Eppendorf Austria GmbH: hereinafter referred to as Eppendorf
Client/Buyer: hereinafter referred to as Customer
1. Validity, Conclusion of contract1.1 - Any deliveries/services provided by Eppendorf shall be governed exclusively by the Terms and Conditions set out below. Deviations from these Terms and Conditions as well as any other supplementary agreements with the customer shall only be valid if confirmed by Eppendorf in writing and shall then only apply to the specific business transaction. Our Terms and Conditions shall be deemed accepted by the customer when the order is placed with us, at the latest, however, upon acceptance of our delivery/service.
1.2 - Unless explicitly agreed otherwise in writing, Eppendorf does not accept any terms and conditions of the customer in the customer's order. No explicit objection to the customer's terms and conditions shall be required.
1.3 - Notifications addressed to Eppendorf must be made in writing (even telefax or e-mail) in order to be legally effective. Oral orders and agreements as well as oral side agreements and assurances shall only become legally binding if confirmed by Eppendorf in writing. The only proper delivery address for documents to Eppendorf Austria shall be the registered offices of Eppendorf at Ignaz-Köck-Straße 10, 1210 Vienna. We do not accept delivery to another address; such deliveries shall not take legal effect.
1.4 - For goods ordered electronically, including without limitation goods ordered in the web shop, we shall confirm receipt of the customer's order. Such confirmation of receipt of order shall, however, not constitute a binding acceptance of the order. Rather, acceptance of the order shall only take effect upon dispatch of the goods ordered, unless where, in an individual case, Eppendorf explicitly accepts an order in writing. The customer shall, at the latest when placing an order, provide an address for electronic mail (e-mail address), the technical functionality of which the customer warrants for a period starting from the date of order until the full performance of the contract. Notifications by Eppendorf may, until further notice or until notification of change by the customer, be made by e-mail to that e-mail address. Notifications made by e-mail shall be deemed as received by the customer once they have been sent, unless the customer submits proof that, for reasons beyond its control, it has not received a notification sent to it.
1.5 - Subject to the statutory rights to claim absence of intent, we shall be entitled to terminate the contract in the event of evident spelling, printing and/or calculation errors, unless both parties have fully performed.
1.6 - Should individual provisions of these General Terms and Conditions be invalid or ineffective, this shall not affect the validity of the remaining provisions and of any agreements based thereon. The invalid or ineffective provision shall be replaced by an effective one which comes closest to it in terms of meaning and purpose.
2. Prices, Payment conditions, Retention of title2.1 - Our prices are net prices in euro ex works/warehouse plus statutory VAT. The prices stated at the time when the order is placed shall apply. Where no prices are given, the calculation shall be based on the price list of Eppendorf applicable on the date of the delivery/service. The customer agrees to the transmission of invoices by electronic means.
2.2 - The purchase price shall be payable without deductions immediately upon delivery/service, unless where in individual cases specific payment conditions have been agreed in writing. For orders placed in the online shop, the purchase price shall be payable in advance unless other payment conditions are granted. Regardless of a specific term of payment granted, Eppendorf shall have the right to perform any deliveries/services outstanding only against immediate payment in cash if the customer defaults on payment, or if following the formation of the contract Eppendorf learns of any circumstances which result in a significant deterioration in the customer's financial situation.
2.3 - If the customer defaults on payment, default interest in the amount of 10 % p.a. or the higher statutory interest rate will be charged. In the event of a default on payment the customer also undertakes to reimburse Eppendorf for any reminder fees and collection expenses incurred in connection with the appropriate legal action. This shall, in any event, comprise enforcement costs in the amount of EUR 40.00 pursuant to sec. 458 of the (Austrian) UGB (Business Enterprise Code) as well as, pursuant to sec. 1333 para. 2 of the (Austrian) ABGB (General Civil Code), any and all necessary and appropriate costs for out-of-court enforcement or collection measures, e.g., costs resulting from the appointment of a collection agency or an attorney. The above shall be applicable without prejudice to further rights or claims by Eppendorf.
2.4 - If Eppendorf and the customer have agreed for payment to be made in instalments, Eppendorf shall be entitled to demand immediate payment of the full amount outstanding if instalments or accessory claims are not paid in time ("Terminverlust" (forfeiture of right to extended payment terms.))
2.5 - The customer may offset against claims of Eppendorf only if its counterclaim has been acknowledged by Eppendorf in writing or if it has been determined by a court.
2.6 - Any goods supplied by Eppendorf shall remain the property of Eppendorf until the purchase price and all related costs and charges have been paid in full. The customer shall inform us without delay in writing of any enforcement measures by third parties with regard to the goods, as well as of any damage or a change in ownership. As long as we retain title to the goods, such goods may only be sold, pledged or otherwise assigned if the customer informs of the name and business address of the buyer/entitled party and if Eppendorf gives its consent to that transaction. In the event of a resale, the claim for payment of the purchase price shall be deemed to have been assigned to Eppendorf as of now, and Eppendorf shall be entitled to inform the third-party debtor of such assignment at any time. In that event, the customer shall at the same time make a note to that effect in its books or on its invoices. Following the assignment, the customer is entitled to collect the receivables; however, Eppendorf reserves the right to collect the receivables itself as soon as the customer fails to duly meet its obligation to pay. If the customer defaults on payment, Eppendorf is entitled to reclaim from the customer any goods subject to the retention of title.
3. Delivery/Service by Eppendorf3.1 - A reasonable delivery period is deemed agreed; we carry out our deliveries/services without unnecessary delay. Unless explicitly agreed as binding, the delivery and service periods stipulated by Eppendorf shall be deemed approximate and non-binding. Partial deliveries shall be permitted.
3.2 - If Eppendorf is in default, the customer may only terminate the contract after having granted to Eppendorf in writing a grace period of at least 14 days and after such grace period has expired unsuccessfully. Claims for damages by the customer for non- performance or default, even in the form of contractual penalties, shall be excluded, except where the customer proves intention or gross negligence on the part of Eppendorf.
3.3 - If a delivery/service by Eppendorf is delayed for reasons for which Eppendorf is not responsible, e.g., events of force majeure or other unforeseeable events which cannot be remedied with reasonable means (strike, interruption of operation, traffic disruption, and sovereign acts), delivery obligations shall be suspended for the duration and to the extent of the impediment, and any time periods agreed shall be extended accordingly. Should the impediment continue beyond a period of two months, the customer and Eppendorf shall have the right to terminate the contract.
3.4 - Delivery/transport shall be at the customer's cost and risk ex works/warehouse. Risk shall pass to the customer upon handover of the ordered goods by Eppendorf to the chosen carrier, at the latest, however, upon leaving the works/warehouse. For reasons of packaging, partial deliveries may occur when several products are ordered. Costs arising from a delay in acceptance of ordered goods shall be borne by the customer.
3.5 - Eppendorf will only take back packaging materials if it has a statutory obligation to do so. Insofar as Eppendorf is under a take- back obligation pursuant to the provisions of the (Austrian) Elektroaltgeräteverordnung (Ordinance Regulating the Handling of Waste Electrical Equipment), an old instrument shall be taken back against payment of an allowance of EUR 200.00 to compensate for its collection or treatment.
4. Liability of Eppendorf4.1 - In cases of slight negligence a liability of Eppendorf shall be excluded with regard to damage to property or financial damage suffered by the customer, irrespective of whether such damage is direct or indirect, whether it is lost profit or consequential damage. The exclusion of liability shall also apply to technical or other consultancy services in any form whatsoever. In cases of slight negligence, Eppendorf shall be liable for personal damage suffered by the customer only to the extent that such damage is covered under the existing business liability insurance, and limited in amount to the sum insured of EUR 1.5 million.
4.2 - In cases of gross negligence, Eppendorf shall be liable for damage to property or financial damage suffered by the customer only insofar as such damage is covered under the existing business liability insurance, and limited in amount to the sum insured of EUR 1.5 million. The customer which has suffered the loss must prove gross negligence on the part of Eppendorf. If the customer is entitled to insurance benefits for the damage suffered, that amount shall be offset in full against the damages claimed.
4.3 - The customer must observe all instructions for use, processing guidelines, safety data sheets, generally recognised rules and regulations and the like which are relevant to the use and/or processing of products. If the customer is in violation of any of the above, such violation shall be considered the cause of the damage incurred on the one hand, while on the other hand Eppendorf's delivery/service shall be considered free from defects.
4.4 - Exclusion of liability pursuant to Items 4.1 and 4.2 shall not apply in the event of a duty to compensate under the (Austrian) PHG (Product Liability Act.) Any claims for recourse by customers or third parties vis-à-vis Eppendorf which are based on product liability pursuant to the Product Liability Act shall be excluded, unless the party entitled to seek recourse proves that Eppendorf has caused the error acting at least grossly negligent.
4.5 - Claims for damages of the customer shall be asserted in court within 12 months as from delivery/service or otherwise be excluded.
5. Warranty of Eppendorf5.1 - Drawings, illustrations, dimensions, and weights of the products offered by us in catalogues, brochures, data sheets or similar documents, as well as sample or test specimens shall be regarded as reference values and therefore as approximate, unless they have been explicitly designated as binding. Deviations caused by production shall be accepted by the customer if the underlying sample has been approved or if the deviations are immaterial. The customer must observe all instructions for use or similar documents by Eppendorf which are relevant to the use and/or processing of products.
5.2 - The customer shall notify us of any defects without delay upon receipt of the delivery/service, however, at the latest within five days as from delivery/service. Notice of hidden defects shall be given immediately when they are recognised; notification must be in writing and contain a description of the defect. Failure to comply with the foregoing shall result in the goods being deemed approved, and the right to assert claims for damages or warranty claims as well as the right to claim avoidance on the ground of mistake due to defects shall be excluded.
5.3 - If a delivery/service is defective, Eppendorf shall, at it's discretion, meet its primary warranty obligations by improving or replacing the rejected goods or order, or by issuing a credit note in the amount of their value. The customer shall return any defective goods without delay. Complaints shall not entitle the customer to withhold the full amount invoiced for the delivery/service affected by the defect; only half that amount may be withheld at the most and for no longer than until a replacement delivery has been effected. The customer must provide to Eppendorf a sample of the rejected delivery. In the event of an unjustified notification of defect, the customer shall reimburse Eppendorf for any and all costs incurred in connection with the examination of the alleged defects.
5.4 - The warranty period shall be six months as from delivery/service. The right of recourse vis-à-vis Eppendorf pursuant to sec. 933b para. 1 of the General Civil Code shall expire six months after delivery/service; thereafter no more liability arising from a recourse claim of the customer shall exist.
6. Intellectual property rights and Copyrights / Documents6.1 - To the extent that a third party raises justified claims against the customer on the grounds of an infringement of property rights which is caused by deliveries/services performed by Eppendorf and used in accordance with the contract, Eppendorf shall, within the framework of the warranty provisions pursuant to Item 5 and at its discretion and own expense, either obtain a right of use for such deliveries/services, or amend them so as to no longer infringe the property right, or replace them. Where this cannot be achieved at reasonable conditions, the customer shall have the statutory rights to rescission.
6.2 - The customer's claims shall be excluded to the extent that the property right infringement is caused by specific instructions of the customer, or by a use which was not foreseeable for Eppendorf, or by the customer amending the delivery/service or using it in combination with goods not supplied by Eppendorf.
6.3 - The customer shall be responsible for ensuring that workshop drawings provided by it do not infringe the property rights of third parties and shall indemnify and hold Eppendorf harmless in that respect in the event of recourse claims.
6.4 - The customer undertakes to use the delivery/service exclusively within the framework of what has been contractually agreed and/or is permitted by law, and to strictly comply with any license terms. This shall also apply to rights of Eppendorf to its website and to the content of the same, including without limitation texts, graphics, logos, trademarks, titles, programs, price breakdowns, and other services. Documents submitted by Eppendorf may not be made accessible to third parties or be copied or used other than for the agreed purpose.
7. Data protectionThe customer consents to Eppendorf collecting, storing, processing, and using by automated means the personal data provided by the customer (name, address, e-mail, bank account details, etc.) for the purpose of implementing this contract and to provide customer support; the customer may revoke its consent at any time.
8. Jurisdiction, applicable law, place of performance8.1 - The court having subject-matter jurisdiction for Vienna First District shall be the competent court for all disputes arising from this contract. Furthermore, Eppendorf shall have the right to bring legal action against the customer at its general place of jurisdiction.
8.2 - The contract and all rights and claims arising from it shall be governed by Austrian substantive law to the exclusion of the UN Sales Convention. The contract language shall be German.
8.3 - The place of performance for any and all deliveries/services under this contract shall be the registered offices of Eppendorf.