simfo GmbH General Terms and Conditions

I. General Information

  1. The contractual relationship between simfo GmbH, Bayreuth (hereinafter "simfo") and the customers is exclusively based on these General Terms and Conditions [GTC]. Different Terms and Conditions of the customer - even with knowledge thereof - shall not become an integral part of the contract unless simfo expressly agreed to their integration in writing beforehand. In case of on-going business relations, these GTC shall also apply to all future transactions.
  2. simfo's offers are always subject to change.
  3. The object of the offers submitted by simfo are, in particular, goods, services and works of an enterprise rendered by simfo in research and development in the field of immunology for its customers, in particular, bioengineering and pharmaceutical enterprises.
  4. These GTC apply when the order is placed, at the latest, however, with the claim of the goods, rented space, works or service.

II. Conclusion of the Contract

  1. With the order of goods, works or services, the customer states officially that it intends to purchase the goods or make use of the services or works ordered. The customer is bound by this statement for 30 days. simfo is entitled to accept the contract offer contained in the order within 30 days from receipt. Acceptance can be stated in writing, electronically, by delivery of the goods or performance of the service to the customer.
  2. The conclusion of the contract takes place subject to the correct and timely self-delivery by simfo's suppliers. This shall only apply in case that simfo is not responsible for the failure to deliver or incorrect delivery, in particular, if a congruent cover transaction has been concluded with simfo's suppliers. The customer shall be informed promptly about the non-availability of the service, and the consideration shall be reimbursed promptly as far as already made.
  3. In principle, only the description used by simfo is deemed agreed for the condition of the goods or works and/or services. Public comments, targeting or promotion by simfo beyond this do not represent a contractual condition of the goods. Samples and patterns are considered approximate illustrative specimens of quality, dimensions and colour. No legal claims may arise therefrom. simfo reserves the right to technical modifications regarding form, colour and/or weight as far as reasonable.
  4. The customer shall make its best efforts to assist simfo in implementing the contractually agreed services and make available, in particular, necessary data and access free of charge, and check and release simfo's enquiries and drafts in a timely manner.
  5. simfo does not offer the customer any guarantees in the legal sense; warranties offered by the producer remain unaffected hereof.
  6. The customer shall make available to simfo all data and documents required for the implementation of the project free of charge.

III. Delivery Time and Obligation to Deliver

  1. The order confirmation submitted by simfo in writing or electronically shall be decisive for the scope, type and time of the delivery. Partial services and deliveries by simfo are admissible. Modifications regarding type, time and/or scope of the service must be agreed in writing.
  2. Force majeure events making the performance of a service or obligation much more difficult or impossible entitle the party concerned to postpone the performance of this service or obligation by the duration of the obstacle and a reasonable starting period. Labour conflicts at the parties' plants or at a third party plant are equal to force majeure. If the supplier cannot be expected to perform the service within a reasonable time because of the type of obstacle, each party shall be entitled to rescind all or part of this contract due to the part of the service that has not yet been fulfilled.
  3. simfo is entitled to make use of third parties or subcontractors for the fulfilment of contractual obligations.
  4. Unless otherwise agreed, simfo is also entitled to render performance prior to the specified delivery date. In addition unless otherwise agreed, simfo may also render performance up to two weeks beyond the specified delivery date without this being considered late either.
  5. Delivery times are considered met when the goods have left the plant or delivery warehouse before their expiry, when simfo has started to perform the service or has made available the respective product or the customer has received the notice of readiness to perform. Subsequent amendments of the contract reasonably extend the delivery times.
  6. In case of contracts where the performance consists of several deliveries/services, the non-performance or inadequate or delayed performance of individual deliveries or services does not affect other services/deliveries of the contract.
  7. Late payment, a request for the opening of insolvency proceedings, the statement of assets and liabilities as per section 807 ZPO [code of civil procedure], financial difficulties arising or the discovery of a material deterioration of the customer's financial situation entitle simfo to stop deliveries and services immediately and refuse the performance of on-going contracts. At the same time, simfo is entitled to render claims against the customer not yet due, due for immediate payment.
  8. simfo shall not be liable for delays in performance based on a breach of the customer's obligations.
  9. If there are no other legal instructions and the parties did not agree otherwise in writing, the customer is obliged to observe all export, import, transit and customs regulations and bear the related costs.
  10. The scope of delivery does not include technical specifications, set-up, assembly, environmental or other tests or certifications beyond the agreed scope.

IV. Shipment, Transfer of Risk

  1. The choice of packing, the dispatch route and the means of transport are up to simfo unless the parties agreed otherwise.
  2. simfo always bears the costs of delivery for orders with an order value exceeding €7,500 (net) unless the parties have agreed otherwise.
  3. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer with the handover and/or delivery of the matter to the forwarding agency, the carrier or the person or institution assigned to carry out dispatch. The handover is the same if the customer is in default of acceptance.
  4. If simfo owes a specific success, i.e. customisable works (e.g. development of a prototype), the acceptance is deemed to have taken place unless it has been declared or refused within seven days from delivery, provided the work product substantially corresponds to the agreements. If there are substantial discrepancies, simfo shall remedy these discrepancies within a reasonable period and present the work product again for acceptance. The acceptance is deemed to have taken place at the latest with the payment or use of the works.
  5. Insurances against theft, breakage, transport, fire and water damages or other insurable transport risks shall only be taken over upon special request against invoicing of the costs.
  6. Not included in the scope of delivery are technical specifications, assembly, installation, intellectual property rights of all sorts, environmental or other tests and certifications beyond standard simfo tests, beyond the supporting documentation enclosed. Additional services performed by simfo in these fields upon consultation with the customer shall be invoiced additionally.

V. Prices, Payment, Payment Terms

  1. All contractual payment obligations must be made exclusively in euros.
  2. The prices are net prices and to be understood exclusive of VAT, ex works and/or delivery warehouse. Freight, packaging, import costs, customs and other ancillary charges are at the expense of the customer.
  3. Invoices are payable within 30 days from the invoice date.
  4. simfo does not accept bills of exchange or other unusual means of payment.
  5. If the payment deadline is exceeded, default interest of 9% above the respective basic interest rate as per section 247 BGB [German civil code] fall due. The assertion of further damages for delay or other rights is reserved.
  6. Advance payments and down payments do not bear interest.
  7. If the implementation of the project is delayed for reasons for which the customer is responsible, simfo can request a reasonable increase in remuneration and postpone the agreed schedule reasonably. In case of intent or gross negligence on the part of the customer, simfo can also assert claims for damages. The assertion of further damages for delay will not be affected.
  8. In case of unilateral requests for modification or cancellation of orders and other services by the customer and/or if the requirements for the performance of services change, the customer shall reimburse simfo for all costs thereby incurred; in addition, simfo shall be indemnified against all liabilities with regard to third parties as far as customers are liable for them.
  9. The customer shall only be entitled to set off or retain payments if its counterclaim is uncontested or established and legally valid. The customer can only exert a right of retention if its counterclaim is based on the same contractual relationship.
  10. When balancing invoices, the customer must indicate its customer number and the invoice number. Delays or false entries caused due to the non-observance of these obligations are at the customer's expense.

VI. Returns

  1. Returns of goods that are not defective are only possible as part of a legal right of revocation unless excluded in individual cases (in particular, as per clause VI, no. 3 of this agreement).
  2. If the customer made a false purchase order and there is no legal right of revocation, simfo may take back the goods in individual cases as a gesture of goodwill. This shall only apply by individual agreement and if the customer communicates its mistake within ten calendar days from receipt of the goods.
  3. Regarding special designs and goods specially manufactured for the customer as well as in-vitro diagnostics (IVD) and sensitive reagents, simfo will not accept returns any case.

VII. Claims for Defects

  1. simfo shall perform the services properly and professionally and in accordance with the individual orders.
  2. simfo shall only take over guarantees for the condition of the service as far as expressly agreed.
  3. As far as simfo performs services according to the sales contract and the item supplied is defective, simfo shall remedy the defects within a reasonable period or supply defect-free items. If the supplementary performance fails, the customer is entitled to the legal rights subject to the limitation of liability under clause VIII. However, the right of rescission is limited to the item supplied.
  4. As far as simfo performs services under a contract to provide a specific result, these services require acceptance. If these services are defective, simfo shall remedy the defects within a reasonable period or create new works. If the supplementary performance fails, customers are entitled to the legal rights subject to the limitation of liability under clause VIII. However, the right of rescission is limited to the respective individual services.
  5. As far as simfo performs rental agreement services, the liability irrespective of the party at fault for defects of the rented objects already present at the conclusion of the contract is excluded as far as legally possible.
  6. As far as simfo performs services under a service contract, simfo does not owe a specific success. However, simfo shall perform such services with the care of a prudent business person and endeavour to reach the stated objectives.
  7. The customer is liable to simfo for the freedom of third party property rights regarding the data and materials made available under the contract. It indemnifies simfo from any third party claims and must reimburse simfo for any damage resulting from a breach of this duty
  8. If defects of radioactive, microbiological or other contaminated products occur, the return must be agreed with simfo beforehand to observe the corresponding marking and disposal duties.

VIII. Liability

  1. simfo is liable for damages – for whatever legal ground – only in case of
    1. Intent,
    2. Gross negligence by simfo, its legal representatives or its vicarious agents,
    3. Culpable injury to life, limb and health,
    4. Defects wilfully concealed by simfo, or if simfo guaranteed their absence,
    5. Defects of the delivered item as far as there is a liability for personal injury or material damage of privately used objects according to the Product Liability Act.
  2. In case of culpable non-observance of essential contractual obligations, simfo is also liable in case of gross negligence and slight negligence. The liability for slight negligence is limited to the damage reasonably predictable upon conclusion of the contract, however, not exceeding the amount of the order value. This also applies to subsequent damages
  3. The customer cannot assert damages as a consequence of contestation for involuntary errors and printing or transfer errors that entitle simfo to contest.
  4. Further claims are excluded.

IX. Limitation

  1. All customer claims lapse within twelve months. For damage claims as per clause VIII no. 1, however, the statutory periods shall apply.

X. Rights to Tangible and Intangible Work Products

  1. simfo is entitled to rights, in particular, copyrights to the work products reached by simfo in performance of the order. They also include the object and source codes as well as all corresponding documents in their respective state of development. Should a property right manifest itself at the customer’s place of business, the latter shall be obliged to grant simfo free of charge a right of use unrestricted in time and location for all types of usage known and developing.
  2. simfo shall grant the customer the rights of use necessary for the implementation of the contract for the term of the corresponding contract. Any transfer to third parties of the rights of use granted is only possible with the consent of simfo and after full payment of the agreed consideration. No rights shall be granted regarding the know-how used as well as simfo's methods and procedures.
  3. Regarding software, internet services and multimedia productions, the surrender of source codes as well as open files is not part of the simple right of use. The surrender requires a separate agreement.

XI. Property Rights

  1. The customer guarantees that it has all rights to the data and materials transferred which are necessary for the implementation of the order. The customer shall indemnify simfo from all third party claims arising because of the breach of third party claims or statutory provisions in implementing the order. Furthermore, simfo shall be indemnified from the costs of necessary legal defence.
  2. Drafts and proposals made by simfo must be treated confidentially and must not be passed on to third parties.

XII. Reservation of Title

  1. Until complete payment of all present and future claims from the purchase contract and an on-going business relationship (secured claims), simfo reserves the title to the goods sold.
  2. The goods under reservation of title must neither be pledged to third parties nor assigned as collateral before complete payment of the claims secured. The customer must inform simfo promptly in writing if and as far as third parties have access to goods belonging to simfo.
  3. If the customer's conduct is in breach of the contract, in particular in case of non-payment of the purchase price due, simfo shall be entitled to rescind the contract according to the statutory provisions and reclaim the goods based on the reservation of title and rescission. If the customer does not pay the purchase price due, simfo may only assert these rights if simfo has set the customer beforehand a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
  4. The customer is entitled to resell and/or process the goods under reservation of title in the ordinary course of business. In this case, the following provisions shall apply.
    1. The reservation of title covers the products created by processing, mixing or connecting the goods at their full value, where simfo is considered the manufacturer. If the ownership remains with third party goods in case of their processing, mixing or connecting, simfo shall acquire co-ownership in proportion of the invoice values of the processed, mixed or connected goods. For the remainder, the product created is subject to the same conditions as the goods supplied under reservation of title.
    2. The claims against third parties arising from resale of the goods or the product are assigned to simfo by the customer as a guarantee already now in total or in the amount of any co-ownership share as per Clause XII Paragraph 4 a). simfo accepts the assignment. The obligations of the customer indicated under Clause XII Paragraph 2 shall also apply regarding the claims assigned.
    3. The customer remains entitled to collect the claim in addition to simfo. simfo undertakes to refrain from collecting the claim as long as the customer fulfils its payment obligations with regard to simfo, does not default in payment, no request for the opening of insolvency proceedings has been filed and there is no other lack of its ability to perform. However, if this is the case, simfo can request the customer to disclose the claims assigned and their debtors to simfo, give all details necessary for collection, hand over the corresponding documents and inform the debtors (third parties) about the assignment.
    4. If the realisable value of the guarantees exceeds simfo's claims by more than 10%, simfo shall release guarantees at its discretion upon the customer's demand.

XIII. Form

  1. Amendments and modifications of the agreements concluded including these General Terms and Conditions must be made in writing to be effective. Except for managers or authorised officers, simfo's employees shall not be entitled to make different oral agreements without a special power of attorney. These oral agreements must be confirmed in writing. To comply with the written form, transmission by fax is sufficient, for the remainder, transmission by telecommunication, in particular, by email, is not sufficient.

XIV. Obligation of Secrecy

  1. The customer undertakes to maintain secrecy towards third parties regarding the content and extent of information not generally known, obtained due to the cooperation, and to use it only for the execution of this order. This also covers the content, structure and amount of payment agreements.
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