Terms of Service
General Terms and Conditions of Cellbricks GmbH
(April 1, 2019)
1. Scope
1.1 These General Terms and Conditions (the "GTC") shall apply to all contractual agreements regardless of their nature and content (hereinafter referred to as "Contract") between Cellbricks GmbH (hereinafter referred to as "Cellbricks") and Customers of Products (the "Customer") in the version valid at the time an order is being placed. The following provisions only apply to entrepreneurs within the meaning of § 14 German Civil Code (“BGB”) as well as to legal entities and/or special funds under public law. Section 2.1., however, shall also apply to consumers within the meaning of § 13 BGB.
1.2 All offers and deliveries of products and services sold/provided by Cellbricks (the "Products") shall be made exclusively on the basis of these GTC, unless the parties have agreed otherwise. This shall also apply to all future transactions with Customer without the need for express reference in the individual case. In the event that orders are placed via the web shop of Cellbricks (the "Webshop"), Customer shall also observe the Terms of Use (hereinafter referred to as “ToU”) in their currently valid version provided by Cellbricks regarding proper use of the Webshop. The ToU herewith are made an integral part of the Contract.
1.3 General terms and conditions of the Customer deviating from the GTC or ToU shall only apply if expressly confirmed by Cellbricks in writing prior to or upon conclusion of the Contract. Such general terms and conditions of Customer shall apply only to the specific Contract agreed to. Any reference to correspondence, which contains or refers to general terms and conditions of Customer or any third party does not constitute agreement with the application of such general terms and conditions.
2. Conclusion of Contract
2.1 Cellbricks’ Product offers are not directed to consumers as defined in § 13 BGB. Customer herewith confirms that he is acting as entrepreneur within the meaning of § 14 BGB when submitting his offer. Cellbricks reserves the right to subject its acceptance of orders to a prior verification of the Customer's entrepreneurial status. Contracts between Cellbricks and Customer may be concluded in German and English language. 2.2 Offers of Cellbricks are non-binding and subject to change. Notably, any presentation of the Products in the Webshop and/or by other means does not constitute a legally binding offer on the part of Cellbricks. Cellbricks is not oblige to accept orders from Customer. A binding Contract shall require a written confirmation of Customer’s offer by Cellbricks or Cellbricks beginning performance of its duties as described in such offer. An order confirmation sent by Cellbricks does not constitute an acceptance of Customer’s offer.
2.3 The terms of the Contract will be stored by Cellbricks and a copy will be transmitted to Customer together with the applicable GTC via e-mail to the e-mail address provided by Customer. Due to the fact that the processing of the order as well as any following communication in connection with the Contract are generally made via e-mail, Customer will ensure that the e-mail address provided is correct and that no settings in Customer’s e-mail account or filter devices prevent or delay the receipt of such e-mails. To the extent Customer does not explicitly request encrypted communication when placing his order, e-mail communication with Customer will not be encrypted.
2.4 When placing an order, Customer shall provide Cellbricks with all data relevant for the proper execution of the order, in particular an address for invoicing as well as for shipping (if applicable) and his VAT identification number (if available). In addition, Customer shall provide Cellbricks with contact information (in particular a telephone number and a valid e-mail address) of a person who is sufficiently familiar with the order and has the power to give and receive any notices and communication relating to the Contract.
2.5 The Products are intended exclusively for use in laboratories that have the necessary technical equipment to protect against damage to humans, animals and material and are officially approved. The use of the Products in or on humans or animals is in no case part of the contractually agreed purpose and strictly prohibited. Unless otherwise agreed, the contractually allowed place of use shall be limited to the territory of the Federal Republic of Germany.
3. Data and Information provided by Customer
3.1 Cellbricks assumes that all data, information, materials and models (in particular data or specifications for the manufacture of certain structures of the Products) (the "Customer Data") transmitted to Cellbricks by the Customer neither are subject to any industrial property rights or copyrights nor are information, business secrets or know-how of the Customer which are to be kept secret, unless the Customer (i) has expressly pointed out such fact when placing his order and (ii) the parties have concluded a separate written agreement on the secrecy of the Customer Data.
3.2 Cellbricks shall be entitled use Customer Data without restriction, notably to process and modify it and to use it for offerings of Products to third parties; restrictions arising from confidentiality agreements concluded in accordance with the above clause 3.1 shall remain unaffected.
3.3 Customer guarantees that the Customer Data are not encumbered with any third party rights and that their use by Cellbricks within the scope of the execution of the Contract does not infringe the rights of third parties.
3.4 Customer shall indemnify and hold harmless Cellbricks upon first request against any claims by third parties arising from a breach of the obligations contained in this Clause 3, as further detailed in Clause 9.2.
4. Prices and terms of payment
4.1 Unless stated otherwise, all prices quoted by the Cellbricks regarding the Products are exclusive of statutory value-added tax and any insurance and/or shipping costs.
4.2 Cellbricks shall be entitled but not obliged to issue or transmit invoices within the meaning of § 14 UStG exclusively in electronic form and by electronic means. Customer agrees to the receipt of electronic invoices.
4.3 Amounts invoiced by Cellbricks are due for payment without deduction within 14 days of receipt of invoice by Customer. In the event of the parties having agreed to delivery of Products to Customer only after down payment or to advance payment, Cellbricks shall be entitled to refuse delivery of Products prior to receipt of the agreed amount (including any shipping and/or insurance costs) on the bank account specified by Cellbricks.
4.4 Cellbricks shall be entitled to subject its acceptance of Buyer’s order to an advance payment. In the event that, after conclusion of the Contract, doubts about the solvency or willingness of Customer to pay arise, Cellbricks shall be entitled to refuse performance under the Contract until an advance payment or has been made or security provided by Customer.
5. Handover / Delivery
5.1 Dates and/or deadlines for handover/delivery shall only be binding if and to the extent (i) they have been confirmed by Cellbricks in writing and (ii) Customer has provided Cellbricks with all information and documents required for proper execution of the Contract and has made any advance payments when due. In the event that after conclusion of the Contract the Parties agree to any additional or changed terms or deliverables, which may affect the agreed handover/delivery dates of the Products, any dates or deadlines shall be waived and the parties shall agree to appropriate new dates and deadlines.
5.2 Unless otherwise agreed, delivery of Products shall be ex works (Incoterms 2010) from Cellbricks' actual storage premises of the Products, if no other location has been specified in the offer or the order confirmation. In case of divergance, the specifications in Cellbricks’ order confirmation shall take precedence over those in the offer.
5.3 Cellbricks shall notify the Customer in writing when Products are ready for takeover by Customer. Customer shall take over the Products at the location set forth in Clause 5.2 within five (5) working days after receipt of such notification; thereafter, Cellbricks shall be entitled to either arrange for the storage of the Products at the expense of Customer or request payment of a lump sum storage fee of EUR 25.00 per day.
5.4 Cellbricks shall be entitled to make partial deliveries of Products provided that such partial delivery can be reasonably used by Customer as per the purpose of the Contract. If Cellbricks is in default with the delivery of any of the remaining Products, Customer may only withdraw from the entire Contract (i) after an additional grace period set by Customer in writing of at least two weeks has expired and (ii) provided that the outstanding Products cannot be procured from a second source and the Products delivered are of no interest to Customer.
5.5 Unless otherwise agreed between Cellbricks and Customer, Products shall be handed over / delivered in standard packaging. To the extent permitted by applicable laws, Cellbricks will not take back transport packaging or any other packaging. Customer shall dispose of such packaging at its own expense.
5.6 Customer may request in its offer to have the Products delivered at its cost to a different address than that in Clause 5.3. Cellbricks then shall, in its sole discretion, dispatch the Products to Customer or have them dispatched by a reasonably suitable means of transport (shipping company, route and type of dispatch). Within reason, Cellbricks shall take into account Customer’s additional requests regarding transportation. Subject to the following provisions, Cellbricks shall only take out insurance for the Products to be shipped at Customer's written request and expense.
6. Performance delays / obstacles
6.1 Should Cellbricks’ performance under the Contract be delayed as a result of any events not imputable to Cellbricks, any delivery times / periods shall be extended for the duration of such impediment. Cellbricks shall inform Customer of the occurrence and the expected duration of such an event without undue delay. Should the performance of Cellbricks’ obligations under the Contract become impossible or unreasonably burdensome due to such an event, Cellbricks shall be entitled to withdraw from the Contract. Any right of Customer to withdraw from the Contract due to performance becoming impossible (as perd §§ 275 Sec. 1, 326 Sec. 5 BGB) shall not be affected by any extension of the delivery period pursuant to sentence 1 above.
7. Warranty
7.1 Any warranty claims against Cellbricks are limited to the Products conforming (i) to the specifications given by Buyer at the time of delivery, (ii) in case no specifications have been given, Products shall conform to the specifications stated in the Webshop and any additional requirements / properties which Cellbricks has confirmed in writing prior to conclusion of the Contract. In particular, Cellbricks shall not be liable (i) for any purposes / objectives of a technical or economic nature pursued by the Customer with the Products or (ii) if and insofar as a defect or damage is based on the fact that the Products are used other than for the contractually stipulated purposes or contrary to applicable laws.
7.2 All information and statements in the Webshop, in catalogues, price lists and other informational material provided to Customer by Cellbricks, in particular descriptions, dimensions, weights and technical data as well as any graphic visualizations of the Products, are to be understood merely as approximative, unless and to the extent the suitability of the Products for the contractually agreed use requires exact compliance of the Products with such information. Such information merely describes the Products and is no guarantee, warranty or covenant of certain properties. A guarantee in the legal sense shall only be assumed if Cellbricks has granted such guarantee in writing, using the term "guarantee" or a similar term (e.g. promise, guarantee).
7.3 Customer may not reject acceptance of the Products due to minor defects.
7.4 Customer shall inspect the Products immediately upon delivery to Customer respectively the person designated by Customer as the recipient and, if defects become apparent, inform Cellbricks thereof in text form without undue delay - at the latest five (5) working days after delivery. Otherwise, the Products shall be deemed to be in conformity with the Contract, unless the defect was not recognizable during inspection. If such hidden defect becomes apparent later, Cellbricks must be notified of such hidden defect in text form without undue delay, at the latest five (5) working days after discovery. Otherwise the Product shall be deemed approved with regard to this defect, too.
7.5 Following such notification of any defect, Cellbricks shall have the right to inspect and examine the respective Products, for which Customer shall grant to Cellbricks the necessary time and opportunity. Cellbricks is entitled to have the defective Products be returned to Cellbricks at Cellbricks' expense. If the complaint of defectiveness turns out to be unjustified, Customer shall bear the costs of return shipment and Cellbricks’ costs of assessment.
7.6 Cellbricks shall remedy defects subject to warranty at its own discretion by either repair or replacement within a reasonable period of time free of charge for Customer. Cellbricks shall have two attempts to remedy such defect, before Customer is entitled to any other statutory warranty claims.
7.7 All warranty claims based on material defects or defects in title shall become statute-barred within one year after delivery. This does not apply to Customer’s claims based upon defects being fraudulently concealed by Cellbricks and to claims based upon guarantees issued by Cellbricks. The provision of § 202 Abs. 1 BGB shall remain unaffected. All claims for damages, which do not result from the defectiveness of Products shall be governed by Clause 8.4 below.
7.8 Any rights of Customer pursuant to §§ 445a, 445b and 478 BGB, and under the Product Liability Act, shall remain unaffected by the foregoing limitations of warranty rights.
8. Liability
8.1 Cellbricks shall be liable for damages and expenses only insofar as these result from gross negligence or intentional breach of any duties by Cellbricks, its legal representatives or any persons Cellbricks has assigned to execute any of its obligations under the Contract. This limitation of liability does not apply to damages,
• which are based on the breach of an obligation, the fulfilment of which is essential for the proper performance of the Contract and on the observance of which the other party may regularly rely on (essential contractual obligation), or
• resulting from injury to life, limb or health.
8.2 In any case of liability, liability of Cellbricks shall be limited to the amount of the damage foreseeable at the time of the conclusion of the Contract and typical for this type of transaction.
8.3 All liability claims against Cellbricks will become time-barred twelve months after the occurrence of the damaging event. § 202 Abs.1 BGB shall remain unaffected.
8.4 Liability of Cellbricks according to the Product Liability Act and the General Data Protection Regulation (GDPR) shall remain unaffected by the above limitations of liability.
9. Indemnification
9.1 Irrespective of any eventual liability for defects in kind or in title on the part of Cellbricks, Customer shall ensure that Products are used exclusively in a way that no rights of third parties nor other legal provisions - in particular provisions of criminal and/or penal nature, competition laws and public laws - are violated. Customer herewith asserts that he possesses all necessary official approvals and will observe and comply with all applicable laws for acquisition, import, possession, contractually agreed use and/or resale/transfer of the Products.
9.2 In the event that any third party or public authority allege claims against Cellbricks, its representatives and/or employees based (i) either on an alleged violation of such rights or regulations or (ii) upon Customer violating its duties under Clause 3, Customer shall – at first request - indemnify and hold harmless Cellbricks and the aforementioned persons against such claims and reimburse any costs and fees incurred in defense of such claims. Customer shall also indemnify and hold harmless Cellbricks and the aforementioned persons against all legal costs, fees, contributions, fines and taxes arising from or as a result of the possession and/or use of the Products.
9.3 Customer asserts that at the time of submitting his offer, he is not aware of any circumstances putting in doubt his ability to properly and timely fulfill Cellbricks' payment claims, such as overindebtedness or insolvency within the meaning of the German Insolvency Code (InsO) or any other equivalent statute applicable to Customer.
9.4 Cellbricks shall be entitled to refuse execution of Contracts and/or the delivery of Products if Cellbricks reasonably believes that Customer
• may not lawfully acquire, import, possess and/or use the Products due to an imminent violation within the meaning of Clause 9.1, until Customer can sufficiently prove to Cellbricks by written documentation that it meets such requirements;
• due to overindebtedness and/or insolvency within the meaning of Clause 9.3 will not be able to settle Cellbricks’ payment claims.
10. Miscellaneous
10.1 Any provisions and/or regulations deviating from these GTC or the stipulations of the Contract shall require the written form. This shall also apply to the cancellation or amendment of this written form requirement. This provision does not affect the validity of any individual terms the parties may agree upon in an individual case.
10.2 Subject to any mandatory foreign and/or European applicable laws, the relationship between the parties shall be exclusively governed by the laws of the Federal Republic of Germany, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.3 Provided that Customer is a merchant, a legal entity or a special fund under public law, Berlin shall be the place of performance and exclusive place of jurisdiction for all disputes arising from and in connection with the Contract and its validity. Cellbricks may also institute legal proceedings at Customer's place of incorporation or place of business.
10.4 Should any one or more provisions of these GTC be invalid in whole or in part, this shall not affect the validity of the remaining provisions.
10.5 Customer may only assign any claims against Cellbricks to third parties with the prior written consent of Cellbricks. § 354a Sec. 1 of the German Commercial Code (HGB) shall remain unaffected.
10.6 Customer may only set off undisputed claims and claims asserted in unappealable judgment against Cellbricks’s claims. The same applies in case Customer intends to avail itself of a right of retention.