General Terms and Conditions of Promega GmbH
Promega GmbH distributes products from Promega Corporation, one of the world's largest manufacturers of reagents, kits and equipment systems. The company manufactures products and system solutions for gene, protein and cell analysis as well as drug research.
§ 1 Scope of application and notes
- Promega GmbH concludes contracts exclusively with customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB). The following General Terms and Conditions therefore apply to entrepreneurs, legal entities under public law and special funds under public law within the meaning of Section 310 BGB. It is expressly pointed out that Promega GmbH does not supply Promega products to consumers due to the health risks associated with some Promega GmbH products. Promega also points out to the commercial customer that Promega products are not intended for consumers and expressly advises the customer not to pass them on to consumers.
- The customer undertakes not to trade in Promega products. This applies in particular to countries or institutions where there is a risk of a health hazard to the population or other negative effects on the population are to be feared or assumed. The customer undertakes to inform Promega GmbH of this and to obtain Promega GmbH's consent before supplying the Promega products, particularly if there is any suspicion that the company or institution to be purchased is one that contravenes the above principles.
- The following terms and conditions apply to all contracts with Promega GmbH, unless Promega GmbH expressly points out in the order that the general terms and conditions do not apply to the intended product or the contract to be concluded.
- Promega products are generally only intended for research purposes and/or for in-vitro use (or in individual cases, if specially labelled on the Promega products, also for diagnostics). Promega reserves the right to ask customers to confirm in writing that the product in question will not be purchased, used or resold for non-designated applications. All Promega products may only be used in the laboratory under the supervision of a professionally qualified person.
§ 2 Conclusion of contract, contract language
- Promega GmbH's offers are subject to change and non-binding, unless they are expressly labelled as binding or contain a specific acceptance period. By placing an order, the customer makes a binding offer to purchase the product in question. Promega GmbH can accept orders and commissions by sending a separate e-mail or by dispatching the goods. A contract is only concluded at this point in time. If customer orders are additionally confirmed by the customer by post or in text form after receipt of the declaration of acceptance by Promega GmbH, this letter must be labelled ‘order confirmation’. If this is not done, the customer shall bear the costs of any inadvertent duplicate dispatch. If the customer also wishes to accept the further delivery, the further provisions of these General Terms and Conditions shall apply regarding the shipping costs.
- The language provided for the conclusion of the contract is exclusively German. Translations into other languages are for the customer's information only. In the event of contradictions between the German text and the translation, the German text shall take precedence.
- Promega GmbH only sells toxic substances, which must be handled in compliance with appropriate safety precautions, to customers trained in handling toxic substances. Promega GmbH may require the customer to provide appropriate proof of handling such substances.
- When ordering products containing genetically modified organisms (GMOs) or which for other reasons may only be used in a biological safety level S1 laboratory, Promega GmbH requires proof of authorization to handle such substances before the order is executed. The proof must be provided to Promega GmbH once a year without express request.
§ 3 Prices, terms of delivery and payment, offsetting
- All prices quoted by Promega GmbH are ex works and do not include the applicable statutory VAT, fees and other ancillary costs. The customer shall bear the costs of packaging and freight, unless otherwise agreed.
- Delivery is made to the agreed destination in accordance with CPT Incoterms 2020. Promega GmbH shall bear the costs of transport to the named destination, including the costs of concluding a contract of carriage. However, the risk of loss of or damage to the goods is transferred to the customer upon handover to the first carrier. The costs for packaging shall be charged to the customer additionally, unless expressly agreed otherwise. In the case of an order with a net order value of less than 750 euros, these shall amount to a flat rate of 31 euros. Promega GmbH is entitled to make a price adjustment if price increases of more than 5% occur up to the time of delivery. Promega GmbH does not charge any additional costs for packaging and freight for orders with a net value of EUR 750 or more. Excluded from this are the costs for packaging and shipping when ordering devices, for express deliveries and for the reshipment of lost packaging materials for returns.
- Payments are due net (without deduction) within 30 days of receipt of the goods and invoicing. Payments are not deemed to have been made until the payment amount has been credited to one of Promega's accounts. The statutory provisions regarding the consequences of late payment apply, in particular Promega GmbH's entitlement to charge interest on arrears at a rate of nine percentage points above the base rate.
- Promega GmbH issues invoices electronically and also sends them electronically by means of e-invoicing. The customer agrees to this procedure.
- Payment for the goods can be made by credit card (the SSL transmission method is used to encrypt the customer's personal data), by bank transfer or via the respective payment service provider. The relevant bank details can be found on the respective invoice.
- The customer may only offset payment claims of Promega GmbH with a claim that is undisputed, recognised by Promega GmbH or legally established. The customer is only authorised to exercise rights of retention to the extent that a counterclaim is based on the same contractual relationship.
§ 4 Delivery times
- The delivery times are non-binding, unless they are expressly agreed to be binding. If Promega GmbH does not have an ordered Promega product in stock, delivery will take place as soon as possible. The delivery time begins with the acceptance of the order by Promega GmbH.
- Unless otherwise agreed, "free of charge" is agreed for all deliveries.
- If the customer is in default of acceptance or culpably violates other obligations to cooperate, Promega GmbH is entitled to demand compensation for the damage it incurs in this respect, including any additional expenses. Further rights or claims are reserved. From the time of default of acceptance, the risk of an accidental loss or accidental deterioration of the Promega product passes to the customer.
§ 5 Handling Promega products and shelf life
- If the order contains hazardous substances, these are marked as such by Promega GmbH in accordance with current specifications and must be used by users in compliance with the safety regulations contained. Handling Promega products can be dangerous. Direct skin contact or ingestion should be avoided at all costs.
- Promega GmbH would like to point out that Promega products naturally have a very limited shelf life in some cases. The expected shelf life of Promega products can usually also be found in the respective product packaging or product descriptions.
§ 6 Liability for defects
- Claims for defects by the customer require that the customer has duly complied with its obligations to inspect and complain under Section 377 of the German Commercial Code (HGB).
- If a Promega product has a defect, Promega GmbH is entitled and obliged to replace the defective Promega product with a defect-free product by way of subsequent performance. In this case, Promega GmbH is obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased Promega product is to be shipped to a location other than the original location at the customer's request. If the subsequent performance fails, the customer is entitled to demand withdrawal or reduction at his discretion.
- The limitation period for the claims for defects/rights of defects regulated in Section 2 is 12 months, calculated from the date of the statutory start of the limitation period. The claims under § 478 BGB remain unaffected by this.
- Promega GmbH shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of Promega GmbH's representatives or vicarious agents. Insofar as Promega GmbH is not accused of an intentional breach of contract, liability for damages is limited to the foreseeable damage typical of the contract.
- Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
- Unless otherwise stipulated above, liability is excluded.
§ 7 Overall liability
- A further liability for damages than provided for in Section 6 is excluded – regardless of the legal nature of the asserted claim – provided that Promega GmbH or its representatives or vicarious agents cannot be accused of intent, gross negligence or the violation of a material contractual obligation. This applies in particular to claims for damages due to fault at the conclusion of the contract, due to other breaches of duty or due to tortious claims for compensation for property damage pursuant to § 823 BGB. Mandatory liability under the Product Liability Act remains unaffected.
- The limitation according to Section 1 also applies if the customer demands compensation in the form of useless expenses instead of a claim for compensation for damage.
- Insofar as liability for damages vis-à-vis Promega GmbH is excluded or limited, this also applies with regard to the personal liability for damages of the employees, employees, employees, representatives and vicarious agents of Promega GmbH.
§ 8 Returns
- Due to the temperature sensitivity of Promega products and the health hazards sometimes associated with handling Promega products, the return of Promega products is generally excluded.
- In individual cases, customers of Promega GmbH may return the delivered Promega products to Promega GmbH with the prior consent of Promega GmbH. The Promega product returned with the consent of Promega GmbH can only be accepted by Promega GmbH if it has been properly packaged.
§ 9 Retention of Title
- Promega GmbH reserves ownership of delivered products until all claims arising from the respective supply contract have been paid in full. If the customer behaves in breach of contract, in particular if he does not pay the invoices issued to him in accordance with § 3, and if an additional reasonable period of time set by Promega GmbH expires fruitlessly, Promega GmbH shall be entitled to take back the delivered Promega product. The take-back of delivered Promega products by Promega GmbH is equivalent to a withdrawal from the contract. After taking back the Promega product, Promega GmbH is entitled to recycle the taken back Promega product.
- The customer is obliged to treat the delivered Promega product with care as long as Promega GmbH has ownership of the Promega product. In particular, he is obliged to insure the delivered Promega product accordingly at his own expense and, if maintenance and inspection work is necessary, to carry it out in good time at his own expense.
§ 10 Code of Ethics
The customer undertakes to comply with the following principles and obligations in all contracts concluded with Promega GmbH:
- Working conditions
The customer assures and guarantees that no child labor will take place and will be tolerated in connection with the fulfillment of the contractual obligations with Promega GmbH. The same applies to forced labor. The customer will do everything in his power not to accept this – even with his subcontractors and contractual partners.
The customer undertakes to comply with the applicable youth protection regulations in connection with the execution of all contracts with Promega GmbH.
The customer also undertakes to comply with the applicable occupational health and safety regulations. The customer also ensures that its employees as well as those of its subcontractors and business partners are paid according to the current local wage levels. - Environment
The customer undertakes to protect the environment in the long term and to include environmental concerns in planning and processes. In this context, the customer undertakes to comply with the applicable environmental regulations and standards in the areas of waste management, emissions and water. The organisation of transport and logistics must take environmental concerns into account. - Storage
The storage of the products supplied by Promega GmbH is carried out by the customer in compliance with all environmental issues and all specifications in the area of product safety. In particular, it must be taken into account that Promega products can also be dangerous goods. The necessary precautions for transport and storage must be observed by the customer. - Foreign Trade Law
Promega GmbH is committed to strict compliance with international sanctions and export control regulations. These provisions include, but are not limited to, trade restrictions and financial sanctions enacted by regulations of the European Union or any other national or regional organization under the jurisdiction of Promega GmbH, including its employees, wherever they are located (hereinafter: Export Control Regulations).
Promega GmbH is entitled to request information or confirmation of certain facts in connection with its products from the customer that it needs to comply with export control regulations.
Promega GmbH is entitled to change orders that have already been confirmed or to revoke the confirmation and to terminate the business relationship if and to the extent that their execution would violate export control regulations in the opinion of Promega GmbH.
Promega GmbH is entitled to claim damages from the customer due to the violation of export control regulations. - Binding nature and implementation as well as control of this Code of Ethics
The provisions of this Code are binding on the contracting parties. As a result of the violation of the legal obligations arising from this Code, Promega GmbH is entitled to claims for action, injunctive relief and damages against the customer. The Customer undertakes to indemnify Promega GmbH against all claims that third parties may assert against Promega GmbH and which result from the fact that the Customer has violated the principles and obligations arising from this Code of Ethics. From this point of view, the customer expressly undertakes to take out precautionary liability insurance for personal injury and property damage with a liability scope of at least 500,000 euros in order to be insured against violations according to this code of ethics. The Customer acknowledges that the principles of this Code of Ethics are fundamental to the cooperation between Promega GmbH and the Customer. Promega GmbH may carry out audits of its customer at regular intervals during normal office hours after appropriate registration and may make requests for information to ensure that the obligations under this Code of Ethics are complied with. The customer undertakes to respond comprehensively and promptly to such inquiries and to cooperate with the audits. - Bribery/corruption
Promega GmbH does not tolerate any form of bribery or corruption. The customer as well as all his business partners and subcontractors must behave in such a way that no personal dependence, obligation or influence arises. - Sanctions
Significant violations of the principles of this Code of Ethics by the Customer shall entitle Promega GmbH to terminate the business relationship with the Customer, even if the material violations of the Code of Ethics relate only to certain areas of business cooperation.
§ 11 Data protection information
- Controller, purposes and necessity of data processing
The Data Controller
Promega GmbH,
Gutenbergring 10,
69190 Walldorf
onlinesupport@promega.com
collects personal data (surname, first name, address, contact details such as e-mail or telephone number, if applicable, bank account details, information in connection with the contracted service) for the performance of the concluded contract. - Advertising and Right to Object
The collection of surnames, first name and address is also carried out for advertising purposes (sending offers, information about additional services). Processing for advertising purposes can be objected to at any time using the contact details specified in section (1). - Storage period
After the performance of the contractually owed service, personal data will be stored
- for the purpose of legal warranty for 2 years
- for the purpose of carrying out follow-up orders for 2 years (as desired at the time of conclusion of the contract or at a later date) and
- for tax purposes for 10 years.
- Objection to data storage
With the data processing for the purpose of carrying out follow-up orders for 2 years (desired at the time of conclusion of the contract or at a later date), legitimate entrepreneurial interests are pursued from a data protection point of view. This processing can be objected to at any time using the contact details specified in section (1). - Data deletion
Personal data will be deleted after the above deadlines have expired at the latest. - Data protection rights in general as well as the right to lodge a complaint with the supervisory authority
Within the framework of the requirements of Art. 15 et seq. of the General Data Protection Regulation, you have a right to information about the personal data concerning you as well as rights to correction, deletion, restriction of processing, a right to object to processing and a right to data portability. If you are of the opinion that the processing of personal data concerning you violates the General Data Protection Regulation, you have the right to lodge a complaint against the data protection supervisory authority of Baden-Württemberg (State Commissioner for Data Protection and Freedom of Information Baden-Württemberg, Königstr. 10a, 70173 Stuttgart, https://www.baden-wuerttemberg.datenschutz.de/) and against any other data protection supervisory authority. - Data processing in third countries
As a subsidiary of the American Promega Corporation, Promega GmbH uses the services of its parent company. As part of these services, the parent company may also come into contact with personal customer data. To ensure the appropriate level of protection, the parent company has concluded the EU Standard Contractual Clauses with its European subsidiaries. - Contact details of the data protection officer
If you have any questions about data protection, please feel free to contact the data protection officer of Promega GmbH at any time:
Rechtsanwalt Ulf Neumann, LL.M.
Heßbrühlstr. 49
70565 Stuttgart
phone 07121/3476540
mail@ulfneumann.de
§ 12 Maintenance Contracts
- The Client is obliged to delete personal data on the equipment to be serviced before the start of the maintenance. Since this prevents Promega GmbH from coming into contact with personal data, Art. 28 GDPR on order processing does not apply.
- If the maintenance does not take place on site at the customer's site, but at Promega GmbH, the customer bears the transport risk for shipping the device from the customer to Promega GmbH and back from Promega GmbH to the customer.