General Terms and Conditions for customers of ACQ SCIENCE GmbH
I. General / scope of application
1. Our terms and conditions apply solely with regard to companies, legal persons under public law, or special funds under public law, as defined in section 310 of the German Civil Code (BGB). Such persons shall be described below as Customers within the meaning of these terms and conditions.
2. Our terms and conditions apply exclusively; we do not recognise any conditions imposed by the Customer which contradict or differ from our terms and conditions unless we have expressly agreed to their validity in writing.
3. Our terms and conditions shall continue to apply if we provide services to the Customer without reservation while being aware of conditions imposed by the Customer which contradict or differ from our terms and conditions. These General Terms and Conditions shall also apply to future business done with the Customer.
II. Conclusion of the contract
1. Our offers are subject to alteration. Acceptance of a Customer’s offer takes the form of a written confirmation or of the service being performed or the item supplied.
2. Our offers do not contain any guarantees or accept any supply risks unless explicitly otherwise indicated. The information about attributes or product sample attributes given in public statements by us, especially in catalogues, brochures, circulars, printed adverts, illustrations, advertising and price lists, shall only comprise the nature of the goods if these attributes have been explicitly agreed as such in a contract. Public statements made by third-party manufacturers or their assistants shall only comprise the nature of the goods if they have been explicitly agreed as such in the contract or if we have explicitly adopted such statements ourselves in writing in public statements.
3. Until delivery we reserve the right to make such technological, chemical or physical changes as are customary in the trade, including, but not limited to, improvements, if this causes only insignificant changes to the nature of the goods and does not have any unreasonable adverse effect for the Customer. With regard to the weight, volume and dimensions of our goods, the weight, volume and/or dimensions measured on dispatch shall apply.
4. We are entitled to issue subcontracts.
1. Unless otherwise agreed, our prices are ex works and include packaging; the current rate of value-added tax shall be charged additionally. Any supplementary services negotiated shall be charged separately.
2. Unless otherwise agreed, sums charged to the Customer are payable immediately. Payments are solely to be made to the account indicated on our invoice. A discount for early payment/payment in cash is only allowable if explicitly agreed upon.
3. The Customer can only offset its claims against ours if the Customer’s counterclaim is undisputed or if an enforceable title has been obtained.
4. If a delivery period of more than six weeks has been agreed and in the case of a continuing obligation lasting longer than six weeks, we are entitled to pass on to the Customer any cost increases which occur during this period for procurement, delivery or staffing, by raising the prices affected by these increases to the extent required to compensate for such increases.
IV. Delivery and delayed delivery
1. Delivery dates and times shall be based on our order confirmation. If any changes to the content or extent of the delivery are negotiated after the contract is concluded, the delivery deadline for the total order shall be recalculated with the date of such changes as the starting-point. The delivery date or time shall have been adhered to if the goods are ready for dispatch.
2. If we are unable to deliver the goods or provide the service due to circumstances beyond our control including, but not limited to, steps taken during industrial action, strikes or lock-outs, acts of God, war, natural catastrophes or our own suppliers’ failure to deliver goods or their inadequate delivery, then the deadline for delivery of the goods or performance of the service shall be extended appropriately. We are entitled to rescind the contract if the obstacle preventing us from delivering the goods or providing the service remains indefinitely and the purpose of the contract is in jeopardy. If such obstacle remains for longer than two (2) months, the Customer shall be entitled to withdraw from the contract as regards the part of it which has not been fulfilled, even if the Customer does not in any case have the right to withdraw from the contract as a whole in accordance with the provisions of these conditions.
3. We shall be entitled at any time to deliver goods and provide services in part, to the extent that partial delivery or provision does not go against the Customer’s interests or is not unreasonable.
V. Passing of risk
The risk shall pass to the Customer when the goods are dispatched; this shall apply equally if we have undertaken further services, such as their transport, or if we have agreed to bear the transport costs. If shipping is delayed due to circumstances which are attributable to the Customer, the risk shall pass to the Customer when we are ready to dispatch.
VI. Reservation of title
1. Title to the goods supplied shall only pass to the Customer when all claims we make before and after the contract is concluded, in relation to our business relationship, have been paid in full. Processing, integration or transformation shall always take place on behalf of us, the manufacturer, but shall not subject us to any obligation. If the title is extinguished as a result of combination or processing we hereby agree in advance that the Customer’s ownership of the uniform thing shall be transferred to us pro rata. The Customer shall retain co-ownership free of charge. In the following, goods which we are entitled to co-own shall be described as Reserved Goods.
2. The Customer shall be entitled to process or to sell the Reserved Goods in the regular course of its business as long as it has not fallen into arrears regarding its payment obligation. Pledges, or transfers as security, are not permitted. By way of security the Customer hereby transfers to us in full and in advance claims arising as a result of resale or for any other legal grounds; we accept this transfer. The Customer is authorised to collect claims arising as a result of resale or for any other legal grounds to the extent that it fulfils its duties towards us and that the conditions of Section 321 of the German Civil Code (BGB) do not arise. To the extent that the secured claims are due, the Customer shall be obliged to cede to us the sums collected without delay. It shall not be entitled to collect such sums if it has not been established prior to such collection that no obstacle prevents it from ceding the sums collected.
3. The Customer may not resell the goods if the claims arising from their resale or for any other legal grounds cannot be transferred or if circumstances prevent our claims arising from the sale from being satisfied.
4. At the request of the Customer, we shall release the ceded claim in the case that the realizable value of the ceded claims exceeds the secured entitlement by more than 20%. At our request the Customer shall be obliged to disclose the assignment of the claim and give us the documents and information required to assert the claim. If third parties have access to the Reserved Goods or the claims which have been transferred in advance, the Customer shall be obliged to inform them of our ownership and to advise us without delay, providing us with all documents required for intervention. If the Customer acts contrary to the contract including, but not limited to, delayed payment, or violation of the duties incumbent upon the Customer pursuant to this Clause VI, for example its duties of care regarding the goods and the duty to cede payments collected, we are entitled to demand that any delivered goods which have not yet been paid for shall be returned, or that the Customer assign to us its entitlements to their return with regard to third parties. Asserting our reservation of title or seizing the delivered goods shall not constitute a withdrawal from the contract.
VII. Guarantee/notice of complaint
1. We shall remedy defects by rectifying the defect or by supplying an undefective item, at our discretion. To the extent that we seriously and definitively refuse cure or refuse to rectify the defect and to provide cure due to costs being disproportionate, or if cure is not successful or we cannot reasonably be expected to provide it, the Customer can demand a price reduction or withdraw from the contract at its discretion. This shall not affect the Customer’s right to compensation for damages.
2. The Customer shall examine the goods we deliver immediately they are handed over and, if a material defect becomes apparent, notify us of such defect without delay. If the Customer fails to provide such notification, the goods shall be considered as having been approved unless the defect is such that it was not discernable during the examination. If such a defect becomes apparent later, notification must be provided immediately after it is discovered or the goods shall be deemed to have been approved, taking this defect into account. For the Customer to retain its rights, it is enough to have sent notification within due time. We cannot invoke this subsection if we have fraudulently failed to disclose the defect.
3. For claims to compensation due to defects and for claims arising from unlawful acts, the statutory terms of limitation shall apply. All other claims made by the Customer regarding material defects, including, but not limited to, cure, rescission, price reduction and compensation for wasted expenses, shall become time-barred within one year.
The following provisions shall apply for breaches of duty apart from liability for defects and shall neither exclude nor restrict the Customer’s statutory right to withdrawal. The following shall furthermore apply pro tanto:
1. The Customer shall only be entitled to claims to compensation or claims for compensation for wasted expenses as regards:
- injury to life, limb or health caused by an at least negligent breach of duty,
- other damages caused by an at least grossly negligent breach of duty or by at least negligently breaching duties essential to the contract (cardinal obligations),
- damages within the scope of a warranty (within the meaning of a guarantee, Section 276, subs. 1 of the German Civil Code, BGB) or of a guarantee of quality or durability (Section 443 of the BGB).
2. Our liability for simple negligence or grossly negligent acts by persons employed by us to fulfil our obligations who are not our legal representatives or executives (einfache Erfüllungsgehilfen), is limited to damages typically to be expected on concluding a contract and to the compensation of wasted expenses only regarding the non-performance of the contract.
3. Subsections 1 and 2 above apply to claims for compensation by the Customer arising from obligations accrued due to taking up contract negotiations, initiating a contract or similar business contacts. If a contract is subsequently concluded between us and the Customer, the Customer shall not be entitled to compensation unless their claims were founded under an existing contract according to the above provisions. Subsections 1 and 2 above shall not, however, apply to claims pursuant to Sections 1, 4 (manufacturer’s duty to compensation) of the German Product Liability Act (ProdHaftG) or in case of inability to perform duties at the outset or impossibility of performance for a reason within our control.
4. To the extent that our liability is excluded or restricted by the above clauses, this shall also apply to the personal liability of our staff, our representatives and persons employed by us to fulfil our obligations.
IX. Data processing/confidentiality
1. We shall use personal information from the contract only for the purposes of winding up agreements, providing customer support, carrying out market research and for our own advertising campaigns. Personal information gathered in the context of the contractual relationship and required for implementation shall be stored on our premises. Permission to do so is hereby deemed to have been granted.
2. We commit to treating in the strictest confidence all confidential information of which we are made aware directly or indirectly, and not passing it on to third parties, processing it or using it without the previous consent of the Customer. We shall take all appropriate measures to ensure confidentiality. Confidential information shall only be passed on to our staff or other third parties if this is required in the course of their work. This duty to maintain absolute confidentiality shall continue after our collaboration finishes.
The place of performance shall be the Company’s head office. The sole place of jurisdiction shall be Tübingen, although we reserve the right to take proceedings against the Customer at the location of its head office or branch office. These Terms and Conditions and all legal dealings between us and the Customer shall be governed solely by the law of the Federal Republic of Germany. The application of UN sales law (CISG) is hereby explicitly excluded.
If any of the above provisions should be or become invalid in full or in part, this shall not affect the validity of the remaining provisions.