BICO Group’s General Terms & Conditions of Sale
In these Terms and Conditions:
“Agreement” means a purchase agreement, distribution or supply agreement, or an Order Confirmation or other agreements of a similar nature. “BICO Group” means the group of companies owned and controlled by the parent company BICO Group AB (publ).
“Agreement” means a purchase agreement, distribution or supply agreement, or an Order Confirmation or other agreements of a similar nature. “BICO Group” means the group of companies owned and controlled by the parent company BICO Group AB (publ).
“Business Day(s)” means a day other than a Saturday, Sunday or a public holiday in the country which the Supplier is located.
“Buyer” means the party to an Agreement that purchases, or is intended to purchase, Products and/or Services from Supplier.
“BICO Company” means any company within the BICO Group that have signed an Agreement with the Buyer.
“Intellectual Property Rights” means all forms of intellectual property rights in any country or region, whether or not patentable, stored in any form (including tangibly, virtually or digitally) whether such form or method of storage currently exists or may be developed in the future and regardless of the owner of the relevant method of storage, including but not limited to inventions, trade secrets, industrial designs, domain names, utility models, trademarks, component designs or manufacturing processes and any improvements or enhancements thereto, copyrights and moral rights, database rights and know-how, in each case whether registered or unregistered, and also including identified technical and non-technical or business-related information such as specifications, computer programs, drawings or blueprints.
“Order Confirmation” means Supplier’s written confirmation of a Purchase Order.
“Party” or “Parties” means the parties to the Agreement.
“Party” or “Parties” means the parties to the Agreement.
“Product” or “Products” means all the Products supplied by the Supplier under the Agreement or incorporated in Services that the Buyer purchases from Supplier.
“Product Software” means the Supplier’s operating system, including but not limited to, software code, algorithms, firmware, drivers and applications, as applicable, imbedded in the Products or provided separately on a USB or downloaded from Supplier’s website, its documentation and any media on which the Product Software is delivered, and other supplemental materials, as provided to Buyer by Supplier.
“Purchase Order” means the order placed by Buyer with the Supplier for the Products and/or Services.
“Services” means all the services rendered by the Supplier under the Agreement.
“Services” means all the services rendered by the Supplier under the Agreement.
“Terms and Conditions” or “T&Cs” means these General Terms and Conditions of Sale, which shall constitute an appendix to an Agreement.
The Agreement, together with these T&Cs, and any written agreement between the Parties with regard to the Agreement (if any), as well as any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference thereto, constitutes the entire agreement between the Supplier and Buyer. No modification of these T&Cs or any other provision of the Agreement shall be effective unless made by an express written agreement between the Parties. If there is a conflict between these T&Cs and the terms set out in the Agreement, the order of priority shall be, as applicable: (i) the terms set out in the Agreement; (ii) the Order Confirmation; and (iii) these Terms and Conditions. E-mail shall be considered sufficient wherever “written” is used in these T&Cs.
1. ORDERS AND SUPPLY ETC.
The Buyer shall order the Products from Supplier in a written Purchase Order. No Purchase Order is binding to Supplier until Supplier has confirmed a Purchase Order in an Order Confirmation. Supplier will state the price and estimated delivery time in such Order Confirmation. A confirmed Purchase Order cannot be changed or cancelled without the Supplier’s written consent and Buyer’s indemnification of the Supplier against losses. Such indemnification entails that the Buyer agrees to compensate the Supplier and pay for all costs incurred such as expenses associated with the purchase of third-parties instrumentation, components, and materials, including a margin of 25% for purchased material and work performed. Notwithstanding the provisions in the Purchase Order, each contract of sale shall be subject to these T&Cs.
The Buyer is aware and acknowledges that Supplier’s delivery capacity varies depending on, inter alia, the general market conditions. As soon as Supplier has reason to assume that a delay in the agreed delivery could occur, Supplier shall notify the Buyer thereof and shall in such case be entitled to reasonable prolongation of the delivery date. Notwithstanding the foregoing, Supplier shall always endeavor to maintain a delivery capacity that enables Supplier to deliver the Products in accordance with accepted orders.
2. PRICE AND PAYMENT
The Buyer shall purchase the Products at the prices set out in Supplier’s price list applicable at the time when Supplier has received each respective Purchase Order. Supplier has the right to change the price list at any time.
When purchasing the Products marked with “advance payment” the Buyer shall pay agreed amount in advance, in accordance with Supplier’s invoice.
The Buyer shall not have the right to offset, withhold, or abate any payments due to Supplier for any claim the Buyer may have against Supplier.
In the event that the Buyer at any time should fail to make payment in full on the due date, Supplier shall be entitled to claim interest on the sum overdue until payment is made at the rate of eighteen (18) percent per annum.
Unless expressly stated otherwise in the Agreement, payment for Products shall be made within thirty (30) days from date of the invoice without offset or deduction to the account mentioned on the invoice. Supplier may from time to time utilizes financial services and Buyer should pay to the account stated on the invoice. Buyer hereby accepts Supplier’s right to assign, factoring, or transferring its right to receive payments under the Agreement.
Buyer must submit such financial information from time to time as may be reasonably requested by Supplier or a financial service provider for the establishment or continuation of payment terms.
All deliveries of Products or Services agreed to by Supplier shall at all times be subject to credit approval of Supplier. If, in Supplier’s judgment, Buyer’s financial condition at any time does not justify delivery of Products or performance or Services on the above payment terms, Supplier may in its sole discretion at any time change agreed payment terms and require full or partial payment cash in advance or other payment terms such as cash on delivery, bank guarantee, letter of credit as condition for delivery, and Supplier will have the right to cease performing, suspend, delay or cancel any credit, delivery or any other performance by Supplier, until such time that Supplier is satisfied that Supplier’s T&Cs are met.
Title to the Products shall remain with Supplier until fully paid by the Buyer in accordance with this section.
3. GENERAL CONDITIONS OF DELIVERY
The Products shall be delivered from Supplier to the Buyer under the Incoterm CPT – Carriage Paid To (Incoterms 2020). The Incoterm may be changed if both parties agree in writing. Shipments may incur customs fees depending on the destination country. The fee may vary depending on the order value, country limits and other factors based on the Product itself. The Buyer is solely responsible for these fees and shall pay all of these fees to the appropriate customs agency. Customs agencies often calculate duties/fees based on the declared retail price. Any delivery from Buyer to Supplier, e.g. of Products returned for repair or calibration (whether under warranty terms or not), shall be delivered DAP – Delivered At Place (Incoterms 2020). Supplier reserves the right to make partial deliveries. Unless otherwise agreed, invoices will be adjusted pro rata. For the purpose of these terms any partial delivery will be regarded as filling a specific Purchase Order.
The Buyer shall immediately, following each delivery of any Product, inspect the Product in order to identify any external damage and to ensure that the delivery is in accordance with the Order Confirmation.
Any defects or deficiencies which are detected in conjunction with delivery shall immediately be reported in writing to Supplier. When a Product is unpacked, and in any event before the Product has been used by the Buyer, the Buyer shall perform a full inspection of the Product where such was not possible on receipt of the Product in question. The obligation to report any defects to Supplier as set out in the section above shall apply in such context. At the request of Supplier, the Buyer shall make defective goods available to Supplier for inspection and control. If the Buyer does not report defects or deficiencies in Products delivered within the time limits set out above, the Buyer shall have no right to make any claims against Supplier with regard to the default or defect.
Custom Products. Where Buyer has ordered a unique and built-to-order Product or system (“Custom Product”) and has agreed with Supplier in a System Specification Document (SSD) that a Factory Acceptance Test (FAT) and/or Site Acceptance Test (SAT) will be conducted, the acceptance testing procedures and criteria will be as set forth in the SSD. Unless otherwise agreed upon in the SSD (i) Buyer is responsible for scheduling any agreed upon FAT within 15 days of notification by Supplier that FAT is ready or FAT will be assumed to be successfully completed; (ii) Buyer must accept delivery of the Custom Product within 30 days of successful completion of FAT or storage and interest charges will be incurred by Buyer; (iii) if the Buyer’s site cannot accommodate the installation within 30 days of completion of FAT, the Custom Product will be deemed site accepted (SAT) by the Buyer at the end of such 30- day period and the warranty period will commence as of such date; and (iv) if the SAT is not completed within 30-days of delivery, due to any reason other than a reason attributable to Supplier, the Custom Product shall be deemed site accepted at the end of such period and the Warranty Period shall commence as of such date and all outstanding amounts due will be invoiced and due.
5. TRAINING AND OTHER SERVICES
No training, maintenance, installation, consulting or other services are provided under the sales order or invoice unless specifically agreed to by Supplier in the Agreement. Unless otherwise specified, training is provided onsite at Buyer’s designated facility. Due to the particularities of some Products, special technical skills of the Supplier may be required in many instances in relation to the Products and systems, therefore factory- based employees of Supplier may be required to perform system installation, integration, upgrades/ downgrades, moves, and/or maintenance at Supplier’s then current time and material rates. Should Buyer elect to perform installation of hardware and/or software which results in Supplier repair or support services attributable to the improper installation, Supplier shall invoice Buyer at the then current time and material rates. The Buyer is responsible for Supplier’s travel, lodging and other charges associated with training and other services.
6. LIABILITY FOR DEFECTS/WARRANTY
Supplier shall remedy any defect in Products delivered, resulting from faulty design, specification, materials or workmanship attributable to Supplier in accordance with the provisions of this section 6. Supplier’s liability is limited to defects which appear within 12 months from the date when the Products were delivered (the “Warranty Period”).
Notwithstanding the foregoing, (i) the Warranty Period for all Supplier components (as opposed to third-party materials) contained in Custom Products that are subject to a SAT shall commence upon the date of successful completion of the SAT; and (ii) the Warranty Period for all refurbished Custom Products is 90 days from the date of shipment. Where each purchase of Custom Product under these Terms and Conditions constitutes separate and independent transactions, Buyer’s claims under this section shall be applied only to each particular relevant Purchase Order.
Supplier is only liable for defects that appear under the intended and proper use of the Products. Proper use includes that the Product is only used with the Supplier’s consumables or parts. Thus, the liability does not cover defects caused by faulty maintenance, handling or incorrect storage by the Buyer, alterations of the Products carried out without Supplier’s prior written consent, or normal wear and tear and deterioration. Lamps, fuses, bulbs, and other expendable items are expressly excluded from the warranty under this section. Any installation, maintenance, repair, service, relocation or alteration to or of, or other tampering with, the Products performed by any person or entity other than Supplier without Supplier’s prior written approval, or any use of replacement parts not supplied by Supplier, shall immediately void and cancel all warranties with respect to the affected Products.
In order to enable the Buyer to use the Product, the Buyer may insert a USB to upload a .STL-file or other file or download software from the Supplier’s webpage for the Products. Supplier shall not be liable for any damage or loss caused by the Products on any other software contained on the USB. Supplier shall neither be liable to remedy any defects to the Products caused by faulty or corrupt software provided by the Buyer.
The Buyer shall notify Supplier in writing of a defect without undue delay after the defect has appeared, and in no case later than two (2) weeks after the expiry of the liability periods as set out above. The notice shall contain a description of how the defect manifests itself.
If the Buyer fails to notify Supplier in writing within the above time limits, the Buyer forfeits its right to make any claim in respect of the defect. If there is reason to believe that the defect may cause damage, notice shall be given forthwith. If notice is not given forthwith, the Buyer forfeits the right to make any claim based on damage which occurs, and which could have been avoided, if such notice had been given.
After receipt of a written notice, Supplier shall, at Supplier’s option, repair or replace the Product or make a reasonable reduction of the purchase price for the Products without undue delay. If Supplier fails to fulfil its obligations under this section within a reasonable time, the Buyer may by written notice require Supplier to do so within a final time. If Supplier fails to fulfill its obligations within that time limit, the Buyer may terminate the purchase of the defective Products in question by written notice. Replacement parts may be new or refurbished, at the election of Supplier. The repair or replacement of Product under warranty will not extend the original warranty period selected at the time of purchase. All replaced parts shall become the property of Supplier.
If the Buyer gives such notice as referred to above, and no defect is found for which Supplier is liable, Supplier shall be entitled to compensation for the work and costs which it has incurred as a result of the notice.
All transports in connection with replacement shall be at the Buyer’s risk and at Supplier’s expense. The Buyer shall follow Supplier’s instructions regarding how such transport shall be carried out.
Supplier shall have no liability for defects save as stipulated above. This applies to any loss the defect may cause, such as loss of production, loss of profit and other consequential economic loss. The limitation of Supplier’s liability under this section shall, however, not apply where Supplier has been guilty of negligence. Except as expressly provided in this section, Supplier disclaims all warranties, whether expressed or implied, oral or written, with respect to the Products, including without limitation all implied warranties of merchantability or fitness for any particular purpose. Supplier does not warrant that the Products are error- free or will accomplish any particular result.
7. GRANTED RIGHTS
Supplier grants the Buyer a non-exclusive, non- transferable, non-sublicensable, perpetual right to use the Product Software in the Products within the Buyer’s own business.
The Buyer shall not have any right to the Product Software apart from the right to use the Product Software in line with these T&Cs. Except for the Buyer’s right to make back-up copies if this is necessary for the intended use of the Product Software, and to decompile the Product Software to achieve interoperability with other programs, the Buyer is not allowed to modify, copy, disassemble, reassemble, distribute, publish, reverse engineer, build a derivate or duplicate the Product Software, its components, services or features.
The Buyer is only allowed to use the Product Software for its own benefit and is not allowed to make the application available to third parties.
8. INTELLECTUAL PROPERTY RIGHTS
As between the Parties, Supplier exclusively owns all Intellectual Property Rights relating to the Products.
The Buyer has no right to modify, change, remove, cover or otherwise obscure any of Supplier’s brands, trade or service marks on the Products. Nothing in the Agreement limits Supplier’s ability to enforce its Intellectual Property Rights.
In order to avoid claims of intellectual property infringement, if Supplier believes a Product sold to Buyer may be subject to a claim for intellectual property infringement, Buyer shall allow Supplier (at Supplier’s discretion) to either (a) secure Buyer the right to continue using the Product; (b) substitute the Product with another suitable product with similar functionality; or (c) ask Buyer to return the Product to Supplier and provide a refund equal to the invoiced amount of the Product.
9. PERMITTED USES OF THE PRODUCTS
The Buyer agrees to and warrants that the Buyer only will use the Products in: (i) accordance with these T&Cs and the user manual provided for the Products; (ii) a way that does not promote or encourage illegal activity; (iii) a way that is not harmful, abusive or offensive, does not infringe the rights of any third party or in any other way can harm Supplier; and (iv) compliance with all applicable laws, including local laws of the country or region in which the Buyer resides or in which the Product is used.
10. PRODUCT LIABILITY
Supplier is not liable for any damage caused by the Product to any movable or immovable property or the consequences of such damage, which occurs after the Product is delivered to the Buyer.
The Buyer shall indemnify and hold Supplier harmless to the extent that Supplier incurs liability towards any third party in respect of loss or damage for which Supplier is not liable in relation to the Buyer. For the avoidance of doubt, the Buyer shall have a liability to recourse all costs inflicted on Supplier, due to any such claims.
Subject to the limitations stated above, Supplier is liable for claims made by a consumer, in accordance with mandatory law for personal injury or damage to property caused by the Product.
If a claim for damage as described in this section is lodged by a third party against one of the Parties, the latter Party shall forthwith inform the other Party thereof in writing.
A precondition for Supplier’s liability set forth above is that Supplier has been notified in writing of such claim in accordance with above and given authority to settle the claim or control the defense of any suit and proceeding.
In the event that a Product or parts thereof becomes subject to a recall decided by Supplier, the Buyer shall participate and assist in such a process in accordance with Supplier’s instructions. The Buyer is entitled to compensation for its reasonable direct and documented costs occurred in relation to the provision of such assistance.
The limitation of Supplier’s liability set forth in this section shall not apply where Supplier has been guilty of negligence. Both Parties shall keep and maintain product liability insurance in accordance with customary conditions.
11. LIMITATION OF LIABILITY
Save for what follows from section 10, Supplier’s aggregate liability in relation to any claim of any kind for any loss or damage arising out of, connected with, or resulting from the Agreement or from the design, manufacture, sale, delivery, resale or use of the Products or any part thereof, as the case may be, shall be limited to the refund of the purchase price of the Products with respect to which the loss, damage or breach occurred.
In no event shall Supplier be liable towards the Buyer for any loss of production or profit, loss of use, loss of data, loss of contracts or for any other consequential, economic or indirect loss whatsoever in respect of the sale, purchase, use or disposition of the Product.
The limitation of Supplier’s liability in this section shall not apply where Supplier has been guilty of negligence.
12. FORCE MAJEURE
The Parties shall be relieved from liability for a failure to perform any obligation under the Agreement during such period, and to the extent that the due performance thereof by either of the Parties is prevented by reason of any circumstance beyond the control of the Parties (“Discharging Circumstance”). If not otherwise shown, war, warlike hostilities, mobilization, or general military call-up, civil war, fire, flood, or other circumstances of similar importance, shall be considered as Discharging Circumstances.
If a Party wishes to invoke a Discharging Circumstance, it shall give immediate notice to the other Party of the commencement and the cessation of such Discharging Circumstance, failing which, the Party shall not be discharged from liability for any non-performance caused by such Discharging Circumstance.
The time for performance of the relevant obligations of a Party shall be appropriately extended by the period during which a Discharging Circumstance continues, provided, however, that if performance of a contractual obligation is prevented by a Discharging Circumstance for a period of six (6) months or more, each Party shall be entitled to terminate the Agreement.
13. CONFIDENTIAL INFORMATION
The Buyer shall at all times, both during the term of the Agreement, and for a period of five (5) years after its termination, keep in strict confidence all technical or commercial information, know-how, specifications, drawings, inventions, processes or initiatives or any other information in any form which have been disclosed to the Buyer by or on behalf of Supplier (“Confidential Information”) and the Buyer shall restrict disclosure of such Confidential Information to such of its employees, agents or sub-contractors as need to know the same for the purposes of discharging the Buyer’s obligations to Supplier and shall ensure that such employees, agents or subcontractors are subject to the same obligations of confidentiality as bind the Buyer. Buyer will immediately give notice to Supplier of any unauthorized use or disclosure of the Confidential Information. Buyer agrees to assist Supplier in remedying such unauthorized use or disclosure of the Confidential Information. This obligation will not apply to the extent that Buyer can demonstrate (i) the disclosed information at the time of disclosure is part of the public domain; (ii) the disclosed information became part of the public domain, by publication or otherwise, except by breach of the provisions of the Agreement; (iii) the disclosed information can be established by written evidence to have been in the possession of the Buyer at the time of disclosure; or (iv) the disclosed information is received from a third party without similar restrictions and without breach of the Agreement.
14. EXPORT RESTRICTIONS
Buyer acknowledges that each Product and any related Product Software and technology, including technical information supplied by Supplier or contained in documents (collectively “Items”), may be subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export or re-export of any Item. Buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Buyer shall cooperate fully with Supplier in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Supplier harmless from, or in connection with, any violation of this section 14 by Buyer or its employees, consultants, agents or customers.
The Agreement, including all appendices hereto including the T&Cs, contains the final, complete and exclusive agreement of the Parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Governing law. These T&Cs shall be governed by and construed in accordance with the substantive laws of the country in which the Supplier/BICO Company is located. If in the United States, the law of the State of Delaware shall apply.
Disputes. The Parties shall endeavor to settle amicably any dispute or claim arising out of or in connection with the Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non- contractual claims. If the Parties fail to settle the dispute negotiations within sixty (60) calendar days of the commencement of the negotiations, the dispute shall be finally resolved exclusively by submitting such dispute to binding expedited arbitration at the location and pursuant to the applicable organization/rules set forth below, determined by the country in which the BICO Company being party to the Agreement is located, or if such country is not listed, then “Sweden” shall apply.
The language to be used in the arbitral proceedings shall be English unless otherwise agreed upon.
Nothing in this T&Cs or in the Agreement shall prevent either Party from seeking any provisional or preliminary relief (including, but not limited to, injunction, attachments or other such orders) from a court of competent jurisdiction, and such application to a court for provisional or preliminary relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
General Terms and Conditions (T&Cs) of the CYTENA GmbH
1. Scope of application1.1. These General Terms and Conditions apply to all contracts between CYTENA GmbH and its customers. 1.2. These General Terms and Conditions apply exclusively to entrepreneurs, legal entities under public law or special funds under public law. An entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, acts in the exercise of his commercial or self-employed professional activity. 1.3. These General Terms and Conditions apply to all offers and services. They also apply to all future contracts with the customer, even if they are not expressly agreed again. 1.4. In case of a purchase contract between CYTENA and customers who have their registered office or the branch entrusted with the contract outside of Germany (cross-border sales), the Special Terms and Conditions for International Sale shall apply primarily; the respective branch that concludes the contract in its own name is decisive. These General Terms and Conditions shall only apply insofar as the Special Terms and Conditions do not regulate an issue.
2. Customer’s terms and conditions2.1. Any regulations in the customer’s terms and conditions that contradict or deviate from the regulations of these General Terms and Conditions shall only apply if CYTENA expressly agree to their validity. 2.2. If individual provisions of these General Terms and Conditions deviating from these General Terms and Conditions are agreed between CYTENA and the customer, this shall not affect the validity of the remaining provisions of these General Terms and Conditions.
3. Structure3.1. These conditions are divided into Part A concerning purchase contracts, Part B concerning maintenance services, Part C concerning repair services and Part D concerning common provisions.
Part A – Purchases
4. Offer/acceptance of order4.1. CYTENA’s offer is non-binding. 4.2. CYTENA reserves the right to make changes and errors in the illustrations and drawings relating to its goods in brochures, advertising materials and price lists as well as the data contained therein, e.g. regarding material, dimensions, form retention, unless they are expressly designated as binding. 4.3. The customer is bound to an order two weeks after receipt by CYTENA. 4.4. The contract is concluded either by sending its written order confirmation or with the fulfilment of the order, whichever comes first.
5. Delivery periods and non-availability of the goods5.1. Any information about delivery times is always non-binding, unless they have been designated as binding. 5.2. Subject to Clause 5.3 below, the delivery period begins with the dispatch of the order confirmation by CYTENA. 5.3. If the customer is obliged to procure certain documents, such as permits, releases, etc., himself or to make a down payment, the delivery period shall begin at the earliest at the time at which all documents to be procured by the customer have reached CYTENA or a down payment to be made has reached us. 5.4. The delivery period shall be deemed to have been met if the goods have left the factory or readiness for dispatch has been notified by the time it expires. 5.5. If CYTENA is unable to meet binding delivery deadlines for reasons for which CYTENA is not responsible (non-availability of the service), CYTENA shall inform the customer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, CYTENA shall be entitled to withdraw from the contract in whole or in part; CYTENA shall immediately refund any consideration already rendered by the customer. The case of non-availability of the service in this sense shall in particular be deemed to be the non-timely self-supply. 5.6. The occurrence of CYTENA’s delay in delivery is determined in accordance with the statutory provisions. In any case, however, a reminder with a reasonable period of notice by the customer is required. 5.7. Its liability in the event of default in delivery is limited in accordance with Clause 27 and 27. In all other respects, the statutory rights of the customer and its statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
6. Partial deliveries, partial delay, partial impossibility6.1. Partial deliveries are permissible and can be invoiced independently, provided that this is reasonable for the customer and he has an objective interest in the partial delivery. 6.2. In the event of a partial delay or partial impossibility, the customer may only withdrawfrom the entire contract or demand damages for non-performance of the entire obligation if the partial performance of the contract is of no interest to him. 6.3. In all other respects, the provisions of Clause 5 above shall apply accordingly in the eventof partial default.
7. Delivery and transfer of risk7.1. FCA (Incoterms 2010) from CYTENA’s designated shipping facility applies to delivery and transfer of risk. The risk shall pass to the customer FCA even if CYTENA bears the shipping costs in individual cases. 7.2. Irrespective of the agreed Incoterms clause, packaging will be charged according to expenditure. 7.3. If dispatch is delayed due to circumstances for which CYTENA is not responsible or at the request of the customer, the risk shall pass to the customer from the day of notification of readiness for dispatch; however, CYTENA shall be obliged, at the request and expense of the customer, to effect the insurance required by the customer. 7.4. If dispatch is delayed at the request of the customer, the monthly storage costs shall be charged to him starting one month after notification of readiness for dispatch locally usual storage cost. 7.5. If the goods are dispatched at the request of the customer, CYTENA shall choose the dispatch routes and means of dispatch without assuming any warranty for the cheapest shipment.
8. Prices/Terms of payment8.1. All prices are quoted in EURO plus applicable value added tax FCA (Incoterms 2010) from CYTENA’s designated shipping facility, plus packaging and shipping costs unless otherwise expressly agreed. 8.2. Payments shall be free Supplier’s place of payment within 30 days net. 8.3. In case of payment by bill of exchange, all expenses and costs will be charged. 8.4. Offsetting against counterclaims is only permissible if these have been valid and due counterclaims from the same contractual relationship, are legally established or are undisputed. 8.5. The customer is only entitled to withhold payments on the basis of valid and due counterclaims from the same contractual relationship.
9. Retention of title9.1. CYTENA retains title to the goods until the complete fulfilment of all – including future – receivables (including all ancillary claims such as financing costs, interest) arising from the business relationship with the customer if our right to the purchase price is not secured by other means (e.g. letter of credit). 9.2. The customer is obligated to handle the goods subject to retention carefully and to insure them sufficiently against fire and water damage and loss due to theft at its own costs. 9.3. CYTENA undertakes to release the securities to which CYTENA is entitled at the customer’s request and at our discretion if the realisable value of the securities exceeds the receivables of CYTENA to be secured by more than 10%. 9.4. In the case of attachment, confiscation or similar and in the event of damage and/or loss of the items delivered, the customer must notify CYTENA immediately; a breach of this obligation gives CYTENA the right to withdraw from the contract. The customer bears all the costs that need to be incurred in particular within the framework of an objection by a third party to the successful rescission of a seizure and if applicable to a successful new purchase of the items delivered if they cannot be collected by third parties. 9.5. If CYTENA has validly withdrawn from the contract, CYTENA is entitled to take back the goods under retention of title if the taking back is threatened with a suitable period of time. The costs arising from the exercising of the right of retention, in particular for transport, will be borne by the customer. CYTENA is entitled to utilize the goods under retention of title that CYTENA takes back and to satisfy itself from their proceeds if the utilisation was threatened beforehand with an appropriate period of notice. If the proceeds should exceed the outstanding receivables from the contractual relationship, this surplus will be surrendered to the customer. 9.6. In the event that cash payment or advance payment has been agreed, ownership shall pass in full to the customer upon delivery. If CYTENA agrees a deferment of payment with the customer or delivers to the customer despite knowledge of payment difficulties, CYTENA waives the extended retention of title and delivers under simple retention of title.
10. Notice of defects, rights in case of material defects10.1. The customer must inspect the goods immediately upon receipt and give written notice of all recognizable defects without undue delay, but at the latest within seven (7) days; otherwise the goods are deemed to be approved. Hidden defects must be notified in writing immediately after discovery, at the latest after seven (7) days; otherwise the goods shall also be deemed approved with regard to these hidden defects. 10.2. If no defect in the goods is found after a notification of defect by the customer, the customer shall bear the costs incurred by CYTENA. 10.3. Claims for material defects do not exist in the case of defects,
- which are attributable to circumstances occurring after the transfer of risk,
- which are caused by improper use or improper service or repair work by the customer,
- which are based on arbitrary changes by the customer,
- which are attributable to normal wear and tear or normal deterioration, or
- otherwise attributable to the sphere of the customer.
11. Software, Intellectual property rights, Reverse engineering, Infringement11.1. The supplied software that accompanies the product is subject to an end-user license agreement that has to be accepted before installation. 11.2. All other rights to the software and documentation including copies shall remain with CYTENA or the software supplier. The customer shall not be permitted to issue sublicenses. 11.3. The provisions of Clause 9 above (reservation of title), Clause 10 (notice of defects, rights in the event of material defects) and Clause 27 (liability) shall also apply mutatis mutandis to the software. Clause 10.3 shall apply subject to the proviso that material defect rights in the software shall also not arise if the defect is attributable to the fact that the software is used in a hardware and/or software environment which does not meet the requirements specified by CYTENA, as well as for changes and modifications which the customer has made to the software without being entitled to do so by operation of law, these General Terms of Delivery or on the basis of CYTENA’s prior written consent. 11.4. All intellectual and industrial property rights, including, but not limited to, copyrights, trademarks and patents, incorporated in the goods, software, and/or accompanying documentation are and shall remain property of CYTENA. 11.5. The customer shall not use observation, study, disassembly or testing of the purchased goods (reverse engineering) to acquire any trade secrets of CYTENA contained in the goods. 11.6. In no case of infringement of third party industrial property rights CYTENA will compensate the customer for loss of profit and other consequential damage.
Part B – Maintenance Services
12. Scope of this Part B12.1. The provisions of this Part B apply to all supplemental maintenance services (maintenance or inspection) provided by CYTENA.
13. Scope of services13.1. The scope of the services to be provided shall be determined by CYTENA’s offer. 13.2. If during maintenance (maintenance, inspection or calibration) it is determined that repairs are necessary which exceed the agreed scope of services, this will be discussed with the customer on site. The further procedure requires a separate agreement in text form (in writing or by e-mail) to which the provisions of Sections B and C apply. In the event of possible changes to services, the signed assembly order may result in an additional or reduced charge.
14. Cost of material14.1. The consumables and wear and tear parts required within the scope of maintenance shall additionally be charged according to actual expenditure, unless they are included in the scope of services in accordance with Clause 13.1. 14.2. The parts used shall be invoiced at CYTENA’s prices valid at the time of delivery. 14.3. No charge shall be made if the material is required under CYTENA’s warranty obligation and within the warranty period.
15. Obligations of the customer15.1. The conclusion of a maintenance contract does not release the customer from the obligation to carry out the maintenance work prescribed in the operating and user manual, unless this maintenance work was expressly ordered from CYTENA according to the underlying offer. 15.2. The maintenance personnel must be allowed access to the machinery and equipment during normal business hours / operating hours for the performance of announced maintenance work. The customer shall provide CYTENA with any information requested about the machines and systems to be maintained and shall make the associated documents available to CYTENA.
16. Time of maintenance16.1. CYTENA undertakes to carry out maintenance at the intervals specified in the offer for the objects specified therein. 16.2. CYTENA shall inform the customer of the exact date of the maintenance at least one week in advance, unless a specific date has been agreed. 16.3. Should it not be possible for the customer to carry out the work on the scheduled date, CYTENA must be notified at the latest seven (7) days before the scheduled date. In the event of late notification, the price shall be due in full if the maintenance technicians could not be employed elsewhere at the scheduled time, unless the customer is not responsible for the late notification. 16.4. If maintenance is delayed by measures within the scope of industrial disputes, in particular strikes and lockouts, as well as the occurrence of circumstances for which CYTENA is not responsible, an appropriate extension of the maintenance period shall occur, provided that such obstacles are demonstrably of considerable influence on the completion of maintenance. 16.5. If the customer suffers any damages, the limitation of liability pursuant to Clause 27 and 28 applies.
17. Conclusion of contract, Prices17.1. The maintenance contract comes into force with the order confirmation by CYTENA. 17.2. A fixed price shall be agreed for each maintenance object and, if applicable, a fixed term specified in the order confirmation of CYTENA. 17.3. The price for the work of the maintenance personnel plus applicable VAT, if any, is to be paid within thirty (30) days after date of the invoice.
18. Claims for breach of contract18.1. If the agreed service is not performed completely and properly, CYTENA shall make up for it or repair it free of charge. 18.2. If CYTENA fails to fulfill its obligation to make good, rectify or rectify the damage, the customer shall be entitled to set a reasonable period of grace. If CYTENA fails to meet this deadline, the customer may either demand a reduction or terminate the contract without notice. This also applies in the event of failure to repair the damage. The customer also has the right – if feasible – to have the work carried out by third parties and to demand compensation from CYTENA for the necessary costs. CYTENA’s liability for damages shall be governed by Clause 27 and 28.
19. Other provisions19.1. Extensions, relocations, partial renewals and other changes to the machines and systems may only be carried out by or in agreement with CYTENA during the term of the maintenance contract. 19.2. If the customer leaves machines and systems to third parties, his obligation to pay the annual premium shall remain in force, unless the third party enters into this contract with CYTENA’s consent. Consent can only be refused by CYTENA for important reasons. 19.3. CYTENA may inspect machines and equipment when taking over the maintenance of machines or equipment not supplied by CYTENA or when taking over the maintenance of machines and equipment that have been in operation or out of operation for a certain period of time. The costs of the inspection and any repair work will be invoiced separately to the customer.
Part C – Repair Services
20. Scope of this Part C20.1. The provisions of this Part C apply to all repair services provided by CYTENA, unless the services are provided under warranty. In this case, Part A applies.
21. Reaction model21.1. If the customer has ordered the reaction model from CYTENA, CYTENA undertakes to make a technician available to the customer for on-site repair within the agreed reaction time after receipt of a fault report. The response time is extended by the time period during which it is determined whether it is possible to rectify the fault over the telephone or by remote control via internet.
22. Prerequisites for repair and provision by the customer22.1. Before the start of the repair, all necessary preconditions must have been created on the part of the customer so that the work can be started and carried out without interruption immediately after arrival of the service personnel without danger to their life and health. 22.2. The customer has to take over in any case at his own expense:
- Sample material for instruction in the intended use of the delivery item is provided,
- appropriate lockable rooms for CYTENA employees and the storage of materials.
23. Transport23.1. If repairs cannot be carried out on the customer’s premises, CYTENA shall transport the object to be repaired to its premises and back to the customer’s premises at the customer’s expense. 23.2. The risk of accidental loss of the object during the outward and return transport as well as during storage and repair on CYTENA’s premises shall be borne by the customer. CYTENA shall be liable with regard to the object exclusively within the scope of the provision in Clause 27 and 28.
24. Inspection and approval24.1. The repair services provided by CYTENA must be accepted by the customer immediately after completion of the work (acceptance period). Acceptance may not be refused due to insignificant defects. 24.2. CYTENA shall be notified of any refusal to accept delivery within the acceptance period, otherwise the repair shall be deemed to have been accepted. Time, place, type and extent of the defect must be described in detail. 24.3. The repair work shall also be deemed to have been accepted if the customer uses the machine in repair in his business operations. 24.4. In the event of a delay in acceptance, the risk shall pass to the customer. 24.5. If the customer is in default of acceptance or violates other duties to cooperate, he shall be obliged to compensate for the resulting damage. In the event of a delay in acceptance, the customer shall pay a lump-sum compensation amounting to 10% of the order value. The customer reserves the right to prove a lesser damage.
25. Remuneration and cost of material25.1. The repair takes place against payment according to time expenditure. The customer shall be charged the respectively valid hourly rates, including additional costs for overtime as well as work on Sundays and public holidays. Travel time and waiting time are considered working hours. 25.2. Costs for travel to and from the site, transport of luggage and tools as well as other costs arising in connection with the repair shall also be borne by the customer. 25.3. The material required within the scope of the repair will be charged additionally according to actual expenditure. 25.4. The parts used shall be invoiced at CYTENA’s prices valid at the time of delivery. 25.5. No calculation shall be made if the repair is carried out within the framework of CYTENA’s warranty obligation and within the warranty period.
Part D – General
26. Scope of this Part D26.1. The provisions of this Part D apply to all contracts with CYTENA.
27. Liability27.1. CYTENA is liable without limitation for damages resulting from injury to life, body or health which are based on a negligent breach of duty by CYTENA or on an intentional or negligent breach of duty by its legal representative or vicarious agent, and in the case of statutory liability without fault, in particular in the case of express guarantee (Garantiehaftung). 27.2. CYTENA is liable for other damages which are based on an intentional or grossly negligent breach of duty by CYTENA or on an intentional or grossly negligent breach of duty by its legal representative or vicarious agent. In this case the liability is limited to the typical damage foreseeable at the time of conclusion of the contract. 27.3. In the event of intentional or negligent breach of an essential contractual obligation, CYTENA shall only be liable for typically occurring damage that was foreseeable at the time the contract was concluded. An essential contractual obligation is such an obligation which makes the proper performance of the contract concluded with the customer possible in the first place and on which the customer has trusted and was allowed to trust and whose culpable non-performance endangers the achievement of the purpose of the contract. 27.4. In all other cases its liability is excluded. 27.5. Insofar as its liability is excluded or limited, this also applies to its employees, representatives and vicarious agents.
28. Limitation28.1. In the case of supplier regress in the supply chain of a consumer goods purchase, in the case of statutory no-fault liability, in particular under the Product Liability Act and in the case of warranty liability, the statutory limitation period shall apply. 28.2. In the case of damages resulting from injury to life, body or health, which are based on a negligent breach of duty by CYTENA or an intentional or negligent breach of duty by its legal representative or vicarious agent, in the case of other damages, which are based on an intentional or grossly negligent breach of duty by CYTENA or on an intentional or grossly negligent breach of duty by its legal representative or vicarious agent, as well as for damages which are based on an intentional or negligent breach of essential contractual obligations under the respective contract by CYTENA or its legal representative or vicarious agent, the statutory warranty period also applies. 28.3. In the case of a structure and in the case of an object which has been used for a structure in accordance with its normal manner of use and which has caused its defectiveness, and in the case of a structure whose success consists in the provision of planning or monitoring services for a structure, the limitation period shall be five years. 28.4. In all other cases the warranty period is one year.
29. Force Majeure29.1. Any event, which is beyond the CYTENA’s control, such as acts of nature (e.g. earthquakes), war, unforeseeable governmental or administrative actions (including governmental interruption and restriction/prohibition affecting the efficacy of the production and/or delivery of the goods), or strikes, shall relieve CYTENA from its contractual obligations for the duration of such event or circumstance and to the extent of the effects resulting there from. If any such case occurs, CYTENA shall inform the customer immediately indicating the presumable duration and extent of such contingency. CYTENA shall promptly use all reasonable efforts to settle such contingencies so that the performance of its contractual obligations can be resumed as soon as possible.
30. Secrecy30.1. Both parties shall maintain secrecy about all business matters and processes, in particular all secret data of one party relating to its economic condition and market behavior, as well as all technical data that are disclosed by a party during the performance of the contract and have been expressly and provably designated as confidential or secret by the disclosing party (“confidential information”). This does not include information which is demonstrably generally known or published at the time of disclosure, which belongs to the general technical knowledge, is of general state of the art or is individually known to the concrete party receiving it; the parties shall inform each other in text form of such prior individual knowledge without delay after disclosure. 30.2. The obligation to maintain secrecy shall not apply if and as soon as the confidential information becomes generally known after the date of disclosure without any action by a party that violates the confidentiality agreement, is individually disclosed to the specific party by third parties without such third parties in turn violating a confidentiality obligation with respect to the confidential information, is independently recognized or developed by the receiving party independently of the confidential information, is disclosed in writing to the public by the disclosing party or must be disclosed in accordance with mandatory statutory provisions. In the latter case, the receiving party shall inform the other party of the disclosure obligation without delay. 30.3. Except in the cases described in Clause 30.2 above, any disclosure to third parties, unless absolutely necessary for the execution of the contract, requires the express prior consent of the disclosing party. The receiving party shall be obliged to agree a corresponding obligation to maintain secrecy with his employees to the extent permissible under labour law and with authorised third parties. 31. Protection of Personal Data The customer agrees that CYTENA may store, use or process personal data in accordance with the provisions of the German Federal Data Protection Act and the General Data Protection Regulation to the extent necessary for the performance of this contract.
32. Place of Performance, applicable Law and Jurisdiction32.1. Place of performance for deliveries and payments is Freiburg, Breisgau, Germany. 32.2. Any contracts shall be governed solely by the laws of the Federal Republic of Germany; in case of international purchase contracts the Special Terms and Conditions for International Sale shall govern applicable law. 32.3. The place of jurisdiction for all disputes in connection with the contract is the competent court at CYTENA’s business seat in Freiburg, Breisgau, Germany. However, CYTENA may also assert claims in the legal place of jurisdiction of the customer.
Special Terms and Conditions for International Sale of CYTENA GmbH
33. Scope of application33.1. These Special Terms and Conditions for International Sale shall apply primarily to all purchase contracts between CYTENA GmbH (“CYTENA”) and those of its customers who have their registered office or the branch entrusted with the contract outside of Germany (cross-border sales); the respective branch that concludes the contract in its own name is decisive. 33.2. These Special Terms and Conditions apply to all contracts whose preponderant object is the supply of goods to the customer. Additional obligations assumed by CYTENA do not affect the application of these Special Terms and Conditions. 33.3. In addition, the General Terms and Conditions shall apply insofar as these Special Terms and Conditions for International Sale do not regulate an issue even if the General Termsand Conditions are not particularly referenced in the offer or order confirmation. 33.4. These Special Terms and Conditions do not apply if the customer acquires the goods for personal, family or household use and CYTENA knew or ought to have known this when the contract was concluded. 33.5. These Special Terms and Conditions apply to all offers of sale of CYTENA. They also apply to all future contracts with the customer if reference is made in CYTENA’s offer to these Special Terms and Conditions.
34. Customer’s Terms and Conditions34.1. Any regulations in the customer’s terms and conditions that contradict or deviate from the regulations of these Special Terms and Conditions of Business or the provisions applicable according to Clause 51.4 shall only apply if CYTENA expressly agrees to their validity. 34.2. If individual provisions of these General Terms and Conditions deviating from these General Terms and Conditions are agreed between CYTENA and the customer, this shall not affect the validity of the remaining provisions of these General Terms and Conditions.
35. Formation of Contract, Scope of Agreement35.1. CYTENA’s offer is non-binding. 35.2. CYTENA reserves the right to make changes and errors in the illustrations and drawings relating to its goods in brochures, advertising materials and price lists as well as the data contained therein, e.g. regarding material, dimensions, form retention, unless they are expressly designated as binding. 35.3. The customer is obligated to give notice in text form to CYTENA before conclusion of contract
- if the goods to be supplied are to be not only suitable for normal use or the customer orders on the assumption of a particular purpose or his expectations are based on public statements, advertising messages or other circumstances outside the formation of the concrete contract
- if the goods to be supplied are to be used under unusual conditions or conditions presenting a particular risk to health, safety or environment or requiring a more demanding use or
- if any atypical damage potential or any unusual amounts of loss, in particular exceeding the limits set in Clause 46 could be associated with the contract. This obligation applies only with relation to such use conditions, damage potential, or unusual extents of damage of which the customer is or ought to aware.
36. Obligation of CYTENA36.1. Subject to a failure of delivery on part of his suppliers irrespective of a congruent covering transaction or to an exemption according to Clause 50, CYTENA must deliver the goods specified in the order confirmation in text form and transfer the title in the goods. CYTENA is not obliged to perform obligations not stated in the order confirmation in text form by CYTENA or in these Special Terms and Conditions of International Sale, in particular CYTENA is under no obligation if not explicitly agreed upon in text form to give information regarding the goods, to furnish documents or certificates regarding the goods, to deliver accessories, to install additional safety devices, to carry out assemblies or to advise the customer 36.2. CYTENA’s obligations under the purchase contract with the customer are owed only to the customer. Third parties not involved in the formation of the contract, in particular the customer’s clients, are not entitled to request delivery to be made to them or to assert any other claim arising from the customer’s contract with CYTENA. The customer gives CYTENA an unlimited indemnity against all claims made by contracting partners of the customer against CYTENA invoking the contract made between CYTENA and the customer. The customer’s entitlement to take delivery continues to exist even if he assigns rights to third parties. 36.3. CYTENA undertakes to deliver to the customer goods of the agreed kind and quantity which meet the common standards applicable in Germany and ensures that at the time of delivery the goods are free from rights or claims of private third parties which could prevent its use within the European Union. 36.4. Partial deliveries are permissible and can be invoiced independently, provided that this is reasonable for the customer and he has an objective interest in the partial delivery.
37. Delivery Periods37.1. Any information about delivery times is always non-binding, unless they have been designated as binding. 37.2. Subject to Clause 5.3 below, the delivery period begins with the dispatch of the order confirmation by us. 37.3. If the customer is obliged to procure certain documents, such as permits, releases, licenses or any other authorizations or consents, himself and/or to submit letters of credit or to make a down payment, the delivery period shall begin at the earliest at the time at which all documents to be procured by the customer have reached CYTENA or a down payment to be made has reached CYTENA. 37.4. Compliance with agreed delivery time periods or delivery dates is subject to the customer’s procuring any required documents, releases, permits, approvals, in sufficient time, making down-payments as agreed and performing all other obligations incumbent upon him properly and in good time and subject to no delay caused by pre-shipment inspections mandated by not German authorities. Moreover, agreed delivery timeperiods begin on the date of the order confirmation in text form by CYTENA. After informing the customer, CYTENA is entitled to deliver earlier than at the agreed delivery time or to select the date of delivery within the agreed period for delivery. 37.5. The delivery period shall be deemed to have been met if the goods have left the factory or readiness for dispatch has been notified by the time it expires. 37.6. Without prejudice to its continuing legal rights, CYTENA is entitled to fulfil its obligations after the delivery time periods or delivery dates agreed upon, if the customer is informed that CYTENA will exceed the delivery time limit and of the time period for late performance. Subject to aforesaid conditions, CYTENA is entitled to make repeated attempts at late performance. The customer can object to late performance within reasonable time, if the late performance is unreasonable. An objection is only effective, if it is received by CYTENA before commencing late performance. CYTENA will reimburse necessary additional expenditure, proven and incurred by the customer as a result of exceeding the delivery time to the extent that CYTENA is liable for this under the provisions laid down in Clause 46.
38. Anticipatory Breach by Customer38.1. Without prejudice to his continuing legal rights and without a previous notice to the customer being necessary, CYTENA is entitled to suspend the performance of his obligations as long as, in the opinion of CYTENA, there are grounds for concern that the customer will wholly or partly fail to fulfil his obligations in accordance with the contract. In particular, the right to suspend arises if the customer insufficiently performs his obligations to enable payment to CYTENA or a third party or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the forthcoming delivery. 38.2. Instead of suspending performance CYTENA is entitled at his own discretion to make future deliveries, even if confirmed, conditional on payment in advance. CYTENA is not required to continue with performance of his obligations, if an assurance given by the customer to avoid the suspension does not provide adequate security or could be challenged pursuant to an applicable law.
39. Delivery and Transfer of Risk39.1. FCA (Incoterms 2010) from CYTENA’s shipping facility designated in CYTENA’s order confirmation in text form applies to delivery and transfer of risk. The risk shall pass to the customer FCA even if CYTENA bears the shipping costs in individual cases. 39.2. Irrespective of the agreed Incoterms clause, packaging will be charged according to expenditure. 39.3. If dispatch is delayed due to circumstances for which CYTENA is not responsible or at the request of the customer, the risk shall pass to the customer from the day of notification of readiness for dispatch; if the customer cannot effect appropriate insurance cover for those stored goods because they are still at CYTENA’s facilities, CYTENA shall be obliged, at the request and expense of the customer, to effect the insurance required by the customer. 39.4. If dispatch is delayed at the request of the customer, the monthly storage costs shall be charged to him starting one month after notification of readiness for dispatch locally usual storage cost. 39.5. If the goods are dispatched at the request of the customer, CYTENA shall choose the dispatch routes and means of dispatch without assuming any warranty for the cheapest shipment. 39.6. The customer undertakes to furnish CYTENA with the data to apply for the customs formalities in reasonable time ahead and in writing or text form as required by law/customs, to take delivery of the goods either by customer itself or by a person nominated in writing by customer to CYTENA at the delivery time without taking any additional period of time and at the place of delivery according to Clause 39.1 and shall fulfil all the duties imposed by the contract, by these Special Terms and Conditions of International Sale, by the rules of the ICC for the use of the agreed clause of the Incoterms 2010 and by statutory provisions. The customer is only entitled to refuse to take delivery of the goods if he declares the contract avoided in accordance with Clause 46.1.
40. Prices/Terms of Payment40.1. All prices are quoted in EURO plus applicable value added tax FCA (Incoterms 2010) from CYTENA’s designated shipping facility, plus packaging and shipping costs unless otherwise expressly agreed. 40.2. Irrespective of continuing obligations of the customer to guarantee or to enable payment, the customer undertakes to pay the agreed price for the goods in the currency specified in the written confirmation of the order transferring it without deduction and free of expenses and costs to one of the financial institutions designated by CYTENA. 40.3. The payment to be made by the customer is in any event due for payment at the time specified in the written confirmation of the order or – if a time for payment is not indicated – on receipt of the invoice. The due time for payment arises without any further precondition and, in particular, does not depend on whether the customer has already taken delivery of the goods or the documents or has had an opportunity to examine the goods. 40.4. In case of payment by bill of exchange, all expenses and costs will be charged. 40.5. Offsetting against counterclaims is only permissible if these have been valid and due counterclaims from the same contractual relationship, are legally established or are undisputed. 40.6. The customer is only entitled to withhold payments on the basis of valid and due counterclaims from the same contractual relationship.
41. Security for the Purchase Price Claim41.1. CYTENA shall retain the title in the delivered products until the purchase price according to Clause 40.1 has been paid in full (herein after referred to as “Reserved Products”). 41.2. If such retention of title is not effective under applicable law, the parties shall agree on a functionally equivalent means of security and shall conclude an effective agreement for such security. 41.3. The customer is obliged to take all necessary measures to maintain this retention of title or functionally equivalent security interest recognized in the country of destination (customer’s registered office). If the customer breaches this obligation, this shall constitute a material breach of contract. 41.4. In the event of seizure, confiscation, damage and/or loss of the Reserved Products or the means of security, the customer shall notify CYTENA immediately; a breach of this obligation shall entitle CYTENA to declare the contract avoided. The customer shall bear all cost which had to be incurred for the successful cancelation of a seizure and, if applicable, for the successful replacement of the Reserved Products, insofar as they cannot be collected from third parties. 41.5. If CYTENA has declared the contract avoided, CYTENA shall be entitled to take back the reserved products if CYTENA has given a reasonable notice of such taking back. The costs incurred by exercising the right to take back, in particular for transport, shall be borne by the customer. CYTENA shall be entitled to dispose of the reserved products that have been taken back and to satisfy its claims from the proceeds thereof, provided that CYTENA has given reasonable notice of such disposal beforehand. Should the proceeds exceed the outstanding claims from the contractual relationship, this surplus shall be paid to the customer. 41.6. In the event that cash payment or advance payment has been agreed, ownership shall pass in full to the customer upon delivery.
42. Conformity42.1. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods do not conform with the contract if the customer proves that, taking into account the terms in section III., at the time the risk passes the packaging, quantity, quality or the description of the goods is significantly different to the specifications laid down in the written confirmation of the order, or in the absence of agreed specifications, the goods are not fit for the purpose which is usual in Germany. Regardless of the stipulation established in sentence 1, the goods shall be deemed to conform with the contract to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods. 42.2. To the extent that the written order confirmation by CYTENA does not contain an explicit statement to the contrary, CYTENA is in particular not liable for the goods being fit for a purpose which is not usual in Germany or for complying with further reaching expectations of the customer or for possessing the qualities of a sample or a model or for their compliance with the legal regulations existing outside Germany, for instance in the customer’s country. CYTENA shall also not be liable for any non-conformity with the contract that did not exist at the time the risk has passed. To the extent that the customer, either himself or through third parties, initiates the removal of non-conformities without the prior consent of CYTENA in text form, CYTENA will be released from its liability.
43. Obligation to Examination, Notification of Non-conformity43.1. The customer shall inspect the products and any documents delivered without delay after the acceptance or shall have them inspected. 43.2. The customer shall notify CYTENA in text form without delay, at the latest within three (3) working days (Saturday is not a working day) after delivery of the products, of any noticeable lack of conformity of the products or documents and shall specify therein the exact nature of the lack of conformity in such a precise manner as to enable CYTENA to effect remedy measures without need for further inquiries from the customer and to secure claims against CYTENA’s suppliers and moreover as required by law. 43.3. Notice has to be giving directly to CYTENA. CYTENA’s employees, commercial agents or other sales intermediaries are not authorized to accept notices outside CYTENA’s premises or to make any statements concerning lack of conformity with the contract or of title and its consequences. 43.4. The customer shall loose the right to invoke a lack of conformity of the products – even if discovered later – if he does not notify CYTENA of such lack of conformity in text form (e.g. in writing or via email) within three (3) working days (Saturday is not a working day) of the time at which he noticed or should have noticed the lack of conformity, specifying the nature or the non-conformity, irrespective of the reasons given by the customer for the notification being delayed. 43.5. The customer’s notice of non-conformity must have been dispatched by the customer within the three working day period following delivery of the products or discovery of the lack of conformity; it is also necessary for CYTENA to have actually received the notice of non-conformity dispatched in due time. 43.6. In the event of notice not having been properly given, the customer may only rely on remedies if CYTENA has intentionally concealed the lack of conformity with the contract or the deficiency in title. Statements by CYTENA as to the lack of conformity with the contract or as to the deficiency in title are for the purpose of explaining the factual position only, but do not entail any waiver by CYTENA of the requirement of proper notice 43.7. If a non-conformity of the products cannot be established following the notice of nonconformity by the customer, the customer shall reimburse CYTENA for the costs incurred in connection with the inspection of the products. 43.8. Without prejudice to the statutory obligations of the customer to give notice within reasonable time, the customer is obliged vis-à-vis CYTENA to give notice to CYTENA of any lack of conformity with the contract or any deficiency in title at the latest within one (1) year after taking delivery in accordance with section IV.-6.
44. Non-conformity of the Products44.1. The customer shall give CYTENA the time and opportunity required for the performance of the contract, in particular to hand over the rejected products for inspection purposes or to make the process or installed products accessible for this purpose. 44.2. Non-conformity does not apply in the case of defects,
- which are attributable to circumstances occurring after the transfer of risk,
- which are caused by improper use or improper service or repair work by the customer,
- which are based on arbitrary changes by the customer,
- which are attributable to normal wear and tear or normal deterioration, or
- otherwise attributable to the sphere of the customer.