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General Terms and Conditions
Sec. 1 General, scope of application
- The general terms and conditions (hereafter “these terms”) set forth herein, are applicable to business relations entered into by MoBiTec GmbH (hereafter “we”), represented by the CEO, currently Prof. Dr. Stephan Diekmann, Lotzestr. 22a, 37083 Goettingen, Germany, registered in the commercial register of the district court of Goettingen HRB 1691, phone: +49 551 70722 0, fax: + 49 551 70722 22, e-mail: firstname.lastname@example.org, webpage: www.mobitec.com, tax ID number (acc. to Sec. 27 a “Umsatzsteuergesetz”): DE 115 306 447 and our customers (hereafter “customer”).
- These terms are applicable without exception. Unless otherwise agreed, these terms are applicable in their effective version at the time of purchase as acknowledged to the customer. The customer accepts these AGB the latest with receipt of the goods unless he has rejected the acceptance of these AGB in writing. In the event the customer has rejected these terms in an effective manner, the parties shall negotiate individual terms for the contract prior to conclusion of contract. The contract becomes valid only if the customer is an entrepreneur / merchant in accordance with Sec. 14 BGB (“Unternehmer”), a body corporate organized by public law / legal body of public law or a fund under public law.
- These terms are applicable to our business relationships (see Sec. 1(1)). These include selling or delivering mobile goods (hereafter “goods”) by us to our customers, including biochemicals and equipment for their use (i.e. laboratory equipment and biochemicals for their application in medical, diagnostic, pharmaceutical and other scientific research activities) independent of the fact whether we have invented and produced the goods by ourselves or bought the goods from third parties (Sec. 433, 651 German Civil Code (hereafter “BGB”)). Usage of our goods for medical diagnostics and therapy on human beings is prohibited.
- Any differing, conflicting or additional terms of the customer overrule these terms only if explicitly declared by us. This requirement of acceptance is also applicable if we deliver goods knowing of the general terms and conditions of the customer or deliver goods unconditionally. Any individual agreements between the parties (including independent contracts, side-agreements, additions or changes to these terms) have priority over these terms. In order to be valid, any such agreements have to be accepted by us in writing.
- Any legal acknowledgements and declarations (e.g. deadlines, notice of defects, rescission or abatement) that are issued by the customer post conclusion of contract have to be in writing in order to be valid.
- References to legislation serve only for clarification. Binding legislation is valid if not legally overruled or explicitly excluded by these AGB.
- According to customer’s preference, the contractual information (acceptance notice, invoice) will be dealt with in German or in English. In any case, the conclusion of contract will be dealt with in German. The German terms (AGB) precede these English terms in the event of conflicting terms.
Sec. 2 Conclusion of contract
- Our offers, in particular any lists of products including prices, are subject to confirmation and are non-binding. They only function as an invitation to the customer to make a binding offer to us. This is also applicable when we provide catalogues, technical details (e.g. drawings, diagrams, calculations, references to DIN-norms), further product information or documentation (on paper or electric version). We reserve the right to change prices in our general offers any time without notice, however not after the contract has been accepted by both parties. Price offers which we send to the customer according to his/her inquiry are valid for thirty (30) days.
- The purchase order made by the customer by phone, fax, e-mail or online (https://www.mobitec.com hereafter “webpage”) in the online shop (hereafter “webshop”) constitutes a binding offer. Unless otherwise stated, we are authorized to accept the offer in writing or by written notice (“Schriftform” or “schriftlich” acc. to the BGB; e.g. by e-mail or fax) within 2 weeks of receipt of the offer (hereafter “acceptance notice”). The purchase contract between the customer and us is concluded when the customer receives our acceptance notice (“Auftragsbestätigung”).
- Additionally, the contract becomes valid only if the customer is an entrepreneur / merchant in accordance with Sec. 14 BGB (“Unternehmer”), a body corporate organized by public law / legal body of public law or a fund under public law. Any offer or contract by or with us is invalid if the customer is none of the above. The business relationships are solely B-to-B contracts without involving individual (private) consumers (“Verbraucher” acc. to BGB). All information which we receive from the customer in order to process the order must be correct and complete.
- The customer shall verify the data on the order confirmation letter (see Sec. 2 (5)) and the acceptance notice to ensure its accuracy.
- The online purchase order in the webshop operates as follows:
The customer can choose products from the assortment of goods and add them to the shopping cart by pressing the button “Add to cart”. The customer declares a binding offer to purchase the goods in the cart by pressing the button “send order”. Prior to the confirmation, the customer can check and amend the data. Before placing an order, the customer has to register a customer account (see Sec. 3). We then send a confirmation of the purchase order (hereafter “purchase confirmation”) by e-mail which contains the order details. The customer can download and print the confirmation by pressing the button “Drucken / print”. This purchase confirmation only signifies the receipt of the order by us and does not confirm our legally binding acceptance of customer’s order. If we accept the order made by the customer we will send a separate acceptance notice (see above “acceptance notice”) by e-mail or fax, and therewith the contract is concluded.
Sec. 3 Registry of customer account
- Before placing an order in the webshop, the customer has to open a customer account online in the webshop. To this account, the customer can login using his/her login details and administrate the account him/herself. The requested input information must be correct and complete. The customer is not allowed to open more than one account or to rent or lend the account to third parties. The customer has no right to claim for registration.
- The customer is responsible for the safety of his/her account password, in particular, for the secrecy of the password. We are not liable for the damage caused by diversion of the password by passing on the password to third parties and or giving third parties access to the account unless we are, by law, responsible for the damage. The customer is obliged to inform us immediately about unauthorized access to his/her account.
- The customer can deactivate his/her account by him/herself or ask us for deactivation by sending a corresponding e-mail with this request to our customer service (see Sec. 1 (1)). Thereafter, the account will be deactivated. Any payment obligation towards us remains unaffected of the deactivation.
- With registration of the customer account, the customer electronically confirms (by Opt.Ins) to have read and accepted our AGB and our data protection notices (“Datenschutzerklärung”).
Sec. 4 Delivery times and delays
- Generally, none of the delivery times mentioned in our documents are binding. Unless otherwise specified in the webshop or individually agreed between the parties, the delivery time amounts up to two (2) weeks since contract conclusion (receipt of our acceptance notice). The adherence of delivery deadlines implies that in time and at no charge the customer provided all requested and required information, documents and data which are necessary for us to process the order (see Sec. 2 (3)).
- If we are not able to adhere delivery deadlines (e.g. ordered goods not available), on request by the customer we will inform the customer about the delay and the new delivery time. Non-availability of products is given especially when we ourselves do not receive the goods or services from our supplier in due time. In the event the product is not deliverable within the new delivery time, we are entitled to partly or fully resign from the contract. If the customer has already reciprocated, we will reimburse without hesitation. We can separately deliver parts of an order and issue corresponding partial invoices if this is reasonable for the customer in the particular case. We are not liable for indirect or following damages and/or economic losses of the customer caused by delivery delay.
- Despite all further conditions of these terms, we are not liable for delays by completion of the contractual commitments if the delay was caused by circumstances that are not controllable by us by exercising reasonable and commercially expected care, including, but not limited to, force majeure, action by government and other public authorities, especially if occurred due to acute national or international infectional proceedings such as SARS-CoV-2-Virus (force majeure). On request by the customer, in these events we will inform the customer about the reasons and the estimated duration of the delay. In the event of force majeure, the delivery time will be extended accordingly. If we are not able to meet the extended deadline, both parties are allowed to resign from the contract. In case of force majeure, customer’s right to claim for damages caused is excluded. If the customer resigns from the contract, without delay we will reimburse payments made for delivery not carried out.
- Delivery delay is defined by law. In any event, it requires a reminder by the customer including fixation of a delivery time.
- The rights of the customer according to Sec. 9 of these terms as well as our rights by law especially in the event of exclusion of obligation to indemnify (e.g. by unenforceability or unacceptability of indemnity or supplementary performance) remain unaffected.
Sec. 5 Delivery, passing of risk, acceptance, delay
- Delivery is carried out from stock at our business location (see Sec. 1 (1)) which represents the place of fulfillment and supplementary performance. If requested by the customer and at his/her expense, the goods can be sent to a place other than the place of performance (“Versendungskauf”). If not agreed otherwise, we are allowed to choose the way of shipment (especially carrier, dispatch route and packaging).
- The risk of accidental perishing and of accidental deterioration of performance is transferred to the customer at the latest when handing over the goods to the customer. When agreed delivery to a place other than the place of performance (“Versendungskauf”), these risks as well as risks of delay shall pass to the customer as soon as the goods have been handed over to the person or institution executing shipment.
- If the customer is in default of acceptance of delivery, fails to cooperate or the customer is responsible for the delay in other ways, we are entitled to claim compensation for costs due to damage and/or additional efforts (e.g. storage costs).
Sec. 6 Prices, payment terms
- Unless otherwise expressively agreed, prices are applicable at time of contract conclusion and are calculated from stock. Prices do not include transport costs, taxes, custom duties or other tolls, fees and charges.
- When agreed delivery to a place other than the place of performance (“Versendungskauf”) (Sec. 5 (1)), the customer defrays shipping costs from stock at our business location as well as the costs of shipping insurance in case the customer requested it. If we do not charge actual transport costs, the parties agree on a shipping cost all-inclusive-price (excluding shipping insurance). The amount of this all-inclusive transport costs can be identified on our webpage or by sending an enquiry to our customer service. Potential further tolls, fees, taxes and other public fees are paid by the customer.
- The purchase price is due immediately and is to be paid within thirty (30) days of date of invoice. All payment obligations are discharged only when the due invoice amount is paid into our account. At any time we are entitled to ask for prepayment for the delivery of goods, partly or in full. This may also hold for an ongoing business relationship. A corresponding declaration will be made by us the latest at the time of acceptance notice (“Auftragsbestätigung”).
- The customer is automatically, without further notice or reminder, in default if the aforementioned 30 days period allowed for payment has elapsed. During the delay period, the customer has to pay interest on the purchase price according to the current interest rate. We reserve our right to claim more damages due to delayed payment.
- The customer shall have the right to offset the claims corresponding with the contract between the parties only against recognized or legally binding claims. If the delivered goods are defective, the customer’s rights (see Sec. 8 (6) of these terms) remain unaffected.
- If after contract conclusion it becomes visible that our right to claim purchase price is at risk (e.g. bankruptcy of the customer) due to the customers lack of capacity or ability to pay, we are entitled to refuse performance / delivery and – if required after setting a time limit – to resign from the contract (acc. to Sec. 321 BGB).
Sec. 7 Retention of title/ reservation of rights
- Delivered goods remain our full property until all current claims according to the contract have been fully paid.
- Before fully paid, the sold goods, being subject to retention of title, shall neither be pledged to third parties nor be provided as security. The customer shall give immediate written notice if an application to open a bankruptcy procedure has been filed or if third parties have access (e.g. distress) to goods owned by us.
- In the event the customer acts contrary to contract, especially when not paying on time, we are entitled to resign from the contract according to applicable law and to reclaim the goods due to retention of title and resignation. In case the customer does not pay the due purchasing price on time, we shall only exercise these rights if we set an appropriate time limit in advance, unless setting a time limit is legally superfluous.
- Until we disclaim this approval, the customer is entitled to resell or to process the goods delivered under retention of title. In this case the following terms hold:
- In case the customer resold or processed the delivered goods, the retention of title fully extends to the resold or processed goods. We are presumed to be the manufacturer. If in the event of processing of our with third-party goods the third-party property rights remain, property shall be shared in proportion to the value shares at the time of processing. Incidentally, for the emerging goods the same terms hold as for the goods delivered by us which are subject to the retention of title.
- Our customer assigns claims towards third parties, resulting from reselling goods, to us in full or in proportion to the value shares at the time of processing. We accept this assignment. Customers duties acc. to Sec. 7 (2) also hold for the claims assigned.
- Our customer as we are entitled to plead claims from third parties. We confirm not to plead claims as long as our customer fulfills his payment obligations towards us, the customer has no lack of payment abilities and we do not plead for retention of title according to Sec. 7 (3). However, if these conditions are not fulfilled, we can request from our customer to inform us about the outstanding claims and the third-party recipient, to hand over to us all information necessary for contracting the value including documents and to inform the third party about the assignment of the claims. In this case we are entitled to retract our authorisation to the customer to resell or to process goods under retention of title.
- In case the liquidable amount of collaterals exceeds the outstanding amount by more than 10%, we will release securities of our own choice if requested by the customer.
Sec. 8 Warranty
- In the event of defect of quality or title, the applicable law of customer’s rights holds, unless stated elsewise in these terms.
- Our liability only extends to the quality of our goods when being used for research purposes and in any event only to the agreed purpose of usage indicated by us. We are not liable when the delivered goods do not meet other purposes than those mentioned in the contractual documentation. This contractual documentation is the basis for our liability. Furthermore, we are not liable for public statements by the manufacturer or other third parties (e.g. advertisements). The contractual documentation contains product descriptions and data sheets, also those of the manufacturer, like ingredients, quantities and technical data. The documentation is made available to the customer before ordering and, as these terms, is part of the contract, although it is only approximate. Our suggestions for product usage do not liberate the customer from verifying in his/her own responsibility that the goods can be used for the considered application.
- We are neither liable for the fact that the delivered goods are marketable in the country of arrival or destination (if different) nor that the goods are permitted to be imported to the country of arrival or destination nor that the goods may violate any patent, license or copyrights, unless otherwise expressly agreed between the parties in writing.
- In case of defect, customer’s rights are only applicable if the customer fulfilled his/her examination and complaint obligation under Sec. 377, 381 German Commercial Code (HGB). If the immediate or later examination reveals a defect (including inferior or false delivery), we have to be informed immediately (i.e. within five (5) days) in writing. The posting of the notification within 5 days is sufficient. We are not liable for such defects noticed if the customer does not examine the goods and does not complain to us on time.
- In the event of a defect, for supplementary performance the customer is entitled to choose between remedy or replacement of the goods. If the customer does not declare his/her choice, we are entitled to set an appropriate time limit to notify us. If the customer misses the time limit set, we are entitled to choose between the options.
- We are entitled to provide supplementary performance only in the event the purchase price has been fully paid. However, the customer is entitled to withhold a reasonable amount according to the value of the defect.
- The customer shall give us the required time for the replacement of goods. We can demand from the customer to hand over the defect goods to us so that we can examine the goods for the defect claimed. In the event of replacement of goods we are entitled to demand from the customer to send back the defect good according to the applicable law. In case the goods are indeed defective, we carry the expenses necessary for examination and supplementary performance, including transport, examination and labor costs. If the goods turn out not to be defective, we can request from the customer to refund our costs due to the unjustified demand for rectification of defect, unless the false defectiveness was not noticeable by the customer. We will not carry the transport costs when the customer sends back to us the defect goods without our agreement.
- If the replacement of goods was not successful or if the reasonable time limit set by the customer has elapsed or was legally superfluous, the customer is entitled to resign from the contract or to abate the price of the good. He is not entitled to resign in the event of an irrelevant defect.
- In the event of defects, customer’s claim for damages, compensation or vain expenses are limited to the scope of Sec. 9 of these terms. Further rights are excluded. Damages are subject to the liability as of Sec. 9 of these terms and are limited to the value of the goods.
Sec. 9 Liability, Indemnity
- Unless otherwise expressly regulated in these terms, our liability is limited to the applicable law in the event of breach of contractual or non-contractual duties.
- Our liability for damages within the bounds of fault-based liability for whatever legal reason is limited to deliberate intention and gross negligence. In the event of ordinary negligence, our liability is subject to milder liability standards by applicable law (such as care in one’s affairs) limited to damages caused
- by injury to life, body or health,
- by a not insignificant breach of essential terms of the contract; if this occurs, our liability is limited to damages to an extent that was foreseeable or typical.
- The limitation of liability set forth in Sec. 9 (2) of these terms are also applicable to breach of duty by our servants for whose negligence we are legally responsible. The limitations are not applicable if we maliciously hide the defect, if we guarantee for the quality of the goods or for rights according to the Product Liability Act (“Produkthaftungsgesetz”).
- The customer is only entitled to resign from the contract due to a breach of duty other than a defect if we are responsible for the breach. A general right to resign from the contract (in particular according to Sec. 651, 649 BGB) is excluded. Incidentally the relevant law is applicable.
- Our liability is excluded if the delivered goods are not stored or used correctly by the customer or third parties or used for other purposes by the customer as indicated here (below). Exclusively, the delivered goods are
- to be used by facilities, institutions or companies operating for research or developmental purposes,
- to be used by people, trained for handling these goods,
- for the purpose of research and development.
- Before using the goods for not explicitly permitted purposes, the customer is obliged to prove the goods for their suitability for this application and to release us from third-party claims due to improper use not covered by the contract.
- If goods are or contain a GVO (genetically modified organism), the customer guarantees that the goods are exclusively used in laboratories which are equipped according to the relevant security regulations (i.e. S1, S2, etc.) according to the laws of his/her country or the country of use.
- If delivered goods are used in industrial production, we are not liable for the success of the production process.
Sec. 10 Limitation of claims
- Differing from Sec. 438 (1) No 3 BGB, the period of limitation of claims due to goods or legal defects amounts to one (1) year as of delivery. Further special rules under applicable law remain unaffected (especially Sec. 438 (1) No 1, (3), Sec. 444, 479 BGB).
- The aforementioned periods according to the law of purchase are also applicable to contractual and non-contractual customer claims for damages that result from a defect of the goods, unless the applicable law of limitation of claims leads to a shorter period (Sec. 195, 199 BGB). Customer claims for damages according to Sec. 9 (2) s. 1 and 2a of these terms as well as claims under the Product Liability Act (“Produkthaftungsgesetz“) lapse exclusively according to the legal periods of limitations of claims.
Sec. 11 Confidentiality
- “Confidential information” are all our information and documents that are marked as “confidential" or that can be considered as confidential due to the general circumstances under which they are given. Especially this includes information and documents on operational processes, business relationships and know-how.
- The customer is obligated to strictly maintain silence about confidential information. The confidential agreement shall be valid temporally unrestricted beyond the termination of the contractual relationship.
- Exempt from the confidential agreement is information that
- has evidently known by the customer before conclusion of contract or thereafter become accessible to the customer by a third party without violating this confidential commitment, applicable law or governmental instructions,
- has been known or is made accessible in public at the time of conclusion of contract without violating the business relationship,
- has to be made public due to applicable law or governmental or judicial instructions. If permitted and possible, the customer will inform us in advance to enable us to take action against the disclosure instructions.
- The customer shall only disclose confidential information to consultants or other contractors who are subject to the professional secret or whom the customer has imposed non-disclosure obligations correspondent to those under these terms. Furthermore, the customer shall disclose confidential information only to servants or consultants who are essential for customers performance with the delivered goods and who are legally bound by confidential agreement for the time beyond their engagement.
Sec. 12 Further conditions of webpage usage
- In addition to the above regulations, the usage of our Internet pages (especially the webshop) as well as other services that we provide to the customer (all together hereafter “services”) are subject to the following conditions. The customer shall use the services only if he/she accepts these conditions. By using the services, the parties agree on a contract free of charge for usage of the services. According to the present technology, we cannot provide and therefore do not guarantee an uninterrupted, error-free and entire availability of the services. Interruptions or maintenance can limit or interrupt the facilities. If we can influence those interruptions (e.g. maintenance), we endeavor to keep them short. The services can be reached by using a personal computer (PC) and a web browser in the Internet. The services can be limited if reached by using other end devices. The content of the services is established with greatest care. However, we will neither warrant the accuracy, the integrity nor the timeliness of the content provided by the services. Furthermore, we do not warrant data security outside our domain. We are not liable for the risk of data loss by transferring data in the Internet. The services can include links to third-party webpages. Since we have no influence on their content, we are not liable for the content of third-party webpages. Instead, the third party and the provider of these webpages is responsible and liable for their content and accuracy. No statutory violation was known at the time of linking the third-party webpages. If we become aware of a statutory violation, we will delete the corresponding link immediately.
Sec. 13 Miscellaneous
- Governing law for these terms and the business relationship between the parties shall be the law of Germany with the exclusion of the international conflict of laws provision, especially the UN Convention on Contracts for the International Sale of Goods (CISG).
- The place of jurisdiction shall be the place of our business (Sec. 1 (1) of these terms). However, we are also entitled to choose the place of performance of delivery for legal actions according to these terms or binding agreements as well as the place of general jurisdiction of the customer. Preceding legal provisions especially with regard to exclusive jurisdiction remain unaffected.
- Personal data of our customer collected in order to enable our performance, are treated according to the German data protection law (”Bundesdatenschutzgesetz”). With respect to the terms concerning data protection we explicitly refer to our webpage (“Datenschutzerklärung”) https://www.mobitec.com/privacy-policy.