Terms and Conditions
biocrates life sciences ag
These Terms and Conditions are the only Terms and Conditions governing transactions between biocrates life sciences ag and the Client, hereafter also these “Terms”. Any alternative terms or conditions imposed or incorporated, or which are implied by trade, custom, practice or course of dealing by the Client shall not apply unless expressly agreed in writing by biocrates life sciences ag. This particularly applies to the Client’s order and purchase terms and conditions if they conflict with these Terms or exclude specific provisions of these Terms.
These Terms apply to all future business relations, even if no express reference is made to them in the individual case.
2. Conclusion of Contract
The contract is deemed to be concluded when biocrates life sciences ag provides written confirmation of the order to the Client after receipt of order. biocrates life sciences ag has to provide written confirmation within five (5) business days after receipt. The order is binding on the Client. Any contract modifications or amendments are invalid unless confirmed by biocrates life sciences ag in writing (e-mail is deemed to be sufficient) and unless any further confirmed changes have been proved.
Prices are quoted ex-works at Eduard-Bodem-Gasse 8, A-6020 Innsbruck, exclusive of VAT. Fees incurred as quoted are exclusive of VAT.
biocrates life sciences ag is entitled to change its prices at any time before sample delivery and if Offer is older than six months. The Client must be notified in writing (E-Mail is deemed to be sufficient) of such a change. The Client has the right to cancel the Project within two weeks of such notice. If there is no cancellation the Client agrees on the new prices.
Any delivery dates, unless otherwise expressly confirmed in writing, are given as estimates and are subject to change. Compliance with (confirmed) delivery dates by biocrates life sciences ag requires the Client’s timely provision of appropriate documentation or material, particularly samples.
Deliveries are conditional on the Client accepting a margin of 10 percent on over or under-delivery unless otherwise agreed in writing. biocrates life sciences ag reserves the right to make and charge part or advance deliveries.
Delivery terms are subject to the occurrence of events beyond reasonable control due to force majeure (inter alia armed conflict, health crisis, official interference or restriction on resources, delay in transportation and customs clearance, traffic hold-up, breakdown of machinery, lack of material and energy, laboratory difficulties and delayed delivery by suppliers based on similar reasons of force majeure as described herein). Lack of material particularly includes non-delivery, delayed delivery or poor quality of the materials required by biocrates life sciences ag to complete the order. If any of the above circumstances arise, biocrates life sciences ag shall be entitled to extend the delivery date or terminate the order according to the extent and duration of these circumstances and their consequences, without allowing the Client to terminate the contract or claim for damages.
If biocrates life sciences ag fails to comply with the delivery terms, the Client may terminate the contract only if a reasonable notice of at least two weeks is given to remedy the breach. In the case of delayed delivery, except in cases of deliberate intent or gross negligence, liability of biocrates life sciences ag is limited to 0.5% of the net price or the fee for each commencing week of delay but in total the liablility for delay is limited to a maximum of 5 % of the net price or the fee. Only if biocrates life sciences ag is accused of a willful or grossly negligent breach the matter is governed by statutory liability provisions.
Delivery, regardless of the type of shipping, is deemed to be successful when the products leave the premises at Eduard-Bodem-Gasse 8, A-6020 Innsbruck, Austria. If, without negligence on the part of biocrates life sciences ag, delivery of products ready for shipping is not possible or not desired by the Client, the products can be stored at the Client’s cost and risk, and delivery shall then be deemed as performed.
5. Transfer of Risk
Shipment of the product/service is at the risk of the Client at all times unless otherwise agreed in writing, regardless of the price agreed upon and even if biocrates life sciences ag conducts or organizes the shipment.
If shipment from the premises of biocrates life sciences ag at Eduard-Bodem-Gasse 8, A-6020 Innsbruck, Austria is delayed for reasons biocrates life sciences ag is not responsible for, the risk shall pass to the Client from the date the Client is notified that the product is ready for delivery.
6. Payment Conditions | no withholding or offset for Client
Payment of the invoice, unless otherwise agreed, is due in full within 30 days from the invoice date. If payment of the price is not made by the due date, biocrates life sciences ag shall be entitled to charge default interest at a rate of 10% per annum above the Base Interest Rate of ECB. In the event of overdue payment, the Client undertakes to pay a surcharge of € 5 (excluding postage) per reminder as well as the collection agency costs at the rate according to the current regulation. Collection fees shall be charged to the Client.
The Client is not entitled to withhold or offset payments on the grounds of warranty claims, damage claims or any other counterclaims, if such claims are not based on final judgments or court orders.
biocrates life sciences ag accepts checks and bills of exchange only by special arrangement and only for purposes of payment. biocrates life sciences ag reserves the right to offset any money held against invoices outstanding.
Incoming payments shall first be credited to the interest and then the principal; older arrears shall be paid before the more recent ones. If the Client is in arrears with payment or any other contractual obligation, with or without negligence, biocrates life sciences ag may either insist on the fulfillment of the contract and a) postpone the fulfillment of its own obligations until such payments or obligations have been performed by the Client, b) recover the total outstanding amount (payable immediately) and, c) when due, charge default interest at a rate of 10% per annum above the Base Interest Rate of ECB or terminate the contract without prejudice to any claims for damages after giving a reasonable period of notice.
7. Additional rights based on credit history
Additionally, biocrates life sciences ag reserves the right to terminate the contract, (a) if the Client’s ability to pay is in doubt and if the Client, upon the demand of biocrates life sciences ag, does not make an advance payment or, before delivery, provide a security which is deemed suitable by biocrates life sciences ag, (b) without further notice if any bankruptcy proceeding is started against the Client.
Further, if bankruptcy proceedings are taken against the Client or if the Client discontinues payment, all overdue accounts shall be due immediately. biocrates life sciences ag may also terminate the contract for the reasons specified above in the case of incomplete delivery. In the event of termination by biocrates life sciences ag, without prejudice to any claims for damages by biocrates life sciences ag, services (or part thereof) already performed shall be settled and paid according to contract. However, biocrates life sciences ag reserves the right to reclaim products/services already delivered.
8. Reservation of Title
The services and goods delivered to the Client by biocrates life sciences ag remain the sole property of biocrates life sciences ag until the purchase price is effected in full and until all bills of exchange or checks have been cashed, including interests and costs involved in their collection.
The Client is entitled to onward sale of the purchase item in compliance with allowed use of the goods in the proper course of its business operations, however, not to pledge or transfer title as security or undertake other extraordinary disposals. The Client is obliged to impose retention of title on its purchasers and to comply with allowed use.
The Client hereby assigns to biocrates life sciences ag all existing and accruing proceeds of onward sale, in the amount of the final invoice amount (including VAT) of biocrates life sciences ag claims regardless of whether or not the purchased item has been sold with or without further processing. biocrates life sciences ag hereby accept this assignment.
The Client is revocably authorised to collect the aforementioned receivables from its purchasers in its own name for our account, provided that it continues to meet its payment obligations towards biocrates life sciences ag. The Client pays the costs of collecting the receivable. The proceeds accruing to biocrates life sciences ag must be paid to them without delay. biocrates life sciences ag right to collect on the claims themselves is not prejudiced by this. biocrates life sciences ag does however restrain not to collect on the claims as long as the Client complies with its payment obligations from the proceeds collected, is not in default of payment, in particular, does not suspend its payments or files for bancruptcy. Where this is however the case, biocrates life sciences ag may demand that the Client discloses the assigned claims and the latter’s debtors to biocrates life sciences ag, provides all information needed for collection, surrenders the relevant documents and informs the debtors (third parties) of the assignment. The Client must cooperate in all measures required to secure the rights of biocrates life sciences ag. biocrates life sciences ag is entitled to notify third parties of the assignment and to issue instructions. Client undertakes any processing on biocrates life sciences ag’sbehalf without establishing any obligations on biocrates life sciences ag.
Any attachments by third parties of the goods supplied under retention of title or of any other receivables assigned to biocrates life sciences ag, seizures of the retained-title goods or other forms of attachment by third parties must be notified to biocrates life sciences ag in writing without delay giving the name and address of the seizing or attaching third party.
In case of actions by the Client in breach of the contract, in particular in default of payment, biocrates life sciences ag will be entitled to repossess the purchase item. After repossession of the purchase item biocrates life sciences ag are entitled to liquidate its value. The Client must tolerate the sale and grant access to its office and business premises for this purpose. Repossession of the purchase item by biocrates life sciences ag does not constitute cancellation of the contract. If biocrates life sciences ag have specified a certain period for performance with threat of rejection thereafter, and if biocrates life sciences ag then sell the goods, the Client is liable to pay biocrates life sciences ag the difference between the selling price to the Client and the proceeds of sale. Furthermore, the client pays the costs of repossession.
The Client pays all costs necessarily expended in order to cancel the attachment or recover the goods or purchased items. The title is also valid against the freight forwarder to whom the goods are handed over on behalf of Client or at biocrates life sciences ag’s request.
9. Warranty (Gewährleistung)
biocrates life sciences ag guarantees that the results of the work comply with the contractual stipulations and are free of defects that nullify or reduce their usefulness. The warranty period (Gewährleistungsfrist) is 12 months after the work results have been delivered.
biocrates life sciences ag shall also be liable for services obtained from subcontractors, but only within the warranty period given by the subcontractors and only in the way that the warranty claims against the subcontractors are assigned to biocrates life sciences ag upon request.
Recommendations made by employees or representatives of biocrates life sciences ag regarding the use of the services or products are non-binding and offered as described in the appropriate guideline only. The Client carries the risk as to whether the delivered service or Product in a given case is suitable for its purpose. Thus, no warranty is made as to the applicability in a given case.
Additionally, reasonable wear and tear of the service or usual variations in the extent and/or quality of the delivered service shall not constitute a defect or non-compliance with the contract.
The Client bears the burden of proof for the existence of a defect. Biocrates life sciences ag is therefore only liable for defects which can be proven by the customer. The Client has to report defects in a comprehensible manner promptly in writing to the biocrates life sciences ag, stating the information that enables the defects to be recognised. The Client is required to help the biocrates life sciences ag insofar as necessary to eliminate the defects.
If no notification of defects (Mängelrüge) is made within a reasonable period of time, all warranty claims, claims for damages due to the defect itself as well as due to an error regarding the absence of defects in the item shall lapse.
In the event that defects are remedied biocrates life sciences ag are obliged to bear all expenses required for the purpose of remedying the defect provided that these are not increased due to the fact that the purchased item has been taken to a place other than the place of delivery or performance. Expenses are, in any case, limited to the amount of the selling price or remuneration. The return transport of goods complained about is permitted only with written consent (including E-Mail) of biocrates life sciences ag. The Client must advance the freight costs. biocrates life sciences ag shall refund the transport costs only if the notice of defects proves to be justified.
biocrates life sciences ag can invoice to the Client the costs for defects, which prove to be not justified. The foregoing sentence does not apply to non-defects, of which the lacking defect could not be detected by the Client.
biocrates life sciences ag reserves the right to perform the warranty work at the Client’s premises. The during warranty period replaced defective device or components shall become the property of biocrates life sciences ag.
biocrates life sciences ag reserve the right to perform any warranty activities only if the Client has paid all due amounts. Without limiting the foregoing, the Client has the right to withhold such amount with is reasonable and appropriate for in comparison to the defect of the delivered goods.
Should one attempt by biocrates life sciences ag to rectify the defects fail, the Client is entitled to assert his right to cancel the contract, reduce the remuneration or is under this section 9 entitled to claim damages.
Warranty is void if, without the written consent of biocrates life sciences ag, any attempt to repair the delivered services by the Client or an unauthorized third party has been made. Invoices for such repairs shall not be accepted.
10. Limitation of liability
Nothing in these Conditions shall limit or exclude the biocrates life sciences ag’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
fraud or fraudulent misrepresentation;
defective for which the biocrates life sciences ag maintains appropriate product liability insurance, details of which shall be provided to the Client following request.
Subject to clause 10 the biocrates life sciences ag shall under no circumstances whatever be liable to the Client, whether in contract, tort, or otherwise, for any: loss of profit; loss of goodwill; loss of business; loss of business opportunity; loss of anticipated saving; loss or corruption of data or information; special, indirect or consequential damage or other loss arising under or in connection with the contract.
Without prejudice to clauses 10, the biocrates life sciences ag’s total liability to the Client in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Client under this contract.
11. Intellectual Property Rights
If new intellectual property rights concerning biocrates’ kit technology and improvements of biocrates’ analytical methods, database and assays are generated during a project, biocrates life sciences ag shall exclusively own them and can claim them for itself and register them, unless otherwise agreed in writing (including E-Mail). All rights reserved.
The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Services, if there are any, the Client’s use of any such Intellectual Property Rights is conditional on the biocrates life sciences ag obtaining a written license from the relevant licensor on such terms as will entitle the biocrates life sciences ag to license such rights to the Client.
The Client will be fully responsible for legal and ethical liability and the source of the samples provided. In this respect, the Client shall indemnify biocrates life sciences ag against any third-party claims. To avoid infringement of intellectual property rights, particularly patent or trademark rights, the Client may not export the goods of biocrates life sciences ag to third countries, which are not designated by biocrates life sciences ag.
12. Final Provisions
Where a provision of this contract is or becomes void the legal effect of the remaining provisions will not be prejudiced. The void provisions will be substituted by a provision that as closely as possible corresponds to the sense and purpose of the void provision. Where biocrates life sciences ag and Client cannot reach agreement on the substitute provision, then determination will be made by biocrates life sciences ag ex aequo et bono in the terms of Austrian Civil Code (ABGB).
All agreements made between biocrates life sciences ag and Client for the purpose of performing this contract must be documented in writing (including E-Mail). Written form also applies to rescission, amendment or supplement to this requirement (including E-Mail).
All appendices to this contract form an integral part of this contract.
Wherever this contract includes English terms after which either in the same provision or elsewhere in this contract German terms have been inserted in brackets and/or italics, the respective German terms alone and not the English terms shall be authoritative for the interpretation of the respective provisions.
All legal relationships arising from transactions between biocrates life sciences ag and the Client shall be exclusively governed by Austrian law, excluding the principles of conflict of laws, as expressly agreed between the parties, unless jurisdiction is otherwise agreed in writing. The United Nations Convention for Contracts on the International Sale of Goods (CISG) is not applicable. Place of performance for all deliveries and services is Innsbruck, Austria.
Any litigation arising directly or indirectly out of delivery and/or services provided by biocrates life sciences ag shall be pursued by the court competent for the subject matter in Innsbruck, Austria. However, biocrates life sciences ag reserves the right to apply to any competent court.