Translation of the General Conditions of Business Institutes Dr. Schrader, Max-Planck-Straße 6, 37603 Holzminden, Germany
I. Validity of Conditions
- These General Conditions of Business („Conditions“) shall be valid for the entire current and future business relationship between the institutes Institut Dr. Schrader Creachem GmbH, Beratungslabor , Hautphysiologie, Ancopharm and International GmbH as Supplier (“Supplier”) and the Customer (“Customer”).
- Within the scope of the current business relationships these Conditions shall apply in any case if they have been sent to the Customer and if he has not contradicted in writing within three weeks from receipt. At the time of notification of the Conditions, the Customer will be separately informed of these consequences. By this means, other possibilities of inclusion of the Conditions into the business relationship shall not be excluded.
- In principle, deviating general conditions of business of the Customer shall not apply, even if the Supplier does not expressly contradict; the deviating conditions shall apply only to the extent they are accepted in written form by the Supplier in individual cases.
II. Offers, Basis of Performance
- Offers of the Supplier are non-binding. The Supplier is bound by offers expressly named “binding” for a period of two calendar months unless the Supplier has named in the offer in writing a shorter or longer period.
- Oral agreements are valid only if confirmed in written form by the Supplier.
- Guarantees for performance of the Supplier shall only be deemed to be agreed if expressly and in written form named as “guarantee” by the Supplier to the Customer.
- Notwithstanding an amendment of the offered study or trial design following to customer’s suggestions the Supplier may keep on using the offered design in other studies or trials without restriction.
III. Prices, Terms of Payment
- The Supplier reserves the right to adjust his prices if there occurs, without responsibility of the Supplier, an increase of costs after conclusion of a contract or after delivery of a binding offer. Upon request, the increase of costs will be evidenced by the Supplier. Any amendments and alternations of performance required by the Customer after conclusion of the contract which cause additional costs, shall be paid in addition by the Customer.
- The Supplier reserves the right to charge costs resulting from providing a complex offer that contains an especially developed study or trial design (special design).
- The Supplier’s prices are exclusive of any legal value added tax (Umsatzsteuer). On the date of invoicing, this tax will be separately shown in the invoice.
- Delay of payment occurs if the Customer does not effect payment at the agreed due date or, if no due date of payment has been agreed, within ten calendar days from receipt of the Suppliers invoice and his performance. For the period of delay, the claims of the Supplier shall bear interest at 8 percentage points above the respective basic interest rate (Basiszinssatz) of the European Central Bank.
- Unless a counterclaim of the Customer is undisputed or approved by final judgement, the Customer shall not be entitled to offset any counterclaim against a claim of the Supplier.
- The Customer is not entitled to assign or transfer any claims or rights from contracts with the Supplier to third parties.
- The Supplier reserves the right to require the Customer to effect interim or advance payments.
IV. Completion, Date of Delivery, Delay
- Statements about the dates of completion or delivery are binding only if confirmed in writing by the Supplier. In case of additional or expanded performances ordered after confirmation of such dates or in case of force majeure or disturbances of operations pursuant to subsection 2, the said dates shall be extended by the times needed for the additional or expanded performances or of the force majeure or disturbance of operations, respectively.
- The dates of completion or delivery shall be extended in case of events of force majeure or comparable considerable disturbances of operations through no fault and beyond the reasonable control of the Supplier, as e. g. strike, lockout, extreme weather conditions, governmental interventions, by the times of such events or disturbances, respectively. The same applies if the events of force majeure or comparable disturbances occur at the Supplier’s agents, representatives, Suppliers or subcontractors.
- The Supplier is obliged to inform the Customer about the expected duration of the delay, as far as this is possible and reasonable.
- If the disturbances referred-to in subsection 2 extend for longer than 90 days, each party may withdraw from the contract by giving written notice thereof to the other party, the Customer however, only after expiry of a reasonable additional respite set to the Supplier and non-fulfillment by the Supplier.
- In case of delayed performance by the Supplier, the Customer shall be entitled to withdraw from the contract or to claim compensation of damages only after he has previously set in writing to the Supplier a reasonable period of no less than 15 working days. The rights of withdrawal and compensation of damages instead of performance may only be exercised, if the Supplier has previously unequivocally notified the Customer that he will decline acceptance after expiry of the respite period (threat of decline).
- Only the expert opinion (report) in the original is binding. Expert opinions sent by fax or e-mail are not binding for the Supplier.
- The Supplier’s performance is deemed to be accepted after receipt and non-objection in writing by the Customer within eight calendar days thereafter.
VI. Rights of the Customer in Case of Faults
- Any faults of performance shall promptly after their ascertainment be notified and specified in writing by the Customer to the Supplier. Simultaneously therewith, the faulty performance, shall be send to the Supplier to enable him secondary performance either by repair or replacement at his discretion; however, expertises, reports, diagrams or other written materials shall be returned to the Supplier only to the extent he requests it. The Supplier has a right to vote on rework or new preparation.
- In case of insignificant faults the Supplier may choose to grant a reduction of price instead of secondary performance.
- In case of failure of secondary performance the Customer shall be entitled at his discretion to reduce the price or withdraw from the contract. Secondary performance has failed if at least two trials of secondary performance have failed. Prior to a reduction of price or withdrawal from the contract, the Customer has to allow in writing to the Supplier an additional respite period for secondary performance of no less than 15 working days unless the allowance of any respite period is unnecessary by law. The Customer may exercise his rights only after his prior unequivocal written notification to the Supplier not to accept secondary performance after expiry of the respite period.
VII. Samples/Patterns and Obligations of Information by the Customer
- Where not otherwise agreed expressly and in writing, the Supplier researches, develops, tests and analyses exclusively according to the legislation which applies for Germany its national and European legal norms, in particular the Cosmetic Directive.
- To the extent the performances of Research, Development, Testing and Analysis of the Supplier are destined, or will probably be used, for the manufacture, delivery, distribution or use of raw and auxiliary materials, finished products, boxes, packing, instructions about product and application, or advertising in or to countries outside of Germany, the Customer shall notify the Supplier timely before conclusion of the contract of all statutory and non-statutory laws, regulations and standards relating to the raw and auxiliary materials, finished products, boxes, packing, instructions about products and application, and advertising in the relevant countries. The Customer shall make available to the Supplier such laws, regulations and standards either in German or in English language.
- As far as not otherwise agreed expressly and in writing, the performance of the Supplier and related expert assessments, reports or other statements constitute no certificate of free sale, no declaration of conformity or any other kind of “market release” and also no assumption of product liability is connected.
VIII. Quality structure and provision of samples and test patterns / notification obligations
- The Customer is obliged to leave the Supplier exclusively marketable and safe samples / test pattern for the research, development, testing and analysis and to inform comprehensively in writing about ingredients of the provided samples / test patterns and possibly resulting dangers, in particular, for example, for the health and the environment, and to point out specific features when handling materials and samples. This includes information on legally required warning and hazard signs, such as those under the Cosmetics Directive and other applying regulations. The Customer leaves the Supplier in particular only those samples that have been approved toxicological and correspond to applicable German and European law standards (in particular the EU Cosmetics Directive) and other requirements and against their use in the study to be carried out, there are no health or other concerns.
- The Customer is obliged to provide the Supplier at his own expense a sufficient number of samples /test patterns. The sent samples and test patterns go into the ownership of the Supplier and may be indisposed of after the end of the study from the Supplier (according to the German Waste Disposal Act) or be stored at will. A claim of the Customer to return the samples does not exist. In individual cases, however, a return can be expressly agreed in writing at the expense of the Customer.
IX. Limitation of Liability
- The Customer shall be liable for any property, pecuniary and other damages, irrespective of the legal grounds or extent of such damages, resulting from or caused by ordinary negligence of the Supplier, his representatives or agents, only to the extent such damages are foreseeable typical damages from the violation of substantial contractual obligations (cardinal obligations); the aforesaid limitation of liability shall not apply to damages resulting from personal injuries, i. e. infringement of life, body or health. Claims under the German Product Liability Act (Produkthaftungsgesetz) shall not be affected by the aforesaid limitation of liability.
X. Raw Data
- The Supplier acquires property in the Raw Data collected during performance of the study or trial. The Supplier is not obliged to hand the data over to the Customer.
XI. Statute of Limitation
- Except where the Supplier acts malevolently, he shall be liable for any faults of performance for a period of one year from acceptance of performance by the Customer.
- Negotiations on ground and extent of claims of the Customer against the Supplier shall be deemed to be terminated at latest three months after a party has not answered a letter relating to such claims received from the other party.
- The delivered works are protected by copyright pursuant to § 1 sub-section 2 UrhG (German Copyright Law). All copyright, copyright personal and exploitation rights belong to the originator. Besides the agreements made, also the regulations of the Copyright Law shall apply to all use of the works. The Customer shall only use the delivered work for the purpose that has been agreed. If the permitted types of use are not individually identified, the range of usage rights is determined pursuant to those connected with their granting and usage rights recognizable to the Supplier, as well as the following regulations. Any further usage, in particular by copying, distributing or passing on to third parties requires the prior agreement of the Supplier.
- The delivered works such as surveys, test reports, test results etc. may only be published with the prior written agreement of the Supplier. The same applies for the usage of an abridged version or sections of these works. If a publication has been agreed by the Supplier, the publication, application by copying or distribution is only permitted in the limits of the contractually determined usage purposes set forth in writing by the Supplier.
- The delivered works contain, among other things, graphics and image material. Individual graphics and individual image materials are subject to the Copyright Law. Image material and graphics may not be published or changed without the prior written agreement of the Supplier. In particular falsifying or distorting changes to images and graphics by adding or removing content is not permitted, unless the Supplier has declared his written consent in advance. If the agreement to publish will be granted by the Supplier, and a copyright notice is demanded, this has to be undertaken in a way that leaves no doubt to the identity of the copyright owner and allows assignment to the individual contribution to be made.
- If the Customer intends to indicate the fact of assessment by the Supplier of individual products or product groups in his product or company advertising, by using extracts of surveys, test reports or test results, etc., or by naming solely the Supplier, the prior contractual agreement is required. If an agreement has not been concluded, the use as citations or extracts of surveys, test results etc. is not permitted either in product advertising or in institutional advertising of the company.
- Technical, chemical and other information, written materials, business secrets and items embodying information and business secrets, as e. g. patterns, samples, reports and expertises, disclosed to or otherwise obtained by either party from the other shall be kept strictly confidential, shall not be disclosed to third parties and shall be utilized only with the consent of the other party even if such information, materials and items have not been marked expressly “confidential” or “secret” by the other party.
XIV. Place of Fulfillment, applicable Law
- Place of fulfillment for all performances and payments shall be the main place of business of the Supplier.
- Place of jurisdiction for all disputes between the parties shall be, if the Customer is a merchant, a public-law legal entity or a public-law special fund, the main place of business of the Supplier. If the Customer meets one or more of the aforesaid three conditions, the Supplier may at his discretion also bring an action against the Customer before a court having jurisdiction over the Customer.
- All business relationships between the Supplier and the Customer shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the Sale of Goods Law (the United Nations’ Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980), and under the exclusion of the provisions of private international law as amended from time to time.
- In case of doubt the German text of these General Conditions of Business applies.