Terms & Conditions

Terms & Conditions

I. General Provision

1. All present and future offers, deliveries and other services of myriamed GmbH (hereinafter “Seller”) shall be exclusively subject to the following sales, delivery and payment terms (hereinafter “Terms and Conditions”) if the Customer is a merchant, within the meaning of Sec. 14 German Civil Code (BGB) unless a specific written agreement provides otherwise. Any deviating, conflicting or amending general terms and conditions of the Customer or any third parties shall not apply even if they have not been expressly rejected and/or the Seller makes delivery to the Customer without reservation.

2. Individual agreements made with the Customer in individual cases (including side agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions. Subject to proof to the contrary, a written contract or written confirmation shall be authoritative for the content of such agreements.

3. The Customer may only assign his claims against the Seller to third parties with the prior written consent of the Seller. § 354a HGB remains unaffected.

4. The Seller is authorized to collect, store, process and use the personal data entrusted to him by the Customer within the scope of the intended purpose of the contract and in compliance with the applicable data protection laws.

II. Formation of the Contract

1. All offers of the Seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. This also applies if the Seller has provided the Customer with additional documents (e.g. calculations, drawings, descriptions, etc.)

2. Contracts are only concluded if the Seller, after receipt of the Customer's order, accepts the order by written order confirmation, delivery or performance of the ordered service.

3. Minor deviations from specifications regarding dimensions, weights, composition and quality are reserved.

III. Prices and Payment

1. Prices quoted in price lists or otherwise are exclusive of value added tax at the statutory rate, in the case of export deliveries exclusive of customs duties as well as fees and other public charges, but including packaging.

2. Other additional or special services are charged separately. Unless otherwise agreed in individual contracts, the Customer shall bear the shipping and transport costs.

3. Unless a fixed price has been agreed, the Seller reserve the right to make reasonable price changes due to changes in purchasing, wage, material and distribution costs for deliveries and other services which occur three (3) months or more after conclusion of the contract. Should the price increase amount to more than 10%, the Customer may withdraw from the (partial) performance concerned within two (2) weeks after notification of the price increase.

4. Unless otherwise agreed in individual contracts, the Customer shall pay all invoice amounts without deduction within 14 days of receipt of the Seller's invoice. The place of performance for all payment obligations of the Customer is the Seller's place of business. If the Customer does not pay within the period specified in above, he shall automatically be in default without the need for a prior reminder.

5. Payment by cheque or bill of exchange is effective only after these instruments have been cleared and paid. The discount on bills of exchange and any collection and other bank charges are born by the Customer.

6. The Seller is, even within the framework of an ongoing business relationship, entitled at any time to carry out a delivery in whole or in part only against advance payment. The Seller declares a corresponding reservation at the latest with the confirmation of the order. In the case of services, the Seller is in particular entitled to demand up to 50 % of the estimated costs before the service is started.

7. In the event of default of payment, the Seller shall be entitled to demand default interest of nine percentage points above the respective base interest rate of the European Central Bank. The assertion of further damages or other claims by the Seller is not excluded.

8. The Seller may refuse delivery if, after conclusion of the contract, facts become known which give rise to sufficiently justified doubts as to the creditworthiness of the Customer to the effect that the Seller's claim for payment or its claim to counter-performance may be at risk. Sufficiently justified doubts are in particular: The opening or the application for the opening of insolvency proceedings at the Customer's premises, an unsuccessful attempt at foreclosure, the submission of uncovered checks or false statements by the Customer which represent his creditworthiness better than the actual circumstances. The right to refuse performance shall cease to apply as soon as the counter-performance is affected or appropriate security is provided. The Seller may set a reasonable deadline for this. After the unsuccessful expiry of this period, the Seller may withdraw from the contract.

IV. Delivery

1. Delivery dates shall only be binding if they have been confirmed by the Seller or otherwise agreed as such in writing.

2. Unless otherwise agreed in individual contracts, the place of performance shall be the Seller's business seat. Shipments are effected from the Seller's plant in Goettingen Germany.

3. Unless the Seller receives express written shipping instructions from the Customer who bears the costs, the method of shipment is determined by the Seller.

4. Should the Seller, at the request of the Customer, send the goods to a destination other than that specified in Section IV.2., the transport shall be at the risk and expense of the Customer. Risk passes to the Customer already when the goods are handed over to the person responsible for the transport, even where the transport is carried out by the own employees of the Seller.

5. The Seller is entitled to fulfill an order by deliveries in several instalments. Each instalment may be invoiced separately.

6. Agreed orders on call-forward notice will be executed on time if notice is received by the Seller at least 14 days in advance of the desired delivery date.

7. Should the Seller fall into fault for reasons for which the Seller is responsible, the Customer shall be entitled to the statutory rights; however, the Seller’s liability for damages and expenses shall be limited in accordance with Section VI.

8. Should the Customer be in default of acceptance, or should the dispatch be delayed due to reasons for which the Customer is responsible, or should he be in breach of any other duties of co-operation, the Seller shall be entitled to demand reimbursement of the damage suffered by him, including any extra expenditure. In such case, the risk of incidental loss or incidental deterioration of the goods shall also pass to the Customer at the point in time at which the latter falls into default.

9. In the event of a default by the Customer with respect to his acceptance, the Seller shall furthermore be entitled to refuse to make delivery after having set the Customer a reasonable period for acceptance and such period having elapsed to no avail, to withdraw from the contract and to claim lump sum damages in the amount of 5 % of the purchase price. However, the Customer is allowed to prove that no damage occurred at all or that the damage which occurred is substantially lower than the lump sum. The Seller shall not be prevented from claiming further damages or asserting any other claims.

V. Warranty Rights

1. Any claim of the Customer due to defects of the goods is subject to Customer‘s compliance with the obligation to examine the delivered goods and to notify the Seller of a material defect in accordance with Sec. 377 German Commercial Code (HGB). The Seller shall be notified immediately in writing, with proper specification of the nature and scope of the alleged defects. Deviations in quantity, insofar as they do not represent partial deliveries, or incorrect deliveries must be reported in writing at the latest two (2) weeks after receipt of the goods. Hidden defects must be reported in writing immediately after their discovery. If these notification deadlines are not met, all warranty claims shall expire.

2. The Seller does not waive his right to object that a notice of alleged defects was not timely made or specified by reason, in the event, he has negotiated with the Customer or examined the goods.

3. Defects with respect to a part of the delivered goods shall not entitle the Customer to allege a defect with respect to all the goods delivered. In addition, the Customer shall not be entitled to withhold payments to the Seller because of possible defects.

4. Seller‘s responsibility for defects, in Seller‘s sole discretion, shall be limited to elimination of the defect (Nachbesserung) or the delivery of a flawless item. In the event of delivery of flawless goods (Nachlieferung), the Customer shall return the defective goods to the Seller in accordance with the statutory provisions. Subsequent performance does not include either the removal of the flawless item or its reinstallation if the Seller was not originally obliged to install it. The Seller’s right to refuse subsequent performance under the statutory conditions remains unaffected. In the event the Seller is not able or ready to repair or to replace the goods, the Customer shall only be entitled at his sole discretion to request a reduction of the purchase price or to cancel the contract. Where the defect is only insignificant, the Customer shall not be entitled to a right of cancellation.

5. If a defect is due to the fault of the Seller, the Customer may demand compensation for damages or expenses under the conditions specified in Section VI.

6. Statements made by the Seller with respect to the delivered goods, in particular, description of the goods and statements concerning their quality and construction shall not be deemed to be guaranteed features unless the statements are expressly designated as guaranteed features. The Seller shall be liable in the agreed scope for the lack of any guaranteed feature of the goods. Where a guarantee agreement, if any, does not specify any legal consequences, these shall derive from the statutory provisions.

7. In deviation from the provision of Sec. 438 para. 1 no. 3 BGB, the warranty period for material and legal defects is one (1) year from delivery or, if acceptance is required, from acceptance. This period shall apply to claims for which mandatory statutory periods are prescribed and to claims for which deviating periods are listed in Section VI. below.

VI. Liability of the Seller for Damages in Case of Fault

1. The Seller's liability for damages, irrespective of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this Section VI if, and to the extent, the liability depends on fault.

2. The Seller is not liable in the case of simple negligence of his organs, legal representatives, employees or other vicarious agents, as far as it is not a violation of essential contractual obligations, i.e. such contractual obligations upon the performance of which the contract partner must necessarily and may rely on by reason of the nature of the contractual relationship. Essential contractual obligations are regularly the obligation to timely delivery of the ordered goods or performance of the ordered services, its freedom from defects of title as well as such material defects which impair its functionality or usability more than only insignificantly, as well as consulting, protection and care obligations which are intended to enable the Customer to use the ordered goods in accordance with the contract or which are intended to protect the life or limb of the Customer's personnel or to protect its property from substantial damage.

3. Insofar as the Seller is liable for damages, this liability shall be limited to damages which the Seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen when applying normal commercial care. Indirect damages and consequential damages resulting from defects of the delivery item are furthermore only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended.

4. Customers, who utilize products of the Seller for industrial production, do that at their own peril. Since the Seller cannot anticipate or control the possible procedures and processes for such an industrial application of his products, any and every form of warranty or liability is rejected, save as provided otherwise by statutory laws. The Seller’s application instructions in such cases are only to be considered as recommendations, which do not commit the Seller in any way.

5. The above exclusions and limitations of liability shall apply to the same extent in favor of the Seller's organs, legal representatives, employees and other vicarious agents.

6. The foregoing provisions do not entail any reversal of the burden of proof.

7. Limitations and exclusions of liability in accordance with the provisions of the above clauses V. and VI. do not apply to:

a) Damages resulting from injury to life, body or health, which are based on a grossly negligent breach of duty by the Seller or an intentional or negligent breach of duty by a legal representative or vicarious agent of the Seller;

b) other damages resulting from a grossly negligent breach of duty on the part of the Seller or from an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the Seller;

c) the liability in accordance with the Product Liability Act;

d) cases where the seller has given a guarantee of quality.

VII. Force Majeure

The Seller shall not be liable for any impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, epidemics or pandemics, shortage of labor, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure of, incorrect or untimely delivery by suppliers) for which the Seller is not responsible. Insofar as such events make it considerably more difficult or impossible for the Seller to deliver or perform and the hindrance is not only of a temporary nature, i.e. lasts longer than four (4) weeks, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or performance deadlines shall be extended or any agreed delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period.

VIII. Retention of Title and other Rights to the Delivered Goods

1. Title to the goods delivered by the Seller does not pass to the Customer until the Customer has fully discharged all his current and future obligations arising out of his business relationship with the Seller. As long as the Seller retains title to these goods, they may not be pledged or assigned under a security agreement.

2. The title to the goods also comprises the value of the results which will be manufactured from the processing, mixing or combination of the goods delivered by the Seller whereas the Seller shall be deemed as manufacturer. To the extent, another party will hold title in the results arising from such processing, mixing or combination the Seller will keep partial title based on the calculated values of the processed, mixed or combined goods. Apart from that, the result shall be treated like the goods as delivered under the Seller’s title.

3. The Customer assigns to the Seller, as a security, all the accounts receivable resulting from the sale of Seller’s goods, up to the amount of unpaid invoices. This security interest must take priority over all security interests in these accounts receivable which the Customer grants to his other creditors. Payments which the Customer receives on the accounts receivable resulting from the sale of Seller’s goods, must first be credited to that part of the accounts receivable which is not covered by the Seller’s security interest.

4. As long as the Seller hold any security interest in the goods delivered by the Seller or in the accounts receivable resulting from the sale thereof, the Customer must provide the Seller with any information which the Seller needs for the protection of his rights. This, in particular, applies to attachments and other forms of seizure with regard to the Seller’s goods, or any account receivable assigned to the Seller. The costs of any measures which the Seller must adapt for the protection of his security interest will be borne by the Customer.

5. Without prejudice to the right to collect the accounts receivable assigned to the Seller, the Customer is permitted, subject to revocation at any time, to collect these accounts receivable. To the extent, the Customer properly complies with his payment obligations, his capability to perform is not reduced and the Seller does not assert any rights under the retention of title or does not collect the account receivable.

6. If the value of the securities exceeds the amount of the Seller's claims by more than 10%, the Seller shall release and re-transfer securities to the corresponding extent.

7. If the Customer defaults on the due performance of any of his contractual obligations, the Seller may repossess the goods to which he still hold title and keep them in custody at the Customer’s costs until the default is rectified. Such repossession shall not be interpreted as a withdrawal of any sales contract, unless the Seller expressly says so in writing. If the Customer does not pay the consideration for the goods, the Seller may only assert the afore-said right given that the statutory requirements to withdraw from contract have occurred.

8. Upon full payment of the Seller’s claims against the Customer, title to the collateral shall automatically, i.e. without the necessity of any explicit retransfer vest in the Customer.

9. Unless otherwise agreed in individual contracts, the Customer may not resell sold goods, deliveries or other services to commercial third parties or grant third parties commercial rights of use (e.g. through licensing) of the goods, deliveries or other services without the prior consent of the Seller.

10. For sake of clarity, and unless otherwise agreed in an individual contract, the Seller does not grant the Customer any exclusivity on the products, goods, deliveries or other services sold. Instead, the Seller reserves all rights, including, but not limited to, the right to manufacture or sell the same products, goods, deliveries and other services with identical contents to third parties.

IX. Compliance with Laws, Third Party Rights and Export Control

1. The Seller’s products and other goods are basically consisting of genetic materials, e.g. human induced pluripotent stem cells (hiPSC), and, as such, are designed for use in scientific research. They have been developed only for this purpose. Any application of the Seller’s products or goods for human medical treatment, for diagnostic purposes, or as pharmaceuticals is permitted only if, and to the extent, such application is authorized to both, the Customer and the end-user under the applicable laws and regulations and, as far as necessary, also approved by the competent government agencies. In addition, such application always requires prior written consent of the Seller. Express instructions on the package are the equivalent of such consent and Customer shall comply with those at all times; they do not, however, eliminate the requirement of any governmental approval, which might be necessary in the user's territory.

2. The Customer is also aware that the ordered goods may be subject to export and import as well as other legal restrictions and/or other permit requirements. The Customer is exclusively responsible for complying with any export and import control regulations, other legal restrictions and/or obtaining any related permits at his own expense.

3. When ordering a certain contract work (service) such as, for instance, gene editing, efficacy/toxicity assays of compounds or cell-line adaptations this para. 3 shall additionally apply and form part of the respective purchase contract. In his capacity as recipient of the order, the Seller is not able to examine whether protective rights of a third party are infringed when carrying out the contract work. By making the order. the Customer assures that the products manufactured by the Seller do not infringe any IP/protective rights or other rights of third parties. He further assures that he has obtained all allowances/licenses from the owner of the protective rights necessary for manufacturing the products. Should nevertheless any rights of third parties be infringed by the contract work, the Customer shall compensate the Seller for all damages which are caused by this infringement, and shall indemnify and hold the Seller harmless against any claims from third parties claiming a breach of their rights.

4. By placing an order, the Customer conclusively confirms to hold all required permissions. Nevertheless, the Seller has the right to request evidence for such permissions.

5. The Customer shall not be entitled to any rights or claims against the Seller if the contract between the Seller and the Customer cannot be performed as intended due to conflicting legal provisions, in particular any conflicting export or import regulations, or other Customer’s non-compliance with his obligation set forth herein. In this case, the Seller is nevertheless entitled to payment of the agreed purchase price for the goods or the agreed remuneration for agreed services.

6. If the performance of the concluded contract violates any legal provisions or rights of third parties (e.g. regulations concerning the use of the goods, export or import regulations or copy rights) and these violations result in a liability of the Seller, the Customer shall be obliged to indemnify the Seller accordingly or, if this is not possible, to compensate him for any damages.

X. Information and Cooperation Duties of the Customer

1. The Customer shall inform the Seller at all times of any infringements of copy rights, trademark rights, patents, licenses or similar rights of the Seller of which the Customer has become aware, and shall cooperate with the Seller in order to avert any such infringements of rights. The Seller shall be exclusively and finally competent to decide on the adequate measures.

2. Furthermore, the Seller shall be informed by the Customer, insofar as possible and insofar as the latter is aware of the same, of possible risks of damage which could arise from a product of the Seller. These include in particular experience of the Customer with the products of the Seller or with competitor products with the same or comparable features in so far as the Customer obtains knowledge of the same.

XI. Set-off; Retention and Assignment

1. The Customer shall only be entitled to exercise rights of withholding where his counter-claims have been undisputed, judicially decided and are final and legally binding, or where the same are recognized by the Seller or are of the same contractual relationship.

2. The Customer shall not be entitled to any statutory right of retention or of refusal of performance.

XII. Governing Law and Jurisdiction; Miscellaneous

1. The contractual relationship between the parties is subject to and governed by the laws of the Federal Republic of Germany excluding the conflict of law provisions of the international private law as well as the United Nations Convention On Contracts for the International Sale of Goods (CISG).

2. Provided that the Customer is a merchant, a legal entity under public law or a special fund under public law or does not have a general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction and venue with respect to all disputes arising out of or in connection with the business relationship between the parties shall be the main place of business of the Seller. The Seller, however, shall also be entitled to sue the Customer in any other court of competent legal jurisdiction. Any mandatory laws providing for exclusive places of jurisdiction and venue shall remain unaffected from this provision.

3. Any amendment or supplement to any contract having once come into force including these Terms and Conditions must be made in written form. This shall also apply for any amendment to this clause prescribing the written form.

4. Insofar as the contract or these Terms and Conditions contain loopholes, the legally effective provisions which the parties would have agreed in accordance with the economic objectives of the contract and the purpose of these Terms and Conditions if they had been aware of the loophole shall be deemed agreed to fill these loopholes.

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