General Terms & Conditions New England Biolabs GmbH
I. Application
1. These General Terms and Conditions („GTC“) are the terms and conditions under which New England Biolabs GmbH („NEB”, „we”, „us”, or „our”), an affiliate of New England Biolabs, Inc., sells products, services, and/or products resulting from services (collectively „Products”), to its customers, irrespective of the channel through which the contract is concluded, e.g. via our Internet shop, an interface or other digital channel (e.g. a platform) or by e-mail, fax, telephone or post, etc.
2. These GTC apply exclusively. Deviating or conflicting terms and conditions are not recognized by us and are hereby rejected unless we have expressly agreed to them in writing.
3. These GTC, in the version in effect at the time of customer’s order or in any case in the version last communicated to the customer in text form, will also govern all future transactions for Products between the customer and us and will also apply despite our knowledge of deviating or conflicting conditions, unless, in each case, such transactions are subject to a written agreement entered into by the customer and us.
4. These GTC apply vis-à-vis all customers who are not consumers within the meaning of § 13 BGB (German Civil Code). In particular, these GTC apply to entrepreneurs, governmental entities and special governmental estates under public law within the meaning of § 310 BGB. We do not sell to consumers due to the health risks associated with some of our Products. By placing an order, the customer confirms that the customer is not a consumer. Our Products are not intended for consumers, and we advise the customer against passing them on to consumers.
5. These GTC, which include all documents incorporated herein by reference, any quotation and related documents issued to the customer from us and related to or referencing the Products, and those specific terms of a purchase order or other document that are either consistent with these GTC or expressly agreed upon by us in writing, constitute the entire contract between us and the customer relating to the subject matter hereof, and supersede all prior agreements and understandings between us and the customer, whether written or oral. Any additional or different terms and conditions are hereby rejected and will be void. In the event of a conflict, a quotation, together with any other related documents issued to the customer from us or our affiliates, takes precedence over these GTC, and a written contract covering the same subject matter signed by the customer and us takes precedence over both.
II. Conclusion of Contract
1. Our offers will be subject to change and non-binding, unless they are expressly marked as binding or contain a certain acceptance period. Presentations and promotion of Products in our online shop do not constitute binding offers to conclude a contract for the purchase and sale of Products.
2. The legally binding order is placed via the online shop by clicking on the „Order“ button.
The customer’s order placed via any other channel, e.g. a digital interface or any other digital channel (e.g. a procurement platform), via e-mail, fax, telephone, or post etc., constitutes a legally binding offer when received by us to conclude a contract.
3. We will promptly confirm receipt of the customer’s order via the online shop by e-mail. Such a confirmation e-mail will not constitute a legally binding acceptance of the order. A contract is concluded with our acceptance which requires written or text form (e.g. by our order acceptance or our notification of readiness for delivery/collection) or by delivery of the Product. We do not retain a copy of the contractual provisions.
4. The languages available for the conclusion of the contract are German and English. In the event of contradictions within these GTC, the German version takes precedence over the English version. Headings are for convenience only and will not be used in the interpretation of these GTC.
5. Legally relevant declarations and notifications which the customer makes after the conclusion of the contract (e.g. setting of deadlines, reminders, notices of defects), including any changes that the customer may propose to the specifications, quantities, scope, method of shipment, schedule or place of delivery of Products, must be in written or text form (e.g. letter, e-mail, fax) and may be accepted by us at our discretion. We may make delivery in installments as mutually agreed in writing by us and the customer. Any such partial deliveries will be separately invoiced and paid for when due per invoice.
6. We reserve the right to request proof of expertise (e.g. in accordance with Chemicals Prohibition Order) or other necessary proof (e.g. permits or end-use declarations) from the customer and to refuse delivery where the customer fails to provide such documents.
III. Delivery Conditions, Shipping Charges, Return of Packaging
1. DDP Incoterms (2020) apply to our deliveries within Germany and to Austria and EXW Incoterms (2020) at our place of business in Frankfurt applies to our deliveries outside of Germany and Austria, unless otherwise agreed.
2. Orders received before 16.00 (Monday – Thursday) will be processed on the same day and Products in stock will be delivered the next day if delivery is to Germany or Austria. We offer a prompt Monday delivery service to Heidelberg and Frankfurt. This service is available for orders received on Mondays before 10:00 a.m. (Heidelberg) or 11:00 a.m. (Frankfurt), as well as for orders placed on Fridays of the previous week. Such orders will be delivered Monday afternoon.
3. Notwithstanding Section III.1, shipment – also with regard to packaging – will be at the customer’s expense. Our current shipping charges for deliveries to Austria and Germany are available at: https://www.neb-online.de/en/faq-help/. Shipping charges for deliveries to other countries will be as provided by us on a case by case basis.
4. For deliveries outside Germany and Austria, the risk will pass to the customer upon receipt by the customer of our notice of readiness for shipment or – if the latter is not provided for in the contract – at the latest upon the handing over of the Products to the forwarding agent, carrier, or any other third party assigned to transport the Products. The same will apply to partial deliveries.
5. Where the customer is in default of acceptance, fails to cooperate as required or where our performance is delayed for other reasons for which the customer is responsible, we will be entitled to claim compensation for the resulting damage including our additional expenses (e.g. storage costs).
6. We use cold packs for shipping, which ensure the necessary cooling of our Products during transport. A return label is enclosed with our refrigerated packaging in Germany. If you cannot properly recycle the packaging, please affix the included return label to the refrigerated packaging and hand it over to the driver of the next delivery.
IV. Prices and Terms of Payment
1. If we do not provide the customer with a written quotation or if the Product price is not specified in a written contract between the customer and us, then, our net prices valid at the time of the conclusion of the contract will apply plus the respective statutory VAT.
2. Payments are due within 30 calendar days from the date of delivery and receipt of invoice. We are however entitled to request advance payment, especially if it becomes apparent that customer might not be able to pay the Product price. We will inform the customer if we require advance payment for an order before we issue the order confirmation. The date of receipt of payment will be decisive for compliance with the time limit for payment.
3. Upon expiry of the payment deadline in Section IV.2, the customer is in default, unless this is due to a circumstance for which the customer is not responsible. During the period of default, the customer will pay interest on the payment owed at the statutory default interest rate applicable at the time. We reserve the right to assert further claims for damage caused by default. Our right to claim commercial arrears interest (§ 353 German Commercial Code (“HGB”)) remains unaffected.
4. The customer will be entitled to offset or to claim retainer rights only insofar as the customer’s counterclaim is acknowledged, undisputed, assessed in a legally binding judgement or reciprocal to our claim.
V. Delivery Period, Force Majeure
1. Delivery time/deadlines (“delivery periods”) announced by us are always approximate. This does not apply if a fixed delivery period has been expressly agreed upon by us in a separate writing.
2. Where we can foresee that a delivery period cannot be met, we will notify the customer without undue delay and inform the customer of the estimated new delivery period.
3. We are not liable for the inability to perform or the delay of our performance, where these circumstances are attributable to force majeure or other events not foreseeable at the time of the conclusion of the contract for which we are not responsible (e.g. interruption of business of all kinds, fire, natural disasters, weather, floods, war insurrections, terrorism, transport delays, strikes, lawful lockouts, shortage of manpower, energy or raw materials, pandemic, endemic, or other outbreak of infectious disease or public health crisis). Such an event also includes incorrect or untimely delivery by one of our suppliers for which we are not responsible and where we had concluded a matching cover transaction with the respective supplier at the time of the contract or where we concluded such transaction without undue delay after the conclusion of the contract. Where such event occurs, the delivery periods will be automatically extended by the duration of the event plus an appropriate ramp-up period. Furthermore, we are entitled to withdraw from the contract where such event makes our performance of the contract considerably more difficult or impossible for us and is not only of temporary nature. Where the customer is no longer reasonably expected to accept performance due to the delay that occurs as a result of such an event, the customer can also withdraw from the contract by immediate written declaration; it is only unreasonable to expect the customer to accept performance if the expected new delivery period is later than 30 calendar days after the originally planned delivery date or impossible to predict.
4. Delivery periods will be extended automatically and adequately where the customer fails to meet their contractual obligations or other obligations to cooperate or duties.
5. Our statutory rights, in particular with regard to the possible exclusion of our obligation to perform, e.g. due to impossibility, and due to default in acceptance or performance on the part of the customer, remain unaffected.
VI. Retention of Title
1. We retain title to the Products until receipt of full payment of the purchase price (“Reserved Products”).
2. The customer must handle the Reserved Products with due care. The customer must insure the Reserved Products sufficiently at replacement value at the customer’s own expense against fire, water and theft.
3. The customer will not pledge the Reserved Products or assign them as security until payment has been made in full. In the event of seizure of the Reserved Products by third parties or other encumbrances by third parties, the customer must inform such third parties about our ownership and must inform us immediately in writing in order to allow us to enforce our rights. Where the third party is unable to reimburse our judicial or extrajudicial expenses incurred in this context, the customer will be liable for such expenses.
4. Insofar as mandatory legal provisions of the respective country do not allow for a reservation in accordance with Section VI.1 but allow for other comparable rights to secure our claims, we reserve such rights. The customer will support any permissible measures to protect our rights of title or any other rights replacing such in respect of the Reserved Products.
VII. Legal Warranty for Defects (“Gewährleistung”), Limited Use of the Products, Inspections and Returns
1. The customer’s rights in the event of material defects and defects of title will be governed by the statutory provisions, unless deviating or supplementary provisions are specified in these GTC.
2. Unless expressly agreed otherwise, our Products will comply exclusively with the specifications for such Products as provided in our catalogues and literature accompanying the Products until their respective expiration dates (if stated) or up to their respective number of uses, as the case may be. Public statements made by the manufacturer or on the manufacturer’s behalf, in particular in advertising or on the label of the Products, take precedence over statements made by other third parties. If we do not specify an expiration date, number of uses, or warranty period for a Product, then we warrant to the customer that the Product will conform to its technical specifications for 12 months from the date of the customer’s receipt of the Product.
If we sell custom Products for the customer based on instructions, specifications, or other directions provided by the customer, we will not be liable for the lack of sufficiency, fitness for purpose, infringement, or quality of the Products to the extent attributable to such instructions, specifications, or other directions.
3. The customer’s statutory warranty claim for defects require that the customer complied in full with the statutory inspection and notification obligations (§§ 377, 381 HGB). The customer will inspect the type, quantity and quality of the delivered Products immediately upon delivery of the Products. The customer will always inspect Products immediately before use. The customer will notify obvious defects in written or text form to us without undue delay at the latest within a period of five calendar days after delivery. If a defect later becomes apparent which was not recognizable upon the receipt of the Products (hidden defect), the customer will give notice of the hidden defect in written or text form within seven calendar days of becoming aware of it. In all cases, the date of receipt of the notice of defect by us will be decisive for compliance with the deadline. If the customer fails to properly inspect the Products and/or report defects, our liability for the customers warranty rights with regard to the defect not reported or not reported on time or not reported properly is excluded in accordance with the statutory provisions.
4. Where the delivered Product is defective, we will be entitled and obliged, at our choice, within a reasonable period of time to remedy the defect or to deliver a defect-free Product. If we deliver a replacement Product the customer will return the defective Product in accordance with the statutory provisions and any other written instructions provided by us. The customer is however not entitled to return the defective Product. Notwithstanding the foregoing, if the customer requests a credit or refund for the defective Product, we may choose, in our sole discretion, to provide a credit or refund for the amount paid for the Product instead of remedying the defect or delivering a replacement Product.
5. Where the Product is defective, we will bear the expenses necessary for the purpose of our inspection and subsequent performance, including but not limited to transport, travel, labour and material costs. Where the customer’s request to remedy a defect turns out to be unjustified, we can demand compensation for the costs incurred.
6. The customer must give us the time and opportunity necessary to examine Product complaints and other objections as well as necessary for the subsequent warranty performance owed, including but not limited to making the Products concerned available to us for the aforementioned purposes.
7. Notwithstanding Section VII.6, due to the temperature sensitivity of our Products and the health risks associated with the handling of some of them, customers may only return the Products delivered with prior consent by our Customer Service. Customer Service will provide related documents prior to return of Products. We may require the customer to sign and deliver a properly completed certificate of decontamination prior to returning any Product. A Product returned with our consent can only be accepted if it has been properly packaged.
8. The customer loses its statutory warranty right if the customer has altered or misused the Products or has failed to use or store the Products in accordance with our instructions, or if the defects to the Products result from the intentional act, neglect or accident caused by the customer or any third-party.
9. The Products supplied by us are intended exclusively for research purposes and in vitro applications. They must not be used on humans or animals. The Products are also not intended for diagnostic or therapeutic purposes. The customer is solely responsible for making sure that the way it uses the Products complies with applicable laws, regulations and governmental policies and for obtaining all necessary approvals, intellectual property rights, licenses and permissions that the customer may need related to its use. The customer represents and warrants to us that it will properly test, use, and, to the extent authorized, market any Products purchased from us and any final articles made from them in strict compliance with all applicable governmental food, drug, device, and cosmetic requirements and other applicable governmental requirements, now and hereinafter enacted. By placing an order, the customer assures that our Products will be exclusively used by the customer in accordance with the applicable laboratory guidelines, in accordance with the statutory provisions on genetic engineering and only by qualified laboratory personnel.
10. Unless otherwise agreed, all technical assistance and information we or our affiliates provide to the customer regarding the Products will be provided gratis and with our best efforts, and the customer assumes sole responsibility for results obtained in reliance thereon. We and our affiliates make no warranty regarding such technical assistance or information.
11. Claims of the customer for reimbursement of expenses pursuant to § 445a para. 1 BGB are excluded. Claims of the customer for damages or reimbursement of futile expenses (§ 284 BGB) are subject to the limitations as set forth in Section IX, even if the Products are defective.
VIII. Intellectual Property Rights
1. The customer may not perform compositional, structural, functional or other analysis of the Products, or undertake deconvolution or reverse engineering with respect to the Products.
2. The customer acknowledges and agrees that all intellectual property rights in our and our affiliates’ Products and in any of our and our affiliates’ technology, intellectual property and know-how used to make or provide, or useful for the manufacture or use of, the Products will at all times remain vested in us and our affiliates’ and our and their licensors. Unless otherwise expressly agreed in writing by our authorized representative, the purchase of the Products only grants the customer a limited, non-transferable right to use the quantity of the Products that the customer has purchased from us for the customer’s internal research purposes only, and in compliance with the applicable intended use statement, limited use statement or limited label license, if any, in our current catalogue, website or on the label or other documentation accompanying the Products (all such statements or licenses being incorporated herein by reference as if set forth herein in their entirety). No right to resell our Products or any of their components is conveyed expressly, by implication, or by estoppel. Unless otherwise expressly agreed in writing by our authorized representative, with the purchase of our Product we do not provide rights to use said Products in commercial applications of any kind, including, without limitation, manufacturing, quality control or commercial services such as reporting the results of such activities for a fee or other form of consideration. It is solely the customer’s responsibility to determine whether the customer may be required to obtain any additional or third-party intellectual property rights depending upon the particular application in which the customer uses the Product. If the customer needs commercial use rights to our Products (including the right to perform fee-for-services), please contact our Global Business Development department at busdev@neb.com.
IX. Liability
1. Unless stated otherwise in these GTC, we will be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
2. Our liability is excluded if and insofar as the customer does not use our Products in accordance with the provisions of Section VII.9.
3. Irrespective of the legal basis for the claim asserted, we will be liable without restriction for any wilful and grossly negligent breach of our duties as well as for damages resulting from injury to life, body or health. The same applies to claims related to provided guarantees (“Garantien”) applicable product liability laws, Medicinal Products Act (Arzneimittelgesetz – AMG) or other legally mandatory grounds for liability.
4. In the event of simple negligence, we will only be liable for property and pecuniary damage where key contractual duties (so-called “cardinal obligations”) have been breached, and our liability for property and pecuniary damage will be limited to the reasonably foreseeable contractual damage. Cardinal obligations are those obligations which enable the orderly implementation of the contract in the first place and on the due observance of which the contractual partner regularly trusts and may regularly trust, i.e. those rights and obligations which are essential to fulfil the content and purpose of the contract. Statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty) remain unaffected.
5. In the cases described in Section IX.4, we are not liable for indirect damages, indirect loss, or consequential loss, including but not limited to loss of profits or revenue.
6. Furthermore, liability in case of Section IX.4 is limited to the remuneration the customer has paid under the concerned order.
7. The exclusion or limitation of our liability according to the above paragraphs will also apply to the personal liability of our directors, officers, legal representatives, employees, members of staff and vicarious agents.
X. Export
1. The customer is obliged to comply with the export control, sanction regulations and laws including the embargoes („export control regulations“) of the Federal Republic of Germany (FRG) and the European Union (EU) applicable to the specific subject matter of the contract; in particular when passing on Products, software and/or technology received from us to third parties in Germany and/or in any other destination country.
2. Our deliveries („performance of contract“) are subject to the proviso that performance of the contract does not conflict with the applicable export control regulations of the FRG and the EU. In such a case, we will be entitled to refuse or withhold performance of the contract without any liability to the customer. The same applies if the performance of the contract is contrary to other applicable international export control regulations, including but not limited to those of the United States of America (US).
3. The customer acknowledges that Products, software and/or technology received from us are also subject to additional international export and re-export control regulations, including but not limited to those of the US. The customer acknowledges that where required by such laws and regulations, and where applicable, the customer will not, directly or indirectly, without obtaining prior authorization from competent government authorities sell, export, reexport, transfer, divert, or otherwise dispose of any Products, software, and/or technology (including products derived from or based on such technology) received from us to (a) any destination subject to a trade embargo, (b) any entity or person prohibited from receiving our products (including Products), software and/or technology subject to a similar sanctioned party restriction, including but not limited to those parties identified on the Consolidated List which can be searched at https://www.trade.gov/data-visualization/csl-search; or (c) any destination for any prohibited end use, including but not limited to activities involving the development, production, use or stockpiling of nuclear, missile, or chemical or biological weapons or precursors.
4. The customer will conduct its business in a manner consistent with all applicable laws and regulations relating to bribery and corruption, including but not limited to, where applicable, the US Foreign Corrupt Practices Act, the UK Bribery Act, the German Criminal Code (StGB) and any other national anti-bribery rule in force in Germany. Without limiting the generality of the foregoing, the customer agrees not to pay money or provide anything of value to any government official and/or anyone acting in a commercial context in violation of applicable bribery or corruption laws or regulations applicable to the customer’s business activity.
XI. Miscellaneous
1. These GTC, any contract, and any other business relations between the customer and us will be governed by the laws of the FRG. The UN Sales Convention (CISG) will not apply.
2. To the extent that any provision or a portion of any provision of these GTC is determined to be illegal or unenforceable, the remainder of these terms will remain in full force and effect.
3. Exclusive place of jurisdiction for all disputes arising out of or in connection with these GTC, any contract, or any other business relation between the customer and us will be Frankfurt am Main. However, we are also entitled to sue the customer at the customer’s registered office. Mandatory legal provisions concerning exclusive places of jurisdiction remain unaffected.
4. In the event of contradictions within these GTC, the German version takes precedence over the English version. Headings are for convenience only and will not be used in the interpretation of these GTC.
5. Our exercise of any option or failure to exercise any rights hereunder will not constitute a waiver of our rights to damages for breach of contract and will not constitute a waiver of any subsequent failure, delay, or breach by the customer.
6. The customer agrees to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions received from us as a result of discussions, negotiations or other communications between the customer and us in relation to the Products or the provision thereof.
XII. Contact
We are at the customer’s disposal for questions, complaints and orders by e-mail, fax, telephone or post:
New England Biolabs GmbH
Geb. B852
Brüningstr. 50
65926 Frankfurt am Main
Phone (Monday to Friday between 8.30 and 17.00):
0800/246-5227 (free of charge for customers located in Germany)
0800/246-52277 (free of charge for customers located in Austria)
or +49-69-305-23140
Fax.: 0800/246-5229
or +49-69-305-23149
E-Mail: info.de@neb.com
As of August 23th, 2024