General Terms and Conditions of ABX for Sale of Goods
1 Name and Seat of the Company
1.1 The following General Terms and Conditions for Sale of Goods (“GTC”) govern the business relationship between ABX advanced biochemical compounds – Biomedizinische Forschungsreagenzien GmbH (“Seller”) and buyer (“Buyer”) for the sale of non-radioactive products (“Goods”).1.2 The Goods are sold to Buyer for its own use and/or resale within the territory.
1.3 Seller offers the Goods exclusively to Buyers who are entrepreneurs within the meaning of section 14 of the German Civil Code (BGB). Thus, only to Buyers who are acting in exercise of their trade, business or profession and not for their own nonprofessional use.
1.4 Unless expressly agreed otherwise between the parties in text form, any terms and conditions of Buyer which differ from, contradict or supplement these GTC shall not be applicable. This consent requirement applies even if Buyer refers to its terms and conditions in the context of the conclusion of the contract and Seller does not expressly object to this.
1.5 These GTC shall apply to all future contractual agreements on the sale of Goods between the parties, even if Seller does not refer to their inclusion again separately. In case of different versions of these GTC, the respective latest version communicated to the Buyer shall be decisive.
2 Conclusion of the Contract
2.1 The sale of Goods requires the prior conclusion of a contract. The contract is concluded once Buyer has accepted the Offer (as described in sections 2.2 and 2.4) or Seller has accepted Buyer’s new offer according to section 2.4 (“Contract”).2.2 Seller may submit an offer to Buyer for the sale of Goods that consists of:
- the order specifications, in particular the quantity, price and delivery date of the Goods,
- shipping terms and
- these GTC
2.3 Offers are binding for the term stated in the Offer. If no term is specified, Offers shall be binding for a period of three (3) months from the date of the Offer.
2.4 To accept the Offer, Buyer shall inform Seller of its acceptance in text form. In case Buyer does not fully accept the Offer but deviates in its acceptance from the Offer’s terms, such deviation shall be regarded as a new offer and only be binding for Seller if accepted by Seller in text form.
2.5 In case the Goods are part of a clinical trial, Buyer shall agree with Seller in text form on a quality assurance agreement, to guarantee a stable supply of the Goods. Once concluded, the quality assurance agreement will become part of the Contract.
3 Reselling Rights
Buyer shall only be entitled to resell the Goods within the country the Goods were delivered to by Seller. 4 Terms of Delivery
4.1 Delivery shall by default either be EXW or FCA unless expressly agreed otherwise in the Contract. Seller shall deliver all Goods in accordance with the specifications made in the Contract, in particular the delivery time and INCOTERMS 2020 terms.4.2 Unless expressly stated otherwise in the Contract:
(a) delivery times are estimates only. Seller shall inform Buyer in due time about the exact delivery date,
(b) delivery shall be made EXW or FCA Radeberg (as per INCOTERMS 2020)
(c) Seller shall be entitled to partially deliver the Goods.
4.3 In case Buyer requests partial delivery, Seller determines in its sole discretion whether it accepts such request. In case Seller accepts such request, Buyer shall bear all additional costs caused thereby.
4.4 Seller shall not be responsible for delays in delivery which are due to Buyer’s noncompliance with the provisions of the Contract, export inspections as well as other export control measures. Without prejudice to the Seller’s rights arising from Buyer’s default, the delivery dates shall be extended by the time Buyer fails to meet its commitments under the Contract or statutory provisions.
5 Prices
5.1 Goods are remunerated according to the prices listed in the Contract.5.2 Costs for packaging (incl. customer specific materials like GDP certified boxes, monitoring systems), transport and transport insurance are remunerated according to the prices listed in the Contract.
5.3 If, at Buyers request, the Goods are not supplied according to the EXW Incoterms 2020 and Seller incurs additional costs as a result, Buyer must reimburse Seller for these costs.
5.4 All prices are net of VAT, if any.
6 Terms of Payment
6.1 Payments shall be made according to the payment terms specified in the Contract.6.2 Unless expressly stated otherwise in the Contract payments shall be:
(a) due within fourteen (14) days after receipt of the corresponding invoice and
(b) made to the Seller’s bank account stated in the Contract.
6.3 If Buyer uses or requests another payment method and Seller incurs additional costs as a result, Buyer must reimburse Seller for these costs.
6.4 In case of default of payment by Buyer, Seller will be entitled to charge Buyer for the outstanding payment an interest rate ofnine (9) percentage points above the base rate (as determined by the European Central Bank).
6.5 Buyer shall not be entitled to withhold payment on account of Buyer’s counterclaims unless such counterclaims are uncontested or recognized by declaratory judgement.
6.6 If, after conclusion of the Contract, Seller becomes aware of circumstances that significantly diminish confidence in Buyer’s willingness or ability to pay the prices specified in the Contract, Seller shall have the right, notwithstanding any prior agreements to the contrary, to condition future deliveries on advance payment or the provision of security.
7 Retention of Title
7.1 Buyer retains title of the Goods until receipt of all payments according to sections 5.1 to 5.3 (for the Goods and costs for their packaging and transport). 7.2 Until title to the Goods has passed, Buyer shall:
(a) handle the Goods with due care,
(b) maintain suitable insurance,
(c) immediately inform Seller in text form if the Goods become subject to rights of third persons or other encumbrances,
(d) not pledge or transfer the title to such Goods to third parties by way of collateral and
(e) inform Seller without undue delay if third parties take steps to pledge or otherwise dispose of such Goods delivered to Buyer in order to enable Seller to seek a court injunction.
7.3 Until title to the Goods has passed to Buyer, Buyer shall be entitled to sell the Goods in the ordinary course of business and herewith assigns to Seller any claims arising from such sales up to the amount of all payments according to sections 5.1 to 5.3 (for the Goods and costs for their packaging and transport). This assignment shall apply irrespective of whether the Goods have been resold without or after processing. Until further notice, Buyer shall be entitled to collect the claims assigned to Seller in the Buyer’s own name and at the Buyer’s own expense. Seller is not entitled to revoke such authorization as long as Buyer meets its payment obligations. Seller shall only be entitled to revoke Buyer’s right to collect so assigned claims if Buyer is in default with its payment obligations according to clause 6, insolvency proceedings have been commenced with regard to the assets of Buyer or the commencement of such proceedings has been declined due to lack of assets. Buyer shall disclose the unpaid claims and their debtors to Seller, provide the information and documents necessary for collection and, without delay, notify the debtor of the assignment.
7.4 Until title to the Goods has passed to Buyer, the treatment and processing or transformation of the Goods by Buyer shall always be carried out in the name of and on behalf of Seller. In this case, the expectant right (Anwartschaftsrecht) that Buyer has to the Goods shall continue to apply to the remodelled Goods. If the Goods are processed with other items not belonging to Seller, Seller shall acquire co-ownership of the new item in the ratio of the objective value of the Goods to the other processed items at the time of processing. The same shall apply in the event of mixing. If the mixing is carried out in such a way that the Buyer's item is to be regarded as the main item, it is agreed that the Buyer shall transfer co-ownership to Seller on a pro rata basis and shall keep the resulting sole ownership or co-ownership in safe custody for Seller. To secure Seller's claims against the Buyer, the Buyer shall also assign to Seller such claims against a third party that accrue to it through the combination of the reserved Goods with a property; Seller hereby accepts this assignment.
7.5 If the Goods are resold by Buyer, Buyer shall ensure that its customers grant Seller a corresponding right to section 7.4 until the title to the Goods has passed to Buyer.
7.6 In the event of seizure of the Goods by third parties, particularly in the event of attachment, or the initiation of insolvency proceedings, the Buyer shall indicate that these Goods are the Seller’s property and inform the Seller accordingly.
7.7 In case of breach of Contract by Buyer including, without limitation, default in payment, Seller is, after expiry of a reasonable cure period determined by Seller to remedy such breach, entitled to take possession of the Goods.
8 Inspection, Notification of Defects
8.1 Buyer shall inspect the Goods promptly after delivery by Seller, insofar as this is practicable in the ordinary course of business and notify the Seller without undue delay if a defect becomes apparent. The obligation to give notice of defects discovered later remains unaffected.8.2 If the Buyer fails to notify the Seller, then the Goods are considered to have been approved no later than ten (10) days after delivery. This does not apply in cases where the defect was not apparent on inspection, or the parties have agreed on a longer notice period in the Contract.
8.3 Where such a defect becomes apparent later, notification (incl. photos of the damaged goods) must be made promptly as soon as the discovery is made; otherwise, the Goods are considered to be approved also considering such defect.
8.4 Buyer shall:
(a) report damages to the packaging and other obvious damages that occurred to the Goods in transit in text form to the carrier commissioned with the transport of Goods at the time of delivery;
(b) request carrier to confirm the reported damages in text form;
(c) document any damages to the packaging and other damages at the time of delivery and
(d) immediately hand over/send a copy of the confirmed damage report and the documentation of the damages to Seller.
9 Warranty
9.1 The Seller shall provide the Goods in accordance with the product description in the Contract.9.2 Seller shall be entitled to make customary changes and/or technical improvements to the Goods which deviate from the product description, provided that such changes or improvements (i) do not impair the use of the Goods for the purpose stated in the Contract, (ii) do not contradict possible registrations or approvals and (iii) are not unreasonable for the Buyer.
9.3 In case the Contract only contains the name of the Goods but no further product description, the Goods are sold as they are.
9.4 Seller shall be given the opportunity to repair or to replace the defective Goods within a reasonable period of time.
9.5 Buyer shall have no claims for defects in the event of:
(a) only insignificant deviations from the agreed product specifications,
(b) damage arising after the transfer of risk (Gefahrübergang) as a result of faulty, negligent or other improper handling/use of the Goods by Buyer or third parties, or
(c) modifications made by Buyer or third parties.
9.6 Claims for reimbursement of expenses borne by Buyer in relation to its customers due to defects of the Goods, if the defect already existed at the time of transfer of risk (Gefahrübergang) from Seller to Buyer, are excluded.
9.7 Claims for defects are time barred after twelve (12) months after delivery; provided, however, any corrective work performed during the warranty period shall be extended for an additional twelve (12) month period from the date of correction. The statutory provisions for limitation of claims for defects that are fraudulently concealed and exclusion of liability for fraudulently concealed defects and guarantees remains unaffected.
9.8 Buyer is only entitled to assert claims for defects against Seller if it has complied with its obligation to inspect the Goods and notify Seller of defects in accordance with clause 8.
9.9 Unauthorised notices of defects shall entitle Seller to demand compensation from Buyer for the expenses incurred as a result.
10 Limitation of Liability
10.1 In case of intent or gross negligence by Seller or by Seller’s agents or assistants in performance Seller is liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentional Seller’s liability for damages shall be limited to the typically predictable damage.10.2 Seller’s liability for culpable damage to life, body or health as well as liability under the German Product Liability Act shall remain unaffected.
10.3 Any liability for Seller not expressly provided for in this clause 10 shall be excluded.
11 Confidentiality
11.1 Buyer shall be obliged to keep the prices, as listed for the sale of Goods in the Contract, confidential. Buyer shall:(a) keep such information strictly confidential and not disclose it to any third party without prior consent of the Seller in text form;
(b) take appropriate precautions, at least those precautions by which the Buyer protects particularly sensitive information about its own business, to protect the price information against loss and unauthorised access, and;
(c) notify Seller immediately if the prices have been disclosed to or obtained by a third party.
11.2 Buyer shall be obliged to keep the prices confidential for a term of 2 years after conclusion of the Contract.
12 Code of Ethics
12.1 Buyer shall comply with the provisions of the latest version of the Otsuka Group Business Partner Code of Ethics issued by Otsuka Holdings Co., Ltd. (available at https://www.otsuka.com/en/sustainability/hd_activity/bpcc.html) (“Code of Ethics”). Buyer shall ensure that its employees, agents, contractors, subcontractors and any other third parties Buyer involves in the acquisition or processing of Goods are aware of the Code of Ethics and will adhere to the standards set forth therein.13 Export Control and Foreign Trade Law
13.1 The delivery of Goods may be subject to national and international export control regulations.13.2 Buyer shall comply with all applicable trade sanctions, embargos, executive orders, regulations, export control laws and restrictions imposed by the Federal Republic of Germany, and/or the European Union, the United States of America and/or United Nations (together defined as “Export Regulations”) concerning the Goods provided by Seller. Buyer is responsible to obtain all required export authorization and to make the export declarations required under the Export Regulations before exporting the Goods.
13.3 Buyer shall indemnify Seller against all claims asserted against Seller by authorities or third parties due to Buyer’s noncompliance with the Export Regulations and reimburse Seller for all damages and expenses incurred.
14 Force Majeure
In case of force majeure and in the event of other circumstances which could not be foreseen at the time the contract was concluded (e.g., but not limited to, difficulties to obtain materials or energy from Seller’s suppliers and vendors, embargo, currency restrictions, operational breakdowns of any kind, delays in transport, strikes, measures taken by the authorities, pandemics) for which the Seller is not responsible and which substantially hinder the delivery or render it impossible, Seller shall be entitled to withdraw from the Contract, if the circumstances are not of temporary character (“Force Majeure Event”). In such case of a Force Majeure Event, for which Seller is not responsible, Buyer will be notified without delay of the unavailability of the Goods. In case of a partial or complete shortfall of Seller’s current sources of supply, Seller shall not be obliged to purchase or otherwise obtain alternative supplies from other suppliers. In the event of a Force Majeure Event, the delivery period shall be extended by a period equal to the duration of the Force Majeure Event. If the duration of the force majeure event exceeds three (3) months, either party shall be entitled to terminate this contract by giving three (3) months' notice in text form.15 General Provisions
15.1 This Contract is governed by German law. The application of the UN Convention on the International Sale of Goods (CISG) is excluded.15.2 The place of jurisdiction for all disputes arising from or in connection with the Contract shall be Dresden, Germany.
15.3 Amendments and supplements to the Contract or the waiver of rights contained in the Contract must be made in text form. The same applies to a change of this text form requirement itself.
15.4 In case text form is required according to this Contract, such form requirement is met by the use of E-Mail signed by an electronic signature tool (e.g. DocuSign), even if this signature tool does not meet the respective requirements of the eIDAS Regulation (Regulation (EU) 910/2014) or its successor regulations.
15.5 If a provision of the Contract is invalid, the validity of the remaining provisions of the Contract are not affected thereby. The parties are obliged to replace the invalid provision with a valid provision, which the parties would have agreed on had they been aware of the invalidity of the respective provision.
15.6 The terms printed in italics and in brackets constitute German legal terms describing the meaning of the terms in the English language they refer to and shall be decisive when interpreting this Agreement.
15.7 Only the German version of the Contract is legally binding. The English text merely constitutes a convenience translation.
Version: 2025