GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF SALE
CellTool GmbH, Tutzing
ARTICLE 1: Scope of Application
1.1. CellTool GmbH (hereinafter called “CELLTOOL”) shall effect all sales and deliveries of goods exclusively in accordance with the General Terms and Conditions of Sale (hereinafter called “General Conditions”) set forth below unless otherwise expressly agreed in writing. The General Conditions shall also apply if no express reference is made to them.
1.2. Deviating conditions of order or purchase, or other general terms and conditions of the Buyer shall not be applicable, even if referred to by the Buyer and not expressly rejected by CELLTOOL.
1.3. The Buyer accepts the General Conditions on making an order or acceptance of the products. The General Conditions shall also apply to future business with the Buyer.
ARTICLE 2: Contract Conclusion and Scope of Delivery
2.1. Offers, price lists and other advertising material of CELLTOOL are always subject to change without notice. Purchase Orders are only binding for CELLTOOL if they have been confirmed in writing or accepted by delivery of the product. Our latest catalogues and price lists are included in our offers.
2.2. Specifications on volume, nature and quality of the products are not binding, unless expressly stated in the order confirmation of CELLTOOL. We reserve the right to make changes and amendments in the course of technical development.
2.3. Any previous declaration made by the Buyer, in particular any letter of confirmation, shall be deemed an offer to conclude a contract.
ARTICLE 3: Prices
3.1. The prices according to our price lists and catalogues are subject to written confirmation and to change without prior acknowledgment.
3.2. Prices according to our price lists and catalogues are net prices and, upon our discretion, ex works, stock or from such place which the parties have agreed upon. They do not include insurance and VAT if applicable. Freight charges are subject to the terms of delivery as defined in the confirmation order. We charge the applicable VAT rate unless the transaction is not subject to VAT.
3.3. CELLTOOL invoices the customer in EURO.
3.4. With the order of CELLTOOL products the buyer accepts the option of mandatory pre-delivery-partly-payments as stated in CELLTOOLs offers.
ARTICLE 4: Delivery
4.1. Place of Performance shall be at CELLTOOL’s registered office in Bernried.
4.2. Dates, in particular delivery dates, shall only be binding if expressly confirmed by CELLTOOL in the confirmation order. The period for delivery commences upon mailing of the confirmation order. CELLTOOL remains entitled to deliver prior to the agreed delivery date.
4.3. CELLTOOL shall be entitled to effect part deliveries if reasonably acceptable for the Buyer.
4.4. We expressly reserve the right to our own appropriate and punctual delivery.
4.5. Periods of delivery and performance shall be duly extended in the event of unforeseeable events, force majeure, supply problems with the subcontractor and any other impediments beyond the control of CELLTOOL which substantially effect delivery or performance. This also applies to strikes and lock-outs and other circumstances, that would substantially hinder the delivery, if we are not responsible for these events, irrespective of these occurring with us or one of our suppliers. Were those circumstances or events to last longer than 3 months we are entitled to rescind the contract.
4.6. CELLTOOL is not entitled to use the rights under art. 4.4. and 4.5. unless it has notified the Buyer without undue delay.
4.7. If the Buyer defaults in acceptance, CELLTOOL shall be entitled to store the goods at the Buyer’s risk. The costs incurred by storage shall be borne by the Buyer, even if storage is made in CELLTOOL’s own premises. If the Buyer still fails to accept delivery after expiration of a reasonable period, CELLTOOL shall be entitled to otherwise dispose of the goods so stored and to charge the Buyer 20 % of the purchase price as minimum damage unless the Buyer is able to prove that the damage was considerably lower.
ARTICLE 5: Passing of Risk and Shipment
5.1. The risk of accidental destruction or accidental deterioration of the goods passes to the Buyer, at the latest on hand over to the forwarding agent or other carrier, irrespective of who is bearing the cost of the transport in each case.
5.2. If the goods are ready for shipment and shipment or acceptance of the goods is delayed on grounds which are beyond the control of CELLTOOL, risk of loss shall pass upon receipt of the notice that the goods are ready for shipment.
5.3. The aforementioned art. 5.1. and 5.2. apply also to part deliveries.
5.4. CELLTOOL is not obliged to take out shipment insurance unless it has been ordered expressly and in writing by the Buyer to do so, in which case the Buyer shall bear the costs of the insurance.
ARTICLE 6: Retention of Title
6.1. Until full payment of the invoiced amount including the payment of all previous deliveries in the business relationship, including ancillary debts (by cheque or bill of exchange until the respective amount has been irrevocably credited to CELLTOOL’s bank account) the goods remain CELLTOOL’s property (“Reserved Goods”). In contracts with merchants or legal entities of public law or public law trusts the delivered products remain CELLTOOL’s property until payment of all future shipments. The Buyer is not entitled to pledge the Reservation Goods or to transfer title for security reasons.
6.2. The Buyer shall store the reservation goods for CELLTOOL with the due diligence of a reasonable business man and insure such goods against fire, water, theft and other risks of liability at his expense. Upon conclusion of the purchase agreement the Buyer simultaneously assigns his corresponding claims under the insurance policies to CELLTOOL. CELLTOOL herewith accepts such assignment.
6.3. If the Buyer processes, combines or reconstructs the Reserved Goods CELLTOOL will be deemed manufacturer (Hersteller) according to sec 950 BGB and will acquire the co-ownership in the interim or final product. The processing, combining or reconstructing of the Reservation Goods with other goods that are not owned by CELLTOOL will entitle CELLTOOL to the co-ownership share in the new product in proportion of the value of the invoice amount of the Reserved Goods to the remaining processed goods at the time of the processing, combining or reconstructing. The Buyer shall store the goods which are in sole or co-ownership of CELLTOOL for CELLTOOL according to art. 6.2.
6.4. The Buyer shall be revocably entitled to resell Reservation Goods or goods in which CELLTOOL holds ownership or a co-ownership share in the ordinary course of business subject to retention of title. As security it now assigns all claims in the amount of the invoiced amount (including VAT) of CELLTOOL’s claims according to art. 6.1., that it attains from the its customers or third parties from the resale; CELLTOOL hereby accepts such assignment. If CELLTOOL only holds a co-ownership share in the sold goods, the claims shall be considered assigned in the amount of the market value of such share but shall have priority over all other claims. CELLTOOL herewith revocably authorises the Buyer to collect the account receivables in its name for the account of CELLTOOL, unless the Buyer comes into arrears with its payments, files for bankruptcy or reorganisation or ceases payment. The Buyer undertakes to pay the proceeds to CELLTOOL without undue delay. The Buyer must not include the account receivables in a current account with its customer.
6.5. The Buyer further undertakes to inform CELLTOOL about its debtors and the amount of receivables which have been assigned according to art. 6.4. Upon request of CELLTOOL the Buyer has to notify its debtor of the assignment and has to assist CELLTOOL in all measures which are necessary to secure CELLTOOL’s rights. CELLTOOL is entitled to notify the debtors of the Buyer of the assignment and to instruct them.
6.6. The Buyer shall immediately notify CELLTOOL in writing of any attempts of seizure or other impairment of the reservation goods in which CELLTOOL has a co-ownership share or account receivables by third parties and shall furthermore make available to CELLTOOL any documentation which is necessary to challenge the seizure or other impairment. If and in so far as the third party does not settle the in court and out of court legal costs which have been incurred in challenging the seizure or other impairment, the Buyer shall reimburse CELLTOOL for the resulting loss.
6.7. If the value of the security provided by the Buyer exceeds the claims of CELLTOOL by more than 20 %, CELLTOOL shall be obliged upon the Buyer’s request to release security equal to the excess value. CELLTOOL is entitled to choose which reservation goods shall be released.
ARTICLE 7: Licence
7.1 For certain sales, the Purchaser shall be supplied with pre-installed software together with the device sold. This is described in the order confirmation. The Purchaser shall be granted the following right of use and enjoyment of the software, which rights are non-exclusive and for which it shall not be entitled to issue sub-licences:
a) The Purchaser shall be entitled to use the software on a single personal computer, workstation or control unit at any one time. For the purposes of this agreement, using the software shall mean making copies thereof, long-term or temporary, whole or in part by way of loading, displaying, running, transferring or saving it for its implementation as well as processing of the data stock it comprises and for observation, examination or testing purposes.
b) The software may be used on a multi-user-system or network in as far as this has been expressly stipulated in the order confirmation or the product specification, however, its use shall be limited to the number of simultaneous users stipulated in the product specification or order confirmation.
c) The software may only be used in conjunction with the device purchased. The Purchaser shall be entitled to make a backup copy of the software. Translation, alterations to its configuration and other modifications to the software as well as any other use of the software shall be excluded unless this is necessary to correct software defects and CELLTOOL has not made an adequate offer to correct the defects within a reasonable period or, if the Purchaser accepted such an offer, which CELLTOOL did not carry out within a reasonable time and after expiry of a further final deadline.
d) Decompiling or any other means of determining the source code shall only be permitted within the terms specified by law in as far as CELLTOOL has not, within a reasonable period of time, supplied the information necessary for inter-operability of the software with an independently created computer program.
7.2 The Purchaser shall be accorded a non-exclusive right – which, however, shall not entitle him to grant sub-licences – to use the operating manual and accompanying documents for the software solely in order to aid him in utilization of the software. Duplication is prohibited. In the event that duplication of the software has been authorized, all copies must include the trade names, copyright notices and company names contained in the original.
7.3 The Purchaser shall not be entitled to rent or lease the software and documentation to third parties for acquisition purposes, nor may he make it available to third parties in terms of EDP services, timeshare agreements or any other means and nor may he use it or allow it to be used to serve third parties. An ultimate transfer of the rights of use and enjoyment to third parties may only be made together with transfer of the device running the software and only on condition that the third party obligates itself vis-à-vis CELLTOOL in writing that it shall comply with the conditions of use. CELLTOOL may object to the transfer if the recipient of the transfer is in competition with CELLTOOL Once the transfer has become effective, the Purchaser shall delete all copies or partial copies of the software.
ARTICLE 8: Terms of Payment
8.1. Our invoices are payable within 30 days after date of the invoice without any reductions. The granting of a discount is subject to the settlement of all previous invoices.
8.2. In any case of late payment CELLTOOL is entitled to charge interest at the rate of 3 % p.a. above a base rate pursuant to art. 1 of the Statute for the Transmission of Discount Rate (Diskontsatzüberleitungsgesetz, DÜG) but not less than 5 % p.a. from the date the payment became due or from the date of default. This applies unless the Buyer proves that the loss of interest was considerably lower. If CELLTOOL proves higher damages caused by default, CELLTOOL is entitled to claim calculated damages.
8.3. At the latest, from 1 January 2002 onwards invoices for the agreed remuneration will be made in Euro. The statutory conversion rules and the rounding up rules pursuant to art. 4 (4), 5 Euro Regulation I (Euro-Verordnung I) shall be applied. The Buyer is obliged to settle Euro invoices in Euro. In future price negotiations the parties shall reach a settlement on flat prices.
8.4. Setting of against counter claims shall not be admissible, unless the Buyer’s counter claim is undisputed, has been declared final or has been accepted by CELLTOOL. The Buyer is only entitled to a right of retention, if the counter claim is based on the same contractual relationship.
8.5. In the event of late payments or justified doubts on the ability to settle its debts or credit worthiness of the Buyer CELLTOOL is entitled, notwithstanding other rights, to request further security or advances for shipments and to declare all payment claims of the business relationship to become immediately due.
8.6. For export business the Buyer undertakes to open an irrevocable and assignable letter of credit in favour of CELLTOOL with a major European bank in the amount of the purchase price. The costs of the letter of credit are borne by the Buyer. In the event that CELLTOOL does not receive a confirmation letter by the issuing bank within 14 days upon the date of the invoice, at the latest, however, on the agreed date in writing, CELLTOOL is entitled to rescind the contract. CELLTOOL is entitled to withhold shipment until receipt of the confirmation letter.
8.7. In case of part payments CELLTOOL is entitled to charge the funds against such accounts receivables which it thinks fit. Repayment provisions of the Purchaser are only binding, if they have been confirmed by CELLTOOL in writing. This applies in particular to advance payments.
ARTICLE 9: Warranty, Guarantee
9.1. If the Buyer is a merchant or legal entity of public law or public law trust, the warranty rights of the Buyer require that it fulfils the obligation pursuant to arts. 377, 378 of Commercial Code (Handelsgesetzbuch) to inspect the goods and to notify CELLTOOL of any defect in writing. For obvious defects CELLTOOL must receive notice, at the latest within 10 days of the receipt of the goods.
9.2. In export business the time is extended to four weeks.
9.3. If the delivered goods prove to be defective or if they lack any warranted qualities, CELLTOOL may, on its discretion, repair the defect or effect substitute delivery. If CELLTOOL fails to effect substitute delivery or to repair the defect after it has been granted a reasonable period of grace or if substitute delivery or repair permanently fails to be effective, for reasons which CELLTOOL is responsible for or the defect rectification/substitute delivery fails in another way, the Buyer has the option to demand a proportionate reduction of payment (Minderung) or rescission of the contract (Wandelung).
9.4 The time-limit for assertion of the claims described in art. 9.3 above is six months (warranty period). After expiry of the warranty period, the customer may assert the claims described in art. 3.2 during a further six months (guarantee period). This shall not affect the customer’s duty to examine and give notice of defects according to sections 377, 378 Commercial Code. CELLTOOL shall be entitled to invoice the customer for any work required during the guarantee period, subject to presentation of respective receipts for costs incurred for the journey back and forth, overnight accommodation, provision of food and drink and other expenses incurred.
9.5. Additional claims of any kind, irrespective of their legal grounds by the Buyer, in particular claims for damages on account of non-performance shall be excluded, subject to the claims pursuant to art. 9.
9.6. Any warranty is terminated, if the buyer does any technical services at the CELLTOOL's delivered goods outside CELLTOOL services. All technical services at any CELLTOOL device have to be done by CELLTOOL, otherwise CELLTOOL does not give any guarantee for correct results anymore. If the device is sold by the buyer to any third party, this has to be told CELLTOOL inside 10 days in written form ensuring continuous service coverage.
ARTICLE 10: Liability
10.1. Notwithstanding the warranty pursuant to art. 8, CELLTOOL is liable for any damages, irrespective of their legal basis, if CELLTOOL has negligently violated an essential obligation of the contract (Kardinalpflicht) in a manner which places the purpose of the agreements at risk or in the event of an intentional or grossly negligent violation of obligations by CELLTOOL. If the violation of principle obligations by CELLTOOL is not grossly negligent or intentional, the liability of CELLTOOL is limited to such typical damages or to such a typical extent of damages which was, at the time of the contractual agreement reasonably foreseeable.
10.2. The same applies in the event of an intentional or grossly negligent violation of obligations by salaried employees, staff members or representatives who are not executive officers or senior management of the company.
10.3. CELLTOOL does not assume any liability for indirect or consequential damage or loss of profits unless in the event of intent or gross negligence on the part of executive officers or senior management of CELLTOOL or the lack of a warranted quality giving raise to such liability unless it is required by the quality of the violated principle obligation.
10.4. Our liability is for pure financial loss, in any event, limited to the twofold value of the goods.
ARTICLE 11: Miscellaneous
11.1. In the event that individual or several provisions of the General Conditions are ineffective or void, the validity of the remaining provisions shall – in case of doubt – not be effected. In the event that individual or several provisions of these General Conditions are ineffective or void they shall be replaced by provisions which according to their economic effect come closest to the ineffective or void condition(s).
11.2. Any changes or modifications of these General Conditions shall be made in writing. This written form requirement may only be waived by written and express agreement concluded between the parties.
11.3. This contract shall be exclusively governed by the law of the Federal Republic of Germany. The UN Convention on the International Sale of Goods (C.I.S.G.) shall be excluded.
11.4. Exclusive jurisdiction for all legal disputes arising directly or indirectly out of or in connection with this contract shall be handled by the court of the registered office of CELLTOOL unless an exclusive venue is prescribed by law. CELLTOOL shall be entitled to bring an action or institute other legal proceedings at the Buyer’s place of jurisdiction.