The following general conditions are applicable to all sales and deliveries unless agreements to the contrary have been made in writing. General business conditions of the customer are binding for us only if we have agreed to them in writing.
1. Our offers are subject to change without notice. Binding contracts are concluded only by our written order confirmation or by delivery. We may deviate from our representations regarding volume, weight, composition, and quality, as long as such deviations are insignificant.
2. Our representations as to delivery dates are approximate only, unless we have given a binding commitment in writing.
3. We sell and deliver only those products which are included in our attached price list that is valid at the time of entering the contract. We may fulfill an order by deliveries in several instalments. Each instalment can be invoiced separately. Orders on call-forward notice will be executed on time if notice is received by us at least 14 days in advance of the desired delivery date.
4. We shall be excused from our obligations to perform our sales contracts in a timely manner by acts of God, work stoppages, labor conflicts, or other disturbances affecting us or our suppliers which are beyond our control and responsibility and are not caused by intention or gross negligence on our side, as long as the disturbances and the consequences thereof persist.
5. a) Unless we receive express written shipping instructions from our customer, the method of shipment is determined by us.
b) The risks of loss or damage to goods shipped passes to the customer upon our delivery of said goods to the freight forwarding agent.
6. Our prices include the costs of packaging, but not the Value Added Tax. The customer bears the costs of shipment unless there is an agreement to the contrary. Prices are subject to change without notice. Should the increase in price go beyond the general costs in living, the customer will be permitted to withdraw from the contract within two weeks.
7. a) Our invoices are payable net., within 30 days from the date of the respective invoice.
b) Payment by cheque or bill of exchange is effective only after these instruments have been cleared and paid. The discount on bills of exchange and any collection and other bank charges are born by the customer.
c) In case of our custom services we may demand 50 % of the agreed end price prior to starting with the service.
d) If the customer becomes insolvent, or if bankruptcy or reorganization proceedings are instituted on his behalf, we may demand payment of the purchase price in advance or the posting of an adequate security.
e) The customer is only permitted to set off a claim with uncontested claims, with a claim which has become res judicata respectively with a claim that is contested but ready for decision. In particular the customer is not permitted to withhold or to reduce the payment of due bills, in case of objection of the goods.
8. a)Title to the goods delivered by us does not pass to the customer until the customer has fully discharged all his obligations arising out of his business relationship with us. As long as we retain title to these goods, they may not be pledged or assigned under a security agreement. The customer may sell the goods only in the ordinary course of his business.
b)The customer assigns to us, as a security, all the accounts receivable resulting from the sale of our goods, up to the amount of our unpaid invoices. This security interest must take priority over all security interests in these accounts receivable which the customer grants to his other creditors. Payments which the customer receives on the accounts receivable resulting from the sale of our goods, must first be credited to that part of the accounts receivable which is not covered by our security interest.
c) As long as we hold any security interest in our goods or in the accounts receivable resulting from the sale thereof, the customer must give us any information which we need for the protection of our rights. This, in particular, applies to attachments and other forms of seizure with regard to our goods, or any account receivable assigned to us. The costs of any measures which we must adapt for the protection of our security interest will be born by the customer.
d) Without prejudice to our right to collect the accounts receivable assigned to us, the customer is permitted, subject to revocation at any time, to collect these accounts receivable.
e) To the extent to which the value of our collateral exceeds by more than 20%, the amount of our total claims against the customer, we are obliged to retransfer such excess collateral to the customer.
f) If the customer defaults on the due performance of any of his obligations to us, we may repossess the goods to which we still hold title and keep them in our custody until the default is rectified. Such repossession shall not be interpreted as a withdrawal of any sales contract, unless we expressly say so.
g) Upon full payment of our claims against the customer, title to the collateral shall automatically, i.e., without the necessity of an express retransfer, vest in the customer.
9. a) Our products are designed for use in scientific research. They have been developed for this purpose. Any application of our products for human medical treatment, for diagnostic purposes, or as pharmaceuticals is permitted only when such application is authorized both as to the customer and the user under the applicable laws and regulations and, as far as necessary, also approved by the competent government agencies. In addition, such application always requires our prior written consent. Express instructions on the package are the equivalent of such a consent by us; they do not, however, eliminate the requirement of any governmental approval, which might be necessary in the user's territory.
b) Customers who utilize our products for industrial production, do that at their own peril. Since we cannot anticipate or control the possible procedures and processes for such an industrial application of our products, we must reject here any and every form of warranty or liability. Our application instructions in such cases are only to be considered as recommendations, which do not commit us in any way.
c) We reserve the right to refuse to accept any order where we reasonably believe that the products will be used for unauthorized purposes. We reserve the right to refuse to accept any order where we reasonably believe that the products or derivatives and progeny thereof will be offered for resale or onward distribution by an unauthorized distributor or reseller.
d) Customer shall not decompile or reverse engineer any of the products or attempt to do so; perform any studies to determine the structure, chemical composition, or other makeup of the products, or make any copy, derivative or progeny of the product, nor permit or enable any third party to do so, unless and to the extend expressly permitted in any contract between us and customer.
10. a) Any defects of goods delivered by us, as well as deficiencies in quantity or deviations in kind between the goods delivered and the goods ordered, must be reported to us in writing at the latest two weeks after delivery to the customer. Hidden defects must be reported without delay after their discovery. The failure to observe these time limits will result in the automatic loss of any warranty claims which might otherwise have existed.
b) In case of justified complaints we shall supply the missing quantities. If we should replace defective goods, and the replacement should also prove to be defective, the customer, at his option, may rescind his purchase or demand an appropriate reduction of the purchase price.
c) We are liable for damages exceeding the warranties in clause 10 b) only in case of willful misconduct or gross negligence. This limitation of our liability for ordinary negligence does not apply to those damages which are the result of violations on our part of contractual provisions, vital for the realization of the purpose of the contract concerned. Any claims for damages existing under this paragraph are, however, limited to damages which had been foreseeable results of the mistake or misconduct complained of.
d) Claims under any warranty and claims for damages do not exist in case of inappropriate handling, use, or processing of our products.
11. a) The place of delivery and payment is Munich. With regard to customers who are businessmen, or who have their residence outside of the Federal Republic of Germany, Munich shall have exclusive jurisdiction over any controversy between the customer and ourselves arising out of the sale and/or delivery of any of our products. We may, however, elect to have such controversies decided by the courts with jurisdiction over the residence of the customer.
b) The laws of the Federal Republic of Germany are exclusively applicable. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable.
ChromoTek GmbH, München
Amtsgericht München, HRB 175 782
as of: February 2009