1 Applicability of These Terms and Conditions
1.1 The terms and conditions (the “Conditions”) set forth hereinafter shall govern the sale of Products (“Products”) and the provision of services (“Services”) by BioNukleo UG (haftungsbeschränkt) and Subsidiaries wholly owned by BioNukleo UG (haftungsbeschränkt) (“BioNukleo”, “us”, “we” or “our”), a company registered and headquartered in Germany, to the Customer. “Customer” means the person, firm or company placing an order for Products or Services with BioNukleo. The Conditions shall also apply, without a separate Contract to this effect being necessary, to all future transactions with the Customer. “Contract” means any agreement (including these Conditions) entered into by and between BioNukleo and the Customer with respect to the Products and/or Services.
1.2 These Conditions shall apply to the exclusion of all other terms and conditions, and BioNukleo shall not be bound by any terms or conditions contained in any purchase order, acknowledgement, acceptance or other documents submitted by Customer, which propose any terms or conditions in addition to or differing from the Conditions herein set forth, irrespective of whether any of the same are in written or electronic form, and objection is hereby made to any such supplemental or conflicting terms and conditions of Customer. Neither BioNukleo’s commencement of performance nor delivery shall be deemed or constituted as acceptance of Customer’s supplemental or conflicting terms and conditions. No amendment, deletion, supplement or change in these Conditions shall be binding upon BioNukleo unless separately and specifically approved in writing and signed by a duly authorized representative of BioNukleo.
1.3 These Conditions are subject to change without notice at any time, at our sole discretion.
2 Conclusion of Contracts; Offer Documents
2.1 Our offers and quotations are always without obligation. Commissions and orders from the Customer shall only become binding upon our written confirmation (including delivery note or invoice). Commissions and orders placed by Customer may not be cancelled or rescheduled without BioNukleo’s prior written consent. Customer is responsible for the accuracy of its orders and specifications and for supplying any relevant information pursuant to section 3.1 below within sufficient time to enable BioNukleo to perform the Contract for delivery of Products/Services. BioNukleo reserves the right to make changes to the specifications of any Product and/or Service supplied which are required to conform with any applicable safety or statutory requirements.
2.2 BioNukleo’s field staff are not authorized to conclude oral or written agreements or any amendment to these Conditions. Any oral or written commitments deviating from BioNukleo’s offer, quotation or order confirmation shall only be valid if confirmed in writing and signed by a duly authorized representative of BioNukleo. Customer shall bear the burden of proof that BioNukleo have formally agreed to any terms that are not set forth in writing.
2.3 Agreements made after execution of a Contract must be confirmed in writing by a duly authorized representative of BioNukleo to be valid.
2.4 Any typographical or other error or omission in any sales document, pricing, invoice or quote is subject to correction without any liability on BioNukleo’s part.
3 Performance; Delivery
3.1 In the event Customer has to provide BioNukleo with information or materials or has to meet other duties of cooperation for the execution of the order, it shall be essential that we be able to rely on the accuracy, completeness and proper quality of the information and materials provided and the complete fulfilment of the duties of cooperation. As long as Customer does not properly meet the above-mentioned duties, we shall be released from the obligation to perform the Contract save any other right or remedy provided to us by law.
3.2 Customer acknowledges that representations as to deadlines for delivery of Products or Services are estimates only and shall not be of essence, unless we have given an express binding commitment in writing. Deadlines for deliveries and services shall begin to run when the order confirmation is given, but not before all technical issues and details relating to the order have been resolved. Deadlines shall not apply if the Customer is in default with the fulfilment of its duties, in particular, with regard to the provision of materials, documents, information, data, exemptions or permits that have to be furnished by Customer, or with regard to such other information that BioNukleo may reasonably require to perform the Contract, or with regard to any payment which must be made for the delivery of any Product or Service or any previous delivery of Products or Services or with regard to any other cash due.
3.3 Delivery dates shall be deemed to have been met if, on or before this date, the Products or the deliverables of the Services have left our facilities or are ready for dispatch and the Customer has been notified accordingly. In the event that delivery is delayed due to any act or omission of Customer, or if having been notified that Products are ready for dispatch, Customer fails to take delivery or provide adequate shipping instructions, BioNukleo shall be entitled to place the Products into a suitable store at Customer’s expense. Upon placing the Products into the store, delivery shall be deemed complete and risk of loss or damage to the Products will pass to Customer.
3.4 BioNukleo shall not be responsible for failure or delay in performance or delivery as the result of events of force majeure, including all revisions of statutory law, acts of governmental authority or any agency or commission thereof, war, fire, flood, accidents, acts of God, terrorism, embargoes, acts of third parties, breakdown of equipment, shortages of material, labour or power, labour strikes, work stoppage or labour unrest, or any other cause beyond our reasonable control that renders the delivery or service substantially more difficult or impossible. This shall also apply if such events occur during a delivery delay or at a supplier. BioNukleo shall have no obligation to deliver any Products or provide any Services unless and until it has received any necessary licenses or authorizations or is qualified for general licenses or license exceptions under applicable import/export laws, regulations, orders and requirements. In the event that for any reason any such licenses or authorizations are denied or revoked, or a change in any such applicable laws, regulations, orders or requirements occurs thereby prohibiting BioNukleo from performing the Contract, or otherwise exposing BioNukleo and/or its affiliates to a risk of liability under applicable laws, regulations, orders or requirements, BioNukleo shall be relieved without liability of all obligations under the Contract. If any of the foregoing events occurs, we may make deliveries of the Products and Services proportionate to production and/or postpone the shipment or delivery period of the Products and Services to a reasonable time after the difficulty has ceased, or we may, at our option upon due notice given to Customer after the commencement of any such event, declare the agreement terminated and all rights and liabilities of BioNukleo and Customer, except with respect to Products and Services previously shipped or performed or in our inventory, shall cease and terminate. In no event we shall be liable to the Customer for compensation or damages. We shall notify the Customer without undue delay of the obstacle to performance and of its end.
3.5 Import, export and/or the transport of Products outside Germany shall be subject to the import and/or export regulations applicable in these countries, the European Union, the country imported to, and in all other relevant jurisdictions, as the case may be. The Customer shall be solely responsible for the procurement of relevant approvals and permits. However, at the Customer's request and expense, we shall use our best efforts, to the extent reasonable and economical, to obtain the approvals necessary for the export of the subject of the agreement and/or any other necessary documents from the domestic authorities. We reserve the right to determine whether we will sell and/or deliver Products and/or Services to Customers and/or nationals of countries outside the European Union. The Customer shall not directly or indirectly export/re-export Products and/or Services to any country or end user for which Germany or other relevant jurisdiction require and export licence or other governmental approval at the timer of export/re-export, without first obtaining such licence or approval.
3.6 Notwithstanding the foregoing provisions, if Customer fails to accept delivery or negligently breaches any other obligations to cooperate in the performance of the Contract, BioNukleo shall be entitled to compensation for any loss it may suffer as a consequence, including any additional expenses or costs that BioNukleo may incur as a result of the delay.
3.7 BioNukleo, at its sole discretion, shall be entitled to make partial deliveries of Products and/or Services unless it would be unreasonable to expect the Customer to accept such partial deliveries. Each partial delivery may be invoiced separately. However, if BioNukleo exercises its right to make partial deliveries, costs for packaging and shipment shall only be charged once. Where the Products and/or Services are to be delivered in instalments, failure by BioNukleo to deliver any one or more instalments under these Conditions or any claim by Customer in respect of any instalment shall not entitle Customer to refuse future deliveries nor to terminate the Contract.
4 Shipment; Risk
4.1 Unless otherwise agreed in writing, shipments of Products and/or deliverables of Services shall be EXW (as defined in Incoterms 2000) BioNukleo’s facility.
4.2 Title and risk of loss or damage to the Products and/or deliverables of Services, as well as the obligation to bear any costs relating thereto, shall pass to the Customer upon BioNukleo making delivery, including partial delivery, to a carrier at BioNukleo’s facility in good condition, consigned to Customer, or as Customer may otherwise direct. BioNukleo shall select the carrier in the absence of specific instructions from Customer. If the shipment is delayed as a result of instructions from the Customer or due to Customer’s fault, in particular, because Customer has failed to give proper instructions in due time, risk shall pass to the Customer upon written notification that the Products and/or deliverables of Services are ready for shipment.
4.3 Any shipment shall be made on behalf of the Customer. This shall also apply if, owing to individual arrangements, BioNukleo agrees to bear the costs of shipment or have the shipment insured. BioNukleo shall not be liable for damage and loss during transport. In particular, any damage and loss shall not release the Customer from the obligation to pay the purchase price in full. If the Customer has not given any special orders relating to shipment, BioNukleo shall have the shipment sent via the best route at our discretion. At the Customer’s request, which must be communicated in writing upon order placement, BioNukleo shall take out transport insurance for the shipments on behalf and at the expense of the Customer. BioNukleo shall be entitled to name itself as beneficiary. BioNukleo shall only be liable for care customarily taken when choosing the insurer for the transport.
4.4 If shipment is delayed due to the Customer’s fault, BioNukleo may, at its discretion, after the expiration of a grace period of one week either arrange for shipment at the expense and risk of the Customer or provide for storage of the Products and charge the storage costs to Customer. In the case of storage, BioNukleo shall be entitled to charge the Customer a monthly storage and handling fee in the minimum amount of one (1) percent of the invoiced purchase price for each month of delay. We reserve the right to assert a claim for higher storage costs in the event such higher costs are incurred.
5.1 All prices are quoted EXW (as defined in Incoterms 2000), including normal packaging and handling, and are those specified in the Contract for the relevant Product and/or Service. Customer shall bear all costs in accordance with EXW conditions of shipment, which will be charged separately at the applicable rates. Unless otherwise specifically provided in writing, quotations are valid on day of issue only.
5.2 All prices are subject to change without prior notice except for work in progress or as otherwise specifically provided in a written quotation signed by an authorized representative of BioNukleo. Rates of tax and duties on the Products and Services will be those applying at the date of invoice or the date payment is received, whichever is earlier.
5.3 Prices quoted unless otherwise expressly stated are exclusive of transportation and insurance costs and any sales, use or excise taxes, customs duties, imposts or other assessments of any kind, value-added or similar taxes, which may arise from the manufacture, processing, sale, delivery or shipment of the Products or Services. Customer agrees to pay these taxes, duties and other assessments and shall be solely responsible for them, unless BioNukleo agrees in writing that the sale is exempted. If Customer is exempt from certain taxes, Customer shall provide BioNukleo with documentation necessary to support such claim and allow BioNukleo to document its decision not to collect such tax. If BioNukleo has the legal obligation to collect any such taxes, duties or other assessments, the appropriate amount shall be added to BioNukleo’s invoice to Customer and paid by Customer. If, for whatever reason, BioNukleo does not collect any such amount from Customer and BioNukleo becomes liable to pay any such taxes, duties or other assessments or any penalties related thereto, Customer shall promptly pay such amounts directly to the appropriate governmental authority or, if BioNukleo is required to pay or has paid such amounts, shall pay such amounts to BioNukleo in accordance with Section 11 below. Customer agrees to indemnify and hold harmless BioNukleo from any liability for any such taxes, duties, or other assessments in connection with the delivery of the relevant Products or Services, as well as the collection or withholding thereof, including penalties and interest thereof. When applicable, transportation and taxes shall appear as separate items on BioNukleo’s invoice.
6 Limited Warranty
6.1 BioNukleo’s Products are manufactured and Services are rendered with due care and in accordance with applicable statutory laws and regulations. Owing to the complexity of biotechnological products, materials and procedures, however, it cannot be guaranteed that our Products or Services function without defects in all applications, environments and/or combinations. For this reason, BioNukleo does not assume any guarantee or liability to the effect that our Products or the results of the Services are appropriate in each individual case for the specific purpose intended by the Customer. Subject to the limitations of this Section 6 and unless otherwise expressly provided, BioNukleo warrants only that the Products and Services will conform to BioNukleo’s published specifications for such Products and Services in effect at the time of order acceptance, or any analysis certificate presented with the Product or Service.
6.2 Any samples, measurements and Product or Service related details contained in catalogues, price lists, brochures and/or quotations presented to the Customer only constitute an approximate guide and may under no circumstances be understood as an assurance of properties in terms of a guarantee. We reserve the right to make any changes thereto which we consider necessary in our absolute discretion. In the event BioNukleo and the Customer wish to agree on a guarantee in an individual case, contrary to the above, this must be done expressly and in writing signed by a person with requisite authority at BioNukleo.
6.3 The warranty shall not cover defects and/or damage caused by force majeure or other outside impact, inappropriate treatment, improper storage, disregard of operating and safety procedures or recommended maintenance intervals, or normal wear and tear. In particular, no warranty shall apply to any item which has been operated, serviced, repaired or altered except as set forth in the user manual or otherwise expressly authorized by BioNukleo, or which has been otherwise interfered with by the Customer and/or by unauthorized third parties. Defects and/or damage caused by the use of replacement parts, accessories and/or accessory materials (in particular, reagents) other than those expressly approved by BioNukleo (e.g., in the user manual or otherwise in writing) shall also not be covered by this warranty.
6.4 BioNukleo’s sole liability, and Customer's sole and exclusive remedy, pursuant to any claim of any kind against BioNukleo, including without limitation any claim in contract, negligence or strict liability, shall be, at BioNukleo’s option, (a) re-delivery of any non-conforming Products or re-performance of any non-conforming Services (or such portion thereof as may reasonably be required to be re-performed) until completion or (b) a refund of payments apportionable to the non-conforming Products or Services.
6.5 THE LIMITED WARRANTY IN SECTION 6.1 ABOVE IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES AND BIONUKLEO HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (B) ANY IMPLIED WARRANTY THAT ANY USE OF THE PRODUCTS OR SERVICES WILL NOT VIOLATE OR INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, WITH RESPECT TO THE PRODUCTS OR SERVICES, OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 6.1 ABOVE.
7 Inspection and Acceptance
7.1 Customer is responsible for the use of the Products in accordance with the usage instructions provided by BioNukleo, including usage instructions on its website http://www.BioNukleo.com
7.2 The Customer shall inspect the Products promptly upon delivery and shall give written notice to BioNukleo specifying any alleged non-conformance, defect, damage, or shortage. The Customer shall be deemed to have accepted the Products as having been delivered in accordance with the relevant contract and as being free from any defect, damage, shortage, or any other deficiency whatsoever, unless such notice has been given in writing and received by BioNukleo by (a) seven (7) working days after Customer's receipt of delivery of the Products, in the case of any non-conformities or deficiencies reasonably ascertainable by visual inspection or routine testing procedures, or (b) seven (7) working days after Customer learns of the facts giving rise to the claim, in the case of any other non-conformities or deficiencies not reasonably ascertainable by visual inspection or routine testing procedures, but in no event later than six (6) months from the date of delivery, as determined under section 3.3 of these conditions, of the relevant Product. Customer's failure to give notice of any claim within the applicable time period specified above, shall be deemed an absolute and unconditional waiver of such claim, irrespective of whether the facts giving rise to such claim shall have been discovered or whether processing or use of the Products shall have then taken place, and BioNukleo shall have no liability for any alleged defect.
7.3 BioNukleo reserves the right to inspect and test the Product objected in each case of a notification of defects by Customer. The Customer shall give us reasonable time and opportunity for such inspection. Upon our request, Customer shall return the item objected to us at our expense. If Customer’s notification of defects proves to be unjustified, Customer shall be obligated to reimburse us for all costs incurred in this context (e.g., inspection costs at an hourly rate of 150 EUR per hour, travel costs and shipment costs) upon submission of receipts.
7.4 Defects of partial deliveries shall not entitle Customer to reject the remainder of the contractual quantity unless Customer can prove that it would be unreasonable for Customer to accept only a part of the delivery under these circumstances
7.5 Customer's warranty claims owing to defects as to quality of the Products and/or Services shall become time-barred six (6) months following the assumption of risk by Customer. The same shall apply to defects of title. For expendable materials (e.g. reagents based products and kits), the warranty period shall expire upon the earlier of the date set forth in the first sentence and the indicated use-by date of the Product (see Article 8.3, below). In the event of maliciously concealed or intentionally caused defects, the statutory limitation periods shall apply with regard to the Customer's damage claims and rights.
8 Use and Licence
8.1 Customer shall be responsible for ensuring that those persons using the Products have been trained in its operation, maintenance and storage
8.2 Products sold or otherwise delivered by BioNukleo must only be used for the purposes and in accordance with the usage instructions stated on/in the product package and/or the applicable product use statement. In particular, BioNukleo’s Products are for research use only and are not to be used, neither directly nor indirectly, for therapeutic or diagnostic purposes unless (a) the Product has been expressly approved for such purposes by BioNukleo, (b) such use is permitted under the statutory law applicable for the Customer and the user, and (c) all required permits have been granted by the appropriate regulatory agency or other competent authority. The Customer shall be solely responsible for ensuring that the Customer's intended use of the Products (in particular, reagents and kits) does not violate statutory law and that all required permits have been granted.
8.3 Customer shall handle and use the results of the Products in conformity with (a) good laboratory practice, (b) all applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies and (c) any patent and other proprietary rights of third parties.
8.4 “Products with use-by dates may only be used subject to the “use by” dates stated on the product package and are only warranted for the use by such dates.
8.5 Any technical assistance or advice offered by BioNukleo regarding use of any Product or Service or provided in connection with Customer’s purchases, unless otherwise provided by the Contract or agreed in writing by the parties, is given free of charge and as an accommodation to Customer. BioNukleo shall not be held liable for the content or Customer’s use of such technical assistance or advice nor shall any statement made by any of BioNukleo’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
8.6 No right or licence is granted by these Conditions under any patent, trade mark, copyright, registered design or other intellectual property right except to use the Product as it was intended for in accordance with this clause 8;
9 No Resale; No Export
9.1 Customer certifies that it will be the recipient of the Products to be delivered by BioNukleo. Except as otherwise agreed in writing by BioNukleo’s authorized representative, the purchase or other delivery of BioNukleo Products only conveys to the Customer the non-transferable right for Customer to use the delivered Products in compliance with the applicable product use statement. Unless otherwise authorized under a commercial license from BioNukleo, no right to resell the Products, or any portion of them, in any way, shape or form, including as a component of another Product, is conveyed.
9.2 BioNukleo does not permit Customer to re-export the delivered Products from the country of delivery, without BioNukleo’s prior express written consent and in any event the Customer shall not directly or indirectly export/re-export Products and/or Services to any country or end user for which , Germany, USA or other relevant jurisdiction require and export licence or other governmental approval at the timer of export/re-export, without first obtaining such licence or approval..
10 Limitation of Liability and Remedy
10.1 BIONUKLEO SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC LOSS, ARISING IN CONNECTION WITH CUSTOMER’S USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES, OR BIONUKLEO’S FAILURE TO PERFORM THE SERVICES IN ACCORDANCE WITH THE LIMITED WARRANTY SET FORTH IN SECTION 6 ABOVE. THIS LIMITATION OF LIABILITY WILL APPLY UNDER ANY LEGAL THEORY AND REGARDLESS OF THE FORM OF ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND, EVEN IF BIONUKLEO HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, AND SHALL ALSO APPLY IN THE EVENT OF LOSSES CAUSED BY THE BREACH OF DUTIES IN CONTRACT NEGOTIATIONS.
10.2 BioNukleo’s liability for breach of warranty or for any loss or damage resulting from any other cause whatsoever, including alleged negligence, shall not exceed the lesser of (i) the cost of correcting any non-conformity in the Products or Services or (ii) the cost of replacing the Products or re-performing the Services. In no event (including unenforceability of the above limitations and independent of any failure of essential purpose of the limited warranty and remedies provided hereunder) shall BioNukleo‘s aggregate liability for damages hereunder exceed the purchase price or fee (exclusive of VAT or any other taxes or duties) paid or to be paid for the specific Products or Services to which the particular claim relates. The parties acknowledge that the limitations set forth in this Section 10 are integral to the prices charged and that, were BioNukleo to assume any further liability other than as set forth herein, such prices would of necessity be set substantially higher. Customer expressly agrees that this limitation of damages and remedies shall constitute the exclusive remedies and measure of damages available to Customer and all other remedies and measures of damages, which might otherwise be available under the law of any jurisdiction are hereby waived by Customer.
10.3 Without limitation to the generality of the foregoing limitation, BioNukleo shall not be liable for any damage or loss caused by the improper or unapproved use of the Products. Customer shall defend, indemnify and hold harmless BioNukleo from and against any and all losses, costs and expenses, including without limitation reasonable attorneys’ fees, in any way arising out of or relating to (a) any use of the Products not in compliance with the uses stated in Section 8 above, (b) any failure of Customer to comply with good laboratory practice and all laws, regulations, guidelines or decisions governing the handling, use, storage, disposal, transportation, export or resale of the Products, (c) any violation or infringement of any patent or other proprietary rights of third parties by Customer in the handling or use of the Products, or (d) any other use or misuse of the Products by Customer.
10.4 The limitations set forth in this Section 10 shall not restrict or exclude our liability for death or personal injury caused by negligence on our part, on the part of our executive employees or on the part of our vicarious agents. Further, nothing set forth herein shall restrict or exclude our liability based on intentional misconduct or gross negligence on our part, on the part of our executive employees or on the part of our vicarious agents, or our liability resulting from mandatory product liability laws or other mandatory statutory laws and regulations, as applicable.
11 Payment Terms
11.1 The full amount of each invoice in respect of the deliveries and Services provided by BioNukleo hereunder shall be paid net 30 days following the date of receipt by the Customer of the invoice or an equivalent request for payment, unless otherwise specified in the invoice. Time for payment is of the essence. BioNukleo may invoice each shipment separately. Customer may not withhold payment of any amounts due to BioNukleo by reason of any claim to a right of set-off or counterclaim or for any other reason, unless to the extent Customer's counterclaims have been affirmed finally and absolutely in a court judgment, are undisputed or are acknowledged in writing by BioNukleo.
11.2 Payment by cheque or bill of exchange including electronic transfer will be effective only after these instruments have cleared and been paid. Any discounts, bank charges and expenses shall be borne by Customer. Any cheque or remittance received from or for the account of Customer may be accepted and applied by BioNukleo against any indebtedness owing by Customer, without prejudice to, or the discharge of, the remainder of any such indebtedness regardless of any condition, provision, statement, legend or notation appearing on, referring to or accompanying any cheque or remittance.
11.3 BioNukleo reserves the right to charge interest on late payments from Customer at a rate equal to the interest paid for drawing on a corresponding bank loan, but at least at a rate of one and a half percent (1.5%) per month above the then-current Marginal Lending Facility interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question, or if lower, the maximum amount permitted by applicable law, calculated on a daily basis beginning with the first day following the invoice due date, and for reimbursement of all debt collection costs incurred by BioNukleo in relation to Customer’s default in payment.
11.4 At any time, if in BioNukleo’s opinion the financial condition of Customer so warrants, or if Customer fails to make payment when due or otherwise defaults hereunder, BioNukleo may change any terms of payment, suspend any credit previously extended to Customer, require partial or full payment in advance and delay shipment until such terms are met, and pursue any other remedies available at law. In such event, if Customer refuses to accept such changes, or in the event of bankruptcy or insolvency of Customer or in the event any proceeding is brought by or against Customer under any bankruptcy or insolvency laws or their equivalent, BioNukleo may cancel any order then outstanding and/or terminate the contract with immediate effect without any liability to Customer on its part and recover any Products and/or deliverables held by the Customer which remain the property of BioNukleo and enter upon the Customer's premises for that purpose.
11.5 In the event of discontinuation of payments by the Customer, BioNukleo shall be entitled to disclose a silent assignment by way of security to the debtor. Collection and discount charges shall be borne by the Customer. The Customer shall pay discount charges, stamp duties, default interest immediately. We shall not be liable for timely presentation, protest, notification and return of bills of exchange in the event they are dishonoured.
11.6 Any grant of deferment shall only become valid with our written approval. Such grant may be revoked at any time. Deferred receivables shall also become due without revocation if the Customer discontinues payments, becomes insolvent, is in default of payment or has bills of exchange protested.
11.7 At our discretion, payment shall initially be allocated to older debts. If costs for prosecution (in particular, costs for reminders) have already arisen, we shall be entitled to offset the Customer's payment first against such costs, then against the interest and finally against the primary claim. In the event of default, unless higher costs have arisen, a fixed amount of 25 EUR shall be charged for each reminder following the occurrence of the default.
11.8 BioNukleo shall have a lien on all Customer Material and other property provided by Customer for the performance of a Contract, until all amounts due to BioNukleo in respect of the delivery of Products or Services, or any previous deliveries of Products or Services to the Customer, or other payments due under any other Contract with the Customer have been paid in full.
12 Retention of Title
12.1 Notwithstanding delivery, title in the Products and/or deliverables of the Services shall not pass from BioNukleo to the Customer and BioNukleo shall retain full legal and beneficial ownership of the Products and/or deliverables of the Services until all amounts due to BioNukleo in respect of the delivery of Products or Services, or any previous deliveries of Products or Services to the Customer, or other payments due under any other Contract with the Customer have been paid in full.
12.2 Until title in the Products and/or deliverables of the Services passes to the Customer, the Customer shall hold the Products and/or deliverables of the Services on a fiduciary basis as bailee for BioNukleo and shall take all necessary steps for their protection and insure them against all risks with a reputable insurance company for the full purchase price (plus VAT).
12.3 Notwithstanding that full legal and beneficial ownership of the Products and/or deliverables of the Services (or any of them) remains with BioNukleo, the Customer may use the Products and/or deliverables of Services in the ordinary course of the Customer's business. Except as permitted by this paragraph the Customer may not create (or allow to be created) in favour of any third party any right in or security over any of the Products or deliverables of the Services, which are the property of BioNukleo.
12.4 BioNukleo shall be entitled to claim for and recover all amounts due to BioNukleo in respect of the Products or deliverables of Services notwithstanding that title in any of them has not passed from BioNukleo to the Customer.
13 Supplementary Terms and Conditions for Services
13.1 Customer may contract with BioNukleo for Services under separate written agreement (hereinafter “the Services Contract”).
13.2 BioNukleo will perform all Services using due care in accordance with (a) the statement of work relating to the Services, of which these Terms and Conditions are a part and (b) generally prevailing industry standards. BioNukleo will make a good faith effort to start and complete all Services in a timely manner and will notify Customer if it has determined that there are likely to be substantial delays.
13.3 If changes to the Services Contract result in an increase in the cost of the Services or affect the projected completion date of the Services, the fee and/or completion date shall be adjusted to a degree commensurate with such changes. Cancellation of Services in progress will result in a partial charge commensurate with the percentage of work completed at the time of cancellation.
13.4 Invoices shall be sent to Customer upon completion of the Services and delivery to Customer of Products. If Customer defaults in any payment when due, BioNukleo, at its option and without prejudice to its other lawful remedies, may defer delivery or terminate the Services.
13.5 BioNukleo’s sole warranty with respect to the Services is that BioNukleo will perform all Services in accordance with the standard of performance set forth in Section 13.1 above. Customer shall notify BioNukleo in writing of any claim for a breach of such warranty by BioNukleo within one (1) month after delivery by BioNukleo of the Products relating to such Services. Customer's failure to give notice of any claim within the applicable time period specified above, shall be deemed an absolute and unconditional waiver of such claim, irrespective of whether the facts giving rise to such claim shall have been discovered or whether processing or use of the Services shall have then taken place.
14 Intellectual Property, Property Rights of Third Parties
14.1 The Customer shall be solely responsible that the materials, documents or other information provided by the Customer do not infringe the intellectual property rights or other rights of third parties (in particular, patents, utility patents and other property rights and copyrights). The same shall apply in the event the Customer prescribes by means of instructions, information, documentation, drafts or drawings how an ordered Product is to be created or an ordered Service is to be rendered.
14.2 The Customer shall be obligated to indemnify and hold harmless BioNukleo from any claims of third parties that are asserted against BioNukleo on the basis of such infringement.
14.3 Customer data is and shall remain the exclusive property of the Customer.
14.4 BioNukleo agrees to defend, and hereby indemnifies and agrees to hold harmless, Customer from all damages, losses, fees, and expenses awarded by a court of competent jurisdiction, or reached through a settlement, arising out of Customer’s use of the Products when such claim is based upon a third party claim that the Products infringe a patent, trademark, copyright or trade secret; provided that (a) Customer promptly notifies BioNukleo in writing of such claim; (b) BioNukleo has sole control over the investigation, litigation and negotiation of such claim; (c) Customer is current in its payments of fees to BioNukleo and is in compliance with its obligations under this Agreement; and (d) Customer reasonably cooperates in the defence or settlement of such claim. This indemnification applies only to the Products delivered by BioNukleo and shall not apply if the Products have been modified by a party other than BioNukleo, or if the Products have been combined with (or used in connection with) other products and used as a part of an infringing process or method which, but for the combination, would not infringe the intellectual property rights of such third party.
14.5 If the Products become, or in BioNukleo’s opinion is likely to become, the subject of such a claim, then BioNukleo may either (a) procure (at its expense) Customer’s right to continue using the Product, or (b) replace or modify the Products to avoid the claim of infringement. If neither of the foregoing alternatives is reasonably available to BioNukleo, then BioNukleo may terminate this Agreement and refund the balance of the Products fee, which for purposes of this Section 14, shall depreciate over a period of three (3) years. This states the entire liability of BioNukleo with respect to third party claims of intellectual property infringement.
14.6 Customer agrees to defend, and hereby indemnifies and holds harmless, BioNukleo from any damages, losses, fees, expenses, and claims asserted by third parties against BioNukleo arising out of Customer’s use of the Product, provided that (a) BioNukleo promptly notifies Customer in writing of such claim; (b) Customer has sole control over the investigation, litigation and negotiation of such claim; (c) BioNukleo is in compliance with its obligations under this Agreement; and (d) BioNukleo reasonably cooperates in the defence or settlement of such claim.
15.1 The term “Confidential Information”, as used herein, shall include all scientific, technical, business, or financial information disclosed by BioNukleo to Customer, including any information learned by Customer during the performance of a Contract or during any visit to BioNukleo’s facilities. This Agreement shall not apply to Confidential Information or of any portion of such information which as Customer can show by presenting adequate written evidence:
(a) is now or later made known to the public through no default by Customer of its obligations under these Conditions; (b) Customer can show was in its rightful possession prior to the earliest disclosure by BioNukleo, as evidenced by written documents in its files; (c) is rightfully received by Customer from a third party having no obligation of confidentiality to BioNukleo; (d) is independently developed by Customer by persons who did not have access to Confidential Information.
15.2 Customer agrees to hold in confidence and not publish or disclose to any third parties any of the Confidential Information without the prior written consent of BioNukleo, and not to use the Confidential Information for any purpose except for using the Products and/or Services. Customer agrees to use the same degree of care (and in any event not less than reasonable care) to safeguard the confidentiality of the Confidential Information that it uses to protect its own secret information, and to keep the Confidential Information in a secure location at all times.
15.3 Customer agrees to limit any disclosure of the Confidential Information only to those of its directors, officers, employees, and outside professional advisors (including consultants, independent contractors, and the like) or of an entity controlled, controlling, or under common control with Customer (“Affiliate”), who have a need to know and who are bound by obligations of confidentiality and non-use at least as restrictive as set forth herein, and to advise such persons of Customer’s obligations hereunder.
15.4 In case Customer is required to disclose Confidential Information in order to comply with laws, regulations or court order, Customer shall disclose such Confidential Information only to the extent necessary for such compliance, provided, however, that Customer shall give BioNukleo prompt written notice of such requirement or request to disclose Confidential Information so that BioNukleo may seek an appropriate protective order, and Customer shall use its best efforts to secure confidential treatment of the Confidential Information to be disclosed.
15.5 Customer shall return any and all tangible Confidential Information provided to it by BioNukleo, including without limitation any materials, documents, plans, drawings, data carriers of whatever kind, and any copies thereof, to BioNukleo immediately upon BioNukleo’s written request, provided, however, that Customer may retain one copy thereof in the confidential, restricted access files of its legal counsel for the purpose of determining any continuing obligation and only in connection with that purpose.
15.6 No warranties or representations are made by BioNukleo for Confidential Information. Customer should rely on Confidential Information at its own risk. Customer expressly recognizes that ANY AND ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.
15.7 In the event of breach, or a threatened breach of the provisions of this Section 15 by Customer, BioNukleo shall be entitled to an injunction restraining Customer from committing such breach without showing or proving any actual damage sustained.
16 Data Privacy Protection
17.1 Notices and other communications hereby required or contemplated shall only be effective if delivered in writing to the party for whom intended at its designated “Invoice Address” if to Customer or the BioNukleo contact address if to BioNukleo, either by (a) personal delivery, (b) postage prepaid, return receipt requested, registered or certified mail, (c) internationally recognized overnight courier (such as DHL, FedEx, or UPS), or (d) facsimile with a confirmation copy sent simultaneously by any of the other methods described above. Notice by registered or certified mail shall be effective on the date officially recorded as delivered to the intended recipient by return receipt or equivalent, and in the absence of such record of delivery, the effective date shall be presumed to have been the fifth (5th) business day after deposit in the mail. Notices delivered in person or sent by courier shall be effective on the date of personal delivery. Notices delivered by facsimile shall be deemed to be effective on the date sent. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given.
18.1 If any provision hereof is determined to be invalid or unenforceable under applicable law, such provision shall be ineffective to the extent of such invalidity or unenforceability, and the statutory provision shall apply instead; under no circumstances shall the provision in question be replaced by the Customer's terms and conditions.
18.2 Customer shall not assign any of its rights or obligations under this Agreement without BioNukleo’s prior express written consent, which may be granted or withheld at BioNukleo’s sole discretion. Any attempted assignment without such written consent shall be void. Subject to the foregoing, this Agreement is binding upon and shall inure to the benefit of each party’s successors and authorized assigns.
18.3 Amendments and supplements to these Conditions and/or any agreement concluded on the basis of these terms and conditions, as well as any and all collateral agreements must be in writing. This shall also apply to any waiver of this written form requirement
18.4 The contractual relationship shall be subject to the laws of Germany only, excluding any conflict of laws provisions, and the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
18.5 The place of performance for the Customer's payment obligations shall be as written in BioNukleo’s invoice to the Customer. The place of performance for BioNukleo’s Services shall be Berlin, Germany. The place of performance for our obligation to deliver shall be our relevant dispatch warehouse.
18.6 Place of jurisdiction for all disputes arising indirectly or directly from any contractual relationship based on these Conditions shall be the court of competent jurisdiction located at BioNukleo’s principal place of business, but nothing in this Section 18.6 shall limit the right of BioNukleo to take proceedings against the Customer in any other court of competent jurisdiction. This shall apply only to the extent the Customer is a fully qualified merchant, a legal entity under public law or public law special assets.