1. Area of Application
(1) Deliveries,services and offers from Xebios Diagnostics GmbH are made exclusively on basisof these General Terms and Conditions of Business. They thus apply also to allfuture business relationships, even if they are not repeatedly expresslyagreed. By latest on acceptance of the goods or services the General Terms andConditions of Xebios Diagnostics GmbH shall be deemed accepted. Deviating termsand conditions of the Buyer under consideration of his terms and conditions ofbusiness respectively purchase shall not be heeded.
(2) Deviations fromthese Terms and Conditions of Business shall only be effective if XebiosDiagnostics GmbH confirms them in writing.
2. Contract Conclusion
(1) Offers inprospectuses, advertisement, price lists etc. – in particular with regard topricing information – are without obligation and unbinding. Samples,illustrations etc. and all information on service data are only binding, ifthey have been expressly marked as such. Xebios Diagnostics GmbH shall adhereto specially calculated offers for a term of 30 calendar days or deadlines setforth in the offer.
(2) All ordersrequire the written confirmation of Xebios Diagnostics GmbH to be valid. TheBuyer is tied to the contract for four weeks.
(3) Side agreements,amendments and supplements shall only apply if Xebios Diagnostics GmbH confirmsthem in writing. The same shall apply to the assurance of attributes.
(4) The return ofproducts by the Client may only be made after prior agreement with XebiosDiagnostics GmbH. On delivery of mistaken orders Xebios Diagnostics GmbH shallcharge a one-off processing fee in the sum of up to 25 % of the order value,but a minimum of EUR 40.00. Products, the delivery of which is more than sevendays ago and or irradiated media, are excluded from return or exchange. Allreturn dispatches are for the account and risk of the Buyer.
3. Prices, Price Changes
(1) All prices arenet without VAT, which the buyer has to pay in the applicable legal sum. Xebios Diagnostics GmbH reserves the right tocarry out price changes in particular if the prices of raw materials and othermaterials change.
(2) Packagingmaterials shall not be taken back by Xebios Diagnostics GmbH pursuant to thepackaging order. They are the property of the Buyer. Excluded from this arepalettes and small load carriers (Xebios-plastic boxes of various sizes and Xebios-racks),which shall initially remain in the ownership of Xebios Diagnostics GmbH.Palettes, Xebios-plastic boxes (incl. lids) and Xebios-racks are to bereturned to Xebios Diagnostics GmbH by the Buyer within three months of thedate of the delivery slip (“three-month term”). The Buyer shall pay the costsof return unless the Xebios-plastic boxes and Xebios-racks are collected byXebios Diagnostics GmbH in the course of further deliveries within this threemonth term to the delivery address of the Buyer. If the return or collectiondoes not take place within the three month term, the palettes or small loadcarriers apply as purchases by the Buyer. In this case Xebios Diagnostics GmbH shallinvoice the Buyer for these as follows: a cost of EUR 10.00 for each palette, acost of EUR 20.00 for Xebios plastic boxes per box, respectively EUR 5.00 (perlid) and for Xebios-racks a cost of EUR 25.00 each.
(3) As long as theorder value exceeds €300.00 the prices ex works or delivery warehouse areinclusive of packaging, freight or postage (regular service) and insurance deliverd to customer. If the order value isbelow €300.00 an overall sum of €19.50 per delivery shall be charged withregard to the above costs. The Xebios Diagnostics GmbH prices at the time ofdelivery or preparation for delivery shall apply.
4. Delivery Times
(1) Insofar asnothing other had been agreed with the Buyer the delivery times given by XebiosDiagnostics GmbH are unbinding.
(2) Xebios Diagnostics GmbH is not responsible fordelivery delays on grounds of force majeure and events which make the deliveryfor Xebios Diagnostics GmbH considerably more difficult or impossible – thisincludes also supplementary difficulties in the purchasing of materials,operational disturbances, strikes, lock-outs, shortage of personnel, shortageof transport vehicles, authority orders, also if these occur to suppliers ofXebios Diagnostics GmbH or their own sub-contracted suppliers – even if bindinglyagreed deadlines and dates are in place. Such delays entitle Xebios DiagnosticsGmbH, to postpone the delivery by the term of the delay plus an appropriatepreparation time or, because of the unfulfilled delivery to withdraw from thecontract either entirely or in part. This shall also apply if XebiosDiagnostics GmbH already is in delay.
(3) If the delaylasts longer than three months the Buyer is entitled after setting anappropriate supplementary deadline, to withdraw from the contract with regard tothe not yet fulfilled part of the contract.
(4) If XebiosDiagnostics GmbH is in delay, the Buyer can, under the following conditions,withdraw from the contract or claim damage compensation for the non-fulfilment.
(5) The term of thedeadline to be set by the Buyer by law is six weeks, which start by the receiptof the supplementary deadline by Xebios Diagnostics GmbH.
(6) The Buyer mayonly claim damage compensation for non-fulfilment if Xebios Diagnostics GmbH and/ortheir vicarious aides have caused the damage by malicious intent or in grossnegligence.
(7) If the Buyermakes no use of the aforementioned rights, he has no damage compensation claimson the non-adherence to any delivery dates.
(8) The extendedliability pursuant to § 287 BGB (German Civil Code) is excluded.
(9) XebiosDiagnostics GmbH is entitled to make partial deliveries with correspondinginvoices.
5. Risk Transfer
Insofar as nodelivery free to place of delivery has been agreed between the Buyer and XebiosDiagnostics GmbH, which Xebios Diagnostics GmbH will carry out with their ownemployees and their own vehicles, the risk transfers to the Buyer, as soon asthe goods are handed over to the person carrying out the transport or the goodshave left the works or delivery warehouse of Xebios Diagnostics GmbH fordelivery. If the dispatch becomes impossible not at the fault of XebiosDiagnostics GmbH, the risk transfers to the Buyer on report of the willingnessto deliver.
6. Guarantee and Liability
(1) The XebiosDiagnostics GmbH products are – within the limits of technical possibilitiesmanufactured free of germs and free of foreign body . Xebios Diagnostics GmbH,however, makes no guarantee of this.
(2) If the object ofdelivery is defective in the sense of § 434 BGB (German Civil Code), or becomesdefective within the product specific term or – if no term is given – theguarantee deadline, then Xebios Diagnostics GmbH at its choice under exclusionof other guarantee claims of the Buyer – in particular under exclusion of anyconsequential damages of the Buyer or his Client – shall replace the goods orimprove them, insofar as the defect has not maliciously been concealed orXebios Diagnostics GmbH have made a guarantee of the quality of the product. Multipleimprovements are permitted. The Buyer may only withdraw from the contract underthe conditions of § 6 sub-section 3.
(3) The Buyer mustinform Xebios Diagnostics GmbH of defects immediately, by latest, however,within a week of delivery in writing and enclose the delivery slip and –insofar as possible - include a sample. Defects which also on careful checkingwere not discovered within this deadline must be reported in writing to XebiosDiagnostics GmbH immediately after discovery.
(4) If theimprovement or replacement delivery becomes impossible for Xebios DiagnosticsGmbH through its own fault or if the Buyer on delay of Xebios Diagnostics GmbH hasset an appropriate deadline for the improvement or replacement delivery invain, then he is entitled to withdraw from the contract.
(5) Damagecompensation claims, regardless of grounds, with exception of liability forharm to life, body and health are excluded both against Xebios Diagnostics GmbH,as well as against its vicarious aides or employees, insofar as the damageshave not been caused by malicious intent or gross negligence.
7. Retention of Proprietary Rights
(1) Until fulfilmentof all (including account balance) claims, that Xebios Diagnostics GmbH hasagainst the Buyer and his group companies on whatever legal grounds, now or inthe future, as well as the complete exemption from all possible liabilitiesthat Xebios Diagnostics GmbH has been involved in, in the interests of theBuyer, Xebios Diagnostics GmbH shall be guaranteed the following securities,which Xebios Diagnostics GmbH on demand shall release at its choice, as long astheir level of the claims lastingly exceeds more than 20 %.
(2) The goods remainin the ownership of Xebios Diagnostics GmbH. Processing or transformation willalways take place for Xebios Diagnostics GmbH as the manufacturer, but withoutobligation for Xebios Diagnostics GmbH. If the (co-) ownership of XebiosDiagnostics GmbH expires through conjunction , it shall already be agreed that the(co-) ownership of the Buyer of the standardised item shall be transferred to XebiosDiagnostics GmbH pro-rata (accounting value). The Buyer shall grant this (co-)ownership to Xebios Diagnostics GmbH free of charge. Goods in which XebiosDiagnostics GmbH are due (co-) ownership shall be referred to in the followingas reserved goods.
(3) The Buyer isentitled to process the reserved goods in the orderly course of business and tosell them under reserved ownership, as long as he is not in delay withpayments. Pledging or the transfer of ownership for security is not permitted. Anyclaims regarding the reserved goods resulting from the onward sale or anotherlegal cause (insurance, unpermitted action) shall be assigned for the sake ofsecurity already at this point in the full range to Xebios Diagnostics GmbH.Xebios Diagnostics GmbH revocably empowers the Buyer hereby, to collect in hisown name the assigned claims of Xebios Diagnostics GmbH for the account ofXebios Diagnostics GmbH. On demand of Xebios Diagnostics GmbH the Buyer shall disclosethe assignment and pass the necessary information and documents to XebiosDiagnostics GmbH.
(4) On access to thereserved goods by third parties the Buyer shall indicate the ownership ofXebios Diagnostics GmbH and inform Xebios Diagnostics GmbH immediately. Anyrelated costs and damages are for the account of the Buyer.
(5) In the event ofbehaviour by the Buyer that breaches the contract – in particular delay inpaying the invoices – Xebios Diagnostics GmbH is entitled to take back thereserved goods for the account of the Buyer. No withdrawal from the contract isincluded in this taking back or pledging of the reserved goods by XebiosDiagnostics GmbH.
(1) Invoices of XebiosDiagnostics GmbH are payable, if nothing other has been agreed between Xebios Diagnostics GmbH and the Buyer, within14 days of the invoice date without any discount. As payment date the dayapplies on which Xebios Diagnostics GmbH is able to access the funds. XebiosDiagnostics GmbH is entitled, in spite of other determinations of the Buyer todecide the claims to be set off against the payment.
(2) If the Buyer is in delay, XebiosDiagnostics GmbH is entitled to charge interest in the sum of the interest ratecharged by the business banks for open current account credits – but at least 9% over the respective discount rate of the European Central Bank. The interestis due with immediate effect.
(3) XebiosDiagnostics GmbH charges 10.00 in collection expenses for each written dunningletter after the occurrence of the payment delay.
(4) If the Buyer doesnot comply with his payment obligations, in particular stops making payment orif other circumstances become known to Xebios Diagnostics GmbH that could puthis creditworthiness under question, Xebios Diagnostics GmbH is entitled tomake all its claims against the Buyer due immediately. Xebios Diagnostics GmbH isin this case further entitled to demand advance payments or securities, as wellas to withdraw from the contract after an appropriate deadline or to demanddamage compensation for non-fulfillment.
(5) The Buyer is onlyentitled to off-setting or retention if Xebios Diagnostics has expresslyconfirmed this in writing to him, or if the counter claims are undisputed orlegally determined.
9. Placeof Jurisdiction; Applicable Law; Partial Nullity
(1) Insofar as theBuyer is a registered trader, legal entity under public law or a public lawspecial fund, the exclusive place of jurisdiction has been agreed to beDusseldorf for both parties in the event of any disputes. This shall also applyif, at the time of filing of the complaint, the residential address,headquarters or usual abode of the Buyer is unknown.
(2) Exclusively thelaw of the Federal Republic of Germany shall apply, under exclusion of the UNpurchase law.
(3) If a clause inthese Terms and Conditions of Business or a clause in the framework of anyother agreements should be ineffective or should become ineffective, this shallnot affect the other clauses or agreement. The Buyer and Xebios DiagnosticsGmbH shall much more be obliged to replace the ineffective clause with aneffective clause that realises the formerly ineffectively followed purpose,insofar as legally permitted.
Our General Terms and Conditions are available for download here.