Standard Terms and Conditions of Enzymaster Deutschland GmbH (“Enzymaster Deutschland”)
I. Applicability of the Standard Terms and Conditions
These Standard Terms and Conditions shall apply exclusively to any contract between ENZYMASTER DEUTSCHLAND and a customer of ENZYMASTER DEUTSCHLAND (the “Buyer”), save as varied by express agreement accepted in writing by both parties. In the event of any conflict between the terms and conditions contained in any order proposed by the Buyer and the terms and conditions of these Standard Terms and Conditions, the terms and conditions of these Standard Terms and Conditions shall govern.
All sales of ENZYMASTER DEUTSCHLAND’s products, materials or services (collectively, the “Products”) are subject to and expressly conditioned upon the terms and conditions set forth in these Standard Terms and Conditions, and Buyer’s assent thereto.
These Standard Terms and Conditions shall also govern any future individual contract between ENZYMASTER DEUTSCHLAND and the Buyer.
No variation of these Standard Terms and Conditions will be binding upon ENZYMASTER DEUTSCHLAND unless agreed to in writing and signed by an officer or other authorized representative of ENZYMASTER DEUTSCHLAND.
These Standard Terms and Conditions extend to standard contract conditions which are used in a contract with a merchant in the course of business only, according to Sec. 14 and Sec. 310 I of the German Civil Code.
II. Orders, Acceptance and Price
Any order placed by the Buyer shall not be regarded as accepted unless and until such order has been confirmed by ENZYMASTER DEUTSCHLAND vis-à-vis the Buyer in writing.
Any offer from ENZYMASTER DEUTSCHLAND shall be deemed to be a firm offer for a period of three (3) weeks after the date of such offer.
Except as otherwise stated under the terms of any written quotation or in any price list of ENZYMASTER DEUTSCHLAND, and unless otherwise agreed in writing between the Buyer and ENZYMASTER DEUTSCHLAND, all prices are given by ENZYMASTER DEUTSCHLAND in Euro. All prices are exclusive of packaging, transport, insurance and any applicable value added tax, each of which the Buyer shall be additionally liable to pay to ENZYMASTER DEUTSCHLAND. All prices are given on a FOB (Incoterms 2010) basis, from ENZYMASTER DEUTSCHLAND’s point of business in 40219, Düsseldorf, Germany or from the parent company Enzymaster (Ningbo) Bio-Engineering Co., Ltd. (hereafter called ENZYMASTER NINGBO) point of business in 333 North Century Avenue, Ningbo, P.R. China.
Notwithstanding anything to the contrary, ENZYMASTER DEUTSCHLAND reserves the right to increase the price of the Products to reflect any increase in ENZYMASTER DEUTSCHLAND’s costs which is due to any factor beyond the control of ENZYMASTER DEUTSCHLAND (including, for example, a change of costs due to new collective bargaining agreements, a significant increase in the costs of materials, etc.). In the event that such a price change occurs after an order has been accepted in writing by ENZYMASTER DEUTSCHLAND, ENZYMASTER DEUTSCHLAND will provide to the Buyer on request appropriate evidence regarding the justification for such price change. Buyer may cancel the order upon written notice to ENZYMASTER DEUTSCHLAND if the price is increased by more than twenty percent (20%).
III. Time of Delivery, Partial Delivery, Default
If a certain time frame for delivery has been agreed between the parties, such time frame shall be measured from the date of written confirmation of the order, but in any event not before the date on which all details of the specific order have been agreed in writing between the parties. Delivery of the goods shall be deemed complete (a) as soon as ENZYMASTER DEUTSCHLAND has notified the Buyer that the Products are ready for collection at ENZYMASTER DEUTSCHLAND’s premises or premises of ENZYMASTER NINGBO, or (b) in the event that transport or shipment has been agreed in writing, at the moment when ENZYMASTER DEUTSCHLAND has handed over the goods to the transport or shipping company, as the case may be; provided that in the event shipment or transport is not possible due to reasons outside the control of ENZYMASTER DEUTSCHLAND, delivery will be deemed complete once the Products are kept ready for transport by ENZYMASTER DEUTSCHLAND at ENZYMASTER DEUTSCHLAND’s premises or premises of ENZYMASTER NINGBO and ENZYMASTER DEUTSCHLAND has duly notified the Buyer of this fact. If a fixed time for delivery has been agreed by the parties, ENZYMASTER DEUTSCHLAND may deliver before such fixed date if ENZYMASTER DEUTSCHLAND duly notifies the Buyer of such delivery and such delivery is not unreasonably burdensome for the Buyer.
In the event of delivery pursuant to Section III(1)(a) above, the Buyer shall be obliged to take physical possession of the Products within eight (8) days after the Buyer has been notified that the Products are available for collection.
Except as expressly agreed by the parties in writing, any indicated time of delivery shall be a good faith estimate only. ENZYMASTER DEUTSCHLAND’s delivery obligation shall at all times be subject to timely and orderly receipt of the goods from ENZYMASTER DEUTSCHLAND’s own suppliers. As soon as practicable, ENZYMASTER DEUTSCHLAND shall inform the Buyer in writing of any changes necessary to the delivery schedule.
Any delivery obligation by ENZYMASTER DEUTSCHLAND is subject to the complete fulfilment of the obligations and duties of the Buyer. ENZYMASTER DEUTSCHLAND shall have the right to make delivery in reasonable instalments.
ENZYMASTER DEUTSCHLAND shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond ENZYMASTER DEUTSCHLAND’s reasonable control, including, without limitation, unexpected scientific results, acts of the Buyer, embargo or other governmental act, regulation or request affecting the conduct of ENZYMASTER DEUTSCHLAND’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God.
Section III (5) above shall also apply in case of any delay in transportation, or ENZYMASTER DEUTSCHLAND’s inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
Terms of sale are net fourteen (14) days after the date of ENZYMASTER DEUTSCHLAND’s invoice, unless agreed otherwise between the parties in writing. In cases of default of payment, the general rules of the applicable German civil law shall apply.
In case of delivery in instalments, the Buyer shall be obliged to pay the price in proportion to the partial delivery.
ENZYMASTER DEUTSCHLAND shall accept promissory notes and cheques only upon specific arrangement and only on account of payment. Any fees for discount bills or promissory notes shall be at the expense of the Buyer and immediately payable. ENZYMASTER DEUTSCHLAND does not accept any obligation to a timely presentation or protestation on any accepted promissory notes or cheques.
The Buyer shall have no right to set off, retention or reduction of the price of any Products unless any underlying counterclaims have been conclusively determined by a court or expressly acknowledged by ENZYMASTER DEUTSCHLAND.
V. Transfer of Risks, Shipment and Packaging
Except as otherwise agreed by the parties in writing, risk of loss shall pass to the Buyer at the time when ENZYMASTER DEUTSCHLAND notifies the Buyer that the goods are available for collection or in the event that transport or shipment has been agreed in writing, when ENZYMASTER DEUTSCHLAND has handed over the Products to the transport or shipping company.
Any insurance of the goods against damages, loss, including transport and fire damages, will be made only on request and the cost thereof shall be borne by the Buyer.
If the Products are delivered via shipment or transport, the Buyer shall document damage to the Products, if any, in order to secure any claims for such damage against the shipment and transport company. The Buyer shall immediately notify ENZYMASTER DEUTSCHLAND of any such damage.
VI. Retention of title
ENZYMASTER DEUTSCHLAND shall retain full title to the Products that have been delivered until the Buyer has discharged all claims arising from the business relationship which shall include any account balance and claims from refinancing or promissory notes or cheques. In case of accepted payments through promissory notes and cheques, the retention of title remains until payment has been definitely and unconditionally received.
Unless expressly permitted by ENZYMASTER DEUTSCHLAND in writing, the Buyer shall have no right to retake, sell, process or otherwise deal with or dispose of the Products within the ordinary course of business. Any authority granted hereunder shall automatically cease in the case of default of payment. The Buyer shall not acquire title to the fully or partly processed Products; the processing shall be free of charge for ENZYMASTER DEUTSCHLAND’s benefits as manufacturer in the sense of Sec. 950 of the German Civil Code, without any legal obligations of ENZYMASTER DEUTSCHLAND. If the Products in which ENZYMASTER DEUTSCHLAND has retained title shall be inseparably assembled or mixed with goods that are a third party’s property, ENZYMASTER DEUTSCHLAND shall acquire co-title in the new goods or the mixed stock. The proportion of title shall follow from the proportion of the invoice value of the Products under retention of title and the invoice value of the other goods.
The Buyer will store the goods under co-title by ENZYMASTER DEUTSCHLAND without storage costs for ENZYMASTER DEUTSCHLAND.
The Buyer is not entitled to pledge or to secure the Products under retention of title for a debt or for any other obligations of the Buyer. The Buyer hereby assigns to ENZYMASTER DEUTSCHLAND all claims arising from the resale of the Products delivered under retention of title. Such claims shall also include claims against insurances or claims arising out of tort and including any claims from any positive account balance. ENZYMASTER DEUTSCHLAND hereby accepts such assignment. On ENZYMASTER DEUTSCHLAND ‘s request the Buyer has to nominate to ENZYMASTER DEUTSCHLAND the party who has received the goods. The Buyer entitles ENZYMASTER DEUTSCHLAND to recover any assigned claims in ENZYMASTER DEUTSCHLAND’s own name.
In the event of any third-party action against Products that are delivered under retention of title or against any receivables assigned to ENZYMASTER DEUTSCHLAND, the Buyer shall immediately notify ENZYMASTER DEUTSCHLAND and such third party of ENZYMASTER DEUTSCHLAND’s property and ENZYMASTER DEUTSCHLAND’s rights, enabling ENZYMASTER DEUTSCHLAND to safeguard ENZYMASTER DEUTSCHLAND’s property. The Buyer shall bear the costs of any intervention.
If the Buyer is in breach of contract, including without limitation payment default, the Buyer shall, upon ENZYMASTER DEUTSCHLAND’s demand, immediately return to ENZYMASTER DEUTSCHLAND all goods delivered under retention of title and assign to ENZYMASTER DEUTSCHLAND any repossession claims against any third party in conjunction with such Products. In such event, ENZYMASTER DEUTSCHLAND shall also be entitled to rescind the contract. For the avoidance of doubt, if ENZYMASTER DEUTSCHLAND accepts the returned Products or pledges the Products under retention of title, this will not be deemed as a rescission of the contract, unless ENZYMASTER DEUTSCHLAND has expressly declared this in writing or as provided by mandatory law. If ENZYMASTER DEUTSCHLAND has received repossession of the goods, ENZYMASTER DEUTSCHLAND is entitled to sell or otherwise exploit or utilize such Products. Any monies received by such realization or sale are to be counted towards the payment obligations of the Buyer.
Upon the Buyer’s request, ENZYMASTER DEUTSCHLAND is obliged to release any part of the collateral, if the collateral held in favour of ENZYMASTER DEUTSCHLAND exceeds the value of the claims being secured to an amount of more than ten percent (10%). It is to ENZYMASTER DEUTSCHLAND’s decision to release these parts of the collateral as suitable for ENZYMASTER DEUTSCHLAND.
VII. Permitted Use, Intellectual Property, Confidentiality
The Products are intended for laboratory research and development purposes only (the “Permitted Use“) and, unless otherwise expressly stated on product labels, in ENZYMASTER DEUTSCHLAND’s catalog or in other printed materials furnished to the Buyer, are not to be used for any other purposes, including without limitation, in humans, foods or beverages, drugs, medical devices, cosmetics, for any diagnostic purpose or for any commercial purpose. The Permitted Use does not include the multiplication of the Product or parts thereof. As far as the Products, a process related to the production or use of the Products or related to the use of material obtained while employing the Products is subject of one or more issued or pending patents, the Permitted Use is restricted to the experimental use privilege in accordance with section 11 no. 2 of the German Patent Act.
The Buyer acknowledges and agrees that the Products may have biological and/or chemical properties that are unpredictable and unknown at the time of transfer, that they are to be used with caution and prudence, and are not to be used for testing in or treatment of humans or for any purpose other than the Permitted Use.
The Buyer shall comply with any and all laws, regulations and rules applicable to the Product and any instructions for use issued in writing by ENZYMASTER DEUTSCHLAND.
Nothing in these Standard Terms and Conditions shall be deemed to grant or assign to the Buyer any rights under any patents, patent applications, trade secrets, trademarks, copyrights or any other proprietary intellectual property rights of ENZYMASTER DEUTSCHLAND,ENZYMASTER NINGBO and/or any corporation or other business entity controlled by, controlling or under common control with ENZYMASTER NINGBO or ENZYMASTER DEUTSCHLAND (hereafter “Affiliates”). .
Notwithstanding anything to the contrary, in case of any breach by the Buyer of its obligations under this Section VII, the Buyer shall pay a penalty of EUR 50,000 to ENZYMASTER DEUTSCHLAND per breach. Buyer’s liability to ENZYMASTER DEUTSCHLAND for damages, including without limitation special, indirect and consequential damages, including, for example, loss of profits or revenue, shall remain unaffected.
The composition of the Products or the Products itself may be subject of knowledge which belongs to the secret know-how of ENZYMASTER DEUTSCHLAND or third parties. The Buyer shall keep such secret know-how strictly confidential. In particular, the Buyer shall neither determine the protein or genetic sequence of the Product nor in any other way reverse engineer this product or bring third parties in a position to do the foregoing. To this end, the Buyer shall refrain from transferring Products or parts thereof which are subject to such secret know how to third parties.
VIII. Credit rating of Buyer
ENZYMASTER DEUTSCHLAND is entitled to rescind the contract if facts arise that cast doubts on the credit rating of the Buyer. In this case, ENZYMASTER DEUTSCHLAND shall, in its discretion, also be entitled to fulfil the contract and to declare all of ENZYMASTER DEUTSCHLAND’s claims arising from the business relationship as immediately payable, even if ENZYMASTER DEUTSCHLAND has previously accepted promissory notes or cheques. Moreover, ENZYMASTER DEUTSCHLAND may in such event demand prepayments or a security deposit.
IX. Subject Matter of Contract, Warranty, Duty to Inspection
The subject matter of these Standard Terms and Conditions is exclusively the Products as described in the confirmation of a particular order. Further specifications or elements or a specific subject matter of contract shall only be deemed as agreed between the parties if expressly confirmed by the parties in writing. The Buyer acknowledges and agrees that in the course of technical progress or in the course of further development of specific Products, ENZYMASTER DEUTSCHLAND may make reasonably necessary modifications to the specification of such Products without prior notification to the Buyer. If the Buyer requests that a particular Product must be produced on behalf of specifications of the Buyer, such specifications shall only be part of ENZYMASTER DEUTSCHLAND’s contractual obligations if ENZYMASTER DEUTSCHLAND has expressly confirmed this in writing.
The Buyer shall inspect the Products immediately upon receipt and shall notify ENZYMASTER DEUTSCHLAND in writing of any and all defects, damages, shortages or other claims related to such Products. If ENZYMASTER DEUTSCHLAND does not receive any such notification within ten (10) days after ENZYMASTER DEUTSCHLAND has delivered the Products, the Products shall be conclusively deemed to be irrevocably accepted by the Buyer and to be complete, undamaged and in compliance with the terms and conditions of the transfer of such Products. Any Products that have been examined by the Buyer before shipments and transport and where a notice of defect has not been rendered at this time, cannot be subject to a notice of defect at a later time. A notice of defect cannot be rendered after mixture, usage or resale of the Products delivered or after processing has started.
None of ENZYMASTER DEUTSCHLAND’s warranties extend to:
Products which are not duly stored;
defects caused by wrong handling, installation or modification of the Product by the Buyer or a third party;
the suitability of the Product for a specific purpose, unless otherwise agreed between the parties in writing;
any Products provided by ENZYMASTER DEUTSCHLAND according to specifications supplied by the Buyer;
the stability of enzymes or other fine chemicals, produced, prepared or cleaned according to the current state of technology, unless a certain stability has been confirmed by ENZYMASTER DEUTSCHLAND in writing.
The Buyer’s sole and exclusive remedy for timely rejection of the Products that are defective, damaged or otherwise not in compliance with these Standard Terms and Conditions shall be the replacement of such Products without charge or, at ENZYMASTER DEUTSCHLAND’s sole discretion and provided that ENZYMASTER DEUTSCHLAND received cash consideration from the Buyer for such Products, refund of such cash consideration. The Buyer retains the right to rescind the respective individual contract only in the event that ENZYMASTER DEUTSCHLAND is not able to replace the non-compliant Products within a reasonable time. In any event, the Buyer shall promptly return to ENZYMASTER DEUTSCHLAND all Products that are defective, damaged, or otherwise not in compliance with these Standard Terms and Conditions.
Unless expressly agreed to in writing or unless otherwise provided in these Standard Terms and Conditions, ENZYMASTER DEUTSCHLAND IS PROVIDING THE PRODUCTS “AS IS”, WITH NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE PRODUCTS WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY.
ENZYMASTER DEUTSCHLAND’s liability to the Buyer shall not exceed the amount received by ENZYMASTER DEUTSCHLAND in exchange for the Products. IN NO EVENT SHALL ENZYMASTER DEUTSCHLAND OR ITS AFFILIATES BE LIABLE TO THE BUYER FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE.
Any liability of ENZYMASTER DEUTSCHLAND is, regardless of the nature of claim, excluded if not otherwise expressly stipulated in these Standard Terms and Conditions.
The exclusion of rights or the limitation of liability does not apply for damages resulting in damage of life, personal injury or health. Any rights of the Buyer resulting out of the German Product Liability Act remain unaffected.
ENZYMASTER DEUTSCHLAND shall not be liable in case of slight negligence unless there is a violation of a cardinal contractual duty.
Any discharge from liability will be void if a defect or the breach of a contractual obligation results from an intentional breach of contract on ENZYMASTER DEUTSCHLAND’s side. In the case that a breach of a contractual obligation was caused by gross negligence or if ENZYMASTER DEUTSCHLAND may be held responsible for the intentional or negligent breach of any essential contractual obligation, liability does not extend beyond the typical and prognostically foreseeable damage. In cases of slight negligence, liability does not extend further than a damage is covered by ENZYMASTER DEUTSCHLAND’s business liability insurance.
Sections X(1) through X(5) shall also apply to cases of frustrated expenses.
Any discharge from liability does also apply for any personal liability of the officers, employees, representatives as well as other persons employed by ENZYMASTER DEUTSCHLAND in the performance of ENZYMASTER DEUTSCHLAND’s obligations.
The Buyer shall indemnify, defend and hold ENZYMASTER DEUTSCHLAND and its Affiliates, agents, employees, officers and directors harmless from and against any and all liability, damage, loss, cost or expense (including attorneys’ fees) arising out of third party claims or suits related to the storage, use, or handling of the Product by or on behalf of the Buyer or any breach of the Buyer of these Standard Terms and Conditions.
Place of Delivery, Jurisdiction, Applicable Law
Place of performance is Düsseldorf (Germany).
The courts of Düsseldorf, respectively the District Court of Düsseldorf, shall have jurisdiction over all disputes arising from the business relationship including disputes with regard to payment via promissory notes or cheques. However, ENZYMASTER DEUTSCHLAND may also select a different place of jurisdiction at the place of business of the Buyer. Further, ENZYMASTER DEUTSCHLAND may select to assert rights resulting from the violation of the regulations under section IX including violations of the regulations under Appendix A at the District Court of Düsseldorf.
For these Standard Terms and Conditions as well as for the business relationship between ENZYMASTER DEUTSCHLAND and the Buyer, the laws of the Federal Republic of Germany shall apply, excluding German international private law and, in particular, excluding the UN Convention on the International Sale of Goods (CISG).
ENZYMASTER DEUTSCHLAND’s failure to strictly enforce any term or condition of these Standard Terms and Conditions or to exercise any right arising hereunder shall not constitute a waiver of ENZYMASTER DEUTSCHLAND’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under these Standard Terms and Conditions are cumulative and are in addition to any other rights and remedies ENZYMASTER DEUTSCHLAND may have at law or in equity. Any waiver of a default by the Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.
If any provision of these Standard Terms and Conditions shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The section headings herein are for convenience only; they form no part of these Standard Terms and Conditions and shall not affect their interpretation.
Ambiguities, if any, in these Standard Terms and Conditions shall not be construed against any party, regardless of which party may be deemed to have authored the ambiguous provision.
The Product, a process related to the production or use of the Product or related to the use of material obtained while employing the Product may be subject of one or more issued or pending patents and/or secret know-how (in the following referred to as “Patents”) owned by, licensed to or otherwise controlled by ENZYMASTER NINGBO. The purchase and/or receipt of such a Product from ENZYMASTER NINGBO or its Affiliates or its authorized distributor does not convey to the Buyer any license in the Patents unless explicitly stated otherwise in writing. The Buyer shall observe the protection of the Patents and shall use the Patents only for purposes being exempted from patent protection, such as under section 11 no. 2 (privilege of experimental use) of the German Patent Act or any parallel exemption under applicable national laws.
The Buyer shall be entitled to use the purchased amount of the Product for internal research purposes only and shall not multiply the same or have it multiplied.
The Buyer shall maintain all secret know-how of ENZYMASTER NINGBO confidential. As long as the respective knowledge on the protein or genetic sequence of this Product are not in the public domain, the Buyer shall not determine the protein or genetic sequence of this Product or in any other way reverse engineer this Product. Further, the Buyer shall neither (a) sell or otherwise transfer this Product or materials made using this Product to a third party; nor (b) otherwise use this Product or materials made using this Product for any Commercial Purpose; nor (c) multiply this Product or have it multiplied by third parties unless such sale, transfer, multiplication or use would not be affected by the Patents. Commercial Purpose means any activity by the Buyer for consideration or gain (financial or otherwise), including without limitation: (i) use of the Product or materials made therefrom in manufacturing; (ii) use of the Product or materials made therefrom in the development of a commercial or pre-commercial product or process (including pilot studies, prototyping, and qualification or clinical trials); (iii) use of the Product or materials made therefrom to provide a service, information, or data to a third party in return for a fee or other consideration; (iv) use of the Product or materials made therefrom for therapeutic, diagnostic or prophylactic purposes or for any use in or consumption by humans; (v) sale or resale of the Product or materials made therefrom, whether or not such Product or such materials are sold or resold for use only in research; or (vi) use of any data or information generated using the Product or materials made therefrom in any patent application. ENZYMASTER NINGBO will not assert a claim against the Buyer for infringement of the patent(s) under its control; provided that the Buyer complies with the restrictions on use of the Product as specified herein. For purposes of clarification and not limitation, the terms and conditions contained in this Appendix A are in addition to the terms and conditions contained in the “Standard Terms and Conditions” of ENZYMASTER DEUTSCHLAND. For more information regarding the Patents, or on purchasing a license to this Product for purposes other than research, contact ENZYMASTER DEUTSCHLAND.