1.1
These General Terms and Conditions (hereinafter “TERMS”) of Applyo Jena GmbH (hereinafter “APPLYO”) shall apply exclusively (a) to all services and/or consulting for development of reagents and/or diagnostic solutions carried out by APPLYO (hereinafter “SERVICES”) and/or (b) to the manufacture and/or delivery of goods by APPLYO (hereinafter “GOODS”). APPLYO does not acknowledge any terms and conditions of the customers (hereinafter “CLIENTS”), which conflict with or deviate from these TERMS or any terms and conditions of the CLIENTS, which are not regulated in these TERMS unless APPLYO has expressly consented in writing to their application. These TERMS shall also apply if APPLYO supplies SERVICES and/or GOODS to the CLIENTS without reservation while being aware of terms and conditions of the CLIENTS, which conflict with or deviate from these TERMS or which are not regulated in these TERMS or if the CLIENT, in its enquiry, in its order, or in any other context within the execution of the contract refers to the application of its terms and conditions.
1.2
These TERMS shall only apply to an entrepreneur as defined in § 14 of the German Civil Code (BGB).
1.3
Within the scope of ongoing business relations, these TERMS shall also apply to additional and follow-up orders.
APPLYO and CLIENT are hereinafter collectively referred to “PARTIES” or individually as “PARTY”.
2.1
For SERVICES the quotation of APPLYO (hereinafter “QUOTATION”) constitutes a “Statement of Work” (hereinafter “SOW”) towards the CLIENT. The SOW includes the definition and volume of samples and the documentation to be handed out to the CLIENT (hereinafter “DELIVERABLES”). Unless expressly agreed otherwise, the QUOTATIONS are non-binding.
2.2
The order of the CLIENT (hereinafter “ORDER”) is a binding offer of the CLIENT to purchase SERVICES and DELIVERABLES in accordance with the SOW and these TERMS and the commitment to provide ingredients and other materials required to perform the SERVICES (hereinafter “MATERIALS”).
2.3
For GOODS the QUOTATION constitutes a list of products and prices in connection with sales quantities and batch sizes as well as terms for delivery. The ORDER is a binding offer of the CLIENT to purchase certain quantities of GOODS in accordance with the QUOTATION and these TERMS.
2.4
The ORDERS are only binding for APPLYO if APPLYO has confirmed them in writing or conclusively accepted them through delivery or invoicing.
3.1
When facing changes in raw material prices or in quantities of components for GOODS or DELIVERABLES the PARTIES agree the right for APPLYO to adjust prices without notice.
3.2
If the CLIENT requests any changes to the SERVICES, APPLYO will inform the CLIENT of the cost and impact of such changes and will not implement any change without a fully executed amendment or change order to the relevant SOW. However, APPLYO is not obliged to execute such change request of the CLIENT.
4.1
The PARTIES shall agree the process for testing the DELIVERABLES and shall define in writing the process, tools and methods as well as the parameters for a satisfactory and unsatisfactory outcome from testing. The agreed and defined process for testing and outcomes shall be specified in the SOW.
4.2
Descriptions, drawings or images issued by APPLYO in marketing tools serve the sole purpose of giving an approximate idea of the GOODS, SERVICES and DELIVERABLES described therein. They do not have any contractual force.
5.1
APPLYO will provide the SERVICES as specified in the agreed SOW.
5.2
Prior to commencement of SERVICES, the CLIENT has to make a deposit in case an advance payment has been agreed.
5.3
APPLYO reserves the right to amend the specification, if necessary and reasonable for the CLIENT, to comply with any applicable law or regulatory requirement or defined quality standard. APPLYO notifies the CLIENT in any such event.
5.4
APPLYO will arrange DELIVERABLES for testing as described in the SOW. The PARTY responsible for testing shall perform the tests according to the specification and within the test period as defined in the SOW and shall report the result of the test to the other PARTY. If the result of the test is not satisfactory according to the definition in the SOW APPLYO will utilize the ISO13485 Quality Management System for a root cause analysis of the non-conformance. The PARTIES will cooperate in the investigation and shall discuss the next steps in relation to the SERVICES and whether the CLIENT requires additional SERVICES.
6.1
The CLIENT shall provide APPLYO with complete and accurate information required to supply the SERVICES and with full details and specifications of all MATERIALS supplied to APPLYO including known or potential hazards associated with the use of the materials.
6.2
The CLIENT shall ship MATERIALS to APPLYO in appropriate time and in appropriate quality, at least as stated in the SOW. Shipments have to be made in appropriate manner, at least on cool packs or on dry ice according to the nature of the MATERIALS. The CLIENT must replace MATERIALS in case that MATERIALS do not arrive at APPLYO in well order.
6.3
The CLIENT remains liable for the MATERIALS if the quality of such MATERIALS has an impact on the SERVICES or the DELIVERABLES.
6.4
The CLIENT shall perform all necessary tests as described in the SOW. If a result of the test is not satisfactory according to the definition in the SOW, the CLIENT shall utilize the ISO13485 Quality Management System for a root cause analysis of the non-conformance. The PARTIES will cooperate in the investigation and shall discuss the next steps in relation to the SERVICES and whether the CLIENT requires additional SERVICES.
6.5
The CLIENT shall obtain and maintain all necessary licenses, permissions and consents which may be required for the SERVICES, comply with all applicable laws, including health and safety laws and comply with any additional obligations as set out in the OFFER.
7.1
Unless otherwise agreed delivery is “Ex Works” (Incoterms 2020). The risk of loss or damage to the GOODS and all other applicable delivery conditions shall be solely evaluated by the applicable Incoterm.
7.2
The GOODS must be examined by the CLIENT at the time of passing to CLIENT’s possession or control or at the earliest opportunity thereafter.
7.3
Title to the GOODS does not pass to the CLIENT until APPLYO receives payment in full (in cleared funds) for the GOODS. Until title to the GOODS has passed to the CLIENT, the CLIENT shall store the GOODS separately from all other goods held by the CLIENT so that they remain readily identifiable as APPLYO’s property and maintain the GOODS in satisfactory condition.
7.4
The CLIENT may resell the GOODS subject to the above retention of title only in the course of his regular business. For this case, the CLIENT hereby assigns all claims arising out of such resale, whether the GOODS have been processed or not, to APPLYO. Notwithstanding APPLYO’s right to claim direct payment the CLIENT shall be entitled to receive the payment on the assigned claims. To this end, APPLYO agrees to not demand payment on the assigned claims to the extent the CLIENT complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
8.1
Prices are “Ex Works” (Incoterms 2020), exclusive of the respective statutory VAT and exclusive of costs for packaging, except as otherwise expressly agreed upon.
8.1
Payment is, if not otherwise explicitly agreed between the PARTIES, due and payable within 14 days from the date of invoice.
8.1
The CLIENT shall be entitled to offset only insofar as the CLIENT’s counterclaims are acknowledged, undisputed or assessed in a legally binding judgment. The CLIENT is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
9.1
Unless explicitly stated, no license under any intellectual property right is either granted or implied by the purchase of any of APPLYO’s GOODS, DELIVERABLES and SERVICES. The CLIENT shall provide and (if applicable) procure adequate approvals or licenses to manufacture APPLYO products.
9.2
The intellectual property rights of APPLYO’s GOODS, DELIVERABLES and SERVICES always remain vested in APPLYO and/or its licensors. Any user license may only be used for the CLIENT's own internal business purposes. Any such license terminates automatically on the termination or expiry of the Contract for whatever reason.
9.3
For performing SERVICES with MATERIALS in accordance with the SOW, the CLIENT grants APPLYO a limited, non-transferable, non-sub licensable, nonexclusive royalty-free, fully paid-up license to use the CLIENT’s technology, specifications and MATERIALS solely to perform the SERVICES in accordance with the relevant SOW. The Intellectual Property Rights in any CLIENT MATERIALS shall remain with the CLIENT.
9.4
The CLIENT assumes all risks of patent, trademark or copyright infringement associated with any such use, combination or operation. Furthermore, the CLIENT agrees to compensate APPLYO and holds APPLYO harmless from any liability in this respect.
9.5
Registered names, trademarks, etc. used in APPLYO’s sales and marketing tools are to be considered protected by law, even when not specifically marked as such.
10.1
The PARTIES have to sign a Non-Disclosure/Confidentiality Agreement (hereinafter ”NDA“) before exchanging confidential information.
10.2
In the event that an NDA has not been signed each PARTY undertakes not to disclose confidential information concerning the business, affairs, customers, clients or suppliers of the other PARTY to any third party at any time during the SOW, and for a period of five years after termination of the TERMS, except as permitted by clause 10.3.
10.3
Each PARTY may disclose the other PARTY’s confidential information to its employees, representatives, subcontractors or advisers for the only purpose of carrying out the PARTY’s obligations under the SOW or, as may be required by law, to a court of competent jurisdiction or any governmental or regulatory authority.
10.4
Each PARTY shall ensure that its employees, representatives, subcontractors or advisers to whom it discloses the other PARTY’s confidential information shall use this confidential information for no other purpose than to fulfill their obligations under the SOW.
10.5
Each PARTY will ensure that any data related to the other party will be processed, stored, transmitted and used only in accordance with the German Data Protection Act (DSGVO).
11.1
The CLIENT has to ensure that GOODS and DELIVERABLES are handled in a safe manner in laboratories equipped to perform life science research and that devices, containers, packaging and labeling, insofar as they are provided by the CLIENT, comply with all relevant national and international safety regulations. All GOODS and DELIVERABLES are to be used only by trained laboratory personnel who are familiar with potential hazards.
11.2
GOODS and DELIVERABLES may contain reagents which may damage laboratory equipment if misused. Due care should be taken with all GOODS and DELIVERABLES to avoid direct contact with components that are potentially infectious. APPLYO is not responsible for injury or damages resulting from the misuse of any of its GOODS or DELIVERABLES.
11.3
GOODS and DELIVERABLES are designed for research use only (ROU); they are not recommended or intended for diagnosis or treatment of diseases in humans or animals.
11.4
The CLIENT acknowledges that APPLYO will use a material specification and test instructions to be supplied by the CLIENT to control the acceptance of MATERIALS sent by the CLIENT and that, if the material specification is not agreed, APPLYO will not be liable for the outcome of the development. In these circumstances, APPLYO will not accept any liability should the CLIENT subsequently deem the DELIVERABLES unsatisfactory at any point after delivery to the CLIENT and APPLYO will invoice the CLIENT in accordance with the ORDER. APPLYO will not pay for removal, destruction or return of any MATERIALS that do not meet the specification. The CLIENT assumes the responsibility if MATERIALS cause a contamination of APPLYO’s laboratory equipment by non-specified components and pays the cost for decontamination.
11.5
The CLIENT must complain to APPLYO in writing about any defects in quality without undue delay, however not later than within seven days following delivery (obvious defects) or discovery of the defect. Otherwise, the right to assert any warranty claims is excluded. APPLYO does not agree with any restriction of the CLIENTS's statutory duties to inspect and to report any complaints.
11.6
If there is a defect in the GOODS or DELIVERABLES for which APPLYO is responsible for, APPLYO is entitled, at own discretion, to either remedy the defect or make a subsequent delivery. If the CLIENT wrongly complains about the existence of a defect for which APPLYO is not responsible, APPLYO is entitled to charge the CLIENT for the reasonable expenses incurred to remedy and / or identify the defect.
12.1
APPLYO shall be liable for damages and for the reimbursement of wasted expenditure (hereinafter referred to as ”DAMAGES“) due to defects in the GOODS, SERVICES and DELIVERABLES or because of a breach of other contractual or non-contractual obligations, particularly arising out of tort, only in the case of intent or gross negligence. The above limitation of liability shall not apply in cases of injury to life, body or health, if a guarantee is given or the risk of procurement is assumed, in the case of the breach of any material contractual obligations or in the case of liability under the Product Liability Law.
12.2
DAMAGES due to a breach of material contractual obligations is limited to the reimbursement of such DAMAGE which is typical for the contract as APPLYO ought to have foreseen as a possible consequence when the contract was concluded due to circumstances that were apparent to APPLYO providing there was no intent or gross negligence or liability is for an injury to life, body or health, for the giving of a guarantee or the assumption of a risk of procurement or pursuant to the Product Liability Law.
12.3
Foreseeable DAMAGES which are typical for the contract for the purposes of Section 12.2 is damage with the following maximum quantum:
(a) per case of damage: a maximum of 25.000 €, and
(b) in the event of more than one case of damage in relation to CLIENT within one calendar year: a maximum of 50.000 €, and
(c) in any case, indirect damages (e.g., lost profit or damage resulting from interruptions in production) do not constitute damage which is typical for the contract for the purposes of Section 12.2.
12.4
Irrespective of Section 12.3 above, when determining the quantum of the claims for damages that exist against APPLYO the economic circumstances at APPLYO, the type, scope and duration of the business relationship, any contributory causation and/or fault on the part of the CLIENT must be taken reasonably into account to the benefit of APPLYO. In particular, the damages, costs and expenses to be borne by APPLYO must be reasonably proportional to the value of the GOODS, SERVICES and DELIVERABLES supplied by APPLYO.
12.5
All limitations of liability shall apply to vicarious agents and servants to the same extent.
12.6
The above provisions do not entail any change to the burden of proof to the detriment of the CLIENT.
12.7
Material contractual obligations in the meaning of Sections 12.1 and 12.2 are obligations, the performance of which make the proper implementation of the contract possible in the first place, and compliance with which the CLIENT is usually allowed to rely on.
13.1
Incidents of Force Majeure, i.e., events, over which APPLYO has no control and for which APPLYO is not responsible for, entitles APPLYO to postpone the supply of the GOODS, DELIVERABLES or SERVICES by the duration of the hindrance and a reasonable lead time. This shall also apply if such events occur during a period of delay with performance. It shall thereby be irrelevant whether said circumstances occur at APPLYO or at one of our upstream suppliers. If it is not possible for APPLYO to deliver the GOODS, DELIVERABLES or SERVICES within a reasonable period due to such events the CLIENT and APPLYO shall have the right to rescind the contract or, as the case may be, to rescind such part of the contract as has not yet been performed. There shall be no right to damages because of any such rescission.
Events of Force Majeure include, in particular, official measures and orders (regardless of whether they are valid or invalid), lack of raw materials or energy, significant operational disruptions, for example through the destruction of the entire company or important departments or the failure of essential production facilities, serious transport disruptions, fire, floods, storms, explosions or other natural disasters, mobilizations, wars, riots, pandemics and epidemics.
13.2
These TERMS, any contract concluded on its basis and any SOW concluded between the PARTIES are governed by and construed in accordance with the laws of Germany exclusively without giving effect to the conflict of laws provisions.
13.3
Place of performance shall be Jena, Federal Republic of Germany.
13.4
Exclusive place of jurisdiction for all disputes between the PARTIES is Jena, Federal Republic of Germany.
1.1
These General Terms and Conditions (hereinafter “TERMS”) of Applyo Jena GmbH (hereinafter “APPLYO”) shall apply exclusively (a) to all services and/or consulting for development of reagents and/or diagnostic solutions carried out by APPLYO (hereinafter “SERVICES”) and/or (b) to the manufacture and/or delivery of goods by APPLYO (hereinafter “GOODS”). APPLYO does not acknowledge any terms and conditions of the customers (hereinafter “CLIENTS”), which conflict with or deviate from these TERMS or any terms and conditions of the CLIENTS, which are not regulated in these TERMS unless APPLYO has expressly consented in writing to their application. These TERMS shall also apply if APPLYO supplies SERVICES and/or GOODS to the CLIENTS without reservation while being aware of terms and conditions of the CLIENTS, which conflict with or deviate from these TERMS or which are not regulated in these TERMS or if the CLIENT, in its enquiry, in its order, or in any other context within the execution of the contract refers to the application of its terms and conditions.
1.2
These TERMS shall only apply to an entrepreneur as defined in § 14 of the German Civil Code (BGB).
1.3
Within the scope of ongoing business relations, these TERMS shall also apply to additional and follow-up orders.
APPLYO and CLIENT are hereinafter collectively referred to “PARTIES” or individually as “PARTY”.
2.1
For SERVICES the quotation of APPLYO (hereinafter “QUOTATION”) constitutes a “Statement of Work” (hereinafter “SOW”) towards the CLIENT. The SOW includes the definition and volume of samples and the documentation to be handed out to the CLIENT (hereinafter “DELIVERABLES”). Unless expressly agreed otherwise, the QUOTATIONS are non-binding.
2.2
The order of the CLIENT (hereinafter “ORDER”) is a binding offer of the CLIENT to purchase SERVICES and DELIVERABLES in accordance with the SOW and these TERMS and the commitment to provide ingredients and other materials required to perform the SERVICES (hereinafter “MATERIALS”).
2.3
For GOODS the QUOTATION constitutes a list of products and prices in connection with sales quantities and batch sizes as well as terms for delivery. The ORDER is a binding offer of the CLIENT to purchase certain quantities of GOODS in accordance with the QUOTATION and these TERMS.
2.4
The ORDERS are only binding for APPLYO if APPLYO has confirmed them in writing or conclusively accepted them through delivery or invoicing.
3.1
When facing changes in raw material prices or in quantities of components for GOODS or DELIVERABLES the PARTIES agree the right for APPLYO to adjust prices without notice.
3.2
If the CLIENT requests any changes to the SERVICES, APPLYO will inform the CLIENT of the cost and impact of such changes and will not implement any change without a fully executed amendment or change order to the relevant SOW. However, APPLYO is not obliged to execute such change request of the CLIENT.
4.1
The PARTIES shall agree the process for testing the DELIVERABLES and shall define in writing the process, tools and methods as well as the parameters for a satisfactory and unsatisfactory outcome from testing. The agreed and defined process for testing and outcomes shall be specified in the SOW.
4.2
Descriptions, drawings or images issued by APPLYO in marketing tools serve the sole purpose of giving an approximate idea of the GOODS, SERVICES and DELIVERABLES described therein. They do not have any contractual force.
5.1
APPLYO will provide the SERVICES as specified in the agreed SOW.
5.2
Prior to commencement of SERVICES, the CLIENT has to make a deposit in case an advance payment has been agreed.
5.3
APPLYO reserves the right to amend the specification, if necessary and reasonable for the CLIENT, to comply with any applicable law or regulatory requirement or defined quality standard. APPLYO notifies the CLIENT in any such event.
5.4
APPLYO will arrange DELIVERABLES for testing as described in the SOW. The PARTY responsible for testing shall perform the tests according to the specification and within the test period as defined in the SOW and shall report the result of the test to the other PARTY. If the result of the test is not satisfactory according to the definition in the SOW APPLYO will utilize the ISO13485 Quality Management System for a root cause analysis of the non-conformance. The PARTIES will cooperate in the investigation and shall discuss the next steps in relation to the SERVICES and whether the CLIENT requires additional SERVICES.
6.1
The CLIENT shall provide APPLYO with complete and accurate information required to supply the SERVICES and with full details and specifications of all MATERIALS supplied to APPLYO including known or potential hazards associated with the use of the materials.
6.2
The CLIENT shall ship MATERIALS to APPLYO in appropriate time and in appropriate quality, at least as stated in the SOW. Shipments have to be made in appropriate manner, at least on cool packs or on dry ice according to the nature of the MATERIALS. The CLIENT must replace MATERIALS in case that MATERIALS do not arrive at APPLYO in well order.
6.3
The CLIENT remains liable for the MATERIALS if the quality of such MATERIALS has an impact on the SERVICES or the DELIVERABLES.
6.4
The CLIENT shall perform all necessary tests as described in the SOW. If a result of the test is not satisfactory according to the definition in the SOW, the CLIENT shall utilize the ISO13485 Quality Management System for a root cause analysis of the non-conformance. The PARTIES will cooperate in the investigation and shall discuss the next steps in relation to the SERVICES and whether the CLIENT requires additional SERVICES.
6.5
The CLIENT shall obtain and maintain all necessary licenses, permissions and consents which may be required for the SERVICES, comply with all applicable laws, including health and safety laws and comply with any additional obligations as set out in the OFFER.
7.1
Unless otherwise agreed delivery is “Ex Works” (Incoterms 2020). The risk of loss or damage to the GOODS and all other applicable delivery conditions shall be solely evaluated by the applicable Incoterm.
7.2
The GOODS must be examined by the CLIENT at the time of passing to CLIENT’s possession or control or at the earliest opportunity thereafter.
7.3
Title to the GOODS does not pass to the CLIENT until APPLYO receives payment in full (in cleared funds) for the GOODS. Until title to the GOODS has passed to the CLIENT, the CLIENT shall store the GOODS separately from all other goods held by the CLIENT so that they remain readily identifiable as APPLYO’s property and maintain the GOODS in satisfactory condition.
7.4
The CLIENT may resell the GOODS subject to the above retention of title only in the course of his regular business. For this case, the CLIENT hereby assigns all claims arising out of such resale, whether the GOODS have been processed or not, to APPLYO. Notwithstanding APPLYO’s right to claim direct payment the CLIENT shall be entitled to receive the payment on the assigned claims. To this end, APPLYO agrees to not demand payment on the assigned claims to the extent the CLIENT complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
8.1
Prices are “Ex Works” (Incoterms 2020), exclusive of the respective statutory VAT and exclusive of costs for packaging, except as otherwise expressly agreed upon.
8.1
Payment is, if not otherwise explicitly agreed between the PARTIES, due and payable within 14 days from the date of invoice.
8.1
The CLIENT shall be entitled to offset only insofar as the CLIENT’s counterclaims are acknowledged, undisputed or assessed in a legally binding judgment. The CLIENT is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
9.1
Unless explicitly stated, no license under any intellectual property right is either granted or implied by the purchase of any of APPLYO’s GOODS, DELIVERABLES and SERVICES. The CLIENT shall provide and (if applicable) procure adequate approvals or licenses to manufacture APPLYO products.
9.2
The intellectual property rights of APPLYO’s GOODS, DELIVERABLES and SERVICES always remain vested in APPLYO and/or its licensors. Any user license may only be used for the CLIENT's own internal business purposes. Any such license terminates automatically on the termination or expiry of the Contract for whatever reason.
9.3
For performing SERVICES with MATERIALS in accordance with the SOW, the CLIENT grants APPLYO a limited, non-transferable, non-sub licensable, nonexclusive royalty-free, fully paid-up license to use the CLIENT’s technology, specifications and MATERIALS solely to perform the SERVICES in accordance with the relevant SOW. The Intellectual Property Rights in any CLIENT MATERIALS shall remain with the CLIENT.
9.4
The CLIENT assumes all risks of patent, trademark or copyright infringement associated with any such use, combination or operation. Furthermore, the CLIENT agrees to compensate APPLYO and holds APPLYO harmless from any liability in this respect.
9.5
Registered names, trademarks, etc. used in APPLYO’s sales and marketing tools are to be considered protected by law, even when not specifically marked as such.
10.1
The PARTIES have to sign a Non-Disclosure/Confidentiality Agreement (hereinafter ”NDA“) before exchanging confidential information.
10.2
In the event that an NDA has not been signed each PARTY undertakes not to disclose confidential information concerning the business, affairs, customers, clients or suppliers of the other PARTY to any third party at any time during the SOW, and for a period of five years after termination of the TERMS, except as permitted by clause 10.3.
10.3
Each PARTY may disclose the other PARTY’s confidential information to its employees, representatives, subcontractors or advisers for the only purpose of carrying out the PARTY’s obligations under the SOW or, as may be required by law, to a court of competent jurisdiction or any governmental or regulatory authority.
10.4
Each PARTY shall ensure that its employees, representatives, subcontractors or advisers to whom it discloses the other PARTY’s confidential information shall use this confidential information for no other purpose than to fulfill their obligations under the SOW.
10.5
Each PARTY will ensure that any data related to the other party will be processed, stored, transmitted and used only in accordance with the German Data Protection Act (DSGVO).
11.1
The CLIENT has to ensure that GOODS and DELIVERABLES are handled in a safe manner in laboratories equipped to perform life science research and that devices, containers, packaging and labeling, insofar as they are provided by the CLIENT, comply with all relevant national and international safety regulations. All GOODS and DELIVERABLES are to be used only by trained laboratory personnel who are familiar with potential hazards.
11.2
GOODS and DELIVERABLES may contain reagents which may damage laboratory equipment if misused. Due care should be taken with all GOODS and DELIVERABLES to avoid direct contact with components that are potentially infectious. APPLYO is not responsible for injury or damages resulting from the misuse of any of its GOODS or DELIVERABLES.
11.3
GOODS and DELIVERABLES are designed for research use only (ROU); they are not recommended or intended for diagnosis or treatment of diseases in humans or animals.
11.4
The CLIENT acknowledges that APPLYO will use a material specification and test instructions to be supplied by the CLIENT to control the acceptance of MATERIALS sent by the CLIENT and that, if the material specification is not agreed, APPLYO will not be liable for the outcome of the development. In these circumstances, APPLYO will not accept any liability should the CLIENT subsequently deem the DELIVERABLES unsatisfactory at any point after delivery to the CLIENT and APPLYO will invoice the CLIENT in accordance with the ORDER. APPLYO will not pay for removal, destruction or return of any MATERIALS that do not meet the specification. The CLIENT assumes the responsibility if MATERIALS cause a contamination of APPLYO’s laboratory equipment by non-specified components and pays the cost for decontamination.
11.5
The CLIENT must complain to APPLYO in writing about any defects in quality without undue delay, however not later than within seven days following delivery (obvious defects) or discovery of the defect. Otherwise, the right to assert any warranty claims is excluded. APPLYO does not agree with any restriction of the CLIENTS's statutory duties to inspect and to report any complaints.
11.6
If there is a defect in the GOODS or DELIVERABLES for which APPLYO is responsible for, APPLYO is entitled, at own discretion, to either remedy the defect or make a subsequent delivery. If the CLIENT wrongly complains about the existence of a defect for which APPLYO is not responsible, APPLYO is entitled to charge the CLIENT for the reasonable expenses incurred to remedy and / or identify the defect.
12.1
APPLYO shall be liable for damages and for the reimbursement of wasted expenditure (hereinafter referred to as ”DAMAGES“) due to defects in the GOODS, SERVICES and DELIVERABLES or because of a breach of other contractual or non-contractual obligations, particularly arising out of tort, only in the case of intent or gross negligence. The above limitation of liability shall not apply in cases of injury to life, body or health, if a guarantee is given or the risk of procurement is assumed, in the case of the breach of any material contractual obligations or in the case of liability under the Product Liability Law.
12.2
DAMAGES due to a breach of material contractual obligations is limited to the reimbursement of such DAMAGE which is typical for the contract as APPLYO ought to have foreseen as a possible consequence when the contract was concluded due to circumstances that were apparent to APPLYO providing there was no intent or gross negligence or liability is for an injury to life, body or health, for the giving of a guarantee or the assumption of a risk of procurement or pursuant to the Product Liability Law.
12.3
Foreseeable DAMAGES which are typical for the contract for the purposes of Section 12.2 is damage with the following maximum quantum:
(a) per case of damage: a maximum of 25.000 €, and
(b) in the event of more than one case of damage in relation to CLIENT within one calendar year: a maximum of 50.000 €, and
(c) in any case, indirect damages (e.g., lost profit or damage resulting from interruptions in production) do not constitute damage which is typical for the contract for the purposes of Section 12.2.
12.4
Irrespective of Section 12.3 above, when determining the quantum of the claims for damages that exist against APPLYO the economic circumstances at APPLYO, the type, scope and duration of the business relationship, any contributory causation and/or fault on the part of the CLIENT must be taken reasonably into account to the benefit of APPLYO. In particular, the damages, costs and expenses to be borne by APPLYO must be reasonably proportional to the value of the GOODS, SERVICES and DELIVERABLES supplied by APPLYO.
12.5
All limitations of liability shall apply to vicarious agents and servants to the same extent.
12.6
The above provisions do not entail any change to the burden of proof to the detriment of the CLIENT.
12.7
Material contractual obligations in the meaning of Sections 12.1 and 12.2 are obligations, the performance of which make the proper implementation of the contract possible in the first place, and compliance with which the CLIENT is usually allowed to rely on.
13.1
Incidents of Force Majeure, i.e., events, over which APPLYO has no control and for which APPLYO is not responsible for, entitles APPLYO to postpone the supply of the GOODS, DELIVERABLES or SERVICES by the duration of the hindrance and a reasonable lead time. This shall also apply if such events occur during a period of delay with performance. It shall thereby be irrelevant whether said circumstances occur at APPLYO or at one of our upstream suppliers. If it is not possible for APPLYO to deliver the GOODS, DELIVERABLES or SERVICES within a reasonable period due to such events the CLIENT and APPLYO shall have the right to rescind the contract or, as the case may be, to rescind such part of the contract as has not yet been performed. There shall be no right to damages because of any such rescission.
Events of Force Majeure include, in particular, official measures and orders (regardless of whether they are valid or invalid), lack of raw materials or energy, significant operational disruptions, for example through the destruction of the entire company or important departments or the failure of essential production facilities, serious transport disruptions, fire, floods, storms, explosions or other natural disasters, mobilizations, wars, riots, pandemics and epidemics.
13.2
These TERMS, any contract concluded on its basis and any SOW concluded between the PARTIES are governed by and construed in accordance with the laws of Germany exclusively without giving effect to the conflict of laws provisions.
13.3
Place of performance shall be Jena, Federal Republic of Germany.
13.4
Exclusive place of jurisdiction for all disputes between the PARTIES is Jena, Federal Republic of Germany.
Applyo Jena GmbH
Göschwitzer Straße 22
07745 Jena
Deutschland
Phone: +49 (0)3641 554 788-0
Fax: +49 (0)3641 554 788-1
E-Mail: info@applyo-jena.com
Web: www.applyo-jena.com
Manufacturer of molecular biology reagent mixtures for research and development laboratories, as well as reagent and diagnostics manufacturers – stable at room temperature and suitable for immediate use.
Applyo Jena GmbH
Göschwitzer Straße 22
07745 Jena
Deutschland
Phone: +49 (0)3641 554 788-0
Fax: +49 (0)3641 554 788-1
E-Mail: info@applyo-jena.com
Web: www.applyo-jena.com
Manufacturer of molecular biology reagent mixtures for research and development laboratories, as well as reagent and diagnostics manufacturers – stable at room temperature and suitable for immediate use.
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