Terms and Conditions of Supply

1. Scope of Application

The following conditions apply to all contractual relationships of DLD Gesellschaft für Diagnostika und medizinische Geräte mbH (DLD) if not agreed upon otherwise in writing. They also apply to all future business relations without renewed reference. DLD does not accept the general terms and conditions of a contractual partner/customer even if they have not expressly been contradicted.

2. Offers and Conclusion of Contracts

Offers by DLD are binding for the respective stipulated time period. If no time limitation is given in the offer or the given time has expired, DLD is not bound by the offer. A binding agreement shall be reached when DLD explicitly confirms the order in writing or starts the delivery.

3. Product Characteristics

3.1. The products and services comply with the specifications given on the products, in their data sheets or in the product catalogue. DLD products shall only be used according to their intended use, the respective instructions of use and within the given expiry dates. Moreover, the stipulated transport and storage conditions are to be observed without interruption.

3.2. DLD reserves the right to amend the product specification if required by any applicable law or regulation.

3.3. All instructions for use of products and other documentation or written information concerning products (including information relating to safety), will be in the English language. Translation thereof into languages other than English (if required by the customer) shall be the sole responsibility of the customer.

4. Terms of Delivery

4.1. The packaging and the shipping method are chosen by DLD, at its own discretion, depending on the respective requirements. Unless otherwise agreed upon, delivery takes place EXW Hamburg (Incoterms 2010).

4.2. DLD shall use all reasonable endeavours to meet any dates for delivery of the products specified in the order or otherwise agreed in writing by DLD but any such dates shall be estimates only and time shall not be of the essence for delivery of the products.

4.3. DLD reserves the right to deliver any products in separate charges which shall be invoiced and paid for separately. Each charge shall constitute a separate contract. Any delay in delivery or defect in one charge shall not entitle the customer to cancel any other charge.

5. Prices and Payment Conditions

5.1. The price for the products shall be the price quoted by DLD or set out in DLD’s written acceptance of the order. In all other cases, the price of the respective valid price list is applicable. All prices are exclusive of value added tax (VAT) and are EXW (Incoterms 2010) DLD's premises. They are therefore in particular exclusive of all costs and charges for packaging, insurance, transport of the products and any costs or duties related to export or import.

5.2. DLD reserves the right to increase the price of the products, by giving notice to the customer at any time before delivery, to reflect any increase in the cost of the products to DLD that is due to:

5.2.1 any factor beyond the control of DLD (including foreign exchange fluctuations, increases in taxes and duties, increases in labour, materials and other manufacturing costs and increased costs associated with regulatory compliance);

5.2.2 any request by the customer to change the delivery date(s), quantities or types of the products ordered, or the product specification; or

5.2.3 any delay caused by any instructions of the customer in respect of the products or failure of the customer to give DLD adequate or accurate information or instructions in respect of the products.

5.3. In case of an ongoing delivery, DLD reserves the right to modify prices and costs appropriately.

5.4. Unless otherwise stipulated, the payment must be made within 30 days after invoicing. The significant dates are the invoice date and the date of receipt of the payment by DLD.

5.5. No cash discount is granted.

5.6. In the case of delayed payment, DLD reserves the right to charge default interest of annually at least 5 percentage points above the base interest rate from the European Central Bank, from the date the payment was due, without any further notice.

5.7. Claims of DLD may not be set off by the customer with counterclaims.

5.7. The delivered merchandise remains property of DLD until the purchase price has been paid completely. The resale or processing of DLD products during the term of the reservation of proprietary rights is only permitted after DLD’s written consent.

6. Defects, Liability and Statute of Limitation

6.1. The customer must check the proper functioning and completeness of all delivered goods after receipt. All defects are to be communicated in writing to DLD immediately. If the notice of defects is not received within 7 days after receipt, the goods are considered to be accepted.

6.2. In the case of timely and justified complaints due to a product defect or in case a different product than ordered was delivered, DLD commits to swap the products, to repair them, or to allow them to be returned for a refund at DLD’s discretion.

6.3. DLD shall be liable for breach of contractual obligations of their legal representatives or vicarious agents, and for offences, principally only for wilfully or through gross negligence, otherwise only for breach of an essential contractual obligation, but limited to the amount of the foreseeable and contractually typical damages. This limitation of liability shall not apply to damages arising due to loss of life, body or health, and if a defect is fraudulently concealed, in the case of non-compliance with a guaranteed quality or liability according to the German Product Liability Act (“Produkthaftungsgesetz”).

6.4. DLD shall not be liable for subsequent damage, loss of profit, or the loss of programs or electronic data.

6.5. DLD’s liability is limited to the value of the respective article.

6.6. Moreover, DLD shall not be liable for damages due to

• non-observance of the instructions for use,
• non-intended use,
• usual wear and tear,
• service or use by unqualified and/or untrained personnel,
• use of information and data from the use of software or instruments without checks for plausibility or completeness,
• unauthorised actions performed by the user, such as conversions or technical modifications,
• unauthorised deactivation of safety fittings,
• use of reagents from other manufacturers on devices acquired from or made available by DLD in another way,
• use of replacement parts or accessories from other manufacturers,
• use of hardware or software configurations of other manufacturers, i.e. missing compatibility of the DLD software with third party configurations,
• delays in delivery or non-performance due to legal or institutional export restrictions or third party’s actions in line with these.

6.7. Claims against DLD resulting from or in relation to deliveries or services become invalid after one year, or, in the case of reagents, with their expiry date. In other cases, the legal statutes of limitation apply.

7. FORCE MAJEURE

7.1. Force Majeure means an event beyond the reasonable control of DLD including strikes, lock-outs or other industrial disputes (whether involving the workforce of DLD or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of DLD’s or subcontractors.

7.2. DLD shall not be liable to the customer as a result of any delay or failure to perform its obligations as a result of a Force Majeure event.

8. Intellectual property

DLD reserves all rights on intellectual property, especially copyrights, patent rights, or trademark rights and know-how. Third parties shall not be entitled without an explicit licence agreement, to use the intellectual property of DLD or DLD ́s employees in any way. Software which has been developed by or acquired from DLD may not be used or passed on to third parties without prior consent.

9. Place of jurisdiction

The law of the Federal Republic of Germany shall apply.

10. Jurisdiction and Arbitration clause

In the case of disputes arising in connection with a contract on the performance of services or deliveries or its validity,
- an ordinary court proceeding with Hamburg as exclusive place of jurisdiction shall take place if all contractual partners have their registered office in Germany,
- arbitration proceedings in accordance with the arbitrating procedures of the Court of Arbitration of the Hamburg Chamber of Commerce shall be performed with exclusion of ordinary legal proceedings if a contractual partner has its registered office outside of Germany. Place of arbitration shall be Hamburg. Languages of arbitration shall be German and English.

Hamburg, August 2017