Terms and Conditions of Sale of ChromoTek GmbH (hereinafter “CTK”)
to End Users and Resellers that are not appointed by CTK as Distributors
The following general terms and conditions shall apply to all sales and deliveries of ChromoTek GmbH (address: Am Klopferspitz 19, D-82152 Planegg-Martinsried) a German corporation registered with the lower court of Munich in the commercial register under HRB 175 782, https://www.chromotek.com/imprint-impressum/ (hereinafter also referred to as “CTK”) to customers who are businessmen in the meaning of § 14 German Civil Code or public legal entities (the “Customers”) and order CTK products displayed in the web shop on CTK website https://www.chromotek.com/ (“CTK’s Website”) under https://www.chromotek.com/products/ (the “Products”) online, by e-mail, telephone or facsimile, unless otherwise agreed between CTK and the Customer in writing.
General terms and conditions of the Customer (purchaser) that conflict with the present terms and conditions of CTK shall not be binding upon CTK, even if the purchase order is based on Customer’s general terms and conditions and CTK has not expressly rejected them.
Limitation of Scope of Use, Handling and Storage of Products
- The Products have been designed and developed for the sole purpose of (i) scientific research and internal development purposes; (ii) use for clinical research, studies, trials, and services; (iii) use in the performance of research or development services (including under contract or as fee for service test) performed to generate results for a third party’s internal research and development activities; and/or (iv) use in the performance of a laboratory developed test as authorized or permitted under applicable law or governmental regulation (“Permitted Scope of Use”). The Customers may not use the Products outside the Permitted Scope of Use. Therefore, unless individually permitted by CTK in writing, CTK concludes contracts only with Customers who order CTK’s Products solely for the Permitted Scope of Use.
The restrictions of use set forth under section 1, including its subsections shall therefore be acknowledged by all Customers, when ordering the Products
1.2 Customers may use CTK Products only subject to the following restrictions:
(i) none of the Products are to be used outside the Permitted Scope of Use, in particular, but not limited thereto, they may not be used in any in vivo diagnostic or therapeutic procedure or in pharmaceuticals;
(ii) Customers shall always read and follow the guidance and warnings in the relevant CTK instructions for use set forth in the Safety Data Sheet displayed on CTK’s Website and on the package before taking delivery, storing or using the Products;
(iii) the Products are only suitable for use by persons trained in the relevant laboratory techniques;
(iv) all persons intending to use the Products must rely on their own knowledge and judgment in the selection and use of those Products;
1.3 Customers shall store and handle CTK Products in accordance with CTK’s instructions:
(i) the Products have a limited usable life and require storage and handling in controlled conditions as outlined in the respective Safety Data Sheet displayed on CTK’s Website; and
(ii) Customers are responsible for complying with any applicable German, UK, EU or US legislation or regulations governing the storage and handling of the Products.
1.4 Customers are responsible for complying with any applicable German, UK, EU or US legislation or regulations governing the importation into the territory where the Products are intended to be used.
1.5 Resellers are responsible to impose upon their purchasers of the Products the same limitations and restrictions as set forth in this section 1 and in section 14 (Export Control Restrictions).
1.6 Exception to the restrictions set forth under sub-sections 1.1 through 1.5 (the “Restrictions”):
(i) Any application or use of CTK’s Products deviating from the Permitted Scope of Use and the Restrictions shall always require CTK’s prior written consent.
(ii) any Use of CTK’s Products deviating from the Permitted Scope of Use and the Restrictions, in particular, but not limited to human medical treatment, for diagnostic purposes, or as pharmaceuticals shall only be permitted if and to the extent the use is permitted under applicable law and has been authorized by prior written consent both as to the Customer and the user under the applicable laws and, if necessary, also approved by the competent government agencies; they do not, however, replace the requirement of any governmental approval, which might be necessary in the Customer’s or user's territory.
Customers and their users utilizing CTK’s Products in accordance with the preceding two paragraphs (i) and (ii) of this section 1.6, for example in industrial production, do that at their own peril. Since CTK cannot anticipate or control the possible procedures and processes for such an industrial application of CTK’s Products, CTK rejects any and every form of warranty or liability. Should CTK make any application instructions in such cases, they are only to be considered as non-binding recommendations, expressly waiving any commitment or liability.
Diagnosis must always be undertaken by a duly qualified clinician on the basis of all appropriate evidence and best clinical practice, not in sole reliance on laboratory tests.
2. Orders, Conclusion of Contract
2.1 CTK’s description and depiction of Products on CTK’s Website are not a legally binding offer to the Customer but are an invitation to the Customer to make an offer to purchase the CTK Products.
2.2 Orders to CTK may be made
- online in CTK web shop https://shop.chromotek.com/; or
- by facsimile to +49 89 124148811 attn. “order”.
In case of making an online order: By finishing the order process on CTK’s Website, the Customer makes a binding offer to purchase CTK’s Product(s). The same shall apply, in case a Customer sends CTK an email or facsimile with an offer to purchase CTK’s Products or confirms by email or facsimile an order made by telephone.
2.3 By sending an order to CTK, the Customer confirms that it purchases the Products in its own name and for its own account. To the extent that the Customer is a reseller, it confirms that it sells the Products in its own name and for its own account only to purchasers whom the reseller obligates to use the Products under the terms and conditions set forth in section 1.
2.4 By sending an order to CTK, the Customer further confirms that it will use the ordered Products solely within the limitation of scope of use described under section 1. CTK retains the right to request prior to the conclusion of a contract with the Customer written evidence that the use of the Products will be limited to scientific research purposes in accordance with section 1.
2.5 A binding contract with the Customer is only concluded by CTK’s written order confirmation or by delivery. The acceptance of the Customer’s offer is made by e-mail sent by CTK (firstname.lastname@example.org). A message sent by CTK that the Customer’s offer has been received is not and may not be interpreted as acceptance of the Customer’s offer.
2.6 The Customer has no claim that CTK accepts the Customer’s offer or the registration as user of CTK’s Website. CTK retains the right to refuse the conclusion of an agreement based on an offer from a Customer. In particular, CTK reserves the right to refuse any order of a Customer where CTK reasonably believes that the Products will be used for unauthorized purposes.
3. Responsibility for Access Data and Passwords
3.1 Any data of the Customer, such as username and password shall be kept confidential and shall be stored inaccessibly by unauthorized persons.
3.2 The Customer shall be responsible to ensure that the access and the use of the webshop on CTK’s Website in the login-area only occur by the Customer or its entitled users. If facts give reasons that an unauthorized person has obtained knowledge of the Customer’s access data and passwords, the Customer shall be obligated to inform CTK without undue delay thereof. CTK will then block or inactivate the access of the login area under the respective username and password.
4.1 CTK may deviate from its representations regarding volume, weight, composition, and quality of the Product, as long as such deviations are insignificant.
4.2 CTK’s representations as to delivery dates are approximate only, unless CTK has made a binding commitment in writing.
5. Partial Delivery, Orders on call-forward Notice
5.1 CTK may fulfill an order by deliveries in several instalments. Each instalment can be invoiced separately.
5.2 Orders on call-forward notice will be executed on time if notice is received by CTK at least 14 days in advance of the desired delivery date.
6. Delivery Terms, Risk of Loss or Damage
6.1 Unless expressly agreed otherwise between CTK and the Customer, CTK delivers the Products EXW Planegg-Martinsried (Incoterms 2020).
6.2 The risk of loss or damage to Products shipped passes to the Customer upon CTK delivery of the Products to the first freight forwarding agent. This shall also apply in case CTK assumes the obligation to package the Products with special ice as laid out in the following section 6.3.
6.3 The Products must be shipped at a certain continuous temperature to ensure that the properties and the quality of the Products do not alter or deteriorate. Upon Customer’s request, CTK will package the Products for transportation with the required ice (blue ice or dry ice, as necessary). The costs for packaging and transportation shall be borne by the Customer.
CTK prices are EXW Planegg-Martinsried (Incoterms® 2020), in Euros and net of VAT or sales tax. CTK charges the prices set forth in the price list displayed on the CTK Website at the time of entering the contract or the prices as offered by CTK to the Customer in individual cases. The prices communicated on the CTK Website for the Products may be changed by CTK prior to an announcement on the CTK Website and shall apply to future orders of the Customer.
8. Payment Terms, Default of Payment
8.1 CTK invoices are payable without any discounts within 30 (thirty) days from the date of the respective invoice.
8.2 Payment by cheque or bill of exchange shall be effective only after these instruments have been cleared and the payment is received by CTK. Charges on bills of exchange and any collection and other bank charges shall be borne by the Customer.
8.3 CTK may demand payment of the purchase price in advance or request grant of an adequate security for the purchase price.
8.4 In the event of delayed payment, CTK shall be entitled to demand interest on the defaulted amounts at a rate of 9% above three-month EURIBOR.
9. Setting-Off, Withholding of Payments
Customer may only withhold payments or set off a claim with undisputed claims, with a claim which has become final and binding by court decision. In particular, the Customer shall not have the right to withhold or to reduce the payment of due bills, in case of objection of the Products.
10. Retention of Title
10.1 Title to the Products delivered by CTK does not pass to the Customer until the Customer has fully discharged all his obligations arising out of his business relationship with CTK. If CTK retains title to these Products, they may not be pledged or assigned under a security agreement.
10.2 If the Customer defaults on the due performance of any of his obligations to CTK, CTK may request possession of the Products to which CTK still holds title and keep them in CTK’s custody until the default is rectified. Such repossession shall not be interpreted as a withdrawal from any sales contract, unless CTK expressly says so.
10.3 Upon full payment of CTK’s claims against the Customer, title to the collateral shall automatically, i.e., without the necessity of an express retransfer, vest in the Customer.
11. IP Rights
The 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, modification or progeny of the Product, nor permit or enable any third party to do so, unless and to the extent expressly permitted in any agreement between CTK and the Customer.
12.1 Any defects of Products delivered by CTK, as well as deficiencies in quantity or deviations in kind between the Products delivered and the Products ordered, must be reported to CTK in writing at the latest one week after delivery to the Customer. The time limit is calculated from the day the Customer receives the Product. Hidden defects must be reported to CTK 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.
12.2 The Customer shall not have any warranty claim, including claims for damages in case the defect is caused by inappropriate handling, use, or processing of CTK Products by the Customer in violation of the restrictions set forth in Section 1.
12.3 In case of justified complaints as to missing quantities, CTK shall supply the missing quantities. In case of defects of the delivered Products, upon the Customer’s choice, CTK shall either remedy the defect or replace such defective Products by defect-free Products. If the replacements should also prove to be defective, the Customer, at his option, may rescind the purchase agreement or demand an appropriate reduction or repayment – as the case maybe - of the purchase price.
12.4 Claims for defects by the Customers shall be time-barred after expiration of shelf life.
13.1 CTK shall be liable for damages in case of willful misconduct or gross negligence by CTK or its agents. In case of CTK’s violation of substantial contractual provisions that are vital for the realization of the purpose of the contract concerned, CTK shall also be liable for ordinary negligence. However, in case of ordinary negligence, any claims for damages are limited to foreseeable damages caused by the defect or misconduct complained of.
13.2 Any damage claims based on product liability or other mandatory laws shall remain unaffected by the preceding limitation of liability.
13.3 CTK shall not be liable for damages caused by inappropriate handling, use, or processing of CTK Products by the Customer in violation of the restrictions set forth in Section 1.
14. Export Restrictions
The Customer acknowledges that the Products may be subject to export control provisions and economic sanctions restrictions of Germany, the European Union, the United Kingdom, U.S.A., and other countries (the “Export Control Regulations”). The Customer guarantees that he will not use, transfer or otherwise dispose of, export, reexport or divert any Products in violation of applicable Export Control Regulations. The Customer shall be obligated to observe current sanctions and denial lists and inform CTK should any proposed transaction involve parties that are listed or are determined for sanctioned destinations. It is the sole responsibility of the Customer to obtain any required approvals and permits under any applicable Export Control Regulations.
15. Force Majeure
15.1 CTK shall be excused from CTK obligations to fulfill CTK sales contracts in a timely manner by acts of God, strikes, fires, explosion, flood, riot, lockouts, injunction, interruption of transportation, accidents, war or apprehension of war, or other disturbances affecting CTK or CTK’s suppliers which are beyond CTK’s control and responsibility and are not caused by intention or gross negligence on CTK’s side, as long as the disturbances and the consequences thereof persist. In the event that a force majeure event lasts longer than three months from the date of the conclusion of the agreement between CTK and the Customer, the Customer shall be entitled to rescind the agreement.
15.2 In no event shall CTK be liable to the Customer for any claims, damages or expenses arising out of or related to CTK’s inability to fulfil the purchase order of the Customer due to a force majeure event.
16. Place of Fulfilment
The place of delivery and payment (Erfüllungsort) shall be Munich, Martinsried.
17. Applicable Law, Place of Venue
17.1 Any sales contract subject to these general terms and conditions shall be subject to the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable.
17.2 For Customers who are businessmen, or who have their residence outside the Federal Republic of Germany, the courts in Munich shall have exclusive jurisdiction over any controversy between the Customer and CTK arising out of the sale and/or delivery of any of the CTK Products. CTK may, however, elect to have such controversies decided by the courts with jurisdiction over the residence of the Customer.
17.3 CTK does not enter into any business relationship with consumers. Therefore, CTK does not participate in the European online dispute resolution platform (ec.europa.eu/consumers/odr).
ChromoTek GmbH, München
as at: June 2020