Promega GmbH General Terms and Conditions of Business
Promega GmbH is one of the world’s largest manufacturers of reagents, kits and device systems and manufactures products and system solutions for gene, protein and cell analysis as well as active ingredient research. All contracts concluded with Promega GmbH are based on the following General Terms and Conditions of Business. Conflicting or deviating terms and conditions of the customer shall not be recognised. The Promega GmbH General Terms and Conditions of Business also apply in the event Promega GmbH provides goods or services without reservation to the customer with knowledge of business terms of the customer which deviate from or are contrary to these General Terms and Conditions of Business.
Section 1. Scope
Promega GmbH concludes contracts exclusively with customers who are not consumers within the meaning of section 13 German Commercial Code (BGB). The following General Terms and Conditions of Business shall therefore apply to entrepreneurs, legal entities under public law and special funds under public law within the meaning of section 310 BGB.
Promega GmbH states expressly that it does not supply any Promega products to consumers in light of health risks associated with some Promega GmbH products. In addition, Promega instructs commercial customers that Promega products are not intended for consumer and expressly advises customers not to make them available to consumers.
The following terms and conditions apply to all contracts with Promega GmbH, unless Promega GmbH expressly states with regard to a specific order that these General Terms and Conditions of Business do not apply to the relevant product or contract to be concluded.
Promega products are only intended for research purposes and/or for in-vitro use (or for diagnostic use if specially marked on the relevant Promega product). Promega reserves the right to require customers to provide written assurance that the product in question will not be purchased, used or resold for any uses for which they are not intended. All Promega products may only be used in the laboratory under the supervision of a qualified professional.
Section 2. Contract conclusion and contract language
Promega products can be ordered by the customer both over the online store at www.promega.com, in the catalogue or in connection with advertisements presented by Promega GmbH, as well as via B2B eCommerce platforms such as Ariba, Jaggaer, Wallmedien, Asapio or eBiss. The following provisions shall apply:
Orders from the catalogue or in connection with advertisements:
The presentation of Promega products in the catalogue or in advertising does not constitute a binding offer by Promega GmbH, but merely an invitation to place orders (invitatio ad offerendum). Orders can be placed by post (Promega GmbH, Gutenbergring 10, 69190 Walldorf), fax (+49 62276906 222), telephone (+49 62276906 291) or e-mail (email@example.com). All details, whether in the catalogue or in advertising materials, are non-binding with regard to price, quantity and availability.
After placing the order and thus a purchase offer, Promega GmbH will either accept this by a separate e-mail or send the goods for dispatch. A contract is only concluded at this point in time.
If customer orders placed by one of the methods described above are additionally confirmed by the customer by post or in text form after receipt of the declaration of acceptance by Promega GmbH, any such correspondence must be marked “order confirmation”. If the customer fails to do so, the customer shall bear the costs of any double shipment sent in error. If the customer also wishes to accept any such additional delivery, all additional provisions set out in these General Terms and Conditions of Business shall apply with regard to shipping costs.
The presentation of Promega GmbH's products in the online store at www.promega.com, and via B2B eCommerce platforms such as Ariba, Jaggaer, Wallmedien, Asapio or eBiss, does not constitute a legally binding sales offer, but merely an invitation to submit purchase offers (invitatio ad offerendum).
For both ordering methods, the language provided for the contract conclusion is exclusively German. Translations into other languages are only for the customer’s information. In the event of any discrepancy between the German text and the translation, the German text takes precedence.
Promega GmbH sells toxic substances, which are to be handled in compliance with appropriate safety precautions. These can only be sold to customers trained in the handling of toxic substances. If necessary, Promega GmbH may require the customer to provide appropriate proof of the handling of such substances.
When ordering products containing genetically modified organisms (GMOs) or products that for any reason may only be used in a laboratory of biological safety level S1, Promega GmbH requires proof of approval for the handling of such substances before executing the order. This proof must be provided to Promega GmbH once a year without explicit request.
Section 3. Prices and payment terms; Set-off
- All prices quoted by Promega GmbH are quoted in euros and do not include the applicable statutory value-added tax, currently 19%.
- The purchase price is due for payment within 30 days after receipt of the goods and invoicing net (without deduction). Payments are valid only when the payment amount has been credited to one of Promega’s accounts. The applicable statutory provisions govern the consequences of a default in payment.
Payment can be made by credit card (SSL is used to encrypt the customer’s personal data), bank transfer or via the respective payment service provider. The corresponding bank details can be found on the respective invoice.
- Costs for packaging and freight shall be paid by the customer. Unless otherwise agreed, these amount to a flat rate of € 31,00 for an order value below € 750,00 net. Promega GmbH reserves the right to adjust pricing if prices increase by more than 5% up to the time of delivery.
- Promega GmbH creates invoices electronically and likewise sends them electronically via e-invoicing. The customer agrees to this procedure.
- For packaging and shipping, Promega GmbH currently charges a lump sum of € 31,00 up to an order value of € 750,00 unless otherwise agreed.
- Promega GmbH does not charge any additional costs for packaging and shipping for orders with a net order value of € 750,00. This does not include the costs for packaging and shipping when ordering equipment, for express deliveries and for forwarding of lost packaging materials for returns.
- The customer may only offset payment claims of Promega GmbH against claims that are undisputed, have been acknowledged by Promega GmbH or finally determined by a court. The customer shall only be entitled to exercise rights of retention to the extent that the relevant counter-claim is based on the same contractual relationship.
Section 4. Delivery times
- If Promega GmbH does not have the relevant Promega product in stock, delivery will be made as quickly as possible. The delivery period begins with the acceptance of the order by Promega GmbH.
- Delivery “carriage paid” is agreed for all shipment unless otherwise agreed.
- If the customer is in default of acceptance or is otherwise at fault for a violation of its duties to cooperate, Promega GmbH is entitled to demand compensation for losses it incurs as a result including any additional expenses. Promega GmbH reserves the right to assert additional claims and rights. The risk of accidental loss or accidental deterioration of the relevant Promega product shall pass to the customer from the time of default in acceptance.
- Promega GmbH shall be liable in accordance with the statutory provisions insofar as there is a fixed date transaction within the meaning of section 286 (2) no. 4 German Civil Code (“BGB”) or section 376 German Commercial Code (HGB). Promega GmbH likewise liable on the basis of applicable provisions of law to the extent that the customer would be entitled to assert that it no longer had an interest in performance of the contract following a delay in delivery for which Promega GmbH is at fault.
- Furthermore, Promega GmbH is liable based on applicable provisions of law to the extent that a delay in delivery is based on a breach of contract for which Promega GmbH is at fault committed intentionally or due to gross negligence. Fault on the part of the representatives and agents of Promega GmbH will be attributed to Promega GmbH for such purposes. Liability for damages is limited to damages that are foreseeable and typical to the contract in cases where Promega GmbH is not at fault for a delay in delivery.
- Promega GmbH is furthermore liable based on applicable provisions of law to the extent that a delay in delivery for which Promega GmbH is at fault is the result of a breach of a material contract obligation for which Promega GmbH is likewise at fault. In such cases, however liability on the part of Promega GmbH for damages will be limited to foreseeable damages typical to the contract.
- This is without prejudice of liability for injury to life, limb or health.
Section 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 regulations and must be used by the respective 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 note that Promega products have a limited shelf life by nature. The expected shelf life of Promega products can usually be found in the respective product packaging or product descriptions.
Section 6. Liability for defects
- Claims for defects on the part of the customer require the customer to have properly fulfilled its duties of inspection and notification pursuant to section 377 HGB.
- If a Promega product is defective, Promega GmbH shall be entitled and obliged to replace the defective Promega product with a non-defective product by way of supplementary performance. In such cases Promega GmbH shall be obliged to bear all expenses necessary for the purpose of supplementary performance, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the relevant Promega product is to be shipped to a location other than the original location at the customer’s request. If an attempt at cure fails, the customer is entitled to, at its option, revoke the contract or demand a reduction in price.
- The period of limitation for the claims based on defects / rights based on defects regulated in Section 2 shall be 12 months, calculated from the date on which the statutory period of limitation begins.
- Promega GmbH is liable on the basis of applicable provisions of law to the extent that the customer asserts claims for damages that are based on intent or gross negligence, including intent or gross negligence on the part of representatives or agents of Promega GmbH. Liability for damages is limited to damages that are foreseeable and typical to the contract in cases where Promega GmbH is not at fault for an intentional breach of contract.
- Promega GmbH is liable based on applicable provisions of law in the event of a breach of a material contract obligation for which it is at fault. In such cases, however liability for damages will be limited to foreseeable damages typical to the contract.
This is without prejudice to liability for culpable injury to life, limb or health; this shall also apply to mandatory liability under the Product Liability Act.
In all other cases liability is excluded except as provided above.
Section 7. Overall liability
- Any liability for damages beyond that provided for in Section 6 shall be excluded - irrespective of the legal nature of the claim asserted - insofar as intent, gross negligence or the breach of a material contractual obligation may not be alleged on the part of Promega GmbH or its representatives or vicarious agents. This applies in particular to compensation for damages related to a violation of any pre-contractual obligations, violations of other duties or based on tort-related claims for compensation for property damage pursuant to section 823 BGB. This is without prejudice to mandatory liability under the Product Liability Act.
- The limitation provided in paragraph (1) also applies to the extent the customer demands compensation for futile expenses rather than compensation for damages in lieu of performance.
- To the extent liability on the part of Promega GmbH is excluded or limited, this applies in like manner to personal liability for damages on the part of our salaried personnel, employees, associates, representatives and agents.
Section 8. Returns
- In light of the temperature sensitivity of Promega products, and health hazards associated with the handling of Promega products in some instances, the return of Promega products is generally not permitted.
- In specific cases, Promega GmbH customers may return Promega products delivered to them with the prior consent of Promega GmbH. Promega products returned with the consent of Promega GmbH can only be accepted by Promega GmbH if properly packed.
Section 9. Retention of Title
- Promega GmbH reserves the right to ownership of any products that have been delivered until complete payment of all claims arising from the respective delivery contract. If the customer acts in breach of contract, in particular fails to pay the invoices issued to it in accordance with Section 3, any a reasonable additional grace period set by Promega GmbH expires without results, Promega GmbH shall be entitled to retake possession of the respective Promega product. Retaking possession of Promega products following delivery is equivalent to revocation of the contract. Promega GmbH is entitled to use the respective Promega product after retaking possession.
- The customer is obliged to treat the Promega product with care following delivery for as long as Promega GmbH has retained title to the Promega product concerned. Without limitation, it is obliged to insure the respective Promega product at its own expense and, if maintenance and inspection work is required, to carry this out in good time at its own expense.
Section 10. Code of Ethics
The customer undertakes to comply with the following principles and obligations in all contracts concluded with Promega GmbH:
The customer warrants and guarantees that no child labour is employed and tolerated in connection with the fulfilment of the contractual obligations with Promega GmbH. The same applies to forced labour. The customer will do everything in its power not to accept child and juvenile labour - including on the part of its subcontractors and contractual partners.
The customer undertakes to comply with the applicable regulations for the protection of minors in connection with the performance of all contracts with Promega GmbH.
The customer similarly undertakes to comply with all applicable occupational safety regulations. The customer shall also ensure that its employees, subcontractors and business partners are paid in accordance with the current local wage rates.
The customer undertakes to protect the environment on a long-term basis and to include environmental concerns in planning and processes. Within this framework, the customer undertakes to comply with all applicable environmental regulations and standards in the areas of waste management, emissions and water.
Environmental concerns must be taken into consideration when arranging transport and logistics.
Products supplied by Promega GmbH shall be stored by the customer in compliance with all environmental considerations and product safety regulations. In this context, it must be kept in mind that Promega products may also include hazardous materials. The customer shall observe all necessary precautions for transport and storage.
The customer undertakes not to trade Promega products with any country or institution where there is a risk of harm to the health of the population or other negative effects on the population.
The customer undertakes to inform Promega GmbH and, if necessary, to obtain Promega GmbH’s consent before transferring Promega products, should there be any suspicion that the company or institution making the respective purchase may contravene the principles set out above.
Binding nature, implementation and monitoring of this Code of Ethics
The provisions of this Code of Ethics shall be binding on the contracting parties. Promega GmbH is entitled to action, injunctive relief and claims for damages against the customer arising from any breach of the legal obligations arising from this Code of Ethics.
The customer undertakes to indemnify Promega GmbH against all claims which third parties may assert against Promega GmbH and which result from the fact that the customer has breached the principles and obligations arising from this Code of Ethics.
In this regard, the customer expressly undertakes to take out a precautionary liability insurance policy for personal injury and property damage with an insured sum of at least € 500,000.00 in order to be insured against infringements of the preceding Code of Ethics.
The customer acknowledges that the principles of this Code of Ethics are fundamental to cooperation between Promega GmbH and the customer. Promega GmbH can carry out audits at its customers’ premises at regular intervals during normal office hours following advance notice and can request information in order to ensure that the obligations set out in this Code of Ethics are complied with. The customer undertakes to answer such inquiries comprehensively and immediately and to cooperate in such audits.
Bribery and corruption
Promega GmbH does not tolerate any form of bribery or corruption. The customer, as well as all its business partners and subcontractors, must conduct themselves so as to preclude any personal dependence, obligation or influence.
Consequences of infringements
Serious infringements of the principles set out in this Code of Ethics by the customer entitle Promega GmbH to terminate the business relationship with the customer, even if the material breaches of the Code of Ethics relate only to certain areas of their business relationship.
Controller, purposes and necessity of data processing
The following controller for purposes of data processing:
Promega GmbH, Gutenbergring 10, 69190 Walldorf
collects your personal data (surname, first name, address, contact details such as e-mail or telephone number if applicable, account details, information in connection with the commissioned performance) to perform the contract you have concluded.
Marketing and right to object
Your surname, first name and address are also collected for marketing purposes (sending offers, information about additional services). You may object to processing for marketing purposes at any time using the contact details listed under paragraph (1).
After performance owed under the contract has been completed, your personal data will be retained:
- for two years for statutory warranty purposes;
- for two years for purposes of completing follow-up orders (either desired at the time of contract conclusion or at a later time); and
- for ten years for tax-related purposes.
Objection to data storage
For data protection purposes, data is processed in connection with the completion of follow-up orders (either desired at the time of contract conclusion or at a later time) within a period of two years in pursuit of legitimate business interests. You may object to such processing at any time using the contact details listed under paragraph (1).
Your personal data will be deleted upon expiry of the periods set out above at the latest.
- Data protection rights in general and right to lodge a complaint with the supervisory authorities
In accordance with the provisions of Art. 15 et seq. of the General Data Protection Regulation, you have the right to access personal data concerning you, as well as the right to rectification, erasure, restriction of processing, the right to object to processing and a right to data portability. If you believe that the processing of your personal data violates the General Data Protection Regulation, you have the right to lodge a complaint with the data protection supervisory authority for Baden-Württemberg (Landesbeauftragter für Datenschutz und Informationsfreiheit Bade-Württemberg, Königstr. 10a, 70173 Stuttgart https://www.baden-wuerttemberg.datenschutz.de/) and to any other relevant data protection supervisory authority.
Data processing in third countries
As a subsidiary of an American parent company, Promega Corporation, we use services provided by our parent company. As part of these services, our parent company may also have access to customer-related personal data. To ensure the appropriate level of protection, our parent company has concluded the EU standard contractual clauses with its European subsidiaries.
Contact details for the data protection officer
If you have any questions concerning data protection, please feel free to contact our data protection officer at any time:Attorney Ulf Neumann, LL.M.Heßbrühlstr. 49, 70565 Stuttgart, Tel. 07121/3476540, firstname.lastname@example.org
Section 12. Maintenance contracts
- The customer is obliged to delete personal data located on the device to be serviced before the start of the maintenance. Since this prevents Promega GmbH from encountering personal data, Art. 28 DS-GVO on commissioned processing also does not apply.
- If the maintenance does not take place on site at the customer but at Promega GmbH, the customer bears the transport risk for the shipment of the device from the customer to Promega GmbH and back from Promega GmbH to the customer.
Section 13. Jurisdiction, applicable law and place of performance
- The location of the Promega GmbH registered office is agreed as the place of jurisdiction. Promega GmbH is, however, also entitled to sue the customer at the customer’s general place of jurisdiction.
- The laws of the Federal Republic of Germany apply on an exclusive basis subject to the exclusion of the UN Convention on Contracts for the International Sale of Goods (“CISG”).
- Unless otherwise provided in an individual order, the registered office of Promega GmbH is the place of performance.