General Terms and Conditions (T&Cs) of the cytena GmbH
§ 1 General Regulations
a.) This general terms and conditions are leading for the execution of deliveries and services (in following: deliveries) of the cytena GmbH (in following CYTENA) by order of its customers (in following client). Contradicting or differing general terms and conditions of the client are only valid, if CYTENA did explicitly agree with them in written form. If this is not the case, contradicting or differing conditions of the client are explicitly objected.
b.) CYTENA claims to hold all copyrights and proprietary exploitation rights without restrictions for all offers, drawings and other documents (in following: documents). The documents may only be made available for third parties upon approval in advance by CYTENA and have to by immediately be returned upon request if the order is not placed.
c.) Partial deliveries are permissible as far as these can be reasonably expected by the client.
d.) The special contract conditions for sale of goods are valid for all business relations of CYTENA that contain the delivery of a good to the client as subject of the contract.
e.) The special contract conditions for development services and prototype manufacturing are valid for all business relationships of CYTENA that contain as subject of the contract the delivery of development services, the execution of feasibility studies or the manufacturing of prototypes on behalf of the client.
§ 2 Contract closure
The order submitted to CYTENA by the client in the version of the purchase order confirmation of CYTENA is relevant for the content of the contract for service provision. If not agreed otherwise in written form this general terms and conditions will be part of every offer and all obligations will be performed exclusively according to the following conditions.
§ 3 None-Availability Proviso
In case that the agreed delivery cannot be achieved due to none-availability CYTENA reserves the right to withdraw from the obligation to fulfill the contract at non-availability. In this case CYTENA is obligated to inform the client immediately about this non-availability and to promptly return any advance payments or any other contributions to date.
§ 4 Delivery and Time Scale
As far as the contractual obligations comprise the delivery of a product, delivery “out of factory” is regarded as agreed. On demand of the client CYTENA will deliver the product to any desired delivery address. In case a delivery period is agreed, it will begin after all contractually relevant technical questions have been resolved between the parties. This requires the collaboration of the client.
§ 5 Conditions of Payment
a.) All prices, including costs for packaging, are prices “out of factory”. Costs for delivery are generally to be carried by the client, if not agreed otherwise in written form in the individual case.
b.) The contractually agreed price is due without any deductions immediately after delivery, if not agreed otherwise in written form in the individual case. In the case of continuing obligation, the agreed payment is due the first of every month.
c.) For the delivery of development services or the manufacturing of prototypes (see part “C. Conditions for development services and prototypes” of this T&Cs), a payment in advance of 50 % of the complete order value is due. In this case the processing of the order starts only after receiving the pre-payment
d.) All given prices are net-prices unless stated otherwise.
e.) If the client is in arrear with payments, partly or completely, CYTENA is entitled to collect interest for the indebted amount at an interest rate 5% above the basic rate of interest unless the client proves that no or only limited loss was caused for CYTENA. Additionally CYTENA may claim damages in case of a higher loss for the indebted amount.
f.) Any right of redemption by the client will solely be accepted in case of an existing title or if it has been accepted by CYTENA. The client is just authorized to withhold payments in case that the reason for the counter-claim lays within the same contract.
§ 6 Obligations for Cooperation by the Party of Contract
a.) In case of any change to the clients name, legal status, billing address, location of the head office, bank details and basic changes of the financial situation (especially in connection with any insolvency proceedings), the client or an authorized agent is obliged to immediately inform CYTENA in writing about these changes.
b.) Without any particular request from CYTENA, the Partner is obliged to inform CYTENA about any information that is necessary for the delivery and/or for the configuration of the delivery. Are there test-liquids, samples or any other parts required for the completion of the delivery that are not part of the contractual performance, the client has to supply a sufficient amount free of charge.
§ 7 Guaranteed Qualities and Intended Use
Guaranteed qualities and warranted characteristics, given by CYTENA, are solely valid under the condition of intended use of the product which especially requires a regular service and cleaning procedure. The parties in writing are aware that an intended use explicitly excludes the use under extreme conditions and/or the use of exceptional media (for example use of abrasive media, which will lead to faster wear; dipping the piezomechanics or electronic components in liquids; use in outdoor environment; use at extreme temperatures; use in corrosive environment or others).
§ 8 Additional deliveries
CYTENA commits itself to provide the contracted deliveries as stated in the purchase order confirmation. Any deliveries exceeding this volume, which are in between or succeeding desired by the client, have to be considered as independent order and will by charged separately. Additional deliveries may be for example:
- Servicing and installation activities or briefing and training of external personal (if not already included in the scope of delivery)
- diagnosis and elimination of disturbances respectively faults in service, which occurred due to improper treatment or other circumstances, for which CYTENA cannot be made responsible
- adaptation requests to the delivery by the client, which have not been subjected earlier
- consultations and support in the use of the products requested by the client
Payments for these activities are due immediately after the requested additional deliveries have been performed by CYTENA and the invoice has been delivered.
§ 9 Concluding Conditions
a.) Unless agreed differently in the purchase order confirmation, Freiburg i. Br., Germany, will be the place of fulfillment.
b.) Any additional amendments or changes to the contract are only valid if confirmed by CYTENA in writing. This includes especially any guaranteed quality of the products and the written form requirement.
c.) If single regulations of this GT&Cs are contradictory to the delivery and payment conditions stated in the purchase order confirmation in written form, the conditions stated in the purchase order confirmation precede.
d.) In case any regulations of this GT&Cs are excluded in the contract or should be void, be it in whole or in part, the remaining parts of this General Terms and Conditions shall still be effective. Any applicable laws and regulations apply additionally.
B. Terms of business for sales of goods
§ 1 General Regulations
a.) The special contract conditions for sales of a good apply for all business relations of CYTENA which have the delivery of a good to the client as subject of the contract.
b.) Categorically and exclusively the general terms and conditions of CYTENA apply, if no other regulations are constituted individually by the terms of business for sales of goods or the purchase order confirmation
§ 2 Warranty
a.) Eventually existing faults or deficiencies must be documented and reported in written form to CYTENA immediately after delivery of the good to the client. Warranty claims concerning any deficiencies expire if the claim has not been filed with CYTENA within one week after receipt of the product.
b.) In the case there is a fault or deficiency of the delivered product, CYTENA has the choice to eliminate the faulty condition by either repair or replacement. In the case of repair, CYTENA is obliged to carry all costs for transport, work and materials in so far, as these costs are not increased, because the product has been moved to a different location from the delivery address as agreed in the contract. If repair or replacement has not eliminated the faulty condition satisfactorily, the client has the choice to withdraw from the contract or demand a reduction of the purchasing price.
c.) The warranty claim expires after a period of twelve months from date of delivery. In the case of a substitute delivery the period of expiration remains unaffected according to §§ 478 and 479 German Civil Code (BGB).
d.) Any warranty claim becomes invalid in the case a seal on the good attached by CYTENA prior to delivery has been broken. Before announcing any claims for warranty, the client has to deliver proof that the seals are still intact.
§ 3 Disclaimer
a.) In cases of deliberate intention or gross negligence of CYTENA, any representatives or vicarious agents, as well as culpably caused injuries to life, limb or health CYTENA shall be liable according to the legal conditions. However, the liability of CYTENA is restricted to the foreseeable damage typical to the contract in cases of gross negligence. Apart from this, CYTENA is only liable according to the German product liability law, in cases of culpable violation of central contractual obligations or if a defect was fraudulently concealed or the quality of the item delivered was guaranteed. The claim for damages when violating essential contractual obligations is however restricted to the foreseeable damage typical to the contract.
b.) All regulations of the preceding para. a.) apply for all claims for damages (especially for compensations besides performance and compensations instead of performance) despite any legal foundation, especially because of deficiencies, the breach of obligations under the contract or liability in tort. They apply as well for the claim for reimbursement of fruitless expenses. All liabilities for delay is excluded to the fullest extent permitted by law.
c.) The regulations above shall not shift the burden of proof to the prejudice of the client.
§ 4 Reservation of Proprietary Rights
a.) CYTENA remains proprietor of the product until all obligations by the client have been fulfilled.
b.) Up to this point, especially until full payment, the client is obliged to treat the product carefully.
c.) The client has the right to sell the product in an ordinary business act. In this case however, the Partner already assigns all claims, which result out of this sale to his customers or a third party, to CYTENA up to the amount of any outstanding payments according to the invoice inclusive VAT. This is independent to the fact that the sale might have occurred after modifications have been carried out. The client remains authorized to collect this debt after the assignment. CYTENA´s authorization to collect payments remains unchanged, however CYTENA assures not to collect any payments as long as the client meets all obligations of the contract towards CYTENA and no application for opening of an insolvency process has been made, or a suspension of payment has occurred. If this is the case, CYTENA may demand that the client shall disclose all assigned claims and their debtors, provide all information necessary for collection, inform the debtor (third party) about the assignment and hand over to CYTENA any relevant documents.
d.) Processing or modifying the product by the Partner occurs always in the name of CYTENA. When in the course of processing, the product becomes part of equipment not owned by CYTENA, CYTENA acquires a share of ownership of the new product in the ratio of the value (invoice plus VAT) which the product had to the other parts prior to processing. Apart from, this the same shall regulations apply for the product resulting through processing as for the product delivered under reserve.
e.) When in the course of processing, the product is inseparably mixed with equipment not owned by CYTENA, CYTENA acquires a share of ownership of the new product in the ratio of the value (invoice plus VAT) which the product had to the other mixed parts prior to processing. When the integration of the product occurs in a way that the new product into which it has been integrated must be considered as the main product of the client, then the client shall transfer a relevant share of ownership onto CYTENA. Thus the client acts as custodian over the so developed co-ownership for CYTENA.
f.) In the case of seizure or other intervention by a third party, the client has to inform CYTENA immediately, to enable CYTENA to file a law suit according § 771 German civil lawsuit order (“Zivil Prozeß Ordnung” -ZPO). If the third party is unable to reimburse the judicial or out of court costs of a lawsuit according to § 771 ZPO to CYTENA, the client shall be liable for the loss incurred by CYTENA.
C. Terms of business for development services and prototype manufacturing
§ 1 General Regulations
a.) The special co ntract conditions for development services and prototype manufacturing apply for all business relations of CYTENA which have the delivery of development services, the execution of feasibility studies or the manufacturing of prototypes on behalf of the client as subject of the contract.
b.) Categorically and exclusively the general terms and conditions of CYTENA apply, if no other regulations are constituted individually by the terms of business development services and prototype manufacturing or the purchase order confirmation
§ 2 Conclusion of the Contract and Specification Sheet
a.) For the conclusion of a contract for development services or prototype manufacturing a preceding written offer of CYTENA is mandatory, which at least contains the scope of delivery but usually, however, a development plan and a specification sheet as appendix. For long-term offers a development plan with milestones and partial deliveries shall be established as appendix. Oral offers are excluded and have no validity.
b.) Subject of the CYTENA offer is exclusively the development service described fully within the offer and its corresponding documents as well as, if applicable, the prototype developed and realized in the frame of the offer. After the order is placed by the client, objections of defectiveness of the delivery due to incompleteness of the development plan, the specification sheet or the prototype are illegitimate.
c.) CYTENA delivers the development service with utmost care, the special know-how of its employees and under consideration of the current state of the art. However, CYTENA does not provide any guarantee for the results of the development, especially its commercial usability and the freedom of errors. The obligation by CYTENA to fulfill the contract is in any case restricted to the agreed scope of delivery and the warranted properties stated in the purchase order confirmation and the specification sheet (see as well “§ 4 material defects”).
d.) If the scope of the offer is an experimental investigation, a feasibility study or a consulting service, the contract is fulfilled as soon as CYTENA executed all tasks according to the purchase order confirmation and the results are documented for the client in adequate manner. There exists no obligation to reach certain results or specific technical functions in this case.
§3 Realization, scope of delivery and acceptance criteria
a.) Exclusively the order placed with CYTENA in the version of the purchase order confirmation of CYTENA is relevant for obligations of the contract to deliver development services or the manufacturing of a prototype, respectively.
b.) The client is obligated to provide CYTENA with all necessary information for the realization of the development service or the manufacturing of the prototype. Especially information concerning technical requirements and needs, any claim about the capability, design, visual and surface feel, used materials and the intended use of the good must be provided. After placing the order, the client may not rely on the argument that, for what reason ever, CYTENA was not provided with all necessary information to realize the development or the manufacturing of the prototype, respectively.
c.) The scope of delivery and acceptance criteria for the executed development in the order is specified in the purchase order confirmation of CYTENA. The client is responsible to inspect the results of the development and to admonish them if so. The development service is presumed to be accepted if any deficit is not admonished in 30 days after delivery.
d.) If in the context of the development order CYTENA did manufacture a prototype, the client is responsible to investigate the prototype for defects (e.g. integrity, function and absence of deficits, the visible and technical correspondence with the specification sheet, capabilities, etc.). The prototype is presumed to be accepted if any defect is not admonished in 30 days after delivery.
e.) Prototypes are no products of CYTENA in the sense of the law on product liability, but only results of a development work which was executed for the client in the context of a development service. Insofar CYTENA acts as an agent of the client to realize a prototype and not as the manufacturer of the prototype. Therefore the client is responsible himself that all legal regulations are met when using the prototype in the context of his own research and development activities.
§ 4 Defects
a.) The legitimation of the client concerning defects on a development service executed by CYTENA after placing the order follows the GT&Cs of CYTENA and the legal regulations.
b.) A defect or deficiency in law is not given, if the development service executed by CYTENA after placing the order is according to the development plan and the specification sheet and the client has accepted it once.
Minor deviances that have no influence on the functionality and capability of the good in respect to the usage known by CYTENA are no defect.
c.) If the client did not sufficiently stated precise specifications concerning used materials, capabilities, design, visual and surface feel, etc., the client my not object that CYTENA only delivered average type and quality regarding the known intended use of the good by the client.
d.) Any damage compensation claims of the client are excluded, if the good to develop is in accordance to the development plan and specification sheet. Minor deflections that have no influence on the functionality, visual appearance and capability of the good regarding the intended use know to CYTENA justify no deviation of accordance.
e.) Concerning possible defects caused by latent deficits at the development result or the prototype respectively, CYTENA is only liable for deliberate intention or gross negligence. Any liability for ordinary negligence is excluded.
§ 5 Industrial and Intellectual Property Rights, Ownership in Development Results and Prototypes
a.) All rights in the development service and prototype delivered by CYTENA as well as all drawings and descriptions and rights in software produced in the context of the development are exclusively with CYTENA. The filing of industrial property rights and the commercial use of the development results are exclusively reserved for CYTENA.
b.) Objective models and prototypes which were produced for the client in the context of the development are the property of the client with the following limitations: to preserve the confidentiality of the development results (see § 6 confidentiality), the transfer of models or prototypes to third parties by the client is only permissible with the written approval of CYTENA. The placing of the prototype on the market is not permitted.
c.) The publication of the development results or the transfer to third parties as well needs the written approval by CYTENA. The reproduction of the prototype is permitted in any case.
d.) The client obtains a non-transferable right of use to use the development results and prototypes within the scope of its own research and development activities with the contractually agreed purpose.
§ 6 Confidentiality
The contractual parties commit themselves to hold all information given by the other party in the context of executing the contract strictly confidential, not give them to third parties and not publish them. Particularly this concerns the content of the specification sheet, the results of the development as well as the technical realization and design and functional range of prototypes. The public presentation or the transfer of prototypes respectively is therefore especially due to confidentiality reasons permitted.