General Standard Terms and Conditions
CLS Cell Lines Service GmbH (CLS), Dr.-Eckener-Str. 8, D-69214 Eppelheim
1. Scope of Application
1.1 These General Terms and Conditions for Deliveries and Services shall apply exclusively to research institutes, entrepreneurs (§ 14 German Civil Code), legal entities under public law or special funds under public law (hereinafter referred to as “Customers”).
1.2 The applicability of the Customer's general terms and conditions is excluded unless CLS has expressly accepted them in writing in advance. The execution of the Customer's orders shall not result in the recognition of the Customer's general terms and conditions, even if CLS does not expressly object to them.
1.3 If the Customer has accepted CLS's General Terms and Conditions after submission, they shall also apply to future deliveries and services to Customers.
2. Contents of Services, Intended Uses
2.1 CLS supplies products for use in medical, scientific and pharmaceutical research. As a matter of principle, the products are not intended for use in living human organisms (in vivo) or for therapeutic purposes in general. The customer is not permitted to use the products for such purposes.
2.2 The Customer is not entitled to use the Products for purposes other than research. In particular, further commercial exploitation is not permitted. If and to the extent the Products have been manufactured by CLS under license for third parties, Customer shall comply with the third-party license terms provided to it by CLS and may use the provided Products only in accordance with such license terms and within the scope of the rights of use granted therein. CLS shall inform the Customer of any existing third-party property rights prior to the conclusion of the contract.
2.3 Properties of the products are owed by CLS only if such properties are specified by CLS or promised to the Customer.
2.4 The Customer shall be responsible for proper handling of the product after delivery. The material must be handled by trained specialist personnel in a laboratory environment which is up to date. Cold chains are to be observed. Current safety standards are to be taken into account.
3. Offers, Conclusion of Contract
3.1 General information provided by CLS on available products does not constitute a binding offer.
3.2 Orders of the Customer shall lead to the conclusion of the contract if the Customer accepts a binding offer of CLS within the binding period with the same content or if CLS confirms in writing or executes orders of the Customer which were not based on a binding offer.
3.3 Silence or inactivity on the part of CLS shall not constitute consent to the execution of an order. Verbal agreements shall be confirmed in writing.
3.4 By placing an order for a GMO Product, the Customer declares that it has received approval from the Federal Office of Consumer Protection and Food Safety within the meaning of the Genetic Engineering Act (or, in the case of a delivery outside Germany, comparable approval required under the applicable regulations there, if any). CLS has the right to request a copy of such approval. In cases of doubt, the Customer must submit a publicly certified copy. The Customer further declares that it will only work with the products at a suitable location in accordance with the rules and regulations applicable in the country of delivery, usually a laboratory of biological safety level 1 or 2.
3.5 If the ordered products are pathogens or material containing pathogens, they will only be delivered to persons acting on behalf of state human or veterinary medical testing facilities or who have the appropriate authorization from the competent authorities. The Customer must provide CLS with the name of the issuing authority, the name of the project manager and the reference number of the official permit when placing the order. In this case, the order will only be delivered to the permit holder or project manager personally.
3.6 In the event that the Customer fails to prove upon request from CLS within a reasonable notice period that it has the required permits, CLS may withdraw from the Agreement. In this case, CLS can demand 90% of the agreed License Fee for the minimum term of the Agreement as fixed compensation for the damage incurred. The Customer has the right to prove that CLS has suffered less or no damage at all. In this case, the fixed compensation shall be reduced accordingly.
4. Prices, Terms of Delivery, Terms of Payment
4.1 The prices agreed with the Customer are binding and are net prices plus statutory value-added tax (if applicable). There shall be no entitlement to price reductions and discounts, unless such have been agreed with CLS in advance.
4.2 Unless otherwise agreed, CLS shall in principle deliver FCA place of business CLS, INCOTERMS 2020. Notwithstanding the foregoing, Customer shall bear the costs of packaging provided for shipment with appropriate refrigeration facilities and for dry ice. If CLS is responsible for shipping at Customer's request, the shipping costs will be listed separately on invoices. The Customer shall ensure whether and that in the country of receipt or transit the respective statutory and official regulations on markings and notification requirements are complied with and that import is possible, unless CLS has contractually undertaken to comply with them.
4.3 The respective terms of payment shall be governed by the agreement reached with CLS. In the absence of an express agreement, payment shall be made “step by step”, which means that handover to carriers shall be conditional upon payment by the Customer. If payment terms have been agreed, the customer must make payment within 30 days net after the invoice date. A discount deduction is not allowed. The place of performance for payments shall be CLS's place of business.
4.4 If the Customer is in default of payment, CLS shall be entitled to interest on arrears at a rate of 8 percentage points above the respective base interest rate. CLS reserves the right to claim further damages for delay.
5. Offsetting, rights of retention
5.1 Set-off by the Customer is excluded unless the Customer's claims are undisputed, ready for decision or have been finally determined by a court of law.
5.2 CLS shall be entitled without restriction to the rights of retention provided by law. This applies in particular in the case of advance performance obligations if there is a significant deterioration in the Customer's financial situation. In this case, CLS may, at its option, demand advance payment or provision of security and, if this is not provided, withdraw from the contract or demand damages in lieu of performance in accordance with the statutory provisions.
6. Dates, Deadlines, Partial Delivery
6.1 Delivery dates or periods shall be determined by CLS to the best of its knowledge, but shall not constitute binding dates.
6.2 Agreed dates and periods shall be reasonably extended in the event of force majeure or other circumstances beyond CLS's control caused by unforeseeable and unavoidable circumstances such as official orders or legal changes, strike, lockout, import or export bans. If and insofar as such obstacles continue uninterruptedly for more than one month, each contracting party shall have the right to withdraw from the contract by written declaration to the other contracting party. Insofar as the respective impediments are not the responsibility of one contracting party, the other contracting party may not derive any further rights or claims against it therefrom, irrespective of the legal grounds.
6.3 CLS is entitled to make partial deliveries to a reasonable extent. If CLS has agreed with the Customer on partial deliveries, CLS may charge the Customer for any additional costs incurred as a result.
7. Default in Acceptance by the Customer
7.1 If the Customer is in default of acceptance with the consequence that CLS has to store goods ordered for the Customer, the Customer shall pay all additional expenses incurred by CLS as a result, in particular storage costs.
7.2 In the event of default in acceptance, the risk of accidental loss and deterioration of the goods shall pass to the Customer.
8. Transfer of ownership, limitation of rights of use
8.1 Orders for Cells and other materials from CLS (“CLS Material”) are regularly provided under a Supply Agreement or Material Transfer Agreement which for the Customer constitutes the right to use the CLS Material as specified therein. By delivering the CLS Material to the Customer, the Customer is therefore only permitted to use the CLS Material in accordance with the regulations in the respective supply contract and under no circumstances does CLS transfer ownership of the CLS Material to the Customer. Only if expressly agreed, orders delivered by CLS constitute purchase contracts. In the case of such purchase contracts, CLS retains title to the Deliveries until full payment by the Customer (retention of title). The use of the products is limited to the contractually agreed purposes. The scope of the permitted use shall be determined by the contract concluded with the respective order. If the products are provided to the customer for use only for a limited period of time, transfer of ownership shall not take place. Commercial transfer to third parties is not permitted unless CLS and - unless CLS is the unrestricted owner of all rights to the Products - other holders of rights to the Products have given their express prior written consent thereto.
8.2 The retention of title shall apply until full payment of all claims of CLS arising from the business relationship with the Customer.
8.3 The type and scope of permissible use shall follow from the respective Material Transfer Agreement to be concluded with the Client. The Customer is obligated to return or destroy the product after expiry of the period of use. The details follow from the respective Material Transfer Agreement. If third parties are entitled to rights to delivered products, the customer must in such cases fulfill the conditions communicated to him upon conclusion of the agreement in order to obtain their consent to use.
8.4 CLS has the right to be identified and have its products mentioned in any Publication, in the research of which such products were used, and the Customer shall expressly name CLS and its respective products in any such Publication.
- For this purpose, Publication shall mean any publications, in whatever form, in particular, but not limited to all academic or scientific papers, patent applications or other research and experimental descriptions.
- Material provided by CLS shall be deemed used in research, if the Publication is based on any research or experiments in which products supplied by CLS were used, regardless of whether and to what extent the material was relevant to the outcome of such research or experiment.
- The right to be identified and have material mentioned in any Publication further applies to any supplier which provides materials to CLS, if such material is used in the underlying research. In case a Publication refers to such Material, CLS is entitled to inform the provider of the Publication and to pass on the Customer's data to the provider for this purpose.
- The Customer will subject any third-party which is designated to conduct research with materials provided by CLS to an obligation to the same extent as under this clause 8.4. If applicable, the Customer will obtain the consent of any such Transferee for his data to be transferred to a Provider. For the avoidance of doubt, this does not grant the Customer any right to transfer the material to third parties; this is only permitted if and insofar as it has been expressly authorized by CLS under the Material Transfer Agreement.
9. Transfer of risk, obligation to inspect and give notice of defects
9.1 The risk shall pass to the Customer depending on the agreed terms of delivery. In the event of delivery by handing over the goods to a carrier, the risk shall pass to the Customer as soon as CLS hands over the goods to the carrier.
9.2 The Customer shall immediately inspect the goods for defects upon delivery in the ordinary course of business. The Customer must give notice of any defects discovered by him without undue delay. The notice of defects must be precise and must be in writing.
10. Defect rights, liability for defects
10.1 CLS guarantees the viability of the cells at the start of culture for a period of sixty (60) days after shipment of the cells from the CLS facilities. CLS warrants that all material, except cells, will conform to the specifications set forth on the Certificate of Analysis and/or Product Sheet for a period of sixty (60) days after shipment of the material from the CLS Facilities. The warranties set forth in this paragraph shall apply only if the material is handled and stored in accordance with the specifications on the product sheets and if Customer reports the defect within sixty (60) days of shipment. CLS shall have the sole discretion to either (1) refund any amounts paid to CLS for the Material or (2) replace the CLS Material. Shipping and/or handling charges shall be borne by Customer.
10.2 If and to the extent CLS delivers products whose use depends on licensing by third parties, Customer shall only be entitled to use the products to the extent and to the extent provided for in the respective license terms agreed with Customer and if license fees to be paid have been provided. CLS shall not assume any liability for the infringement of third-party intellectual property rights in such cases, unless CLS has culpably caused the infringement of intellectual property rights.
10.3 If defects occur, the Customer must prove their existence at the time of transfer of risk. Unless CLS justifiably raises the objection of omitted or delayed notification of defects, CLS shall, at its own discretion, effect subsequent performance in the event of defects by means of new delivery or rectification. If it is not possible to remedy the defect and a new delivery is also excluded, the Customer shall be entitled to a reduction of the purchase price. Withdrawal from the contract due to defects shall be excluded unless there is a material breach of duty.
10.4 The Customer shall be entitled to the statutory claims for damages due to defects with the following modifications: CLS shall be liable in accordance with the statutory provisions in the event of intentional and grossly negligent conduct, non-compliance with guaranteed characteristics, fraudulent concealment of defects and personal injury. In the event of a breach of material contractual obligations, liability shall be limited to the typically foreseeable damage if caused by slight negligence.
11. Cancellation and return of CLS Material
11.1. The Customer may enquire a cancellation of the order for CLS Material (the “Order”). CLS may accept such cancellation of the Order at its own discretion. If the Order concerns CLS Material that has to be produced for the Customer, CLS will only accept a cancellation if the CLS Material has not been produced yet. This request for cancellation does not exclude any statutory rights the Customer has for dissolving or withdrawing from the Order.
11.2. In any case that the Customer exercises a right for termination or cancellation of the contract (for whatever legal reason) or has the obligation to return CLS Material, he has to send the CLS Material to CLS by a recognized courier service (e.g., UPS, FedEx, DHL, Go!). The Customer has to notify CLS immediately after he hands over CLS Material to the courier service. CLS shall not be in default of acceptance until the CLS Material has been delivered to CLS by such courier service.
9.3. The Customer shall bear all costs for the usage of a courier service. This does not apply if the Customer returns the CLS Materials because of a defect of the CLS Material, in particular for subsequent performance (“Nacherfüllung”) by CLS or if CLS specifically demands that the Customer returns the CLS Material.
12. Limitation periods
The statute of limitations for claims against CLS shall generally be governed by the statutory provisions, except in the case of claims based on defects. In the case of such claims, the limitation period shall be 12 months from delivery, unless the claim has been brought about by intentional conduct or fraudulent concealment of defects.
13. Confidentiality, Data Protection
13.1 The Customer is obliged to treat as confidential all information provided to it by CLS, details of products and prices, insofar as these are not publicly disclosed, and not to bring them to the attention of third parties without the prior consent of CLS.
13.2 CLS is entitled, within the framework of the provisions of data protection law, to further process and store the data provided to CLS by the Customer for the purpose of executing the order. The Customer shall also use the data provided to it by CLS only for the execution of concluded contracts and contractual purposes and, in cases of doubt, shall consult with CLS in advance.
14. Place of performance, place of jurisdiction, applicable law
14.1 The place of performance for deliveries and services shall be the registered office of CLS.
14.2 The exclusive place of jurisdiction - including international jurisdiction - for all disputes arising directly or indirectly from the contractual relationship shall be the place of business of CLS. CLS shall, however, be entitled to bring an action at the Purchaser's general place of jurisdiction. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
14.3 The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG; UN Sales Convention).