General Terms and Conditions of Business for DIARECT AG

I. General Remarks

1. The following General Terms and Conditions of Business apply to all contracts concluded with DIARECT AG as well as to deliveries and services supplied by same. In the case of long term or repeatedly resumed business relations, this applies without explicit renewal.
2. Reciprocal commercial transactions shall be processed according to our General Terms and Conditions of Business as expressed in the following. Other conditions shall not constitute the essence of the contract even though not subject to explicit contradiction, unless we acknowledge their validity in writing.

II. Offers / Quotations

1. All offers made by DIARECT AG are without obligation. We shall uphold offers specially compiled and submitted by us in writing for 30 days.

III. Deliveries

1. If an explicit delivery period is exceeded by 4 weeks, the party to the contract with DIARECT AG may set an appropriate extension of the original term in conjunction with a declaration that in the case of the fruitless expiry of the extension of term the party concerned is entitled to take legal action for fulfillment, or to cancel the contract.
2. Damage claims due to delays on the part of DIARECT AG in fulfilling their duties to deliver are completely excluded because these are mercantile business relations. The aforementioned restriction applies only if DIARECT AG is not to blame for wrongful intent or gross negligence.
3. The place of performance for all deliveries is the domicile of the company in Freiburg. If deliveries are dispatched at the request of the party to the contract, the risk transfers to same when the goods are handed over to the forwarding agent; reference is made to the provision set out in § 447 German Civil Code.
4. If the party to the contract requests dispatch for the delivery of antigens, DIARECT AG will provide the packages with sufficient dry ice to assure adequate cooling for at least 48 hours.
5. Our brochures, marketing materials, technical specifications and analysis certificates as well as the documentation accompanying our offers contain data, technical details, specifications and illustrations that are binding only if they are explicitly confirmed in writing.
6. We reserve the right to make changes to our products in keeping with state of the art technology, insofar as the party to the contract may reasonably be expected to accept them.

IV. Prices

1. Within this business relationship prices shall be governed by the valid price list on the day of delivery plus VAT and/orsales tax at the current rate, insofar as delivery is to take place within 4 months of the conclusion of the contract. If the prices differ considerably on the date of delivery from those in place at the time contract was signed and this difference is not due to external factors beyond the responsibility of DIARECT AG, the party to the contract has the right to withdraw from the contract.
2. If delivery or service is to be executed 4 months or more after the contract is signed and if a considerable rise in our production costs has occurred, we are entitled to demand the re-negotiation of wages, costs etc.
3. For dry ice transportation, we impose a lump-sum packaging surcharge of € 35.00 for domestic dispatches and € 80.00 for dispatches to destinations outside Germany. Postage is charged according to expenses actually incurred. For purchase orders under € 200,00 a small volume surcharge of € 50.00 will be added.
4. Dispatches requested by the party to the contract are carried out by a forwarding agent selected and commissioned by us. The fact that we commission the agent is without prejudice to the transfer of risk described in III. 3.
5. The party to the contract may only context our demands if his counter-demand has been legally established as undisputed or final and conclusive.

V. Payment

1. Our invoices are due for payment without discount immediately after receipt, provided the invoices show no other provisions.
2. If the payment period is exceeded, constituting default by the party to the contract, we are entitled to charge default interest amounting to 5% over the base interest rate of the European Central Bank with reference to the invoice amount. This is without prejudice to the possibility of claims to further damages for arrears.

VI. Warranty

1. In compliance with statutory provisions, our warranty that the goods are without defect and manifest the qualities assured by us takes effect when the goods are handed over to the party to the contract (in the case of mail order purchase, to the forwarding agent).
2. The party to the contract is obligated to examine deliveries for damages and obvious defects immediately upon receipt at his premises and to report such to us in writing immediately or within two weeks of receipt of the merchandise at the latest. Any infringement of this obligation results in the exclusion of all warranty claims against DIARECT AG by the party to the contract. The aforementioned is without prejudice to farther-reaching obligations pursuant to §§ 377, 378 Commercial Code.
3. In the case of defects or the lack of assured qualities, we are free to choose between replacement and rectification. Should a maximum of two attempts at replacement or rectification fail, or not be executed within an appropriate period, or be conclusively refused by us in writing, the party to the contract may elect to reduce payment (reduction) or to demand cancellation of the contract (repudiation).
4. Further claims by the party to the contract, particularly due to consequential damages or damage claims against us, are excluded insofar as neither we nor our legal representatives and vicarious agents cannot be proved to have acted with intent or gross negligence or due to the lack of effectively assured qualities. This exemption from liability covers damage claims due to impossibility, delay, positive breach of contract, own fault in contract negotiations, warranty as well as offences against liability.

VII. Reservation of Ownership

1. Ownership of the merchandise produced and/or supplied by us remains subject to reservation until all accounts outstanding based on the business relationship between the respective party to the contracts have been paid.
2. If the party to the contract is a processor and/or reseller of the merchandise, he is entitled to continue to sell and process the merchandise subject to reservation in accordance with proper business practice.
3. The party to the contract undertakes to process and reform the merchandise subject to reservation exclusively for us. The item thus processed or reformed may, in turn, only be resold subject to reservation.
4. If the merchandise is resold without processing, the sale must also only take place subject to continued reservation of ownership.
5. As of the present moment, the party to the contract assigns all claims against third parties to which he is entitled on the grounds of damages or other impairment of the delivered goods. We accept the assignment.
6. Furthermore, from the present moment on the party to the contract assigns all demands and rights protection from risk against his customers or third parties that may arise from the resale of merchandise supplied by us, with or without further processing. We accept said assignment.
7. Subject to revocation, the party to the contract is authorized to collect the debt assigned to us. We obligate ourselves to refrain from revocation of authorization from collecting the debt as long as the party to the contract fulfills his obligations to pay us.
8. The party to the contract is obligated to give information concerning accounts receivable assigned to us, to supply any documents required for collection as well as to instruct debtors about the assignment at any time upon request.
9. If the party to the contract contravenes same, particularly in cases of delays in payment, we are entitled to recover the merchandise. The party to the contract is obligated to hold our merchandise available or to facilitate access to it for collection purposes. Unless the provisions of the Consumer Credit Act apply, recovery or distraint of the merchandise by us constitutes cancellation of the contract only if we explicitly declare it so.

VIII. Patents / Licenses

1. Within the scope of our responsibility for biotechnological production, we guarantee that we shall observe and comply with the patents and licenses that are in place in the course of producing the following basic materials (Baculovirus- Expression:TAMUS, University of Texas:IMAC, Roche).
2. About compliance with any existing patents or license rights related to the diagnostic end product achieved by further processing, however, it is the party to the contract who bears sole responsibility. Claims for compensation of any kind that may arise on the grounds of infringements of patent or licensing laws by the diagnostic end product against DIARECT AG are, therefore, excluded.

IX. Secrecy

1. The party to the contract undertakes to assure that no third parties gain insight into specialist or commercial information regarding the merchandise sold by us that may have been obtained through the business relationship.

X. Legal Venue

1. For commercial transactions between merchants or in cases where the party to the contract is a public law corporation or a public law special fund, Freiburg is agreed as legal venue for all disputes arising from the business relationship. By contrast, jurisdiction over the subject matter concerned pursues the general rules.
2. All matters concerning the business relationship shall be subject to the law of the Federal Republic of Germany alone.