General Terms and Conditions of Purchase of VIROTECH Diagnostics GmbH

1. Scope
1.1. These General Terms and Conditions for Purchase (“Conditions”) of VIROTECH Diagnostics GmbH (“Purchaser”) shall apply to all agreements between Purchaser and corporations or legal entities established under administrative law or persons or partnerships having entered into such agreement for purposes within the scope of their business or independent profession (“Supplier”) regarding the purchase or supply of products to Purchaser.

1.2. The Conditions as amended from time to time shall also apply to future agreements of similar type between Purchaser and Supplier.

1.3. If not expressly accepted in writing, Purchaser does not accept any terms and conditions of Supplier, which are in conflict to the Conditions or deviate therefrom. Terms and conditions of Supplier shall also not be part of an agreement, even if Purchaser does not expressly object to such terms and conditions or accepts Supplier’s performance without reservation or pays the purchase price having knowledge of Supplier’s terms and conditions.

1.4. In the Conditions delivery shall be replaced by acceptance, if Supplier’s deliverable is, by nature or by agreement, subject to acceptance.

2. Conclusion of Contract, Offers and Cost Estimates

2.1. Oral orders, orders by telephone and order modifications shall not be valid unless confirmed in written form by Purchaser.

2.2. Supplier shall confirm in written form all orders of Purchaser within five (5) working days after receipt indicating a binding price and a binding delivery term. Purchaser shall not longer be bound by its offer, if Supplier fails to confirm such offer within the aforementioned period.

2.3. Supplier provides its offers and cost estimates on its own expense.

2.4. Upon acceptance of the order Supplier shall be deemed to have accepted and is aware of the Conditions.

3. Prices, Invoices and Payments

3.1. The price indicated in Purchaser’s order is fixed and binding. All performances of Supplier, in particular costs of package, transport, insurance, customs and consumption taxes, if any, are included.

3.2. Supplier shall indicate prices excluding legally applicable VAT. VAT shall be indicated separately.

3.3. Unless otherwise agreed in written form, payments of Purchaser shall be due after delivery in due form to the place of performance and invoice either, to the option of Purchaser, within fourteen (14) days with a 3% discount, or net within sixty (60) days. Purchaser shall not be obliged to pay due interest according to
Sec. 353 of the Commercial Code (HGB).

4. Delivery, Passing of Risk
4.1. The risk passes subject to the agreed delivery terms based on Incoterms 2010. In the absence of such agreement the risk passes to Purchaser by due delivery of the products at the agreed place of performance. If acceptance of the deliverables is required, place of performance shall be the place of business of Purchaser. In such case the risk passes upon acceptance.

4.2. Upon delivery, Supplier shall provide all legally required documents, including possible certificates of analysis or quality, which Supplier may require due to its own ISO-certification.

4.3. The agreed delivery date is binding. If Supplier foresees that it may not meet the delivery date, Supplier shall inform Purchaser in written form without undue delay. Supplier shall further inform Purchaser without undue delay about modifications of the formulation of the products or the origin of the products and if products are subject of warning letters of the US Food and Drug Administration or similar authorities.

4.4. If Supplier is in default with the agreed delivery term, it shall be liable subject to applicable statutory law.

4.5. Unless agreed otherwise, partial deliveries or partial performances shall require the prior written consent of Purchaser. In such case Supplier shall bear all additional costs resulting therefrom.

5. Package
Products shall be sufficiently packed by Supplier to avoid damage during transport. Packaging materials shall be environmentally compatible and shall be used only to the extent necessary. Ownership of packaging materials passes to Purchaser. If requested by Purchaser, Supplier shall take back packaging materials. Alternatively, Purchaser may dispose of packaging materials at the expense of Supplier.

6. Set-off, Right of Retention
6.1. Supplier shall not be entitled to set off any of its claims against claims of Purchaser, except where Supplier's claims are undisputed or have been confirmed by a final court judgment.

6.2. Supplier may claim any right of retention only if and to the extent that its counterclaim pertains to the same contract.

7. Retention of Title

Supplier’s right to retain title shall be excluded. The ownership of the delivered products passes to Purchaser upon transfer. Purchaser shall not be deemed to have agreed to a simple, extended or prolonged retention of title. In any case Purchaser shall be entitled, without any consent of or notification to Supplier, to process, remodel, combine or intermix the products with other things, sell or further dispose of the products.

8. Receiving Inspection
8.1. Upon delivery Purchaser shall only be obliged to inspect the products with regard to apparent defects, completeness and identity. Such defects shall be notified to Supplier within fourteen (14) days after delivery; all other defects shall be notified to Supplier within fourteen (14) days after detection. The notice of defects within such term shall be deemed as duly effected in the sense of Sec. 377 para. 3 Commercial Code (HGB).

8.2. There shall be no obligation to inspect deliverables, which are subject to acceptance.

8.3. Payments shall not be deemed as a waiver of the right to object.

8.4. With respect to the timely notification of defects, the date of dispatch of the notification or, in case of delivery by mail, the postal stamp, shall be relevant.

9. REACH-Clause
9.1. Supplier guarantees that it does not deliver products, including possible future supplements and amendments at the time of delivery, to Purchaser, which contain or release substances which are subject to registration or admittance pursuant to Regulation (EC) n° 1907/2006 of December 18, 2006 (“Reach-Regulation”), and which are not registered or admitted. If substances pursuant to sentence 1 do not require registration at the time of delivery to Purchaser solely due to transitional provisions of the Reach-Regulation as to phase-in substances, Supplier guarantees that (i) Supplier or (ii) a third party had duly pre-registered such substances. Supplier further guarantees (i) to inform Purchaser without undue delay, if it comes to Supplier’s knowledge that a substance pre-registered according to sentence 2 will not be registered within the transitional period applicable for such substance and (ii) at the latest upon termination of the applicable registration period to refrain from delivery of such substances to Purchaser.

9.2. Supplier further guarantees to maintain during the term of the supply relationship to Purchaser the pre-registration, registration or authorization required by the Reach-Regulation for substances contained in or released by products delivered to Purchaser. If a third party had pre-registered or registered the applicable substance or obtained authorization for such substances, Supplier guarantees that Supplier will be informed without undue delay if such pre-registration, registration or admittance should lapse. Supplier further guarantees that it will inform Purchaser accordingly without undue delay and, since that time, refrain from delivering products to Purchaser, which contain or release such substances.

9.3. Supplier guarantees to Purchaser to provide upon each delivery an up-to-date and complete safety data sheet, which corresponds to the requirements of the Reach-Regulation. In this context, it shall be irrelevant, whether such provision (i) is compulsory according to the Reach-Regulation, (ii) applies only in case of an according request. If Supplier is obliged to carry out a chemical safety assessment of substances, Supplier further guarantees to have examined, whether the safety data sheet corresponds to the chemical safety assessment of substances and, as the case may be, to have amended the safety data sheet accordingly. If a safety data sheet has to be provided neither according to compulsory provisions of the Reach-Regulation, nor on request, Supplier guarantees to provide information in electronic or written form regarding the registration number (if available), authorization obligations, if applicable, refused authorizations, restrictions and further available and relevant information, which is necessary for the determination and application of appropriate risk management measures (“Safety Information”). Amendments of safety data sheets or Safety Information shall be notified to Purchaser without undue delay and shall be identified in the updated safety data sheet / Safety Information attached to the first delivery.

9.4. If Supplier is, in particular as a result of the application of the substance notified by Purchaser, obliged to carry out a chemical safety assessment of substances and to prepare a chemical safety report for substances contained in or released by products delivered to Purchaser, Supplier guarantees to have carried out such assessment and included the conclusions in the safety data sheet / the Safety Information.

9.5. Supplier guarantees to provide sufficient information to ensure the safe use of the product, if it delivers products to Purchaser, which contain in a concentration of more than 0.1 % weight-by-weight (w/w) one or more substances, which (i) match the criteria of Sec. 57 Reach-Regulation (which means that such substances may be listed as substances subject to authorization) and (ii) are identified according to Sec. 59 Reach-Regulation (which means that such substances have been placed on the “list of candidates”).

9.6. The aforementioned obligations according to Sec. 9.1 through 9.5 shall be deemed as major contractual obligations of Supplier.

9.7. In the event that Supplier breaches the obligations of Sec. 9.1 or 9.2, Purchaser shall have the right to withdraw from the contract if and to the extent the delivered products do not or not any more comply with the requirements of the Reach-Regulation. In the event that Supplier breaches the obligations of Sec. 9.3, 9.4 or 9.5, Purchaser shall have the right to withdraw from the contract, if Supplier fails to remedy such breach within a reasonable period specified by Purchaser. The right of Purchaser to claim further damages remains unaffected.

9.8. If a third party raises claims against Purchaser due to the fact that it had purchased products of Purchaser delivered by Supplier and such products do not comply with the Reach-Regulation, Supplier shall indemnify Purchaser of such claims upon written request, if and to the extent such third party claim is caused by a breach of Supplier’s obligations according to Sec. 9.1 through 9.5. Purchaser shall not conclude any agreements, in particular settlement agreements with such third party without the prior consent of Supplier. Supplier’s obligation to indemnify Purchaser comprises all costs and
expenses in connection with such third party’s claims, in particular legal and administrative costs, costs of replacement purchases, if required.

10. Right of Use
10.1. Supplier assigns to Purchaser the exclusive, unlimited right to publish, disseminate, copy, develop and otherwise exploit all ideas, concepts, drafts and designs provided by Supplier and ordered by Purchaser. The aforementioned right comprises all exploitation methods and Purchaser’s right to transfer such rights to third parties.

10.2. The aforementioned transfer of rights shall be deemed compensated by the price paid by Purchaser.

11. Warranty, Liability and Other Defaults

11.1. Supplier shall deliver the products and effect performances free of any defects as to quality or title and, if no specification had been agreed, in compliance with all laws, regulations, directives and other technical provisions, DIN standards and generally accepted rules of technology.

11.2. In the event of any defects statutory law shall apply with the provision that Purchaser shall have the option to request rectification of the defect or delivery of products free of any defects. The location of the defective product shall be the place of performance for such remedy. Such remedy comprises removal and transport as well as installation of the replacement delivery. Supplier shall bear the costs of the rectification of the defect and/or the replacement delivery, including any additional costs. If Supplier fails to remedy Purchaser within a reasonable period specified by Purchaser, Purchaser shall have the right to reduce the purchase price or withdraw from the contract according to statutory law. The statutory right to claim damages, in particular to claim (i) damages in lieu of performance, or (ii) reimbursement of useless expenses, remains unaffected.

11.3. Purchaser may remedy the defect at the expense of Supplier, if Supplier is in default with its obligation to remedy or if it cannot be reasonably expected from Purchaser to ask for supplementary performance. Purchaser may claim an advance payment for costs and/or expenses in connection with the remediation of defects.

11.4. Subject to a longer statutory limitation period, Purchaser’s warranty claims shall be subject to a limitation period of 36 months. Such limitation period shall commence on the date on which the risk had passed to Purchaser. The limitation period shall be suspended upon Purchaser’s notice of the defect to Supplier until remediation of the defect.

11.5. Further claims of Purchaser remain unaffected.

12. Product Liability
12.1. Supplier shall indemnify Purchaser of third party claims for damages, costs, expenses and other detriments with regard to defects in the sense of the Product Liability Act (ProdHaftG), if (i) such defects had been caused in Supplier’s organizational domain and (ii) Supplier is liable for such defects vis-à-vis third parties.

12.2. Supplier’s obligation to indemnify Purchaser shall
comprise indemnification for costs, expenses and damages of Purchaser in connection with such defects, in particular in connection with measures like product recalls or warnings. Purchaser shall inform Supplier of such measures to the extent possible and reasonable and give Supplier the opportunity to make representations.

12.3. Supplier shall conclude and maintain a product liability insurance with a coverage of EUR 100.000 per damage event. Upon request of Purchaser, Supplier shall prove such insurance in written form without undue delay.

12.4. Further claims of Purchaser remain unaffected.

13. Documents, Confidentiality
13.1. Purchaser reserves title and copyright of all documents delivered to Supplier in the course of the business relationship. Supplier shall use such documents exclusively for purposes of the business relationship. Supplier shall reveal such documents to third parties only with the prior written consent of Purchaser. After the end of the business relationship or as soon as the documents are not used any more, Supplier shall return or with consent of Purchaser destroy the documents.

13.2. Supplier shall keep all confidential commercial and technical information received in the course of the business relationship with Purchaser during and after termination of such business relationship confidential, unless such information becomes publicly known or Purchaser waived the confidentiality obligation by written notice. This confidentiality obligation applies without any time limit.

13.3. Supplier shall make advertisements referring to the business relationship to Purchaser, in particular using Purchaser’s firm or parts thereof and/or Purchaser’s logo, only with prior written consent of Purchaser.

14. Miscellaneous
14.1. Any and all substantive law matters arising of the business relationship of the Parties shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

14.2. To the extent legally permissible, the courts of the place of business of Purchaser shall have exclusive jurisdiction regarding all disputes under or in connection with the contractual relationship between Purchaser and Supplier. Purchaser may bring suit against Supplier also in a court having general jurisdiction of Supplier.

14.3. All provisions of these Conditions are separate and distinct from one another. Should any provision of these Conditions be or become invalid or unenforceable, the validity or enforceability of the other provisions of these Conditions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a provision that is valid and enforceable and corresponds most closely to the economic intent of the Parties as evidenced by the original provision. The same shall apply in the event that the Parties should have unintentionally failed to address a certain matter in these Conditions.

Notice regarding data collection:

Purchaser informs Supplier, that Purchaser records and processes personal data relating to the business of Supplier within the context of their business relation, for example details of contact persons.

Rüsselsheim, August 2018