General Terms and Conditions for the Sale and Delivery of Goods
Section 1: Applicability of General Terms and Conditions
1.1 These General Terms and Conditions shall apply to all contracts/orders between BioEcho Life Sciences GmbH, Nattermannstr. 1, 50829 Cologne (hereinafter "BioEcho," or "We") and its customers (hereinafter "Customer").
1.2 These General Terms and Conditions shall have exclusive applicability. BioEcho hereby rejects any terms and conditions of Customer in conflict with or different from these General Terms and Conditions, unless BioEcho has expressly agreed to such terms and conditions of Customer in writing. BioEcho products are not for sale to consumers.
1.3 All legally relevant declarations/representations and notices to be made by Customer to BioEcho after the date of the contract (e.g., notices setting deadlines, notices of defect, notices of rescission, or notices of price reduction) shall be valid only if in written, signed form.
1.4 By accepting delivery from BioEcho Customer accepts and agrees to these General Terms and Conditions without limitation. The right to show that these General Terms and Conditions were accepted by Customer by means other than acceptance of delivery shall remain unaffected thereby.
Section 2: Ordering, Offer and Acceptance
2.1 Product offers of BioEcho are subject to change and are not legally binding.
2.2 A purchase order placed by Customer qualifies as a legally binding offer to enter into a contract within the meaning of § 145 of the German Civil Code (BGB). When a purchase offer is made by Customer, BioEcho shall have the right to accept the offer within two weeks of receipt, including, without limitation, by providing notice of acceptance or shipping the ordered goods.
2.3 If BioEcho fails to respond to a purchase offer within the acceptance period, such failure shall not be construed as acceptance. Acceptance of a purchase offer shall be valid only if it is effected in written form or by email by an authorized representative of BioEcho] or if performance is rendered.
2.4 By providing BioEcho with a valid email address Customer agrees that Customer's purchase orders may also be accepted and processed by email. Customer is hereby expressly advised that in the event of communication by email, misuse by unauthorized third parties cannot be ruled out. BioEcho is unable to review email orders for accuracy of the sender information or any order details. Nonetheless, Customer hereby requests that BioEcho accept and fulfill such electronic orders. BioEcho is hereby released from any liability and claims for damages that may arise from any unlawful misuse of the electronic ordering system.
Section 3: Prices, Payment Terms, Failure to make timely payment
3.1 All prices are ex works in Cologne, and exclude shipping costs.
3.2 Prices are exclusive of any applicable value-added tax; any applicable value-added tax shall be stated separately in the invoice at the legal rate in effect on the invoice date.
3.3 For shipments to non-EU countries additional taxes or costs (e.g., customs dues) may be incurred in connection with the purchase order. Such taxes or costs will not be remitted or invoiced by BioEcho, but rather shall be paid by Customer directly to the appropriate customs or tax authorities. For further details, please inquire with the appropriate authorities.
3.4 All invoices are due without deduction of any discounts for early payment, unless expressly agreed otherwise.
3.5 In the event of payment by direct debit, Customer shall pay all direct debit reversal charges that may be incurred because of insufficient funds in Customer's account or because Customer provided inaccurate bank account information.
3.6 The conditions for and consequences of failure to make timely payment (Verzug) shall be as provided by applicable law. Any claims for interest based on any failure to make timely payment (§ 353 of the German Commercial Code (HGB)) shall remain unaffected thereby.
3.7 Discountable drafts and checks will be accepted only for conditional credit. All discount, bank, and collection fees and expenses, as well as any stamp duties, shall be paid by Customer. If at any time prior to expiration of the payment period for any agreed installment payments, or before the due date of a draft, Customer's financial condition substantially deteriorates or Customer fails to make an installment payment when due, BioEcho shall have the right to demand payment of the entire unpaid amount prior to expiration of the payment period.
3.8 Notwithstanding any settlement instructions from Customer to the contrary, payments shall in each case be applied to the oldest unpaid invoice.
Section 4: Delivery Time, Non-Delivery
4.1 Any agreed delivery dates are subject to express confirmation by BioEcho in written, signed form. Any agreed delivery time shall begin to run when the goods leave BioEcho's registered office.
4.2 BioEcho shall have the right to make deliveries in installments, unless unduly burdensome for Customer.
4.3 If requested by Customer, goods will be shipped to Customer at the cost of Customer ("mail order sale"). Unless otherwise agreed in writing, BioEcho shall have the right to select the modalities of shipment (including, without limitation, the shipping company, shipping method, packaging, etc.). In the event of mail order sales, Customer shall pay all shipping costs from the warehouse as well as the costs of any shipping insurance that may be requested by Customer.
4.4 Customer shall pay any customs dues, fees, taxes, and other public dues or charges.
4.5 The risk of accidental loss or damage shall transfer to Customer at the latest at the time of delivery. For mail order sales the risk of accidental loss or damage as well as the risk of delay shall transfer to the carrier, shipping company, or such other person or institution as may be selected for delivering a shipment, at the time of delivery. BioEcho will procure insurance for shipments at the cost of Customer only if expressly agreed with Customer.
4.6 If Customer fails to accept delivery in breach of the contract or if Customer wrongfully breaches any other cooperation obligations, BioEcho shall have the right to recover all resulting damages, including any additional costs or expenses that may be incurred by BioEcho. BioEcho hereby reserves any other rights or claims BioEcho may have under applicable law.
4.7 If Customer fails to accept deliveries in breach of the contract, the risk of accidental loss or damage shall transfer to Customer at the time Customer should have accepted delivery.
4.8 If the financial condition of Customer substantially deteriorates so as to jeopardize collection of BioEcho's claim for payment, BioEcho shall have the right to rescind the contract and Customer shall have no claim for damages against BioEcho as a result of such rescission.
4.9 In event of any events or circumstances beyond the reasonable control of BioEcho or its suppliers, including, without limitation, any force majeure events, disasters, pandemics, wars, labor disputes, shortages of labor, energy or raw materials, traffic or business disruptions, regulatory directives, or fire or explosion damages, the agreed delivery dates shall be postponed by the time period of the event or circumstance impeding performance, plus a reasonable time period for the resumption of performance. If an event or circumstance impedes performance for more than two months, each party shall have the right to rescind the contract with respect to the unperformed part of the contract. If BioEcho is unable to meet binding delivery dates for reasons for which BioEcho is not legally responsible (impossibility of performance), BioEcho shall notify Customer thereof without undue delay, providing Customer with the expected new delivery date. Notwithstanding the foregoing provision, Customer, for its part, shall have the right to set BioEcho a reasonable grace period for performance. If it is impossible for BioEcho to render performance by the new delivery date as well, BioEcho shall have the right to rescind the contract, in whole or in part; any payments already made by Customer shall be refunded by BioEcho without undue delay. Impossibility of performance within the meaning of the foregoing provisions shall include, without limitation, any untimely deliveries by suppliers of BioEcho who have entered into congruent cover transactions (kongruentes Deckungsgeschäft) with BioEcho. A congruent cover transaction shall be present if on the date of the contract with Customer BioEcho maintains a contract with a supplier which, viewed reasonably, is of such nature that if the contract is performed by the supplier as agreed it will allow BioEcho to make deliveries to Customer with the same reliability as that promised to Customer. Any legal rights of rescission or termination BioEcho may have, as well as the statutory provisions governing the performance of contracts in the event of an exclusion of the obligation to render performance (e.g., performance is impossible or unduly burdensome, remedial performance) shall remain unaffected thereby. Any rights of rescission or termination Customer may have likewise shall remain unaffected.
4.10 Customer shall be responsible for compliance with all applicable import and export laws starting on the date the risk of accidental loss or damage transfers to Customer. If delivery should require issuance of any export permits by competent regulatory authorities, payment for the goods shall be due nonetheless. BioEcho shall reduce the purchase price by such amount, if any, as BioEcho is able to collect by selling the goods, in whole or in part, to a third party within eight weeks from the date the permit is denied.
4.11 Customer hereby waives the right to demand that BioEcho accept returns of packaging, and Customer shall dispose of all packaging at its own cost and in compliance with applicable law.
Section 5: Shipping Damages
If goods are delivered with visible shipping damages, We ask that Customer immediately report such damages to the shipping company and contact us as soon as possible. The obligation of Customer to provide BioEcho with notice of any defects without undue delay shall remain unaffected thereby.
Section 6: Warranty
6.1 If any product defects occur during the statutory warranty period, Customer may, at its option, either demand remedial performance (repair/replacement), and – if remedial performance fails – demand a reduction of the purchase price, or rescind the contract and, in addition, recover damages, including expectation damages and reliance damages. Remedial performance shall be deemed to have failed, if three attempts of remedial performance have been unsuccessful.
6.2 The limitation period for any warranty claims shall be 12 months from the date of pickup or delivery. This provision shall not apply to any claims based on harm to life, limb, or health caused by a negligent breach by BioEcho or an intentional or negligent breach by any legal representative or agent of BioEcho.
Section 7: Liability
7.1 BioEcho shall be liable as provided by applicable law for any claims for damages of Customer caused by intentional or grossly negligent acts or omissions, including any intentional or grossly negligent acts or omissions by representatives or agents of BioEcho, and for any claims arising by operation of law, including, without limitation, any claims under the German Product Liability Act (Produkthaftungsgesetz). If no intentional or grossly negligent breach of contract by BioEcho is alleged, BioEcho's liability for damages shall be limited to reasonably foreseeable damages. BioEcho shall be subject to unlimited liability for any damages involving harm to life, limb, or health.
7.2 BioEcho shall be liable as provided by applicable law for any wrongful breach of any material contractual obligations. A material contractual obligation is any obligation the performance of which is a prerequisite for the due performance of the contract and on the performance of which the other party may reasonably rely and generally does rely. In such case, too, liability for damages shall however be limited to reasonably foreseeable damages.
7.3 The foregoing limitations of liability shall also apply to any liability for our officers and directors, employees and agents, and to their personal liability.
Section 8: Retention of Title
8.1 BioEcho shall retain title to goods until all payments related to the business relationship with Customer have been received. In the event of any breach of contract by Customer, including, without limitation, any failure to make timely payment, BioEcho's shall have the right to repossess the purchased goods. Such repossession shall result in rescission of the contract. BioEcho shall have the right to sell any repossessed goods to third parties, and the sales proceeds – minus reasonable costs of sale – shall be applied toward Customer's payment obligations.
8.2 Customer shall have the right to sell goods in the ordinary course of business. Any pledge or security assignment is prohibited. If Customer sells any goods subject to BioEcho's retention of title, Customer hereby fully assigns to BioEcho, with effect until all of our claims under Section 9.1 have been fully settled, all claims against Customer's buyers arising from such sale, including all ancillary rights, whether Customer has sold the goods by themselves or in combination with any other goods or services. Customer shall be authorized to collect claims in its own name in the ordinary course of business, as long as Customer has complied with its payment obligations. BioEcho may revoke Customer's authorization for good cause at any time, including, without limitation, any failure of Customer to make payment for more than one week from the due date or any discovery by BioEcho that an insolvency petition has been filed with respect to Customer's assets.
8.3 If the value of BioEcho's security interests exceeds the value of the secured claims by more than 50%, BioEcho shall release security interests of its own choice upon the demand of Customer.
8.4 In the event of any failure to make timely payment by Customer, BioEcho shall have the right based on its retention of title to repossess the sold goods, without being required to rescind the contract. Any assertion of our retention of title and any attachment of sold goods by us shall not be construed as rescission of the contract.
8.5 Customer shall handle all goods with due care until title transfers.
Section 9: Venue and Jurisdiction, Place of Performance
All contractual and non-contractual relationships with Customer – including the validity of the contract and all rights and obligations arising from the contract – shall be governed by German law, with the exception of German conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).
9.2 The parties hereby agree to exclusive venue in and international jurisdiction of the Local Court of Cologne and the Regional Court of Cologne, provided that Customer is a qualified German merchant (Kaufmann). However, BioEcho may also file suit in any court of competent jurisdiction at the place of Customer's registered office or in any other court that has jurisdiction under German or foreign law.
9.3 Unless otherwise stated in the order confirmation, the place of performance shall be the registered office of BioEcho.
© BioEcho Life Sciences GmbH June 1, 2021