Sciospec Scientific Instruments GmbH
Leipziger Str. 43b, 04828 Bennewitz, Germany | Leipzig HRB 26281
(last change: Jun 2019)
1. Scope of legal agreements
i. The scope of deliveries or services shall be governed by mutual written statements. If a contract has been concluded without the existence of such statements, the written acknowledgement of order by Sciospec Scientific Instruments (Sciospec) shall be relevant.
ii. Any documents, e.g. diagrams, photographs, drawings, specifications in leaflets and data sheets, etc, shall not constitute guarantees within the terms of § 443 BGB (German Civil Code) but a performance description. Sciospec reserves the right to make any alterations due to and justified by technical advancements, even after acknowledgement of order.
iii. Sciospec reserves unrestricted title and copyright to all cost estimates, drawings, technical information, data, manuals and other documentation (hereinafter referred to as documents). The Customer shall not be entitled, without the prior written consent of Sciospec, to reproduce or copy such documents, nor to make them available to third parties or to disclose them otherwise, nor to use them in any manner contrary to the interests of Sciospec. If the order is not placed with Sciospec, all documents shall be returned immediately to Sciospec upon request. The preceding three sentences shall apply accordingly to the Customer's documents; such documents may, however, be made available to any third parties whom Sciospec has rightfully subcontracted.
iv. If unforeseen events substantially change the economic value or the contents of deliveries or services, or have a considerable effect on the operation of Sciospec, the contract shall be adequately adapted in accordance with the requirements of good faith. If this is not justifiable for economic reasons, Sciospec shall have the right to withdraw from the contract. If Sciospec intends to make use of the right of withdrawal, Sciospec shall inform the Customer to this effect immediately upon recognition of the implications of an unforeseen event. Sciospec shall have the right to withdraw from the contract even if an extension of the delivery period has originally been agreed with the Customer.
i. Prices are for deliveries of price list equipment without the performance of services. Prices, including commercial packing, are understood to be in euros (€) plus the applicable VAT (value added tax) as well as the taxes, customs duties or charges possibly levied in accordance with other laws. The Customer undertakes to pay or reimburse any such taxes, customs duties or charges, as well as any consular or legalization fees that Sciospec has to pay. Any costs arising for the packing of antennas and systems and for any special packing requested by the Customer will be charged separately.
ii. Prices reflect the cost situation at the time of conclusion of the contract. In the event that costs change before the actual date of delivery or performance of service, Sciospec reserves the right to adjust prices provided that the deliveries or services are to be carried out more than four months after conclusion of the contract as per agreement.
i. Unless otherwise agreed in writing, the following provisions shall apply to any kind of services (e.g. development, installation, assembly, repair, calibration):
a. All services and required resources not contractually regulated to be brought forth by Sciospec that are required for the fulfillment of the services, shall be procured and provided by the Customer in due time and at his cost. This also comprises operational power and water supply including necessary terminals at the point of use, heating and general lighting, assistant workforce like handymen and professionals with the needed tools, all not branch typical labor, necessary goods, materials and regulatory authorizations, licenses and permits.
b. The safety of the property and the personnel of Sciospec at the place of the performance of services, provided it is not inside the premises of Sciospec, underlies the responsibility of the Customer. He shall take and provide adequate measures free of charge. This also includes safe, clean and appropriate storage rooms for the materials, goods and tools provided by Sciospec, adequate working and staff rooms, as well as sanitary facilities and protective gear for Sciospec personnel.
c. If Sciospec has any objections regarding the quality or suitability of items made available by the Customer for the performance of work or services, and the Customer does not take account of such objections, Sciospec reserves the right to refuse the performance of the work or services and to deny any liability.
ii. If the performance of services is delayed by circumstances for which Sciospec is not responsible, the Customer shall bear any costs for waiting and additional travel by the personnel employed by Sciospec that may be required.
iii. For services provided at Sciospec premises, the Customer also is responsible for the timely delivery of any materials and goods and necessary documentation (manuals, protocols etc.) that he provides for the particular service, at his cost and at his risk.
iv. Cost estimates shall not be binding and shall be made upon separate agreement.
v. Sciospec shall only be liable for the proper performance of services. Sciospec shall not be liable for any work performed by the personnel of Sciospec or by any other agents employed if the work is not associated with the performance of the stipulated services, or if the work is performed at the Customer's request.
4. Terms of Payment
i. All payments shall be made to Sciospec within 30 days from the date of invoice without any deductions and without any costs arising to Sciospec.
ii. For orders totaling more than € 15,000, a non-interest-bearing 30% down payment plus pro rata VAT shall be effected upon receipt of the Sciospec acknowledgement of order. In addition to that for orders totaling more than € 30,000 the remaining 70% of the payment are to be effected upon delivery readiness. In case of any change of the Customer’s situation that affects the purpose of the contract Sciospec reserves the right to withdraw from a quote or a contract.
iii. For foreign sales Sciospec reserves the right to secure payments through a documentary letter of credit.
iv. If the Customer is in delay with payment, Sciospec reserves the right to charge annual interest to the amount of 8% above the base interest rate of the European Central Bank, without waiving any other rights, unless the Customer furnishes evidence that only minor or no damage has been incurred by Sciospec.
v. The place of payment shall be Grimma.
5. Reservation of title
i. Title to delivery items (retained goods) is retained by Sciospec until all claims of Sciospec against the Customer, originating from the business relation, have been satisfied. This shall apply to the extent that reservation of title is permissible under the law of the country in whose territory the delivery items are located. If the law of a country does not allow for reservation of title while permitting the reservation of similar rights, Sciospec shall be entitled to assert such rights, and the customer shall support all measures taken by Sciospec in order to protect its title to and security interests in the retained goods.
ii. Until such time that Sciospec waives these rights, the Customer shall not be entitled to pledge or assign any delivery items. The delivery items may only be resold to resellers in the ordinary course of business, and only if the resellers reserve title until their Customers have fully met their payment obligations. If Sciospec's title to the retained goods expires because the retained goods are merged with another product, Sciospec shall acquire title to the merged retained goods on a proportional basis, i.e. the proportion of the retained goods as referenced to the other merged products at the time they are merged. Any costs arising from interventions shall be borne by the Customer.
iii. The Customer shall immediately inform Sciospec in the event of any seizures, attachments or other dispositions or interventions by third parties.
iv. Sciospec shall have the right to withdraw from the contract and take back the delivery items if the Customer violates an obligation, especially in the case of delay in payment; the Customer shall be obligated to return the property. If Sciospec takes back and/or attaches the retained goods, this shall not constitute a withdrawal from the contract, unless expressly stated by Sciospec.
v. If the delivery items contain Firm-/Software, the Customer shall not acquire title to the Firm-/Software, but only the rights stipulated in paragraph Firm-/Software.
6. Periods of Delivery or Service
i. Sciospec compliance with the periods of delivery and/or service requires that all documents to be furnished by the Customer as well as all necessary permits and releases reach Sciospec in time, that all plans are clarified and approved in time, and that the agreed terms of payment and other obligations are fulfilled. If these requirements are not met in time, the periods of delivery shall be reasonably extended. The periods shall also be reasonably extended due to events and circumstances of force majeure. These shall also include any acts decreed by public authorities, such as the refusal of any official authorization that may be required, transport restrictions and restrictions of energy consumption, as well as general shortage of raw materials and common supplies, and any other reasons beyond the control of Sciospec.
ii. The periods of delivery shall be deemed complied with for deliveries without the performance of services, if the consignment in working order is dispatched or collected within the agreed delivery time. If delivery is delayed for reasons falling within the Customer's responsibility, the delivery date shall be deemed complied with upon notification of the readiness for dispatch within the agreed time. For deliveries with the performance of services, the delivery shall be deemed complied if the deliveries and services are performed within the agreed time
iii. In the event that Sciospec is in delay, the Customer may - if they can establish credibly that they have suffered damage owing to the delay - claim, from the third week of delay, liquidated damages to the amount of 0.5% for each full week of delay up to a total of 5% of the value of such part of the deliveries or services that could not be put into operation for the intended purpose due to any constituent delivery items not being completed on time. Any Customer claims for damages due to delayed delivery as well as any claims for damages in lieu of performance that in total exceed this limit, shall be excluded in all cases of delayed delivery even after the expiry of any extension granted to Sciospec. However, this shall not apply to cases of intent, gross negligence, or where injuries of life, body or health make liability mandatory, and shall not reverse the burden of proof to the disadvantage of the Customer. According to the legal provisions, the Customer shall only be entitled to withdraw from the contract if Sciospec is responsible for the delay in delivery.
iv. To the extent that deliveries or services are impossible, the Customer shall have the right to claim damages, unless the impossibility of performance is not attributable to Sciospec. Such claim of the Customer shall, however, be limited to 10% of the value of that part of the deliveries or services that cannot be put into operation for the intended purpose due to the impossibility of performance. This shall not apply to cases of intent, gross negligence or where injuries of life, body or health make liability mandatory, and shall not reverse the burden of proof to the disadvantage of the Customer. The Customer's right to withdraw from the contract shall remain unaffected.
7. Transfer of Risk
i. The risk shall pass to the Customer:
a. For (partial) deliveries with performance of services, on the day the Customer puts the consignment into operation. Otherwise, the risk shall pass to the Customer as soon as the consignment has been installed or assembled and it is ready for operation.
b. For any period by which the dispatch, delivery, commencement or performance of the stipulated services is delayed at the request of the Customer or for reasons within their responsibility (default of acceptance). Sciospec will, however, be prepared to undertake the required safeguards at the request and cost of the Customer.
ii. The risk of accidental loss and accidental deterioration of goods supplied by the Customer shall be borne by the Customer.
i. The Customer shall accept the contractual deliveries or services even if these deliveries / services exhibit minor defects (acceptance).
ii. Partial deliveries as far as reasonable for the Customer shall be permitted.
iii. Acceptance shall also be deemed performed if two weeks after completion and demand by Sciospec, the Customer has failed to carry it out or the delivery items have been put to use through the Customer.
9. Material Defects Liability
i. Sciospec shall be liable for material defects within a statute of limitations period of twelve months starting with the shipment as follows:
a. Any parts or services that show defects with a cause that was present before the transfer of risk shall – at the option of Sciospec – be replaced, reworked or reperformed free of charge (rectification)
b. Material defects are to be reported written and detailed immediately to Sciospec by the Customer.
c. The Customer shall meet their contractual obligations, in particular the agreed terms of payment. If a complaint in respect of defects is made, the Customer may withhold payment to an amount that is in reasonable proportion to the material defects discovered. The Customer may withhold payment only if the complaint about defects is justified and not contestable.
d. Sciospec shall first always be afforded two opportunities for rectification within a reasonable period of time. Should rectification fail, the Customer can withdraw from the contract or reasonably reduce the contract price.
e. Claims in respect of defects shall not arise in the case of minor deviations from the agreed condition, irrelevant impairment of usability, wear and tear, nor in the case of any damage arising after the transfer of risk as a result of improper or negligent handling, excessive stress, unsuitable operation, and any external influences not provided for according to the contract, as well as in the case of non-reproducible errors. Any claims in respect of defects shall also be excluded for any modifications or repairs carried out by the Customer or by third parties, and for the resulting consequences.
f. The Customer shall only have claims of recourse against Sciospec in accordance with § 478 BGB (recourse of the business Customer) insofar as there are no agreements between the Customer and their purchaser that go beyond the legal claims in respect of defects. Regarding the extent of the Customer's claim of recourse against Sciospec.
g. Firm-/Software is considered to be defective only if the Customer can prove that there are reproducible deviations from the specifications. A defect shall not be deemed to exist if it does not manifest itself in the latest version supplied to the Customer, and/or its use by the Customer can reasonably be required.
h. Customer claims for damages based on a material defect shall be excluded. However, this shall not apply to cases of fraudulent concealment with regard to the defect, non-compliance with a guaranteed quality, injuries of life, body or health, as well as any intentional or grossly negligent breach of duty on the part of Sciospec, and shall not reverse the burden of proof to the disadvantage of the Customer.
i. The Customer is granted the non-exclusive right to use the Firm-/Software and associated documentation exclusively for the intended hardware and purpose. The right to use is limited to the agreed period of time; in the absence of such agreement, the right to use shall be unlimited in time. The Customer shall not be entitled to reproduce, modify, complement, compile or recompile the Firm-/Software in whole or in part. The Firm-/Software and the documentation may only be copied for archiving purposes or for purposes expressly authorized by Sciospec in writing; all copies must bear the same copyright notes as the originals.
ii. The above provisions shall also apply to any modifications or supplements made to the Firm-/Software or associated documentation. If the delivery items are transferred to a third party, the Customer undertakes to impose the above obligations on the third party.
iii. The Firm-/Software shall exclusively be provided in machine-readable format (object code) and without source code. The associated source code, configuration bitstreams, files or images and such shall not be read out, recompiled, published or modified in any way.
iv. Sciospec shall reserve any other rights to the Firm-/Software and the documentation.
11. Further Claims for Damages
i. Any further claims for damages of the Customer, irrespective of their legal basis, arising particularly from the violation of contractual obligations or from tort, shall be excluded as far as no legal mandatory liability exists.
ii. Sciospec shall not be liable for any consequential or indirect damage (i.e. damage not incurred on the delivery items themselves), such as loss of profit, loss of production, loss of data due to a Firm-/Software error or loss of interest.
iii. The Customer releases Sciospec from any obligations based on third-party claims, insofar as the Customer is responsible for such claims.
i. At delivery of prototypes, functional models or similar warranty is explicitly excluded.
ii. Unless explicitly stated otherwise in written form, they serve only as demonstration and for experimental purposes. They are neither suited nor specified and determined for series operation, close-to-production tests or passing on to third parties.
13. Proprietary & Copyrights
i. All inventions and creations developed by Sciospec are property of Sciospec. This also includes any and all ideas, concepts, discoveries, designs, improvements, and creations, regardless of whether the same are patentable or protected under any law, rule or regulation.
ii. Development Fees - unless expressly otherwise stated – shall not include the transfer of any proprietary rights to the Customer. The copyright and all other proprietary rights in and to the Hardware, Firm-/Software and other Inventions and documentation created in the course of a development remain with Sciospec.
iii. The Customer agrees to maintain the confidentiality of the trade secrets of Sciospec disclosed to him and further agrees to immediately notify Sciospec of any third party infringement on its rights of which he may become aware.
iv. For any disclosure of Sciospec’s trade secrets to employees or any other person, firm, organization Sciospec’s written consent is required. Under no circumstances may the Customer disclose or disseminate such trade secrets to any competitor of Sciospec. The Customer shall devote his best efforts to ensure that all persons granted access to these secrets understand and protect Sciospec’s rights.
v. Claims of the Customer shall be excluded, if they are liable for the infringement of property rights. Claims of the Customer shall also be excluded, insofar as the infringement of property rights is caused by Customer directives, by unpredictable use, or because of the Customer modifying the delivery items or using them together with products not delivered by Sciospec.
14. Applicable Law & Place of Jurisdiction
i. The contractual relations between Sciospec and the Customer shall be governed exclusively by German law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
ii. The courts of Leipzig shall have exclusive jurisdiction in case of any disputes arising directly or indirectly from the contractual relationship. Sciospec shall also have the right to take legal actions at the Customer's domicile.
15. Validity of Contract
i. In the event that individual terms of the contract become invalid, the remaining parts shall continue to be effective. This shall not apply if adherence to the contract constitutes an unreasonable hardship for one of the parties.
ii. Any contractual agreements - including collateral agreements - shall be made in writing in order to become effective. This formal requirement can be waived only in writing.
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