders of the customer are binding.
3. The process of online ordering of products manufactured and/or delivered by CYTOBOX is an effective and binding order (purchase order) and leads to a contract between the customer and CYTOBOX. A written purchase order of the client is not necessary.
4. CYTOBOX reserves the right to withdraw from accepting the purchase order within two (2) business days following the date of receipt of the purchase order.
5. If the protein sequence(s) entered by the customer during the online ordering of cell lines contain(s) invalid data, more than five hundred (500) amino acids or an apparently nonsensical sequence (no homology detectable by blast search or large stretches of repetitive amino acids) CYTOBOX is entitled to reject the purchase order without further notification to the customer.
6. The product details mentioned in the catalogues and on the websites of CYTOBOX do not exactly describe their nature and are, therefore, not binding.
7. Customary deviations from the data on measures, weights, nature and quality of the products and such deviations usual in the line of optimizing and synthesizing genes, gene variants and generation of cell lines and such deviations being not unreasonable for the customer are reserved and shall not authorize to claim any warranties.
8. CYTOBOX shall be entitled to adapt the subject matter of the purchase order to the latest state of the art without having to notify the contractual partner of this or obtain the contractual partner’s permission.
9. CYTOBOX is entitled to provide services and/or any product via sub-contractors.
§ 3 Delivery.
1. Delivery dates shall be regarded only as non-binding dates; if said dates are exceeded without fault and notification is given in due time, this shall not constitute delay in delivery. Rather, this shall trigger a reasonable grace period.
2. In the event of delivery date for cell line development delays of more than one week, however, the price for cell line development will be reduced by five (5) % per week of delay.
3. CYTOBOX shall likewise not be held responsible for delivery date delays due to Acts of God and other unforeseeable events that are beyond CYTOBOX’s control.
4. Regardless of delivery dates, CYTOBOX shall be entitled to fill orders immediately.
5. CYTOBOX reserves the right to partial shipment as far as this is reasonably acceptable to the customer. Each partial shipment shall be deemed to be a separate transaction according to these terms and conditions, in particular with respect to payments, transfer of liability and the warranty period.
6. CYTOBOX shall not be responsible for inability to deliver if said inability to deliver is based on circumstances beyond CYTOBOX’s control and CYTOBOX notifies the Customer of this without delay and refunds to the Customer without delay any payments already remitted.
§ 4 Acceptance.
If acceptance is provided for by law, the customer shall be obliged to carry it out; acceptance may only be refused on account of substantial deficiencies. If the customer has not carried out acceptance within a deadline of 7 days after receipt of the products provided by CYTOBOX, acceptance shall be deemed to be effected.
§ 5 Transfer of Liability.
1. Unless not otherwise agreed, delivery shall be effected "ex works" Konstanz (Incoterms 2000).
2. The risk of accidental loss or of accidental deterioration of the products shall pass on to the customer, as soon as CYTOBOX has passed on the goods to the carrier.
§ 6 Prices and Terms of Payment.
1. Prices are ex works, exclusive of the respective statutory VAT and exclusive of costs for packaging, shipping and insurance expenses, except as otherwise expressly agreed upon.
2. Any use tax, sales tax, excise tax, duty, inspection or testing fee, or any other tax, fee or charge imposed by any governmental authority, on or measured by the transaction between CYTOBOX and the customer shall be paid by customer in addition to the prices quoted or invoiced. If CYTOBOX is required to pay any such tax, fee or charge, the customer shall reimburse CYTOBOX therefore or provide CYTOBOX at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
3. All prices and payments are in EURO, unless another currency has been agreed.
4. The prices valid on the day of the purchase order shall be valid.
5. List prices are subject to change. In case of an increase, CYTOBOX shall notify the customer at the latest four weeks before shipment of the products. In such case, the customer shall be entitled to withdraw from the contract within eight days after service of the notification.
6. Invoices issued by CYTOBOX shall be paid net without discount at the latest within 14 days after the date of invoice. The customer shall be in default without a separate reminder 30 days after maturity. In case the customer shall be delayed in payment, CYTOBOX charges default interests from maturity in the amount of 8 % points beyond the base interest rate (§ 247 BGB, German Civil Code) as well as collection expenses in the amount of EURO 15.00. Upon corresponding evidence, CYTOBOX may also claim higher damage caused by default.
7. Bills of exchange are not accepted as means of payment. Cheques are only accepted on account of payment. Payment is deemed to be effected only from that day, at which CYTOBOX can dispose of the invoiced amount without any loss.
8. In the event of partial payments and default in payment, CYTOBOX shall be entitled, contrary to prior payment agreements, to make subsequent deliveries only against cash in advance.
§ 7 Cancellation of cell line development orders.
If the customer wants to cancel the purchase order, the following charges of a purchase order shall be payable by the customer: 50% of the cell line development price after start of oligonucleotide production for gene synthesis, 75% of the cell line development price after completing the gene synthesis step, 100% of the cell line development price after transfection of the target construct.
§ 8 Warranties and Restriction of Use.
1. CYTOBOX guarantees 100% sequence fidelity between ordered and synthesized target protein sequence on the level of coding DNA. Since the client enters a protein sequence during the online order process, CYTOBOX calculates the coding DNA sequence by back translation of the protein sequence. The correctness of the DNA sequence is confirmed by DNA sequencing of intermediate constructs or the final construct.
2. CYTOBOX does not guarantee the functionality or a specific characteristic of the target protein or the cell line generated.
3. The customer/purchaser shall use the product manufactured and/or delivered by CYTOBOX only for his own research and development purposes.
4. Universities shall use the product manufactured and/or delivered by CYTOBOX only for non-commercial research purposes.
5. The Purchaser shall not sell, transfer or otherwise provide access to the product manufactured and/or delivered by CYTOBOX (or parts of these) to third parties.
6. The product manufactured and/or delivered by CYTOBOX is not for human medical or diagnostic purposes or use as medicine.
7. Except as otherwise agreed in writing by CYTOBOX, the purchase of products manufactured and/or delivered by CYTOBOX only conveys to the customer the non-transferable, non-exclusive right for use of these products for applications as described above in sectionss 3 - 6. CYTOBOX shall be explicitly entitled to use any cell line resulting from a purchase order of the customer for its own research and development, for any sale to third parties and for deposit under the name of CYTOBOX at any cell line collection.
8. Any liability shall be excluded for damages based on improper use or on application of the products beyond the field of application as described under sections 3 and 4, in particular on application in the household with regard to persons or animals.
9. CYTOBOX has to be notified of any defects of delivered products or variations in quantity or faulty deliveries at the latest three (3) business days after receipt of the products. Hidden defects are to be reported immediately after their detection. If these time limits for claim are not observed, any other existing warranty claims shall be ruled out. Even hidden defects can no longer be asserted, if one (1) year has passed since acceptance.
10. The Customer’s warranty rights shall, as a rule, be limited to subsequent delivery. Subsequent delivery shall take place at no extra charge provided that the goods delivered do not fulfill the product requirements described in the contract, the goods are still available in the form delivered by CYTOBOX, and notice of the defects has been given in due time. The warranty shall be ruled out in case of improper use and processing of the products manufactured and /or delivered by CYTOBOX.
11. Warranty claims shall be statute-barred within one year. The limitation period shall start to run when the property is delivered or accepted, respectively.
§ 9 Damages.
1. Any claims for damages are excluded independently from the type of breach of duty, including tortious acts, as far as this is no intentional or gross negligent acting. In cases other than intentional actions, the amount of damage shall be limited to the typical and foreseeable damage.
2. In the event of negligent breach of material contractual obligations CYTOBOX shall be liable for any negligence, but only up to the amount of damage which is typical and foreseeable. Any claims resulting from lost profits saved expenses, from claims for damages of third parties as well as from any other direct or indirect consequential damages may not be demanded, unless a feature warranted by CYTOBOX exactly serves to safeguard the customer against such damages.
3. The limitations on and exclusions of liability according to the above sections 1 and 2 shall not apply for claims, which have been caused by fraudulent conduct, in case of liability for warranted features, for claims according to the Product Liability Law as well as for damages caused by injury of body, life or health.
4. As far as liability is excluded or limited under the above sections, this shall also apply for employees, representatives or vicarious agents of CYTOBOX.
§ 10 Reservation of title.
1. All DNA sequences and cell lines generated by CYTOBOX shall retain the exclusive property of CYTOBOX until the customer has settled the invoice for the respective purchase order. The customer shall not use the so generated cell lines in any way for any reasons until the customer has settled the invoice for the respective purchase order.
2. CYTOBOX shall retain title to all products manufactured and/or delivered until the customer has settled all claims resulting from its business relation to CYTOBOX. The customer undertakes to properly handle the reserved products and neither to pledge nor to assign it by way of security.
3. Processing or further modification of the reserved products by the customer shall always be effected for CYTOBOX. The expectant right of the customer to the reserved products continues with the transformed subject. If the reserved products are processed with other objects not belonging to CYTOBOX, CYTOBOX shall acquire co-ownership to the new subject in the proportion of the objective value of its reserved goods to the other processed objects at the time of processing. Incidentally, for the subject created by processing the same shall apply as for the reserved goods.
4. If the reserved products are inseparably mixed with subjects not belonging to CYTOBOX, CYTOBOX shall acquire co-ownership to the new subject in the proportion of the objective value of its reserved products to the other mixed objects at the time of mixture. If mixture is effected in such manner that the subject of the customer is to be considered as the main subject, it is deemed as agreed upon that the customer assigns pro rata co-ownership to CYTOBOX. The customer shall hold in custody the created sole ownership or co-ownership for CYTOBOX.
5. Provided that the value of the securities which are due to CYTOBOX shall exceed the amount of its claims by more than 10%, CYTOBOX is obliged to release to an adequate extent; the selection of the securities to be released is incumbent on CYTOBOX. If the customer shall be behind schedule, CYTOBOX shall be entitled to take in custody the delivered products on the basis of its reservation of title until the customer effected payment. The customer shall bear the costs of custody. Revocation of the contract in such a case is only given, if CYTOBOX explicitly declares so. With fulfilment of the claims of CYTOBOX, including all side claims, the securities shall pass over to the customer without particular reassignment.
§ 11 Intellectual Property Rights; Copyrights.
The customer is solely liable for infringement of intellectual property rights or copyrights of third parties by execution of its purchase order and the use of the products manufactured and/or delivered by CYTOBOX. The customer has to release CYTOBOX upon first request from all claims of third parties based on such infringement of intellectual property rights or copyrights.
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§ 12 Place of Performance, Court Venue, Governing Law, Language of the Contract, Partial Nullity.
1. Provided that the customer is a entrepreneur subject to the provisions of article 1 the place of business of CYTOBOX (Konstanz) shall be the exclusive place of venue. However, CYTOBOX is entitled to bring any action against the customer also before the court of its general venue.
2. Unless otherwise agreed, the place of performance shall be the place of business of CYTOBOX (Konstanz).
3. Exclusively German law shall be applicable for the contractual relationship. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
4. The invalidity or unenforceability of one of the provisions or terms set forth under the subject CYTOBOX General Terms and Conditions or under any other agreement, shall not affect the validity of the remaining provisions or terms.
5. CYTOBOX shall have the right with regard to the place of venue and jurisdiction to bring a claim before a court at the customers principal place of business or before any other court being competent according to any national or international law.
