General terms and condition
I. Contracting parties/basic information:
Dianova GmbH, Warburgstraße 45, 20354 Hamburg, Germany, is a limited liability company engaged in biochemical, immunological and microbiological diagnostics (in the following called “Seller”). Seller sells its products, for instance via its website “www.dianova.de”, exclusively to commercial and/or independent professional buyers (in the following called “Contracting Parties”) who require Seller’s products for their research and/or diagnostics. In general, the products offered by Seller are intended for use by professional research and diagnostics establishments.
Natural persons, as defined by German Civil Code § 13, cannot purchase Seller’s products. Seller’s offers are exclusively addressed to commercial and/or independent customers and expressly not to consumers, as defined by German Civil Code § 13.
In the following the Contracting Party and Seller shall be referred to collectively as “the Parties”.
II. Scope of application:
These Seller’s General Terms and Conditions (in the following, “GTC”) shall regulate the contractual relations between Seller and its Contracting Parties. Seller’s GTC may be consulted at any time on the Seller’s website – www.dianova.de.
Unless otherwise expressly agreed in writing, these Seller’s GTC shall exclusively regulate the contractual relationship of each party, both Seller and its Contracting Parties. Deviations from the present GTC and purely verbal agreements shall not normally be effective unless confirmed in writing by Seller. The same shall apply to any changes to the above form requirement in itself. Notwithstanding the above, changes made contrary to the form requirement or amendments to the contractual relationship shall be valid if they are “individually agreed terms”, within the meaning of German Civil Code § 305 b.
Any General Terms and Conditions of a Contracting Party which deviate from the present GTC shall be expressly excluded, even if the Contracting Party’s GTC have not been expressly excluded by Seller and/or Seller performs/has performed the contractual services without objection.
III. Formation of contract:
Seller’s offers shall always be without obligation and always represent an invitation to treat, i.e. these non-binding offers shall be subject to the actual availability of the offered service. Accordingly, the product representations in Seller’s online shop shall not constitute a legally binding offer, but merely an invitation to the Contracting Party to place an order, in other words, to make an offer to buy.
1. Ordering in the online shop:
After the desired item has been placed in the shopping cart and the ordering procedure has been completed, the Contracting Party finally makes a binding offer to buy the items in the shopping cart by clicking the button “Confirm and place order”. If the Contracting Party places an order with Seller via Seller’s online shop, the Seller immediately sends an e-mail confirming the receipt of the Contracting Party’s order (order confirmation). This order confirmation does not represent acceptance of the Contracting Party’s offer, but merely informs the latter that the order has been received by Seller.
2. Order by e-mail/fax:
An order for the desired item may also be communicated to Seller by the Contracting Party via an e-mail or by fax.
3. Acceptance of contract:
The contract between the Contracting Party and Seller shall exclusively be created by Seller’s notice of acceptance in written form and/or by performance of the service laid down in the contract by Seller. Verbal or telephonic confirmation shall not replace acceptance of the offer by Seller in written form. Successful formation of a purchase contract via Seller’s online shop shall in all cases depend on correct performance of the whole ordering procedure. In detail:
In case of selection of Prepayment as payment method, Seller shall have 5 working days after receipt of the Contracting Party’s offer to accept it by a suitable message to the Contracting Party in written form. In this case, the Contracting Party will be sent a Payment Request by Seller, whereby the purchase contract becomes effective.
Otherwise, the Contracting Party shall no longer be bound by the binding offer to buy.
b) On account:
In case of selection of On account as payment method, Seller has 5 working days after receipt of the Contracting Party’s offer to accept the offer by a suitable message to the Contracting Party in written form. In this case, the purchase contract shall also become effective on delivery of the product by Seller to the Contracting Party, inasmuch as Seller, having regard to logistical time frames, shall have
10 working days to accept the Contracting Party’s offer by delivery of the items ordered On account.
Otherwise, the Contracting Party shall no longer be bound by the binding offer to buy.
If the Contracting Party has selected the payment method PayPal when placing an order in Seller’s online shop, the purchase contract for the items so ordered from Seller shall become effective at the time of the confirmed advice of payment to the payments service provider, in other words at the time of successful payment via PayPal.
IV. Contract text
Seller shall save the contract text in its internal systems. The order data and Seller’s GTC shall be sent to the Contracting Party in written form with the final confirmation of order or with the delivered item.
V. Language of contract
The language of the contract shall be German.
VI. Correction of data entry errors
In order to make corrections to data entries made by the Contracting Party on Seller’s website – www. dianova.de – within the ordering steps in the online shop, the Back button of the web browser in use should be used. The Contract Partner may also correct entries directly in the relevant entry or text fields provided in the ordering procedure for completion. Finally, entry errors may be corrected by closing the browser window by means of the X button in the top right-hand corner of the browser window.
The indicated prices are net prices, i.e. excluding statutory VAT, currently 19 %, and including dispatch and delivery costs. Dispatch and delivery costs may be seen on the offer or at the link Order information. In case of export deliveries outside the European Union, any customs duties and/or fees shall be borne solely by the Contracting Party.
If no payment date is expressly agreed by the Parties, payment shall be made within 30 days of issue of invoice.
The payment methods accepted by Seller are:
Seller shall be entitled to make performance of outstanding deliveries or services subject to prepayment or provision of security, in the event that, following formation of the contract, Seller becomes aware of circumstances which significantly lessen the creditworthiness of the Contracting Party and which jeopardise payment of Seller’s outstanding demands by the Contracting Party.
IX. Terms of dispatch and delivery
Seller’s website gives indications of the availability of the various products on offer. Delivery times are indicated for each item.
Items available for immediate delivery shall be handed over by Seller to the relevant forwarder no later than 3 working days after confirmed receipt of payment . If the Contracting Party has ordered items available for immediate delivery with payment method On Account, Seller shall hand over these items no later than 5 working days after receipt of the order.
Seller shall dispatch the items offered to any part of Europe. Dispatch shall be performed by DPD as parcel delivery.
In the case of orders made by the Contracting Party via Seller’s online shop, the exact dispatch and delivery costs of the order shall be itemised and displayed during the ordering procedure. These may also be viewed at the following link Dispatch and delivery costs (Link to subsidiary page “Dispatch and delivery costs”).
On handing over the ordered items to the third party with responsibility for dispatch (normally the forwarder), the risk shall pass to the Contracting Party. This shall also apply for every part-delivery. In the case of delays in dispatching the ordered items to the Contracting Party for which the Contracting Party is liable, risk shall pass to the Contracting Party at the time of notification of readiness for dispatch by Seller.
Consignments of items shall only be insured by Seller against theft, breakage, transport damage, fire damage or water damage and/or other insurable risks at the express request of the Contracting Party communicated in writing, and at the latter’s expense.
German Commercial Code § 377 shall apply.
X. Reservation of title
The items delivered to the Contracting Party shall remain the property of Seller until payment is received in full.
As long as title has not yet passed to the Contracting Party, the latter shall be obliged to handle the reserved items with care and keep them safe at no cost to Seller.
As long as title has not yet passed to the Contracting Party, the latter must inform Seller without delay in writing if the delivered object has been seized or subject to other third party interventions. If the third party is unable to compensate Seller for any extra-legal or legal costs arising from the assertion of his or her rights, the Contracting Party shall be liable for them to Seller. The Contracting Party shall be entitled to resell the reserved item in the normal course of business. The Contracting Party’s claims from resale of the reserved items shall be assigned at this point to Seller in the amount of the final invoice sum agreed with the latter (including statutory VAT, currently 19%). This assignment shall apply regardless of whether the reserved items have been resold without or after further processing. The Contracting Party shall remain entitled to collect the claim even following assignment. Seller’s personal right to collect the claim shall remain unaffected. However, Seller shall not collect the claim as long as the Contracting Party has continued to meet its payment obligations, is not in default of payment and in particular has not applied for opening of insolvency proceedings.
The processing and further processing or alteration of the reserved items shall be done by the Contracting Party in the name of and on behalf of Seller as manufacturer. In this case, the Contracting Party’s expectant right to the reserved items shall extend to the modified article. If the reserved items are further processed together with other objects not belonging to Seller, Seller shall acquire shared ownership of the new article in proportion to the objective value of the reserved item relative to the other processed objects at the time of further processing. The same shall apply in the case of a mixture. If the mixture is such that the Contracting Party’s article must be regarded the main article, it is agreed that the Contracting Party shall assign proportionate shared ownership to Seller and keep safe the property thus arising for Seller. In order to secure Seller’s claims against the Contracting Party, the latter shall also assign to Seller such claims as accrue to it by the connection of the reserved item with a plot of land in respect of a third party; Seller shall accept this assignment immediately.
If the purchase contract between the Parties is abandoned, perhaps because of cancellation of the purchase contract by Seller due to behaviour contrary to contract by the Contracting Party (e.g. default of payment), Seller shall be entitled to demand the reserved item forthwith.
XI. Statutory liability for defects
The Parties shall limit their right to enforce statutory liability for defects to one year. The period for enforcing the statutory liability for defects shall commence on the arrival of the item at the Contracting Party’s premises, or in the case that collection is necessary, at this time. The above agreement and provision for shortening the enforcement period for the statutory liability for defects shall not apply in the case of liability for injury to life, body or health due to Seller’s negligence or to wilful misconduct or negligence on the part of Seller’s legal or vicarious agent, nor in the case of liability for other damage due to Seller’s gross negligence or to wilful misconduct or gross negligence on the part of Seller’s legal or vicarious agent. The above provision for shortening of the enforcement period for statutory liability for defects shall also not apply to liability for claims arising from the breach of material primary contractual obligations by Seller, inasmuch as the primary obligations are taken to be such that the proper execution of the contract is only possible by their fulfilment and the Contracting Party regularly and reasonably relies on them.
Seller expressly refers the Contracting Party to the provisions of the German Commercial Code § 377.
Compensation claims by the Contracting Party shall be excluded in cases of simple negligence. If the Contracting Party is a contractor, in cases of breaches of material contractual duties by simple negligence, damages shall be limited to compensation for typical losses, foreseeable at the time of contract formation. In addition, Seller’s liability for force majeure or unforeseeable events shall be excluded, where non-fulfilment of contractual duties is due to reasons outside Seller’s influence, such as natural disasters, war, general strikes, etc. In these cases, any agreed performance dates shall be appropriately extended. The Parties shall be entitled to extraordinary termination of the contractual relationship should such hindrance to performance last more than 2 months.
None of the above provisions for limiting liability shall apply in the case of liability for injury to life, body or health due to Seller’s wilful misconduct or negligence or to wilful misconduct or negligence on the part of Seller’s legal or vicarious agent, nor in the case of liability for other damage due to Seller’s wilful misconduct or gross negligence or to wilful misconduct or gross negligence on the part of Seller’s legal or vicarious agent.
In addition, none of the above provisions for limiting liability shall apply to liability for claims arising from the breach of material primary contractual obligations by Seller, inasmuch as the primary obligations are taken to be such that the proper execution of the contract is only possible by their fulfilment and the Contracting Party regularly and reasonably relies on them. Finally, none of them shall apply to claims under the German Product Liability Act.
If liability is excluded or limited above, this shall also apply to the personal liability of Seller’s corporate bodies, employees, sales agents and other agents.
XIII. Industrial property rights
Seller assures the Contracting Party that the delivered item is unencumbered by industrial property rights and/or copyright of third parties. If a claim is made by third parties against the Contracting Party regarding any infringement of industrial property rights and/or copyright in respect of the delivered item, the Contracting Party must inform Seller of this in writing without delay and no later than 2 working days after learning of the assertion of the claim. Any losses due to the Contracting Party informing Seller after the expiry of this period or late, shall always be borne by the Contracting Party.
If the Contracting Party, prior to formation of the contract, has been provided by Seller with any individualised offers and/or cost estimates or drawings, illustrations, calculations, technical instructions, model designs, scientific texts and/or other auxiliary documents, Seller expressly reserves all title and/or copyright to these materials. These must not be made available by the Contracting Party, whether to third parties or to the general public.
XIV. Data protection
Seller shall save the Contracting Partner’s financial and payment data for implementing purchase contracts, and in doing so at all times treat this data confidentially and not use it for other purposes. Personal or company-related data shall not be passed on to third parties, nor communicated in any other way unless this serves the agreed purpose of the implementation of the contract. Seller expressly points out that the Contracting Party is naturally not obliged to provide its personal or company-related data. The Contracting Party does this voluntarily.
If the Contracting Partner has passed on to Seller any personal or company-related data, e.g. address, e-mail address, the Contracting Party may at any time require this to be deleted by Seller. In accordance with the German Federal Data Protection Act (BDSG) § 34, the Contracting Party shall be entitled to obtain information on any data concerning it saved by Seller at not cost and, in accordance with BDSG § 35, it shall have the right at any time to correct, delete or bar the personal or company-related data. In case of need, the Contracting Party shall contact Seller regarding the specified contact data (legal notice).
Seller shall continuously employ technical and organisational security precautions to protect the data provided by the Contracting Party and administered by Seller against intentional and accidental manipulation, loss, destruction or access by unauthorised persons. These security precautions shall be continuously improved by Seller in line with technological developments.
Further information – especially on data protection in connection with Seller’s website – may be consulted by the Contracting Party under the link “www.dianova/datenschutzerklärung”.
Finally, Seller informs Contracting Parties that they will find general information on data protection in the German Tele Services Data Protection Act and the German Federal Data Protection Act.
XV. Place of performance/legal venue
The place of performance for all obligations arising from the Parties’ contractual relationship shall be the place of Seller’s registered office, unless otherwise prescribed by law.
If the Contracting Partner is in business and/or has no current legal venue in the Federal Republic of Germany, it is agreed that the sole venue for all disputes arising from the commercial relationship between Seller and the Contracting Party, shall be Hamburg, Germany. The same shall apply if the Contracting Party, following formation of contract, moves its place of residence or habitual location outside of the Federal Republic of Germany or its place of residence or habitual location is unknown at the time of commencement of an action.