General Terms and Conditions of INSTAND International GmbH
Status: October 2023
1. SCOPE OF APPLICATION
Unless otherwise expressly agreed in writing, these General Terms and Conditions ("GTC") shall apply exclusively to the delivery of products or the provision of services by INSTAND International GmbH ("INSTAND"). General Terms and Conditions of the Customer shall not apply, even if INSTAND has not objected to them in individual cases.
2. SUBJECT MATTER OF THE CONTRACT
The subject matter of the contract is the (i) delivery of products and/or (ii) provision of services by INSTAND to the Customer.
3. CONCLUSION OF THE CONTRACT
3.1 INSTAND's offers are subject to change and non-binding.
3.2 customers' orders shall be deemed a binding offer of contract by the customer. Unless otherwise stated in the order, INSTAND shall be entitled to accept this contractual offer within five days after its receipt by INSTAND.
3.3 Acceptance may be declared either in writing (e.g., by order confirmation) or, in the case of products, by their delivery or, in the case of services, by their performance.
4. FEE; INVOICES
4.1 The Customer shall pay INSTAND the agreed fee.
4.2 All fees shall be subject to the applicable statutory value-added tax.
4.3 Invoice amounts are due within 30 days after receipt of the invoice. The customer shall bear any bank charges incurred.
4.4 Upon expiration of the payment period mentioned above, the customer shall be in default even without a further reminder. During the default period, interest shall be charged on the purchase price at the applicable statutory default interest rate. INSTAND reserves the right to claim further damages for default. If the Customer defaults on a payment, INSTAND may withhold its further services from paying all outstanding claims.
4.5 The Customer shall only be entitled to rights of set-off or retention to the extent that its claim is legally established or undisputed.
5. DEADLINES
5.1 Deadlines are non-binding unless they are expressly stated as binding.
5.2 If INSTAND cannot meet binding delivery deadlines, INSTAND shall inform the Customer thereof and, at the same time, notify the Customer of the expected new delivery date. If the performance is also not possible within the new delivery period, INSTAND shall be entitled to withdraw from the contract in whole or in part. INSTAND shall refund any consideration already paid by the Customer.
6. SPECIAL REGULATIONS FOR THE SUPPLY OF PRODUCTS
6.1 Services of INSTAND
(a) INSTAND shall deliver the contractual Products as specified in the specification.
(b) Unless otherwise agreed, INSTAND shall be entitled to determine the mode of shipment (in particular carrier, shipping route, packaging).
(c) All deliveries shall be made Ex Works (Incoterms 2020) from the registered office of INSTAND. After the products have been handed over to the transport company, the risk of loss or damage shall pass to the Customer.
(d) If the Customer is in default of acceptance, fails to cooperate, or if INSTAND's delivery is delayed for other reasons for which the Customer is responsible, INSTAND shall be released from its obligation to perform and shall be entitled to claim compensation for the resulting damage including additional expenses (e.g., storage costs).
6.2 Retention of Title
INSTAND shall retain title to the Products until payment in full concerning the Products and the ongoing business relationship between INSTAND and the Customer. The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The Customer shall immediately notify INSTAND in writing if an application for the opening of insolvency proceedings is filed or to the extent that third parties (e.g., seizures) have access to the goods owned by INSTAND.
6.3 Warranty
(a) The statutory provisions shall apply to the Customer's rights in case of material defects and defects of title (including wrong and short delivery as well as improper assembly/installation or defective instructions) unless otherwise stipulated below.
(b) The basis of INSTAND's liability for defects shall be solely the agreement made regarding the condition and the presumed use of the goods (including accessories and instructions).
(c) In the event of subsequent performance, INSTAND shall have the right, at its option, to remedy the defect or to deliver a defect-free item.
7. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHTS
INSTAND shall remain the owner of its industrial property rights and copyrights to its services. INSTAND grants the Customer a non-exclusive right to use the Services to the extent necessary to achieve the contractual purposes.
8. USE OF SUBCONTRACTORS
INSTAND shall be entitled to engage third parties as subcontractors to perform the contractual services.
9. OBLIGATIONS OF THE CUSTOMER
9.1 The Customer shall provide INSTAND free of charge with all documents and information necessary for performing its activities in a timely, correct, and complete manner. In addition, the Customer shall allow INSTAND's employees and subcontractors access to its business premises to the extent necessary ("Required Acts of Cooperation"). If the Customer does not provide a Required Cooperation Act, does not provide it in time, or does not provide it in the agreed manner, INSTAND shall not be responsible for any delay therefrom. Furthermore, the Customer shall bear any costs incurred by INSTAND as a result thereof (e.g., delays, additional expenses).
9.2 The customer shall treat samples received as patient samples. In particular, all safety instructions on the accompanying documentation, as well as the relevant legal requirements and professional duties of care regarding handling samples, shall be complied with. Samples may only be used for the agreed purposes and - in the event of problems arising with certain in vitro diagnostics ("IVD") - for the purpose of testing IVD. Samples must not be misused; in particular, the use for the production of pathogens or pathogen components for scientific and commercial purposes is prohibited. Samples must be disposed of properly.
10. TERM OF THE CONTRACT; TERMINATION OF THE CONTRACT
10.1 The contract shall run until the agreed end unless the parties have agreed otherwise.
10.2 The contract may be terminated without notice for good cause. Good cause shall be deemed to exist for INSTAND in particular if:
(a) The customer does not fulfill its obligations to cooperate after receipt of a reminder or
(b) The customer fails to meet its payment obligations even after receipt of a reminder.
10.3 The termination shall be declared in writing.
11. PLACE OF PERFORMANCE
The place of performance for INSTAND's services and any subsequent performance shall be INSTAND's registered office in Düsseldorf, Federal Republic of Germany.
12. LIABILITY
12.1 Claims for damages - irrespective of their legal basis - against INSTAND due to negligent breaches of duty shall only exist if an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner may regularly rely (so-called cardinal obligation), has been breached. Liability shall be limited to typically foreseeable damages.
12.2 In all other respects, INSTAND's liability shall be excluded. These limitations shall not apply to injury to life, body, or health and as far as the damages are based on an intentional or grossly negligent breach of duty.
12.3 Mandatory statutory liability provisions shall remain unaffected. In particular, liability under the Product Liability Act shall remain unaffected.
13. LIMITATION
13.1 After receipt of the proficiency test results, a complaint is only possible within a period of 4 weeks. After the expiration of this period, claims of the participant due to a complaint are excluded.
13.2 Other claims shall also become statute-barred with a period of one year from the statutory commencement of the limitation period. This shall not apply to claims due to injury to life, body, or health, due to an intentional or grossly negligent breach of duty, or due to the breach of a cardinal duty.
13.3 Insofar as applicable statutory provisions lead to a shorter limitation period, these shall apply.
13.4 Legally binding longer limitation periods shall remain unaffected.
14. FORCE MAJEURE
The Parties shall not be mutually liable for breach of contractual obligations if their breach is due to force majeure. "Force Majeure" shall mean, in particular, wars, civil wars, catastrophes, acts of terrorism, strikes, epidemics, pandemics, quarantine, fires, and power failure outside the scope of responsibility of the Contracting Parties (and their subcontractors), as well as external attacks on information and telecommunication systems, which cannot be averted by technically and economically reasonable efforts in accordance with the current state of the art. Immediately after the occurrence of a Force Majeure Event, the affected Contracting Party shall notify the other Contracting Party in writing thereof, furthermore, the time of occurrence and the expected impact on its ability to perform its contractual obligations.
15. CONFIDENTIALITY; DATA PROTECTION
15.1 The parties shall treat all confidential information received from the other party in connection with this Agreement or its performance as confidential. They shall not disclose it to third parties without the prior written consent of the other party unless the facts concerned are publicly known or publicly accessible or their disclosure is required by law.
15.2 The parties shall comply with the applicable data protection regulations, particularly the German Data Protection Regulation (DSGVO) and the German Federal Data Protection Act (BDSG).
16. APPLICABLE LAW
The contract is subject to the law of the Federal Republic of Germany, with the exception of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
17. PLACE OF JURISDICTION
If the customer is a merchant, a legal entity (under public law), or a special fund under public law, the place of jurisdiction for all disputes arising from or in connection with the contract shall be Düsseldorf, Federal Republic of Germany.
18. CHANGES TO THE CONTRACT
Amendments and supplements to the agreed specific contractual conditions and/or these GTC must be made in writing to be effective unless a stricter form is required by law. This also applies to the waiver of this written form requirement.
19. NO ASSIGNMENT
The customer is not entitled to assign or otherwise transfer its contractual rights under this contract to a third party without prior written consent. This does not apply to the assignment of monetary claims.
20. SEVERABILITY CLAUSE
Should any provision of this contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions of this contract. The same shall apply if and to the extent that a loophole should become apparent in this contract. In place of the invalid or unenforceable provision or in order to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes as close as possible to or corresponds to what the contracting parties intended in economic terms or would have intended according to the meaning and purpose of this contract if they had considered this point. This shall also apply if the invalidity of a provision is based, for example, on a scope of performance or time (deadline or date) provided for in this contract; in such cases, a legally permissible scope of performance or time (deadline or date) that comes as close as possible to the intended economic purpose shall take the place of what was agreed.