1. Scope and provider
1.1. These General Terms of Business (“GTB”) apply to the entire business relationship between ARKA Biotechnologie GmbH, Weigmannstr. 28–30, 91207 Lauf, Germany, and the ordering party, if that party is an entrepreneur for the purposes of § 14 of the German Civil Code (BGB) or a legal entity under public law.
1.2. ARKA Biotechnologie GmbH will not recognise opposing GTB, or those that deviate from these, unless we expressly consent to their application. This applies even if the ordering party extends or accepts an offer while stating that their own general terms of business take precedence.
1.3. All agreements that have been made between the ordering party and us to execute the contracts are set forth in those contracts in writing. Any oral agreements must be confirmed in writing to be effective.
1.4. These terms of business apply as amended, including for all future transactions with the ordering party. The currently valid version of the terms of business is retrievable in the internet under www.arka-biotech.de/en/service/gtb at any time.
2. Contract conclusion
2.1. The presentation of the products on www.arka-biotech.de, in catalogues or other printed media does not constitute a legally binding offer but nonbinding reference information. This especially applies to prices, illustrations and brochures. Technical changes and changes in form, colour or weight remain reserved, within the scope of what is reasonable and acceptable. Orders can be issued over the phone, by fax or by email to email@example.com (among other addresses), or in person (to our field service, for example). Regardless of the form, you must issue a binding order for the goods contained.
2.2. We may accept the contract offer included in the order made to us or to one of our representatives within two weeks after it is received. That acceptance can be declared either in writing or by delivering the goods.
2.3. A contract is concluded subject to correct and prompt self-delivery by our suppliers. This applies only if the nondelivery was caused by an impediment for which we are not responsible, especially on conclusion of a congruent hedging transaction with our supplier. The entrepreneur will be informed without undue delay that the performance is unavailable. That party’s consideration will refunded without undue delay if it has already been paid.
2.4. If the delivery period is not complied with, the entrepreneur may set a grace period of at least 14 days. If that period expires to no avail, a further period of at least ten days must be set. If that period also expires to no avail, the entrepreneur may withdraw from the purchase contract. Damage compensation claims will not come into question unless the delay is based on intent and gross negligence by us or one of our vicarious agents.
2.5. If our order confirmation contains clerical or printing errors, or if our pricing is based on technical transmission errors, we may appeal, whereby we must show you our error. Any payment already made will be refunded to you.
2.6. All offers remain subject to change unless they contain a deadline regarding acceptance. If a quotation or offer is nonbinding and this is accepted by the buyer, the supplier may revoke the quotation within two days after the confirmation is received.
2.7. Any amendments as well as (oral) promises of the supplier or its personnel, representatives or other intermediaries that are agreed later are binding only if the supplier has confirmed them in writing.
2.8. Since the customer is an entrepreneur as defined by § 14 BGB, the obligations in electronic business transactions under § 312 e(1)(1–3) BGB do not apply.
3.1. Each contracting party shall treat as confidential all trade and business secrets of the other party that become known to them as part of the business relationship or that are designated as confidential. That obligation will survive the business relationship.
4. Prices/Payment terms
4.1. Our prices are based on our price list as amended at the time of contract conclusion.
4.2. Our prices apply from the registered office of ARKA Biotechnologie GmbH, unless otherwise agreed in the order confirmation. Purchase prices for mail orders do not include transport costs, which will be charged in accordance with the price list as amended at the time of contract conclusion.
4.3. If the ordering party defaults in payment, ARKA Biotechnologie GmbH reserves the right to withhold deliveries or services until complete payment has been made, and to demand that the ordering party pay default interest and compensation for damages incurred by the default.
4.4. ARKA Biotechnologie GmbH reserves the right to adjust its prices in the price list mentioned, to a reasonable extent, if there is a change in exchange rates, taxes, customs, fees, costs for freight and insurances or production costs (costs for wages, materials, energy, assembly and other services) with effect for the future as part of the ongoing business relationship.
4.5. Unless otherwise agreed, payments are made in advance, on account, direct debit. If you choose to pay in advance, we will give you our bank details with the order confirmation. The invoice amount is to be transferred within 7 days to the specified account details, unless the invoice or order confirmation specifies a different payment term. The day of payment is the day on which we can dispose of the money.
4.6. The payment of the purchase price must be made exclusively to the specified account. The deduction of cash discount is only granted in the case of a special written agreement. The discount conditions are based on the current version of the price list at the time the contract is concluded.
4.7. The purchase price is due for payment 14 days after the invoice is received by the ordering party, provided no other payment period is set forth in the invoice or order confirmation. Complaints will not postpone the buyer’s payment obligations.
4.8. If partial deliveries are made, we reserve the right to a proportional invoice. The payment will not be deemed to have been made until we have full disposal of the amount.
4.9. If the ordering party defaults on a payment, that party shall pay interest on the debt during the default period in the amount of 8% above the respective base interest rate. The assertion of higher default damage remains reserved. If default in payment occurs, we are otherwise entitled to exclude the entrepreneur from deliveries even if they have already been confirmed, and to assert an appropriate right of retention.
4.10. ARKA Biotechnologie GmbH may require payment before delivering goods. If orders are made outside Germany, the delivery will generally be made only after the payment is received unless otherwise agreed.
4.11. Changes of address, ownership, the company structure or other changes affecting the economic circumstances of our customer must be communicated to us in writing without undue delay. If after contract conclusion it becomes clear that our payment claim is jeopardised by the customer’s inability to pay, we are entitled to the rights under § 321 BGB (plea of uncertainty). In this case, we may demand payment or provision of security due to all claims from all existing contracts and refuse to fulfil any existing contracts until such prepayment or provision of security is fulfilled.
5. Setoff; Retention
5.1. Even if notices of defects or counterclaims are asserted, the ordering party may set off only if those counterclaims have become res judicata, acknowledged by us, or uncontested. The ordering party may exercise a right of retention only if its counterclaim is based on the same contractual relationship.
6. Shipping costs
6.1. The costs for shipping and packaging within der FRG are calculated as listed in our price list.
6.2. Shipping costs outside Germany do NOT contain: Customs, custom fees or import VAT. In any case, these must be borne by the ordering party or recipient.
7. Delivery conditions and reservation of self-delivery
7.1. The delivery is made to an entrepreneur for the purposes of § 14 BGB or a legal entity under public law.
7.2. Unless otherwise indicated in the offer, the delivery period will amount to around 1 to 5 days within Germany. This does not apply to foreign deliveries; they are subject to other delivery periods that we will communicate to you. The agreed delivery period or availability period begins on the day on which ARKA Biotechnologie GmbH has free disposal over all necessary data and documents.
7.3. The following shipping costs apply to Germany:
for parcels with an order value of less than EUR 250.00 – EUR 9.90
for pallet shipments with an order value of less than EUR 500.00 – EUR 49.90
The following shipping costs apply to other European countries:
for parcels with an order value of less than EUR 250.00 – EUR 14.90
for pallet shipments with an order value of less than EUR 500.00 - settlement at current daily prices, which will be communicated to you immediately.
7.4. ARKA Biotechnologie GmbH cannot be deemed to have defaulted on delivery unless the ordering party has sent a written warning. The ordering party may send that warning two weeks after the nonbinding delivery period expires at the earliest. On request of ARKA Biotechnologie GmbH, the ordering party shall declare in writing to ARKA Biotechnologie GmbH within a reasonable period whether the ordering party wishes to withdraw from the contract due to a delay in delivery or demand damage compensation in lieu of performance (or both) or wishes to insist on the delivery. The ordering party may withdraw in accordance with statutory provisions only if ARKA Biotechnologie GmbH is to blame for the delay.
7.5. If not all ordered products are in stock, the order will be limited to the items in stock and calculated. Items not in stock will be omitted from the order and will be delivered late (only within Germany) after consultation with the customer. Partial deliveries will be made only if the subsequent delivery period is agreeable to the customer.
7.6. If the delivery of the goods fails despite multiple attempts, we may withdraw from the contract. We shall make up to three delivery attempts. We will charge for attempts after the first one. If we withdraw from the contract: Any payments the ordering party has made will be refunded.
7.7. If advance payment has been made but the ordered product is unavailable because our suppliers failed to deliver it to us, and we were not to blame, we may withdraw from the contract. In this case, we shall inform you without undue delay and recommend delivery of a comparable product. If no comparable products is available, or if you do not wish delivery of a comparable product, we shall reimburse you without undue delay for any payments you have already made.
7.8. Delivery periods or deadlines that are not expressly agreed as binding constitute exclusively nonbinding information. The delivery period we indicate will begin only if the technical issues have been cleared up. Likewise, the ordering party shall fulfil all its obligations properly and promptly.
7.9. We shall be liable in accordance with statutory provisions to the ordering party if this is based on an intentional or grossly negligent breach of contract for which we are responsible, whereby a culpability by our representatives or vicarious agents is to be attributed to us. Our liability is limited to foreseeable damages that are typical of this type of contract if the delay in delivery is not based on an intentional breach of contract for which we are responsible.
7.10. If a delay in delivery for which we are responsible is based on the culpable breach of an essential contractual obligation, whereby any culpability of our representatives or vicarious agents will be attributed to us, we shall be liable in accordance with statutory provisions with the proviso that in this case the liability for damage compensation will be limited to foreseeable damages that are typical of this type of contract.
7.11. Any further liability for a delay in delivery for which we are responsible is excluded. The ordering party’s further statutory claims and rights, to which it is entitled in addition to the damage compensation claim due to a delay in delivery for which we are responsible, remains unaffected.
7.12. If the ordering party defaults in acceptance, we may demand compensation for the damages suffered and any additional expenses. The same applies if the ordering party culpably breaches its duties to cooperate. As soon as the delay in acceptance or debtor’s delay occurs, the risk of accidental loss or deterioration will be transferred to the ordering party.
7.13. For custom-made products (desired product), excess or short deliveries by up to 20% are possible.
8. Transfer of risk; Shipping; Packaging
8.1. The risk of accidental loss or deterioration of the goods will be transferred to the ordering party when the item is delivered to the freight forwarder, the freight carrier or other person or institution specified to execute the shipment. If the shipment is delayed or omitted due to circumstances not attributable to us, the risk will be transferred to the ordering party from the day on which the notification of readiness for shipment is given.
8.2. Packaging, loading and shipping will take place uninsured, at the ordering party’s expense.
8.3. On request and at the expense of the ordering party, we shall secure the delivery through transport insurance.
9. Warranty; Liability
9.1. The ordering party may not assert defect claims unless it has complied with its obligation to inspect and give notice of defects under § 377 HGB. The deadline will be deemed met if the notice of defect is sent on time.
9.2. If the goods are defective and we are responsible, we shall be initially obligated only to provide supplementary performance, unless we may refuse to do so in accordance with statutory regulations. The ordering party shall grant us a reasonable period in which to provide supplementary performance. The supplementary performance can at the ordering party’s discretion take place through curing the defect (improvement) or delivery of new merchandise. If the defect is cured, we shall bear the necessary expenses provided these do not increase because the contractual object is located at a place other than the original delivery destination.If the supplementary performance fails, the ordering party may at its discretion demand that the purchase price be reduced or withdraw from the contract. The improvement will be deemed failed after the second vain attempt unless additional attempts at improvement are reasonable and agreeable to the ordering party due to the subject matter of the contract. The ordering party may assert damage compensation claims due to the defect under the following conditions only if the supplementary performance fails. This will not affect the ordering party’s right to assert further damage compensation claims under the following conditions.
9.3. The warranty claims will become time-barred in one year after the goods are delivered to the ordering party unless we have fraudulently concealed the defect, in which case the statutory regulations will apply.
9.4. Under the statutory provisions, we are obligated to take back the new goods or reduce the price even without the otherwise necessary setting of a grace period if the ordering party’s buyer, as the consumer of the sold new movable item (purchase of consumables), could demand that the ordering party take back the goods or reduce the purchase price due to the defect in these goods, or could assert an ensuing recourse claim against the ordering party. We shall also refund the ordering party’s expenses – especially transport, road, work and material costs – which that party had to bear in the relationship to the end consumer within the scope of nonfulfillment due to a defect in the goods that was present when risk was transferred from us to the ordering party. The claim is excluded if the ordering party has not properly complied with its owed obligation to inspect and give notice of defects under § 377 HGB.
9.5. The obligation under item 9.4 is excluded if the defect is due to advertising statements or other contractual agreements that do not originate with us, or if the ordering party has issued a special guarantee toward the end consumer. The obligation is also excluded if the ordering party was not itself obligated under statutory regulations to exercise the warranty rights toward the end consumer or failed to make this complaint towards a claim that was asserted against the ordering party. This also applies if the ordering party has taken over warranties vis-à-vis the end consumer that exceed the statutory requirements.
9.6. We shall be liable without restriction in accordance with statutory provisions for damages to life, limb or health based on a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damages to life, limb or health encompassed by the liability under the Product Liability Act. For damages not included under sentence 1 that are based on intentional or grossly negligent breaches of contract or malice from us, our legal representatives or our vicarious agents, we shall be liable in accordance with statutory provisions. If we, our legal representatives or our vicarious agents have not acted intentionally, the liability to compensate for damages for cases not included under sentence 1 is limited to foreseeable damages typical or this type of contract. If we have issued a quality guarantee regarding the goods or part thereof, we shall be liable within the scope of that guarantee. For damages that are based on the lack of guaranteed quality but do not arise directly on the goods, we shall be liable only if the risk of such damage is obviously covered under the quality and durability guarantee.
9.7. We shall also be liable for damage caused by ordinary negligence if this negligence concerns the breach of contractual obligations the compliance with which is especially significant for achieving the contractual purpose (essential contractual obligations). However, we shall be liable only insofar as the damages are typically associated with this type of contract and are foreseeable.
9.8. Further liability is excluded without considering the legal nature of the asserted claim; this also and especially applies to tortious claims or claims for compensation for futile expenses instead of performance; this will not affect our liability under items 7.9 to 7.11 of this contract. If our liability is excluded or limited, this also applies to the personal liability of our salaried personnel, employees, associates, representatives and vicarious agents.
9.9. Damage compensation claims of the ordering party due to a defect become time-barred in one year after the goods are delivered. This does not apply to injury to life, limb or health for which we, our legal representatives or our vicarious agents were to blame, or if we or our legal representatives have acted intentionally or with gross negligence, or if our ordinary vicarious agents have acted intentionally.
9.10. The entrepreneur will receive no guarantees from us in the legal sense. This does not affect manufacturers’ guarantees.
10. Transport damage; Deficient delivery
10.1. If false or damaged products are delivered or if goods are missing, please make a complaint about such defects immediately to the deliverer, to the extent possible, and contact us within 24 hours under +49 (0) 0911 5698610 00 (Mo - Thu 7.30 am - 5 pm, Fr 7.30 am – 2.30 pm) or by an email sent to firstname.lastname@example.org. Complaints received later than 24 hours from acceptance will not be acknowledged.
11. Retention of title
11.1. All delivered physical performances remain the property (reserved goods) of ARKA Biotechnologie GmbH until all monetary claims of ARKA Biotechnologie GmbH arising from its business relationship with the ordering party are completely fulfilled, even if payments for the specific performance have been made.
11.2. In the event of execution procedures regarding the item, the ordering party shall notify ARKA Biotechnologie GmbH thereof without undue delay.
11.3. The ordering party may sell or process the reserved goods within the normal business transactions as long as that party is not in default. Pledging or chattel mortgages, as well as the agreement on prohibitions on assignment, are forbidden.
11.4. The claims of the ordering party under the resale of the reserved goods are hereby assigned to ARKA Biotechnologie GmbH in the full amount by way of security. ARKA Biotechnologie GmbH accepts this transfer. At our request, the customer shall disclose to us its buyer’s name, notify that buyer of the assignment, grant us the information needed to assert our rights against the buyer, and hand over documents. We may also notify the buyer or our customer of the assignment. None of our rights to retention of title will be forfeited even if goods originating with us are acquired by another purchaser, as long as that party has not paid us for the goods. This especially applies to sales within the framework of affiliated companies. The ordering party is authorised to collect the assigned claims as long as that party is not in default with its payment obligations toward ARKA Biotechnologie GmbH and no settlement or insolvency proceedings against that party have been requested or initiated.
11.5. If the realisable value of the securities existing for ARKA Biotechnologie GmbH exceeds its claims by a total of more than 10 percent over a period of time, ARKA Biotechnologie GmbH shall at the ordering party’s request release securities of a corresponding amount at its discretion.
11.6. The entrepreneur shall notify us of any third-party access of the goods, such as a seizure, or any damages or destruction of the goods, without undue delay. If third parties seize the reserved goods or claims that have been assigned to us, the entrepreneur shall also notify the seizing party and the enforcement officials orally and in writing about our rights (retention of title), without undue delay, and make any other reasonable efforts to protect our rights. The entrepreneur shall inform us without undue delay of any change in possession of the goods or in that party’s own residence or location, provided retention of title still exists. The entrepreneur shall at any time on request prove where the goods subject to retention of title are located.
11.7. If the entrepreneur behaves in a manner contrary to the contract, especially through default in payment or breaching an obligation under para. 3 and 4 of the provisions, we may withdraw from the contract and demand that the goods be returned.
11.8. Any reworking and processing of the goods by the entrepreneur will always take place in our name and on our behalf. If processing occurs with objects that do not belong to us, we will acquire co-ownership of the new item in the ratio of the value of the goods we delivered to the other processed items. The same applies if the goods are mixed with other items not belonging to us.
12. Intellectual property
12.1. The intellectual property rights of ARKA Biotechnologie GmbH, and any drawings, graphics, models, matrices and forms created on the buyer’s behalf, and everything that relates to the execution of the order beyond that, will remain with ARKA Biotechnologie GmbH, even in the future, and even if the buyer is invoiced for costs to that end.
12.2. Only after the buyer has paid the amount it owes to ARKA Biotechnologie GmbH based on the contract will the buyer receive the usage rights to the aforementioned documents.
12.3. The buyer may not publish the documents named in paragraph 1 without prior consent, or present them to third parties for perusal. In the event of contravention against this provision, the buyer shall compensate ARKA Biotechnologie GmbH for the ensuing damages. Moreover, ARKA Biotechnologie GmbH may demand that the documents be returned.
13. Data privacy
13.1. ARKA Biotechnologie GmbH may store the data related to the specific order and process and use those data on the basis of statutory provisions for business purposes.
13.2. Forwarding to third parties is permissible if and to the extent that this constitutes the subject matter of the contract.
14. Final provisions
14.1. Unless otherwise agreed, the place of fulfilment will be the location of the branch office of ARKA Biotechnologie GmbH.
14.2. The exclusive venue for all legal disputes arising directly or indirectly from the contractual relationship, and concerning its formation and effectiveness, is the location of the branch office of ARKA Biotechnologie GmbH. This also applies to disputes arising from the documents, cheques and bills of exchange concerning the contractual relationship. However, ARKA Biotechnologie GmbH may sue the ordering party before the court at the ordering party’s residence or business location.
14.3. All legal issues resulting from the order and its execution are subject to German law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention).
14.4. Finding one or more of these GTB’s provisions to be legally invalid will not invalidate its remaining provisions. If these GTB exhibit a loophole, it must be filled by a regulation that takes the economic purpose of the contract into account.
Status: March 2020