​General Terms and Conditions for Products/ Terms and Conditions of Sale  of CONGEN Biotechnologie GmbH

1. General – Scope

1.1 The following general Terms and Conditions of Sale and Delivery shall apply to

all sales of goods and deliveries by CONGEN, unless otherwise stipulated in these Terms and Conditions or in the text of the Order Confirmation, or unless otherwise agreed between the Parties in an individual Contract.

1.2 Terms and conditions of the Purchaser that contradict or deviate from these General Terms and Conditions

are hereby expressly rejected. They shall only become part of the Contract if CONGEN expressly agrees to them in writing in the individual case.

1.3 These General Terms and Conditions of Sale and Delivery shall also apply if CONGEN carries out the delivery to the Purchaser without reservation in the knowledge that the Purchaser’s terms and conditions conflict with or deviate from these Terms and Conditions.

1.4 All agreements concluded between CONGEN and the Purchaser for the performance of sales of goods, as well as supplements and amendments to the agreements made, including these General Terms and Conditions, must be in writing. This also applies to a waiver of the written form requirement. Transmission by telecommunication, in particular by fax or by email, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is sent.

1.5 These Terms and Conditions shall only apply for business relations with companies (§ 14 German Civil Code, BGB), legal entities under public law or special funds under public law (persons within the meaning of § 310 para. 1 sentence 1 BGB).

2. Offers, conclusion of Contract

2.1 CONGEN offers are subject to change without notice and are non-binding, unless they are designated in writing as binding. This shall also apply when replying to customer enquiries and/or sending catalogues, details of technical data, specifications, other product descriptions or documents, also in electronic form, to which CONGEN reserves rights of title and copyright.

2.2 A legal obligation shall only come into existence by way of a contract signed by both parties or by way of a written declaration by CONGEN (e.g., order confirmation), and also by way of CONGEN executing the delivery in accordance with the order.

2.3 The Purchaser shall be bound by their declarations on the conclusion of contracts for 4 weeks.

2.4 In the event of conflicting letters of confirmation with differing provisions, only the one issued by CONGEN shall apply.

3. Prices, order quantities and delivery dates

3.1 Deliveries and purchase prices are ex factory. All prices are subject to the statutory value added tax. Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser.

3.2 Price quotations (including any discounts) and other conditions in price lists merely reflect the status of the edition. Orders placed by the Purchaser are subject to the prices and conditions valid on the date of receipt of the order by CONGEN. CONGEN shall inform the Purchaser of the applicable current prices and conditions.

3.3 Unless separately agreed, a minimum order value results from the respective valid specifications.

3.4 Deadlines and dates for deliveries and services indicated by CONGEN are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.

3.5 CONGEN may – without prejudice to its rights arising from arrears on the part of the Purchaser – demand from the Purchaser an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Purchaser fails to fulfil their contractual obligations towards CONGEN.

4. Packing and shipping, shipping costs

4.1 The choice of shipping method and packaging shall be at CONGEN’s discretion. The Purchaser shall bear the shipping costs ex factory in accordance with the following flat shipping rates:

• Delivery within Germany: less than € 500 net order value: Shipping costs flat rate of € 15, higher net order value free of charge, unless otherwise stipulated below

• Delivery within the EU: less than € 500 net order value: Shipping costs flat rate of € 50, higher net order value free of charge, unless otherwise stipulated below

• Delivery worldwide (outside of EU): regardless of the net order value, the buyer bears the shipping costs

4.2 If the Purchaser has special shipping requirements (e.g., express goods, rush goods, express parcels, airmail, etc.), the delivery shall be made at the Purchaser’s expense ex factory without being cleared by CONGEN.

4.3 CONGEN is entitled to make partial deliveries to a reasonable extent, and each partial delivery may be invoiced separately. A partial delivery is reasonable within the meaning of sentence 1 if it is usable by the Purchaser within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured and no significant additional expenditure or additional costs are incurred by the Purchaser, unless CONGEN agrees to bear such costs. For orders on demand, the request must be made at least two calendar weeks before the desired delivery date.

4.4 CONGEN shall insure the goods against the usual transport risks during shipment only at the express request of the Purchaser and at their own expense. 

5. Restrictions on use

Deliveries of goods performed by CONGEN may contain products whose use by the Purchaser is subject to patent or licensing restrictions. For details of such restrictions, please refer to the relevant package information leaflet or, where appropriate, CONGEN’s website. Furthermore, these may be requested by the purchaser from CONGEN before and after conclusion of the contract.

6. Risk assumption

The risk of destruction, loss or damage of the goods shall pass to the Purchaser in the case of shipment (also in the case of freight-free delivery) upon delivery of the goods to the person designated to carry out the shipment, and in the case of default of acceptance on the part of the Purchaser at the latest upon the occurrence of the arrears.

7. Force majeure, contractual impediments

Force majeure of any kind; unforeseeable operational, traffic or shipping disruptions; fire damage; floods; pandemic; unforeseeable shortage of power, energy, raw materials or auxiliary materials; lawful strikes; lawful lockouts; official decrees or other hindrances for which the Party obliged to perform is not responsible and which delay, prevent or render unreasonable the manufacture, shipment, delivery, acceptance shall release the Party from the obligation to deliver or accept for the duration and scope of the disruption. This also applies if the circumstances occur at suppliers. The aforementioned circumstances are also not the responsibility of the Party liable to pay if they arise during an already existing arrears. If, as a result of the disruption, delivery or acceptance is delayed by more than 8 weeks, both parties shall be entitled to withdraw from the contract and there shall be no claims for damages in this respect.

8. Notice of defects and claims for defects

8.1 CONGEN and the Purchaser shall comply with their contractual obligations with the diligence of a prudent businessman. The Purchaser shall carefully inspect the received goods for quantity, condition and defects immediately upon arrival. The Purchaser shall notify CONGEN of any obvious defects in writing and without delay, but at the latest within 10 days of receipt of the goods, stating the invoice number and date. Any defects that are not immediately apparent must also be reported as soon as possible, i.e., within 10 days of the assessment of the defect at the latest. If the Purchaser fails to notify CONGEN in due time, CONGEN’s liability for the defect not notified or not notified in due time shall be excluded in accordance with the statutory provisions. For the Purchaser who is a merchant, § 377 of the German Commercial Code (Handelsgesetzbuch) shall apply in addition.

8.2 The special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier’s recourse in accordance with § 478 German Civil Code, BGB).

8.3 At CONGEN’s request, the Purchaser shall send CONGEN the original or a copy of supporting documents such as delivery notes and packing slips for the purpose of verifying the complaint, and shall notify CONGEN of any markings on the packages or send the goods to CONGEN freight-free for professional rectification. In the event of a justified complaint, CONGEN shall reimburse the costs of the most favourable shipping route; this shall not apply insofar as the costs are increased because the goods are located at a place other than the place of intended use.

8.4 In the event of defective goods, CONGEN may initially, at its discretion, either repair or replace the goods (subsequent performance). CONGEN has the right to repeat a failed subsequent performance. CONGEN may refuse subsequent performance if it involves disproportionate costs.

8.5 If subsequent performance has failed, been refused, been unreasonable or if the Purchaser has unsuccessfully set CONGEN a reasonable deadline for subsequent performance or if the setting of a deadline is unnecessary, the Purchaser shall be entitled to demand a reduction in price or to withdraw from the contract.

8.6 The warranty period is one year from delivery or, if acceptance is required, from acceptance. This does not apply to claims for damages by the Purchaser in accordance with clause 9: These shall become time-barred in each case in accordance with the statutory limitation periods.

8.7 Claims by the Purchaser for damages or reimbursement of futile expenses shall only exist in the event of defects in accordance with Clause 9 and are otherwise excluded.

9. Liability

9.1 CONGEN shall only be liable – irrespective of the legal grounds – if the damage has been caused by a slightly negligent breach of a material contractual obligation or is attributable to gross negligence or intent on the part of CONGEN.

9.2 If CONGEN is liable for breach of a material contractual obligation without gross negligence or wilful misconduct, its liability shall be limited to the extent of damage which CONGEN could typically expect to occur at the conclusion of the contract based on the circumstances known to it at that time.

9.3 Claims for damages under the Product Liability Act, under the German Medicines Act, for injury to life, limb or health, in the event of fraudulent intent and for the assumption of a guarantee shall remain unaffected.

9.4 To the extent that CONGEN’s liability is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.

10. Payment

10.1 Payment shall be made within 14 days of the invoice date, net.

10.2 CONGEN reserves the right to use payments to settle the oldest due claims plus the default interest and costs accrued thereon, in the order costs, interest, claim.

10.3 Offsetting against counterclaims of the buyer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.

10.4 CONGEN has the right to refuse delivery if, after the conclusion of the contract, it becomes apparent that its claim for payment of the delivery is jeopardised by the Purchaser’s inability to pay. This right to refuse performance shall cease to apply if payment is effected or the Purchaser provides adequate security. CONGEN has the right to set the Purchaser a reasonable time limit within which the Purchaser shall either make payment or provide security for the delivery concurrently with performance. After unsuccessful expiry of the deadline, CONGEN has the right to withdraw from the contract. In addition, in the aforementioned case of deterioration of the Purchaser’s assets, CONGEN shall have the right to deliver goods only against advance payment or performance of an adequate security.

11. Default of payment

11.1 If the Purchaser is in arrears with a payment, no settlement will be made in the debit order procedure or if there is a significant deterioration in the financial circumstances of the debtor, all deterioration in the debtor’s financial circumstances, all outstanding claims, including any claims, including any deferred claims of CONGEN against the Purchaser, shall be claims against the Purchaser shall become due for immediate payment.

11.2 In the event that the Purchaser is in arrears with payment or, in the event of a mutual commercial transaction, exceeds the payment term granted, interest shall be payable at a rate of 9 percentage points above the base interest rate applicable at the time. CONGEN reserves the right to claim further damages.

12. Retention of title

12.1 CONGEN retains title to the delivered goods until receipt of all payments arising from the business relationship with the Purchaser. CONGEN’s title shall also extend to the new products resulting from the processing of the Reserved Goods. The processing is carried out for CONGEN as manufacturer. In the event of processing, combining or mixing with materials not belonging to CONGEN, CONGEN shall acquire co-ownership in the ratio of the invoice value of its reserved goods to the invoice values of the other materials.

12.2 The retention of title shall remain in force even if the relevant claim(s) of CONGEN is (are) included in a current account and the balance has been struck and acknowledged.

12.3 In the event of breach of contract by the Purchaser, in particular default in payment, CONGEN is entitled to withdraw from the contract after having set a reasonable deadline for performance. The Purchaser shall bear the transport costs incurred for the return. If CONGEN takes back the reserved goods, this shall already constitute a withdrawal from the contract. If CONGEN seizes the reserved goods, this shall also constitute a withdrawal from the contract. The statutory provisions on the dispensability of setting a time limit shall remain unaffected.

12.4 The Purchaser shall treat the reserved goods with care. The Purchaser is obliged to insure the reserved goods sufficiently at their own expense against fire, water and theft at replacement value and hereby assigns its compensation claims under these insurance policies to CONGEN.

12.5 In the event of seizures or other interventions by third parties, the Purchaser shall draw attention to CONGEN’s title and immediately notify CONGEN in writing so that CONGEN can enforce its rights of title. To the extent that the third party is not in a position to reimburse CONGEN for the judicial and extrajudicial costs incurred in this connection, the Purchaser shall be liable for the loss incurred by CONGEN.

12.6 The Purchaser is entitled to resell the goods in the ordinary course of business. However, the Purchaser may not pledge the goods or assign them by way of security and hereby assigns to CONGEN all claims in the amount of the invoice value (including VAT) arising from the sale of the goods, including bills of exchange and cheques, as security for the respective claims. In the case of sales of goods in which CONGEN has co-ownership, the assignment shall be limited to the share of the claim corresponding to its co-ownership share. The Purchaser shall remain entitled to collect these claims even after the assignment. CONGEN’s right to collect the claim itself shall remain unaffected. CONGEN is, however, obliged not to collect the claim as long as the Purchaser meets its payment obligations towards CONGEN, is not in default of payment and there is no deficiency in its ability to pay, in particular no application for the opening of insolvency proceedings has been filed. If this is the case, CONGEN may demand that the Purchaser discloses to it the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the third parties of the assignment.

12.7 If the delivery item is delivered as intended to a place outside the Federal Republic of Germany or is taken to such a place by the Purchaser, the following shall apply with priority to Clauses 12.1 to 12.6: The Purchaser shall ensure that CONGEN’s retention of title is effectively protected in the state in which the delivery item is located or to which it is to be transferred. Insofar as certain actions are necessary for this purpose (for example a special marking of the delivery item or a local register entry), the Purchaser shall perform these for the benefit of CONGEN. Should CONGEN’s cooperation be necessary, the Purchaser shall inform CONGEN thereof without delay. In addition, the Purchaser shall inform CONGEN of all material circumstances which are of importance in the context of protecting CONGEN’s property as far as possible. In particular, they shall provide CONGEN with all documents and information necessary to enforce these rights arising from the right of title. The provisions of this clause 12.7 shall apply mutatis mutandis, if under the law of the place where the delivery item is located a retention of title cannot be validly agreed, to the procurement of a legal position by CONGEN which effectively protects its interests and claims in an equally effective or other suitable manner, to the extent legally possible.

13. Resale and disposal

13.1 The Purchaser is obliged to comply with the law against unfair competition and, if applicable, regulations under the law on medicinal products and/or medical devices on his own responsibility in the event of resale or sale.

13.2 Without CONGEN’s prior express written consent, it is not permitted to use CONGEN’s protected trademarks for goods of third party manufacture or for processed original goods.

13.3 The Purchaser is further obliged to sell or hand over the delivered goods only in their entirety (i.e., including packaging, instruction leaflets, operating instructions, warning notices, etc.).

13.4 The attention of the Purchaser is drawn to the fact that goods or delivery items (and, where applicable, the know-how contained therein) may be subject to export or import controls. Each contracting Party is responsible for complying with the relevant export and import control regulations. The Purchaser’s attention is additionally drawn to the fact that U.S. export control law is also applicable in the case of goods or delivery items originating in whole or in part from the USA. This may be the case even if the contract has no other reference to the US.

14. Confidentiality

14.1 The contracting Parties undertake to keep secret all information which becomes accessible to them in connection with this contract or otherwise on the occasion of the business relationship and which is designated as confidential or is recognisable as a business or trade secret on the basis of other circumstances and not to record or exploit it in any way, unless this is necessary to achieve the purpose of the contract.

14.2 The duty of confidentiality shall not apply to information

1. which, at the time of disclosure by the disclosing Party, had already been made public without this resulting from a breach of confidentiality by the respective other Party,

2. which the other Party has expressly released in writing for disclosure,

3. which the respective other Party has lawfully obtained from other sources without any restriction relating to confidentiality, provided that the disclosure and utilisation of such confidential information does not violate any contractual agreements, statutory provisions or official orders,

4. which must be disclosed due to statutory obligations to provide information, notification and/or publication or official orders. To the extent permissible, the Party obliged to do so shall inform the other Party of this as early as possible.

15. Place of performance, place of jurisdiction, applicable law, other

15.1 Place of performance is Berlin.

15.2 If the Purchaser is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Berlin. CONGEN is, however, entitled to sue the Purchaser also at the place where a place of jurisdiction is otherwise established for the Purchaser under the general provisions. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

15.3 The legal relationships of the Parties arising out of or in connection with this contract shall be governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods of 11.04.1980 does not apply.

15.4 Should individual provisions of the contract be or become invalid or void in whole or in part, this shall not affect the validity of the remaining provisions.

15.5 Insofar as the contract or these General Terms and Conditions contain lacuna, the legally effective provisions which the Parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the lacuna shall be deemed to have been agreed in order to fill these lacunae.

As of: October 2021