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1.1 The following General Terms and Conditions of Sale, Delivery and Payment shall apply. Except when otherwise agreed in writing, all contracts and sales by Dialab Produktion und Vertrieb von chemisch- technischen Produkten und Laborinstrumenten Gesellschaft m.b.H. (“DIALAB® ”) shall be governed solely and exclusively by the following General Terms and Conditions. The same shall apply to all future business transactions entered into between DIALAB® and the Buyer.
1.2 DIALAB® shall not admit any purchasing conditions of the Buyer which deviate from the General Terms and Conditions set forth hereinbelow. DIALAB® shall not be governed by any terms of the Buyer even if DIALAB® fails to expressly and separately object to such terms upon entering into a contract. Application of any general terms and conditions deviating from DIALAB®’s General Terms and Conditions shall be expressly excluded. Nor shall DIALAB®’s furnishing of an acceptance of order be deemed to be an acceptance of the Buyer’s terms.
1.3 DIALAB® shall not be bound by any quotation except when such quotation is confirmed by DIALAB® or executed by the delivery of the ordered goods.
1.4 No change, modification or amendment whatsoever nor any collateral agreement shall be valid unless confirmed in writing on a case-to-case basis by DIALAB®.
1.5 In the event that the Buyer orders quantities that vary from the unit sizes specified in the pricelist or on the proforma invoice, DIALAB® shall be entitled to supply the unit size nearest to the quantity ordered.
2.1. Payment shall be based on the prices applicable on the day of performance. In the event of any change in conditions, including, without limitation, the cost of raw materials, wages, freight costs, insurance costs, customs or other duties, DIALAB® shall be entitled to pass on the attendant price changes to the Buyer. Should the Buyer object, DIALAB® shall be entitled to cancel the contract or to retain goods not yet shipped.
2.2. Invoicing shall be in EURO. The prices are exclusive of the statutory value added tax.
2.3. Prices shall be ex works, including packaging, except for sensitive products and products which require a large quantity of packaging material, in which case packing shall be charged separately.
3.1. In the case of orders of an invoiced value of less than EUR 1,500.– excluding VAT, DIALAB® shall charge a handling fee of EUR 200.– excluding VAT if not agreed differently.
3.2. DIALAB® shall be entitled to stipulate minimum purchasing quantities.
3.3. The regular delivery time is six to eight weeks.
3.4. No delivery period shall be binding except when expressly specified as binding. DIALAB® shall not admit any claim for damages due to delayed delivery.
3.5. Delivery periods shall not commence until all information required to identify the content of the order has been received and clarified and the order confirmation has been issued by DIALAB®.
3.6. In the event that the Buyer is obliged to pay in advance, the delivery time shall only commence upon the receipt of the prepayment on DIALAB®’s bank account.
3.7. Requests for express delivery shall be stated by the Buyer when the order is placed. In such event DIALAB® shall be entitled to charge the cost of express delivery.
3.8. If in the event of lot reservation the Buyer has failed to call off all or part of the quantity ordered upon expiry of the agreed time limit, DIALAB® reserves the right to cancel the contract to the extent not yet performed without granting a respite and to charge the Buyer for the price difference.
3.9. Once the order confirmation has been issued by DIALAB® and sent to the Buyer, DIALAB® does not acknowledge modifications or cancellations.
3.10. Acts of God or events of force majeure including, without limitation, war, strike, lockout, operational or traffic breakdown, plant shutdown, damage from fire, flooding, shortage of energy or raw materials, accident, delivery breakdown, government regulations, etc. which impede or obstruct production and/or shipment shall release DIALAB® of its obligation to deliver under this contract for the duration and extent of such impediment or obstruction.
3.11. For as long as the Buyer defaults on payment, including payment with regard to another business transaction, or fails to take an action required to perform the contract, DIALAB® shall be entitled to suspend its own performance. In the event that the Buyer fails to take acceptance of the goods, DIALAB® shall be entitled to cancel the contract and claim damages for non-performance.
3.12. In the event that the currency used for invoicing is devalued during performance of the contract, DIALAB® shall be entitled to raise prices for that part which is still undelivered. If the Buyer objects, DIALAB® shall be entitled to cancel the contract
4. Performance, shipment:
4.1. Goods are generally shipped ex works Incoterm 2010.
4.2. Upon the Buyer’s request the goods can be shipped CPT Incoterm 2010, whereby DIALAB® is charging the Buyer for the transport costs.
4.3. DIALAB® shall reserve the right to choose the shipping route and the type of shipment and to issue the instructions for transport.
5.1. Payments shall be made in accordance with the payment terms specified on the bill or invoice.
5.2. In the event of delayed payment, DIALAB® shall charge default interest at a rate of at least 12% or at the overdraft rate charged by DIALAB®’s own bank. DIALAB® reserves the right to claim damages for delayed performance. Any expenses incurred by DIALAB® for reminding and collecting payments, including, without limitation, charges from collectors and lawyers, shall be borne by the Buyer.
5.3. Failure to comply with the agreed payment terms, incomplete payment of any invoice or any change in the Buyer’s economic or legal circumstances shall entitle DIALAB® to cancel the contract or retain those quantities not yet shipped without entitling the Buyer to claim damages. Such course of action shall not affect any other rights of DIALAB®, including, without limitation, any rights from its reservation of title.
5.4. A payment shall be deemed to have been received on the date on which DIALAB® is able to dispose of the amount of payment.
5.5. The Buyer shall not offset any claims by DIALAB® against claims of its own, nor shall the Buyer be entitled to withhold payment.
5.6. If the Buyer defaults on payment, DIALAB® shall supply further goods only against cash before delivery or, in the event of exports, against cash before delivery, a bank guarantee or an irrevocably confirmed documentary letter of credit, in which cases any and all bank expenses shall be borne by the Buyer.
6. Complaints and return of goods:
6.1. Except when otherwise agreed in writing, a complaint shall be considered only if filed in writing within five days of receipt of the goods. If the complaint concerns reagents, it shall in all cases be filed by way of the “Problem Profile” supplied to the Buyer by DIALAB®.
6.2. No complaint shall entitle the Buyer to reduce or withhold payment of the purchase price.
6.3. If DIALAB® recognises the complaint, it shall be obligated only to supply substitute goods to the exclusion of any further claims (including, without limitation, claims for damages). In particular and to the extent permitted by the law, claims for damages on the grounds of non-delivery or delayed delivery shall be excluded.
6.4. The complaint shall be accompanied by a copy of the invoice or a delivery note.
6.5. The return or exchange of delivered goods shall be excluded. DIALAB® shall provide temporary storage for goods returned only if the return has been previously agreed in writing with the Buyer. DIALAB® reserves the right to destroy any goods that are returned without its express consent.
6.6. No compensation for reagents shall be granted except when the lot sample (retain sample) drawn and stored by DIALAB® does not comply with the agreed specifications
7.1. The production of any and all reagents, instruments and goods sold by DIALAB® is governed by strict quality control procedures in line with the relevant ISO standards.
7.2. DIALAB® supplies instruments and products of a quality that is adequate for normal use.
7.3. Except when otherwise agreed in writing, DIALAB® shall grant a six-month warranty as of the date of handing- over (Section 4 above) for instrument sold by it. DIALAB® shall perform its warranty obligation by, at its discretion, repairing defective instruments or exchanging it for non-defective instruments. DIALAB® shall perform its warranty obligation at its domicile. The cost of transportation shall be borne by the Buyer.
7.4. No warranty shall be granted for glass parts, wear parts and consumables.
7.5. DIALAB® shall not grant any compensation for nor be liable for any loss or damage resulting from causes including, without limitations:
· improper handling by the Buyer or a third party;
· act of God, fire, force majeure, explosion, damage from water, dropping, etc.;
· installation at an unsuitable location (e.g. excessive ambient temperature, excessive humidity, corrosive atmosphere, accumulation of dust);
· change of location without consulting DIALAB®’s customer services (applies only to automated analysis instruments);
· (technical) change of the instrument or software by the Buyer or a third party,
· addition of parts of external origin;
· failure to observe preventive care and maintenance instructions for the instrument;
· defect in the Buyer’s installations and facilities (e.g. power supply, etc.);
· obtaining a specific performance (e.g. a given response by partial products supplied, such as reagents) and for the result of the product to be manufactured by the Buyer.
7.6. DIALAB® shall grant a six-month warranty on all spare parts supplied by it.
7.7. DIALAB® shall not be liable for any consequential loss or damage whatsoever which may arise from the failure of any instrument.
7.8. The onus of proof that a particular loss or damage was not caused by any of the causes set forth in Clause shall rest with the Buyer.
8. Damages and product liability:
8.1. DIALAB® expressly refuses to admit any claims for damages asserted by the Buyer or any other contracting party of DIALAB® or in connection with the contractual relationship or execution of a contract by other parties.
8.2. To the extent permitted under the law, neither DIALAB® nor any of its intermediaries within the meaning of the Product Liability Act shall admit any product liability claim with regard to the products placed on the market, sold, marketed or distributed by DIALAB®. No claim shall be admitted for any loss or damage which is caused by non-compliance with warning instructions for shipping and processing (including, without limitations, with regard to reagents).
8.3. In using the products, all reasonable precautions shall be taken to keep as low as possible any loss or damage which might arise in the event of a defect of the product. The Buyer shall take appropriate preventive action. Each and every contracting party shall be liable to DIALAB® for any loss or damage which may accrue to DIALAB® from such party’s failure to perform obligations assumed by it.
8.4. In the event that a contracting party transfers any product delivered by DIALAB®, such contracting party undertakes to bind the recipients to any and all disclaimers and obligations set forth in Clauses 8.1. and 8.2. above and to commit them in turn to bind all subsequent recipients accordingly. In the event of a transfer, the contracting party shall confirm its compliance with this undertaking in writing within two weeks of being requested to do so by DIALAB®. The contracting party shall be liable to DIALAB® for any loss or damage which may accrue to DIALAB® in the event that the above duty is not performed. Transfer is understood to mean the handing-over of a product to any third party, be it in processed or unprocessed form, under whatever legal title or within the scope of executing works on the product.
9. Reservation of title:
9.1. Each shipment of goods shall remain the property of DIALAB® until any and all claims by DIALAB® have been paid in full and until any current account balance which may be debited to the Buyer has been settled.
9.2. In the event that the Buyer defaults on any payment, DIALAB® shall, at any time, be entitled to demand return of the goods, with or without cancelling the contract.
9.3. No suit for the purchase price or any part thereof shall affect the reservation of title held by DIALAB®.
9.4. The Buyer shall be entitled only to use the goods in the course of its proper business operations. In the event that the Buyer resells the goods prior to paying for them, the Buyer herewith cedes to DIALAB® any claims accruing to the Buyer against its own buyers. The Buyer shall hold the revenues from such resale in separate custody and immediately pay to DIALAB® such part of it as is still due from the purchase price.
9.5. In the event that any goods are attached or otherwise seized by a third party, DIALAB® shall be promptly informed in writing and supplied with all documentation required for intervention.
9.6. The Buyer undertakes to take out insurance coverage for any insurable loss or damage. The Buyer shall cede in advance any claims under insurance contracts to DIALAB®.
9.7. The Buyer shall act as the safekeeper of the goods until they are resold.
9.8. If the Buyer fails to perform its obligations under these General Terms and Conditions or its duties under the law, DIALAB® shall be entitled to demand return of the goods without cancelling the contract.
10. Place of performance, venue, miscellaneous:
10.1. The place of performance for all deliveries and payments shall be DIALAB®’s domicile.
10.2. The court in Vienna which is competent for commercial matters shall have sole jurisdiction for all disputes.
10.3. Austrian law shall be applied. Application of the United Nations Convention on Contracts for the International Sale of Goods (Austrian Federal Gazette no. 1988/96) shall be excluded.
10.4. If any provision of these General Terms and Conditions should be found to be invalid, this shall not affect the validity of the remaining provisions thereof nor the validity of the contract or the effectivity of its conclusion.
11. Data processing:
The Buyer expressly permits DIALAB® to process its personal data within the scope of DIALAB®’s business activities and business operations for business purposes and to disclose them to third parties.