Maaßstraße 30, 69123 Heidelberg, Germany
Phone: +49 6221 8278-0; Fax: +49 6221 8278-24; Email: firstname.lastname@example.org
Managing Directors: Katja Betts & Maik Lander; Local court of Mannheim: HRB 332589;
VAT-ID: DE 143331003
- in the following referred to as "PROGEN" -
for the sale of goods
1.1 PROGEN does not deliver to consumers. The product and service offerings of PROGEN are exclusively directed to business customers.
1.2 These terms and conditions exclusively apply to entrepreneurs, legal entities under public law and special funds under public law within the meaning of section 310 (1) of the German Civil Code (BGB) (hereinafter referred to as the “customer”).
1.3 The business relationship between PROGEN and the customer shall exclusively be subject to the following terms and conditions which are effective and made available at the time of the placing of an order. Any deviating or additional terms and conditions of the customer shall not apply, unless PROGEN expressly agrees otherwise in writing.
2 Conclusion of agreement
2.1 The presentation of goods by PROGEN does not constitute a binding offer for the conclusion of a purchase agreement, but an invitation to the customer to make such an offer ("Order"). The customer may place Orders with PROGEN by telephone, fax, email and post as well as online via the web shop reachable under https://www.progen.com ("Website").
2.2 To place an Order via the Website, the customer can collect products in an electronic cart by clicking the button "Add to Cart". By clicking the button “Proceed to check-out”, the customer submits a binding offer for purchasing the products in the cart. Before completing the ordering process and submitting the offer, the customer may look at and change the order data, correct any type or other input errors at any time by clicking on the item “Update shopping Cart”. The Offer can only be submitted if the customer accepts these General Terms and Conditions and incorporates them in its offer by checking the box next to "I have read the General Terms and Conditions and agree with them". The customer gets the possibility to print and download the General Terms and Conditions on a durable medium in the course of each ordering process. When proceeding to check-out, the customer needs to register and to set-up a user account. A corresponding registration/log-in form appears on the screen, where he shall indicate an e-mail, invoicing and shipping address, the ordering company name and VAT number and choose a password. The customer shall keep the access data to the user account, in particular the password, confidential and shall instruct any user of the account to do so.
2.3 PROGEN will confirm the receipt of the Order without undue delay to the customer ("Confirmation of Receipt"). If the Order was placed via the Website, the Confirmation of Receipt will be sent via email. Unless it provides for otherwise, the Confirmation of Receipt does not constitute an acceptance of the offer submitted by the customer. The purchase agreement only comes into effect upon the customer’s receipt of a separate declaration of acceptance of PROGEN ("Order Confirmation"). If the Order was placed via the Website, the Order Confirmation will be sent via email.
2.4 PROGEN will provide the customer with the text of the purchase agreement (Order, Order Confirmation and General Terms and Conditions) on a durable medium (e.g. email or hard copy) with or within a reasonable period after conclusion of the agreement, but no later than by the time of delivery of the products.
2.5 PROGEN stores the text of the purchase agreement, complying with applicable data protection requirements; the stored text is not accessible to the customer.
2.6 The purchase agreement is concluded in English language.
3.1 Deliveries are – unless agreed otherwise – made at the customer's risk.
3.2 Stated delivery times and dates are – unless agreed otherwise – non-binding estimations.
3.3 General information on product-specific different delivery methods and usual delivery times can be found in the “Order Process” information published on the Website. The estimated delivery times indicated are calculated starting from the Order Confirmation of PROGEN.
4 Retention of Title
4.1 The ownership in the delivered products remains with PROGEN until full payment of all receivables of PROGEN arising from or in connection with the business relationship between PROGEN and the customer ("Retained Products"). The customer is not entitled to use or dispose of the Retained Products, unless expressly stated otherwise in the following.
4.2 The customer is entitled to use and resell the Retained Products in the ordinary course of business, as long as the customer is not in payment default. The customer herewith fully assigns any claims for payment resulting from such a resale to PROGEN. PROGEN is entitled to collect such claims in its own name and on its own account. PROGEN revocably authorises the customer to collect such claims in its own name but on PROGEN’s account as long as the customer is not in payment default. If the Retained Products are accessed by any third party, the customer must inform the third party of PROGEN's ownership and PROGEN in writing without undue delay. The customer has a right to the release of the securities to the extent the realisable value of the securities exceeds the open secured receivables of PROGEN by more than 20%; PROGEN is entitled to determine the securities to be released.
5 Prices and delivery costs
5.1 All prices are stated exclusive of the respective applicable statutory value added tax.
5.2 The delivery of the products shall – unless to the extent agreed otherwise – be made on the customer's costs.
5.3 General information on the expected delivery costs can be found in the “Shipping and Delivery” information published on the Website.
6 Payment terms
6.1 The payment of the purchase price is due upon conclusion of the agreement.
6.2 The customer may make the payment via bank transfer or credit card (Visa or Mastercard accepted).
6.3 From an order value of EUR 1500.00 (excluding value added tax), PROGEN only delivers against prepayment; the choice between these two payment methods may be made by the customer.
6.4 PROGEN is entitled to refuse any performance it is obliged to deliver under the business relationship or to deliver performance only against advance payment as long as the customer is in default of its payment obligations. The customer is only entitled to exercise rights to set-off or retention if its counterclaim is undisputed or bindingly determined in court or if its counterclaim is in reciprocity (Sec. 320 of the German Civil Code) to PROGEN’s claim.
6.5 If PROGEN is obliged to deliver advance performance, the performance may be denied – without it being a case of default – as far as circumstances arise after the conclusion of the agreement leading to the conclusion that the customer will not be able to fulfil its obligation in return, in particular its payment obligation. In this case, PROGEN is entitled to set an appropriate period within which the customer has to either concurrently pay for the delivery of the performance or to furnish security. If the customer fails to do within this period, PROGEN is entitled to withdraw from the agreement and to demand compensation for the damage caused or reimbursement for frustrated expenses.
7 Rights arising from defects
7.1 PROGEN is liable for defects in accordance with the applicable statutory provisions, unless agreed otherwise in the following.
7.2 In order to preserve potential rights arising from defects, the customer is obliged to notify PROGEN in writing of obviously recognisable defects within 5 working days after delivery and of hidden defects no later than 5 working days after detection.
7.3 In the context of any potential right of the customer to supplementary performance, PROGEN is entitled to choose between rectification of the defect and delivery of a new product that is free of defects. The limitation period for any rights arising from defects shall be 12 months starting from delivery. The legal limitation period applies to any claims for damages by the customer if PROGEN is guilty of willful misconduct or gross negligence, or if the claim for damages is based on damage to life, bodily injury or damage to health. The limitation periods of the Product Liability Act remain unaffected in any case.
7.4 Clauses 7.2 and 7.3 shall not affect any rights arising from defects in case of supplier's recourse (478, 479 German Civil Code), fraudulent concealment of defects, guarantees and intent.
7.5 Claims for damages of the customer against PROGEN in cases of defects shall solely be subject to Clause 9.
8.1 If PROGEN, despite being under no legal obligation to do so, agrees to take back single products at the customer’s request, PROGEN may charge a handling fee and restocking charge of 25% of the respective sale price. PROGEN does not credit shipping charges. Shipping costs and costs for customs duties and handling will be deducted from the credited total amount or will be charged subsequently. The customer will not receive credit for any product returned without PROGEN’s prior consent.
8.2 Prior to returning the product, the customer must contact PROGEN’s Customer Services. Any product return requires a pre-authorization of the Customer Services. In general returns are accepted on the following conditions: The customer contacts Customer Services within five days after receiving the product. If PROGEN exercises its discretion to authorize a product for return then the product must arrive at our facilities in a condition satisfactory for resale (including original packaging and when applicable shipped on cool packs). The products have to be sent “free destination”, DDP PROGEN Biotechnik GmbH, Maaßstraße 30, 69123 Heidelberg, Germany according to Incoterms 2020.
8.3 Returns of products in case of defective, damaged or wrong products under PROGEN’s warranty duties remain unaffected.
9.1 PROGEN, its legal representatives (gesetzliche Vertreter) as well as agents and assistants (Erfüllungsgehilfen) shall be liable in accordance with statutory laws for damages in case of
(a) any fraudulent concealment of any defects;
(b) grossly negligent or intentional conduct;
(c) injury of life, body or health; and
(d) damages caused by payment default resulting from the costs of prosecution (288 (6) BGB); and
(e) breach of a guarantee in the meaning of Sec. 443 of the German Civil Code; and
(f) claims based on the Produkthaftungsgesetz (German Product Liability Act).
9.2 Also beyond the cases set out in Clause 9.1, PROGEN, its legal representatives as well as agents and assistants shall be liable for damages resulting from a culpable breach of material contractual obligations. However, this liability shall be limited to the damage which was foreseeable for PROGEN on the basis of the circumstances known to PROGEN at the time of the conclusion of the agreement. Material contractual obligations are contractual obligations which need to be fulfilled in order to achieve the purpose of the agreement or the breach of which endangers achieving of the purpose of the agreement and the fulfilment of which the customer may therefore regularly rely on.
9.3 Any liability for damages of PROGEN, its legal representatives as well as agents and assistants – irrespective of the legal grounds – beyond the above Clauses 9.1 and 9.2 shall be excluded.
10 Approval, distribution and export restrictions, force majeure
10.1 The products of PROGEN may be subject to statutory license, distribution or export restrictions. In particular, the PROGEN in vitro diagnostic products (IVD) are only licensed for resale in EU Member States, EFTA-countries and Turkey. The relevant restrictions may be found in the respective product description. The customer is obliged to comply with any applicable restrictions.
10.2 Force majeure, labor disputes, civil disorder, governmental actions, and other unforeseeable and unavoidable events of major significance release PROGEN and the customer from their performance obligations for the duration of the disturbance to the extent of the impact thereof. The same applies if these events take place when performance by the contracting party affected is already overdue. The parties are required to provide the information reasonably necessary without delay and to adjust their mutual obligations to the altered circumstances in accordance with the principle of good faith dealing.
No party shall be liable for, nor shall such party be considered in breach of contract, due to any failure to perform its obligations (e.g. non-performance or delayed performance) as a result of a Force Majeure event. Each party shall bear its own losses.
If, due to a Force Majeure event, one of the parties is prevented from performing its obligations for more than 30 calendar days, each party shall be entitled to terminate the contract by providing the other party with a written notice (e-mails shall be considered sufficient). Claims in relation to such termination shall be excluded.
11 Data protection
12 Final Provisions
12.1 Any agreements between PROGEN and the customer shall be exclusively governed by German Law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
12.2 Place of jurisdiction for all disputes arising from or in connection with the business relationship between the customer and PROGEN shall be Heidelberg, Germany. The mutual right of either party to file claims against the other party at its general place of jurisdiction shall remain unaffected hereby.
12.3 If individual provisions of this agreement are legally ineffective, the remainder of the agreement is not affected thereby. The ineffective provisions shall be replaced by applicable statutory law. If this should place undue hardship on one contracting party, the agreement shall become ineffective as a whole.
Version: August 2020