Terms of trade
These are the terms of trade of Entelechon Ltd.
1 General
1.1 These terms are part of all quotes and contracts made between Entelechon and all customers. They are also applicable for all future contracts and deliveries, even if not explicitly declared.
1.2 Diverging agreements or incompatible contract conditions of the customer are applicable only if they have been confirmed in writing by Entelechon. Entelechon hereby explicitly objects to notices from customers to their diverging terms of trade, except in cases where those terms are explicitly confirmed in written form.
1.3 Oral agreements with employees of Entelechon are only applicable if they have been confirmed in writing. This includes modifications of the written form.
1.4 In case we are prompted by economic or legal considerations to change these terms of trade, we will submit the latest version with typographical highlighting of the changes to our contract partners. If the contract partner continues the contractual relationship without any disaccord, he concludingly declares his agreement to the changes. A continuation of the contractual relationship in the aforementioned meaning is also given when Entelechon delivers a contractual service or partial service. If a contractual partner does not receive the modified terms of trade after a modification, all contractual conditions remain unchanged according to the previous terms of trade.
1.5 Along with sending the notice of changes to our contractual partners, we notify them of the possibility of objections and the consequences of non-objected continuation of the contract.
2 Quotes, acceptance, and delivery time
2.1 Quotes contained in brochures, advertisements etc. are – including contained prices – subject to confirmation and non-binding. All individual quotes are valid for 30 calender days, if no other period is specified on the individual quote.
2.2 Quotes from contractual partners are binding for 30 days. If we do not confirm the assignment within this period, the quote is considered declined.
2.3 Orders are confirmed in written form. They are valid according to the written confirmation as agreed. Changing the order volume requires a written confirmation by Entelechon.
2.4 The delivery time starts with the sending of the order, but not before the receipt of data, permissions, clearances, materials, and down-payments to be provided by the customer. The delivery time is deemed maintained if the product has been shipped or has been declared shippable in time.
2.5 If we are kept from shipping in time due to disturbances of acquisition, production, or delivery at Entelechon or our suppliers because of unforeseeable events beyond our influence, the delivery time is prolonged adequately. Unforeseeable events especially include force majeure, e.g. energy outages, traffic disturbances, strike, lock-outs, thunderstorms, etc. The above listing is not exclusive. Decisive for the definition of circumstances leading to a delay of delivery is whether we have any influence on them or not.
2.6 In this case, the customer can cancel the contract only if he/she sets an extension of the delivery time after the original delivery time has passed. The cancellation of the contract has to be made in writing.
2.7 If the fulfillment of the contract is partially or completely impossible due to reasons according to paragraph 2.2, Entelechon is released from its duty to deliver.
2.8 If Entelechon delays the delivery, or if the delivery is impossible due to reasons represented by Entelechon, the customer can cancel the contract according to the following conditions, or can demand compensation for damages because of failure of performance.
2.9 The extended delivery time to be set by the customer is hereby determined to be six weeks, starting with the receipt of the customer’s notice by Entelechon.
2.10 Compensation for damages because of failure of performance can only be demanded by the customer if we or assignees have acted deliberately or wantonly negligently.
2.11 The extended liability according to § 287 BGB is hereby excluded insofar as no deliberate or wantonly negligent behaviour by Entelechon or its assignees has caused the delay or damage.
2.12 If the customer has delayed payment for previous shipments, Entelechon is entitled to withhold deliveries, without this being considered a delay.
2.13 Entelechon is entitled to make partial deliveries.
3 Prices and modes of payment
3.1 Our prices are net prices. The VAT is to be paid according to the lawful amount of time in which it is due. Agreements on boni and other gratuities are applicable only under the condition that the customer is solvent and remains so until the full payment is made, and that a compulsory enforcement, if required, did not remain without result.
3.2 Entelechon is entitled to charge for 30% of the confirmed costs at the time of order confirmation.
3.3 Price changes are valid if more than four months have passed between the conclusion of contract and the agreed delivery time, or six weeks if the customer is entered as merchant in the commercial register (‘Vollkaufmann’) or is a legal person of public law.
3.4 If wages or the material costs have increased until the time of delivery, we are entitled to adjust the price accordingly and adequately. The customer is entitled to cancel the contract only if the price increases exceed the general inflation between order and delivery significantly.
3.5 The payment is due within 30 days after invoicing without deduction. Whether a payment is made timely or not, the time of receipt of the payment is decisive.
3.6 We can also make delivery dependent on immediate or advance payment.
3.7 If payment if over-due, we are entitled to charge interest of 3.6% above the discount interest of the European Central Bank, but not less than 10% per year. If we can bring forth evidence for a higher interest rate paid to our bank for loans, this interest rate can be charged.
3.8 We reserve the right to decide about the acceptance of bills and cheques from case to case. The customer fulfills his/her duties only if the bills and/or cheques are covered completely.
3.9 For bills, we charge discount and cost of collection which are due immediately. We do not guarantee timely collection or timely protest.
3.10 For those cases where a bill or cheque has not been collected timely, or where circumstances for the customer occur, which according to our notion do not ensure coverage, we can make the total sum due immediately, if the cheque or bill is returned at the same time. Additionally, we are entitled to demand securities for all other contracts or advance payments with the contractual partner, and we are entitled to cancel these contracts or to claim compensation for damage after a reasonable extended time limit because of failure of performance.
3.11 Only persons with a written authorization can accept payment. All payments with liberating effect have to be made to us or onto accounts indicated by us.
3.12 If the contractual partner does not specify a purpose for payment, we are entitled to determine which claim is fulfilled by a payment.
3.13 If the customer is entered as merchant in the commercial register (‘Vollkaufmann’) or is a legal person of public law, only the summation with unchallenged or legally determined counter-claims is valid. Additionally, the summation is only valid if indicated at least one month in advance.
4 Duties of the client at the delivery of materials
4.1 The client asserts that all genetically modified samples, products, or materials fall into risk category 1 of the genetic engineering law (‘Gentechnikgesetz’) and of the genetic engineering security decree (‘Gentechniksicherheitsverordnung’). He/she will provide all necessary data to ensure that the contractor can fulfill his duty for documentation. These data include especially information about donor and acceptor organism, and about vectors and DNA sequences used. If the client does not provide this information or if the provided information turns out to be incorrect, be it according to negligence or will of the client, the contractor can cancel the processing of the order and can declare the order to be invalid. In this case, all costs which occured so far have to be paid by the client. For all subsequent damage caused by incorrect information provided by the client, the client is liable.
4.2 The client is solely responsible for the sound delivery of sent samples, products and materials, as well as for the production of sent materials. The samples and materials must be in a condition which allows for the proper processing and fulfillment of the order. The contractor is entitled to reject samples and materials and to cancel the contract for important reasons, or to pause for an adequate time, if the samples and materials do not meet the requirements to fulfill the order.
4.3 The contractor is entitled to perform a testing of the delivered samples and materials prior to starting the ordered services to check their condition. The costs for this testing has to be paid by the client if the materials do not meet the requirements as noted in paragraph 4.2. If this testing yields the result that the processing of the materials is impossible or only possible under complicated circumstances – especially because the materials have been polluted or degraded or DNA sequences are not identical to the required DNA sequences – the contractor is entitled to cancel the contract according to the rules stated under 4.1. All costs which occured so far have to be paid by the client.
4.4 If the samples or materials possess properties or consist of substances which have not been mentioned by the client, and if the shipping is delayed because of this, the contractor is entitled to charge for additional costs incurred by this fact. The client has the right to cancel the contract in this case; all costs which occured so far have to be paid by the client. If due to any of the above mentioned circumstances fulfillment of the order is made impossible, the client has to pay all costs which were caused to the contractor so far.
5 Designation of manufactured materials
5.1 If no other agreement has been made in writing between the client and Entelechon, all materials produced by Entelechon, including modified samples, products, and materials and all developments of material and non-material nature, are solely intended to be used for research purposes.
6 Sample materials
6.1 Ownership of samples and materials sent by the client will be transferred to Entelechon if the materials are required to fulfill the contract. On the other hand, Entelechon can return unused materials on demand of the client. Any costs incurred by this shipment (transport, insurance, disposal, etc) have to be paid by the client.
7 Specific duties of the client for nucleic acids
7.1 We explicitly refer to paragraph 4.1.
7.2 If the products and analyses delivered by Entelechon contain nucleic acids or inforamtion about nucleic acids which have not been transferred by the client at the time of ordering, but which are the intellectual property of Entelechon, the propagation and utilization of any information provided by Entelechon required the explicit and written approval from Entelechon. The approval can be cancelled at any time. This also applies in those cases where the client retrieves data from his/her own analysis of the delivered materials. Those nucleic acid sequences which have been derived by Entelechon from the sequences provided by the client for the optimization of DNA sequences, are explicitly excluded from this regulation.
7.3 Delivered nucleic acids or nucleic acids containing products, which are based on the intellectual property of Entelechon, must not be copied, manufactured or amplified without the written approval of Entelechon. If material is propagated under the approval of Entelechon, the client is obliged to ensure by suitable contracts that the obligations of 7.1 and 7.2 are passed on to the acquirer.
7.4 The client is liable for any damage caused by any infringement.
7.5 Infringments of duties of the client according to paragraph 7 will be fined with a contract penalty which is at least 200% of the gross order volume.
8 Retention of title
8.1 Manufactured products remain the property of Entelechon until complete payment has been made.
8.2 If payment is overdue or if the client has acted contrary to the contract, we are entitled to retain or take back the products after appeal, and the client is obliged to return the products.
8.3 The assertion of the retention and the execution of delivery products by Entelechon do not imply the cancellation of the contract, if the regulations of the consumer loan law (‘Verbraucherkreditgesetz’) do not apply or if this has been acknowledged by us in written form.
8.4 If the client is entered as merchant in the commercial register (‘Vollkaufmann’), or is a legal person of public law, the additional regulations apply:
8.5 The products remain the property of Entelechon until the payment of all claims, including future claims resulting from the business relationship with the client, has been made. The retention of property is valid also in the case of conditional claims.
8.6 In the case of processing, assembly, or mixing of retained products in the sense of §§ 945, 948 and 950 BGB with other goods, which are not the property of Entelechon, Entelechon has co-ownership of the new goods amounting to the price including VAT quoted to the client. The client will keep the goods free of charge for us.
8.7 The client may resell the retained goods in duly business under retention of property or under immediate payment. The client is not allowed to any other usage, especially transfer by way of security or pawning.
8.8 In the case of reselling under the retention of property, the customer cedes at this time any claims from the reselling to Entelechon up to the amount of the gross invoice sum, including all ancillary rights against third party debtors, with the authority to confiscate the claim. We accept the cession at this time.
8.9 The client is entitled to collect the claims ceded to us. The collection is done on a trust basis and for our account.
8.10 In case circumstances which do not justify the granting of payment at the due time, for example delay of payment, or other, significant breaches of contract occur to the client, the client has to notify the debtors of the cession of claims in writing, and has to provide information and documents, as well as issue bills. For this purpose, the client grants access to his/her relevant documents for Entelechon.
8.11 In case the claims of the client resulting from reselling are taken into an open account, the client also cedes also his/her claims from this open account to us. The cession is done up to the amount of the reselling price of the retained goods including VAT, but only up to the total amount of claims from Entelechon.
8.12 Upon pawnings and confiscation or other dispositions by a third party, the client is obligated to give immediate written notice to Entelechon and to support Entelechon in every way possible and reasonable at the intervention.
8.13 The costs for the fulfillment of the aforementioned cooperation duties at the pursuit of all rights emerging from the retention of property and the costs for the maintenance and storage of the goods are to be paid by the client.
9 Passing of risks
9.1 If nothing else is determined in the order confirmation, the delivery will be ex factory.
9.2 The risk is passed on to the client with the shipping of a delivery at the latest. This applies also if a partial delivery is made or if other duties are taken on by Entelechon, such as shipping costs or delivery and setup. At the demand of the client, goods will be insured at his/her cost against theft, damage, shipping damage, fire and water damages, and any other insurable risks. If the delivery of the goods is delayed due to reasons for which the client is responsible, the risk is passed on the day, shipment was first possible. However, Entelechon is obligated to insure the goods against all insurable risks on the request and at the cost of the client.
9.3 The client is obligated to accept the delivered goods.
10 Warranty and liability
10.1 The warranty rights of the client require that he/she has fulfilled his/her duties for examination and reproval according to § 377, 378 HGB. The client has to examine immediately whether or not the delivered goods are in the condition agreed upon in the contract. If this examination is ommitted, is not conducted up to the necessary extent, or if discernable defects are not immediately announced to Entelechon, the delivered goods are deemed as accepted in regards of such defects. Notice of defects will only be accepted if they are received in written form by Entelechon within two weeks after acceptance of the goods. After this time, the delivery is deemed to be accepted without any defects, except for defects which have not been obvious. Entelechon is not obligated to return the ordered goods or to store them if they have been returned to Entelechon without prior approval by Entelechon.
10.2 During a period of six months after the acceptance of the delivered goods, the client is entitled to rectify defects and so is Entelechon. If goods need not be shipped to Entelechon, Entelechon is entitled to two attempts at rectification.
10.3 If nothing else results below, further claims of the client – no matter for what legal reasons – are excluded. Entelechon is not liable for damages which did not occur at the delivered goods; Entelechon is explicitly not liable for loss of profit or other damages to the assets of the client.
10.4 If the attempt at rectification fails finally, the client is entitled to reduce the invoiced amount or to cancel the contract.
10.5 Entelechon does not give a warranty for damages caused by: inappropriate usage, wrong assembly or setup by the client or a third party, natural wear and tear, inappropriate or negligent usage, inappropriate operating materials, exchange of materials, chemical, electrochemical or electrical influences, except if these influences are due to deliberate or negligent behaviour of Entelechon or assistants.
10.6 The client’s right to demand claims for defects is subject to a limitation period of six months, starting at the time of a timely claim demand. This right expires with the expiry of the warranty period at the earliest.
10.7 Of those costs incurred by the rectification or replacement delivery, Entelechon bears the costs of replacement, assumed that the objection turned out to be justified, including the shipping and reasonable costs for dismantling and installation, as well as – if reasonable in an individual case – the costs for assistants. All other costs are to be paid by the client. The shipping of objected goods to Entelechon has to be done with suitable packaging.
10.8 For faultily executed services, which have been performed on the basis of insufficient or defective information from the client, Entelechon does not assume liability, except for gross negligence from Entelechon or its assistants.
10.9 Our contract partners do not have the right – on the basis of the aforementioned rights – to retain other claims, which do not refer to the subject of the contract at hand.
11 Claims for compensation for damages and liability
11.1 Claims on the part of the client against Entelechon for compensation of damages due to impossibility, failure of performance, positive infringement of claims, and fault at the conclusion of a contract are excluded, except for claims based on deliberate or grossly negligent acts by Entelechon or its assistants.
11.2 If the client unjustifiably cancels an order, Entelechon can claim 10% of the selling price for the costs incurred by processing of the order and for lost of profit. This is independent of claims for actual higher damages. The client is obligated to prove a significantly lower damage or to prove that no damage occured at all.
11.3 Further liability on the basis of compensation for damages beyond the regulations of these terms is excluded, regardless of the legal nature of the asserted claims.
11.4 Insofar as the liability of Entelechon is excluded or limited, this extends to the individual liability of employees, representatives, and assistants of Entelechon.
12 Obligation to maintain confidentiality
12.1 The client is obligated to keep the composition and contents of goods delivered by Entelechon, and all developments they are based on, strictly confidential.
12.2 Accordingly, Entelechon is obligated to keep strict confidentiality about the content of orders and provided documents, especially for nucleic acid and protein sequences. All employees of Entelechon are obligated under written non- disclosure agreements to keep confidentiality about such information.
13 Observance of third party rights
13.1 If a client provides data to Entelechon for processing, the client is responsible for the legally unobjectionable content of the provided information.
13.2 The client ensures that no rights of a third party are infringed in connection with the delivery of ordered goods or services.
13.3 If a third party makes claims against Entelechon on the basis of intellectual property, patent or similiar laws, the client is obligated to exempt Entelechon from these claims on the first written demand; we are not entitled to make any agreements with a third party without the approval of the client, in particular no compromise settlement.
13.4 The obligation of the client to exempt Entelechon refers to all expenditures that arise for Entelechon due to claims by a third party.
14 Written form
14.1 Differing agreements have to be made in writing and require the written confirmation of Entelechon.
15 Storage of data
15.1 The client agrees that data arising from the contract or as a result of services and developments performed by Entelechon may be stored by Entelechon, even if this includes personal data.
16 Place of fulfillment, place of jurisdiction, applicable law
16.1 Place of fulfillment and exclusive place of jurisdiction for all claims between Entelechon and merchants in the commercial register (‘Vollkaufmann’) or legal persons of public law is Regensburg, Germany, if no other compelling reasons are opposed. We have the right to institute legal proceedings against a client at his/her legal place of jurisdiction.
16.2 The only applicable law is German law. The United Nations Convention on Contracts for the International Sale of Goods – CISG does not apply and is hereby excluded.
17 Final clause
17.1 Should any of the above mentioned clauses or parts of them be ineffective, this shall not affect the validity of the remainder of these terms. The parties will then agree upon regulations which mimic the originally desired economic result as closely as possible.