General Terms and Conditions of the Bio-Rad Medical Diagnostics GmbH (BMD)

1 Scope of Application and Definitions

1.1 The BMD General Terms and Conditions (Terms and Conditions) shall govern all interactions and transactions between BMD and the customer (the two parties). These Terms and Conditions, therefore, shall also apply to all future transactions and interactions between the two parties without explicitly entering into any additional agreements. These Terms and Conditions shall be deemed accepted upon the receipt of our goods and/or services, at the latest. Any unilateral conditions such as, but not limited to, will not be accepted by BMD.

1.2 Any changes to these Terms and Conditions must be confirmed by BMD in writing.

1.3 The words “us”, “our”, “ours” shall mean “BMD", the words “you”, “your”, “yours” shall mean “the customer”.

2 Validity of Contracts

2.1 Any offers contained in brochures, advertisements, price lists etc. are without any commitment and subject to change without notice, including but not limited to price quotations. Any samples, illustrations etc., as well as all details of the performance data, shall only be binding if expressly specified. We will be bound by individual offers for the period specified in the offer, or, if not specified therein, for a period of 30 calendar days.

2.2 Each order must be confirmed by us in writing to be valid.

2.3 Any side agreements, amendments or supplements shall only be valid if confirmed by us in writing.

3 Delivery, Prices, Changes in prices

3.1 Delivery conditions shall be FCA Dreieich (Incoterms 2000). To avoid quality problems and damages of the goods the customer is obliged to entrust one of our recommended forwarding agents.

3.2 All prices are net prices exclusive of VAT and any duties, which shall be paid by the customer at its statutory rate from time to time, if applicable.

3.3 We reserve the right not to accept orders below 1000 €. If the single invoice value is below € 1000, an additional handling fee of € 150 will be charged per invoice

3.4 Shipping charges for same day deliveries or outside regular working hours (courier fees etc.) shall be borne by the customer.

3.5 € 70 will be charged for each delivery containing solid carbon dioxide (dry ice).

4 Delivery times

4.1 While it is our goal to always meet the specified delivery dates, they cannot be promised.

4.2 We shall not be liable for any delays in delivery as a result of force majeure or other events that render the delivery materially more difficult or impossible - including but not limited to, subsequent difficulties in the procurement of materials, operational breakdowns, strikes, lock-outs, shortage of staff or means of transport, governmental action etc, even if any such events occur with our suppliers or their sub-contractors, as well as in the event of time limits and dates agreed in a binding manner. We shall be entitled as a result of any such delays to postpone the delivery by the duration of the hindrance plus a reasonable starting period or to withdraw from the contract in whole or in part with respect to the portion not yet performed. This applies also if we are already in default.

4.3 If the hindrance persists for a period of more than three months, the customer shall be entitled, after setting a reasonable additional time limit, to withdraw from the contract with respect to the portion not yet performed.

4.4 If we are in default, the customer may withdraw from the contract after the expiration of an additional time limit. The term of the additional time limit to be set by the customer by law shall be six weeks. The time limit starts upon the receipt by us of the notification of the setting of the additional time limit.

4.5 The extended liability during default (§ 287 German Civil Code) is excluded.

4.6 We shall at any time be entitled to ship partial deliveries.

5 Transfer of risk

The risk shall transfer to the customer once the consignment is handed over to the person carrying out the transport, or has left our plant or distribution centre, respectively, for shipment. If it becomes impossible to ship for reasons other than our own fault, the risk shall transfer to the customer upon notification of the readiness for shipment.

6 Warranty and duty to examine

6.1 Any details in brochures, price lists and other information as well as product-describing information sent to the customer by us, shall in no event be interpreted as being warranties for a specific quality of the delivered item; any such warranties as to quality must be expressly agreed upon in writing.

6.2 Notwithstanding warranty claims (if any) under the provisions below, the customer shall also accept a delivered item with minor defects.

6.3 If the delivered item is defective or becomes defective within the product shelf life or - if no shelf life is specified - within the warranty period as a result of manufacturing defects or defects in material, we shall at our own option deliver a replacement item or remediate the defect. The limitation period for warranty claims is 12 months from the time of the transfer of risk.

6.4 The customer shall notify us of any defects in writing without undue delay, and no later than one week following delivery, enclosing the delivery note and - if possible - a sample. Any defects that cannot be discovered within such period even after careful examination shall be notified to us in writing without undue delay following their discovery.

6.5 If the storage and/or transport instructions as printed on the packaging of our products are not observed, all liability on our part shall cease. The burden of proof with regard to proper storage shall lie with the customer.

6.6 The scope of our warranty for replacement deliveries and remedying defects corresponds to the scope of our warranty for the original delivered item.

6.7 We shall be available to the customer for inquiries and advice to the best of our knowledge in respect of the use of the products. We shall, however, only be liable pursuant to section 7 below in such case that separate remuneration is agreed upon therefore.

7 Damages and limitation of liability

7.1 We shall be liable for damages:
a) for culpably caused damage to life, limb and health;
b) to the extent that we have assumed a warranty for a special quality of the delivered item or performance, our capability to procure the same, or any other warranty, provided that damage is incurred as a result of a non-fulfilment of such warranty;
c) on account of damage caused in a wilful or grossly negligent manner by us or our agents;
d) in lieu of complete performance on account of culpable defective deliveries or services in the event of material breaches of duty;
e) in the event of a slightly negligent violation of material contractual duties, limited, however, to the typical and foreseeable damage;
f) in accordance with the provisions of the German Drug Law, the German Product Liability Act, and any other mandatory statutory provisions on liability;
g) in lieu of performance on account of a culpable breach of collateral duties, if the customer can no longer reasonably be expected to accept the performance, or if the delivery or service by us is rendered impossible.

7.2 If none of the criteria specified in section 7.1 above is met, we shall not be liable for damages. Any exclusions or limitations of liability shall also apply to our employees.

7.3 Sections 7.1 and 7.2 above apply to all claims for damages on any legal grounds whatsoever, including but not limited to, the liability for tort or culpa in contrahendo.

7.4 The customer shall take appropriate action to avert and minimise damage.

7.5 In case of product liability claims brought forward to the customer, the customer shall immediately inform us and, to the best of its abilities, cooperate with us in the defence of such claims.

8 Retention of title

8.1 Pending the satisfaction of all claims (including claims with respect to account balances) that we may have against the customer and its group companies now and in the future on any legal grounds whatsoever, as well as pending the complete indemnification against any and all contingent liabilities assumed by us in the customer’s interest, the following security shall be furnished to us. It shall be understood that we will release the security at our own option, once its value persistently exceeds the value of the claims by more than 20%:

8.2 Title to the goods shall remain with us. Any processing or transformation shall at all times be made for us as manufacturer, with us, however, not being obliged in any manner. If our (co-)ownership expires as a result of a combination, it is hereby agreed that the customer’s (co-)ownership of the uniform object passes to us in the proportion of the value (invoice value). The customer shall keep our (co-)ownership free of charge. Any goods to which we are entitled (co-)ownership are hereafter referred to as “conditional goods”.

8.3 The customer may process conditional goods in the ordinary course of business and sell them subject to a reservation of title, provided that the customer is not in default. Any pledging or assignment as security shall not be admissible. The customer hereby assigns to us by way of security all claims arising from the resale or any other legal grounds (insurance, tort) in respect of conditional goods. We hereby revocably authorise the customer to collect the claims assigned to us in its own name and for our account. If requested by us, the customer shall disclose the assignment and provide us with the necessary information and documents.

8.4 If third parties encroach upon conditional goods, the customer shall refer to our title and notify us without undue delay. Any costs and damage shall be borne by the customer.

8.5 In the event of a breach of contract by the customer, including but not limited to, default in payment, we may take back the conditional goods at the customer’s expense. The taking back or attachment of conditional goods by us shall not constitute a withdrawal from the contract.

9 Payment

9.1 Our invoices are payable as specified in our offer, or, if not specified, within 30 days from receipt of the invoice or the respective delivery of goods without any deductions; following the expiration of such time limit without payment, the customer is in default. The payment date shall be the date on which we receive the funds. Notwithstanding any provisions of the customer to the contrary, we shall be entitled to determine the claims against which the payment shall be set off.

9.2 We expressly reserve the right to refuse to accept cheques and bills of exchange. Acceptance shall in any event only be on account of payment. Discount and bill fees shall be due immediately at the expense of the customer.

9.3 If the customer is in default, we may charge interest at a rate of 8 percentage points above the base rate published by Deutsche Bundesbank from time to time. The interest shall be due immediately. We reserve the right to assert additional damages.

9.4 We will charge a lump-sum amount of € 5 (respectively 6 US-$) for each written reminder following the occurrence of the default in payment of an invoice in € (respectively in US-$ or any other currency.)

9.5 If the customer fails to comply with its payment obligations and, in particular, fails to honour a cheque or bill of exchange, stops payments, or if we realise otherwise following the conclusion of the contract that our claim for payment is jeopardised due to a lack of financial strength or liquidity of the customer, we may declare all of our claims against the customer immediately due and payable, even if we have accepted cheques or bills of exchange. We may in such case also suspend deliveries, demand advance payments or the furnishing of security and may further withdraw from the contract following the expiration of a reasonable additional time limit and claim damages, if applicable.

9.6 The customer shall only be entitled to set-offs or deductions if we have given our express written consent or if the counterclaims are undisputed and have become res judicata.

10 Termination or withdrawal for good reason

10.1 We can terminate the contract or withdraw from the contract for good reason, particularly in cases where the customer has filed for insolvency or has permanently stopped payments or where insolvency proceedings have been initiated with regard to the assets of the client or where initiation of such proceedings has been declined for insufficiency of assets.

11 Place of jurisdiction; Applicable law; Partial invalidity

11.1 It is agreed that Frankfurt am Main is the place of jurisdiction for any disputes for both parties. The same applies if the residence or habitual abode of the customer is not known at the time when an action is brought. We may, however also institute legal action against the customer at the customer´s general place of jurisdiction.

11.2 These Terms and Conditions are governed exclusively by the laws of the Federal Republic of Germany. 11.3 Should any of the provisions of these Terms and Conditions, or a provision within the scope of any other agreements, be or become ineffective, the validity of all other provisions or agreements shall not be affected. Rather, both parties together shall replace an ineffective provision by an effective provision that comes closest, to the extent legally admissible, to the economic intent and purpose of the ineffective provision.