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General Conditions of Sale and Delivery

 

1. General


The following Conditions, which form an essential constituent part of the contract, shall apply to all our offers and supplies. No deviating or additional stipulations, in particular, Buyer's conditions of purchase, shall be binding unless accepted in writing by TraitGenetics GmbH. Our silence shall not be interpreted as implying our consent. Buyer, on the contrary, agrees that by his – also tacit - acceptance of our General Conditions of Sale and Delivery he accepts our Conditions as binding to the exclusion of his own conditions.
 
2. Offers

Our offers shall be without engagement. Any prices quoted will be net and, thus, plus the statutory value-added tax. The prices do not include any other taxes and charges, in particular consumption tax and inspection or test fees charged by governmental bodies. TraitGenetics GmbH shall be under no obligation to draw attention to any possibly charged taxes or fees. All offers shall be understood to include Buyer's obligation to bear all aforementioned costs, and no extra agreement to this effect shall be required.

3. Transfer of risk, place of performance

All deliveries will be made from Gatersleben. Gatersleben will be the place of performance for all obligations existing under a supply contract. Shipment will be at the customer's risk. Only Buyer shall bear any risk of loss of the goods during shipment.

4. Terms of delivery

Unless expressly agreed otherwise by the parties, the mode of shipment used shall be in the sole discretion of TraitGenetics GmbH. Unless expressly agreed otherwise in writing, all delivery dates and deadlines given by TraitGenetics GmbH will be without engagement, that is, the sole fact that any of the aforesaid dates or deadlines have been overrun will not entitle Buyer to withdraw from the contract or claim damages.

TraitGenetics GmbH shall be entitled to perform its services under the contract also by instalments, unless Buyer is not interested in such performance by instalments and has included a corresponding provision in the contract.

5. Obligations in respect of complaints

Buyer shall be obliged to lodge any complaints in respect of defects immediately upon receiving the shipment, at any rate, however, within 7 days of the receipt of the goods. As for the rest, the provisions of §§ 377, 378 HGB (German Commercial Code) shall apply. In case a complaint is lodged in due time, TraitGenetics GmbH will inform Buyer about the steps that will be taken in respect of the defective goods. Complaints shall be lodged in writing and shall include a concrete description of the defect(s).

6. Pricing

The price lists which are valid at the time of conclusion of the contract in question shall apply. If the contract term or individual partial deliveries extend over a longer period of time, the price lists which are valid at the time of the respective delivery shall apply.

7. Payment

Invoices shall be due for payment without any deduction 30 days after the invoice date. This shall also apply to invoices issued for partial deliveries, to which TraitGenetics GmbH is entitled under these Conditions.

If Buyer defaults in payment, he shall be obliged to pay interest on the money owned at a rate of 8 percentage points above the discount rate of Bundesbank, at a minimum, however, of 11 percentage points per annum.

Buyer shall be entitled to set off purchase price sums due from Buyer to TraitGenetics GmbH against Buyer's counterclaims only if Buyer's counterclaims are due and undisputed by TraitGenetics GmbH or Buyer has a final and binding legal title.

8. Withdrawal

TraitGenetics GmbH shall be entitled to withdraw from the contract, if it is not properly or timely supplied by its own suppliers and, in spite of making reasonable efforts, is not able to procure replacement supplies, thus making it impossible for TraitGenetics GmbH to make the supply to Buyer.

TraitGenetics GmbH may withdraw from the contract, if it is prevented from fulfilling its obligations under the contract for reasons not attributable to TraitGenetics GmbH, even if the reasons preventing it from fulfilling its obligations fall within its sphere. This shall apply, in particular, to events of force majeure, labour disputes, shortage of raw materials, cases of sickness, other interruptions, transport delays, etc.

In all cases where TraitGenetics GmbH withdraws from a contract for one of the reasons listed above, Buyer shall under no circumstances be entitled to claim damages.

9. Termination/cancelling of contract

If the contract is unilaterally terminated by Buyer, or if an order/partial order is unilaterally cancelled by Buyer, Buyer shall reimburse to TraitGenetics GmbH any costs incurred by TraitGenetics GmbH as a result of the contract termination/cancelling; this shall apply, in particular, to cancelling or withdrawal costs charged to TraitGenetics GmbH by its suppliers, costs incurred for purchasing goods which cannot be returned, and any other expenses incurred by TraitGenetics GmbH in the course of execution and termination of the contract, such as legal expenses, transport costs etc. If TraitGenetics GmbH defaults in providing its services, Buyer shall only be entitled to withdraw from the contract. Any other claims for damages shall be excluded.

10. Indemnity

Except for cases of intent or gross negligence, the liability of TraitGenetics GmbH for breaching major contractual obligations shall under any and all circumstances be limited to the amount of the normally foreseeable damage.

Except for cases of intent or gross negligence, TraitGenetics GmbH shall not be liable for any breach of other, immaterial contractual obligations.

11. Warranty

TraitGenetics GmbH warrants that its products and services conform to the descriptions contained in its catalogues, technical data sheets or any other product documentation submitted to its customers or to the state of the art. TraitGenetics GmbH does not warrant that the products and services provided by it will be fit for a specific purpose.

Buyer's claims under the warranty for any defects shall be limited under all circumstances to the right to demand rectification or replacement. Buyer shall be entitled to demand a reduction in the price or cancellation of sale, if the rectification or replacement is unsuccessful. The costs of rectification or replacement shall be for the account of TraitGenetics GmbH. Any further claims, in particular claims for damages, shall be excluded.

In the case of routine analyses involving the use of molecular markers, unless other limit values have been agreed in writing, a project shall be deemed to have been successfully completed and will be fully invoiced, if at least 90% of all data have been produced. TraitGenetics GmbH cannot accept liability for problems which are outside the control of TraitGenetics GmbH. Such problems may include, for example, the germinative capacity of submitted seeds, the quality of the submitted leaf or DNA material or the quality and suitability for evaluation of foreign markers used for the examination or alleles or null alleles which are difficult to identify.

12. Warranted qualities

Notwithstanding §11, the description of the purchased goods in catalogues, analysis reports and other documents of TraitGenetics GmbH is only intended for providing a precise designation and definition of the goods offered. The above descriptions must not be understood as a warranty of qualities in the sense of §434 (3) BGB (German Civil Code). To be considered as a warranty in the legal sense, the prior written confirmation of the Managing Director of TraitGenetics GmbH and the express note that a certain quality is to be warranted shall be required.

The products and services of TraitGenetics GmbH are intended for laboratory and research purposes and, unless expressly agreed otherwise, may not be used in any other way.

13. Technical consultancy

On customer's request, to the extent possible, we will provide advice to the best of our knowledge and without engagement on application related questions.

14. Reservation of title

TraitGenetics GmbH reserves title to all products and services delivered pending payment of the purchase price in full.

Buyer shall – as long as TraitGenetics GmbH's reservation of title is effective – not be entitled to dispose of the reserved goods, to put them in pledge or turn them over as security.

In case the reserved goods are attached by third parties, in particular, in case of putting of a pledge or levy of execution on Buyer's property, Buyer hereby undertakes to point out to the attaching party that the reserved goods are the property of TraitGenetics GmbH, and to immediately notify TraitGenetics GmbH, as well as to submit any documents required for an intervention. The costs of such an invention shall be for Buyer's account.

15. Industrial property rights and usufructuary rights

TraitGenetics GmbH does not guarantee that using or selling the delivered products and services will not infringe national or international industrial property rights and usufructuary rights of third parties. Thus, before using or selling the same, Buyer himself shall be obliged to make sure that no such rights of third parties will be infringed. Any claims for damages raised in this respect against TraitGenetics GmbH shall be excluded. Buyer undertakes to indemnify and hold harmless TraitGenetics GmbH from and against any claims for damages raised by third parties for any infringement of industrial property rights and usufructuary rights caused by Buyer's actions.

The same shall apply in respect of the use of services provided by TraitGenetics GmbH. Buyer shall ensure, in particular, that the supply of the material to be analysed will not infringe any international industrial property and usufructuary rights and will not result in harm to TraitGenetics GmbH. Buyer shall indemnify TraitGenetics GmbH from and against any claims for damages arising by reason of non-compliance with this requirement.

Buyer shall warrant that the material and information supplied (plant material, seeds, gene sequences, markers etc.) will be free from industrial property rights of third parties.

16. Export control regulations

Certain goods may be subject to German and foreign control regulations. In such a case, re-exporting them from the Federal Republic of Germany will be permitted only with the consent of Bundesamt für Wirtschaft/Bundesausfuhramt (Federal Office for Economics/German Federal Export Office) in Eschborn and of the competent authority of the importing country. Buyer shall be responsible for compliance with the relevant regulations up to the end user's location.

17. Confidentiality

TraitGenetics GmbH will treat in confidence any information received from the customer which is not in the public domain as well as any plant material supplied to it and will not make the same available to third parties.

18. Handling of material upon completion of project

Unless agreed otherwise in writing, the residual DNA, primers or seeds used in marker analyses will be stored for one year after completion of the project concerned. Unless expressly agreed otherwise between the parties, TraitGenetics GmbH will then be entitled to destroy the material.

19. Jurisdiction, governing law

In respect of any disputes arising under contracts, supplies and services, German law shall apply. Seller's seat shall be the place of jurisdiction for settling such disputes.

 
 
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