General Purchasing Conditions (GTC)
of Greiner Bio-One GmbH (GBO)

Valid with effect from August 28^th, 2020

 

1. General

1.1 With regard to all busi­ness rela­tions of GBO per­tain­ing to the supply of goods or ser­vices (both here­inafter referred to as “Deliverables”; pur­chase orders are here­inafter referred to as “Purchase Orders”) by GBO, the present GTC shall exclu­sively apply. Any dif­fer­ing terms shall be invalid, even if the same have not been expressly con­tra­dicted. Deviations from these GTC intended by the Client shall only be valid when acknowl­edged in writ­ing by GBO. These GTC explic­itly apply for any pur­chase orders placed by the Client based on these GTC (“Purchase Orders”), con­tracts with the Client, and all trans­ac­tions between the Client and GBO entered into in the future, even if these GTC are not referred to sep­a­rately on a case-by-case basis.

1.2 All gen­eral sale offers (includ­ing price lists) by GBO are deemed an invi­ta­tion to the Client to place a Purchase Order and shall be sub­ject to con­fir­ma­tion by GBO in order to be bind­ing and shall not oblig­ate GBO to make deliv­ery. Client’s Purchase Orders and any con­tracts with Client sub­ject to these GTC shall become effec­tive upon writ­ten con­fir­ma­tion or upon deliv­ery of the Deliverables by GBO.

1.3 Any agree­ments shall only become bind­ing upon GBO once they have been con­cluded in writ­ing. E‑mails shall also be deemed to fulfil the writ­ten-form requirement.

1.4 Machinery, equip­ment and tools, as well as man­u­fac­tur­ing resources, are the prop­erty of GBO, even if the Client has made a cost con­tri­bu­tion thereto and the pro­pos­als and designs regard­ing the Deliverables to be man­u­fac­tured orig­i­nate from the Client.

1.5 Instructions in brochures, instruc­tions for use, user man­u­als, and other prod­uct infor­ma­tion pro­vided by GBO (“Instructions”), must be strictly fol­lowed. The instruc­tions for use define a field of appli­ca­tion for the Deliverables (“Intended Use”). Without prior writ­ten con­sent of GBO, the Deliverables must not be used and/or han­dled out­side the Intended Use and/or other Instructions. Furthermore, the Deliverables must not be com­bined with other prod­ucts and/or sub­stances. GBO hereby expressly warns against the use and/or the han­dling of the Deliverables and/or com­bi­na­tion with other prod­ucts and/or sub­stances with­out prior writ­ten con­sent of GBO. The Client is obliged to strictly adhere to the con­tent of the doc­u­ments made avail­able to it and may not amend them. Insofar as a con­trac­tual ter­ri­tory is agreed, the Deliverables may only be used within such ter­ri­tory. The Client shall inform all fur­ther buyers (cus­tomers) or users accord­ingly. GBO shall not be respon­si­ble and does not assume any lia­bil­ity in respect of any incor­rect and/or insuf­fi­cient infor­ma­tion con­tained in tech­ni­cal doc­u­ments, prod­uct descrip­tions, sales brochures, instruc­tion man­u­als, or any other doc­u­ments pre­pared by the Client, which are in any manner pro­vided or made avail­able to the cus­tomer or user. The same shall also apply if GBO shall have autho­rized or given its con­sent to such doc­u­ments, because such autho­riza­tion or con­sent shall be lim­ited merely to the layout and com­pli­ance with cor­po­rate iden­tity and shall not per­tain to content.

 

2. Terms of delivery.

2.1 Goods are sup­plied by GBO FCA 72636 Frickenhausen (Incoterm: “FCA”, “free car­rier”, Incoterms 2020) unless oth­er­wise agreed. In case of trans­ac­tions involv­ing more than two par­ties, a writ­ten agree­ment on the applic­a­ble Incoterm clause has to be concluded.

During the dura­tion of force majeure events (e.g. COVID 19 pan­demic), state­ments of GBO in con­nec­tion with trans­port costs (espe­cially the amount of trans­port costs) are not binding.

2.2 In the event of self-col­lec­tion, the Client shall be respon­si­ble for ensur­ing com­pli­ance with the safety reg­u­la­tions and shall in this regard release GBO from all com­pen­sa­tion claims, includ­ing for per­sonal injury. The Client and/or its agents shall bear sole respon­si­bil­ity for com­pli­ance with the legal stip­u­la­tions for the trans­port of goods. The Client shall be respon­si­ble for pro­vid­ing its agents with appro­pri­ate instructions.
The Client shall be respon­si­ble for the costs of cus­toms clear­ance for imports as well as any for­mal­i­ties and the costs thereof (such as prod­uct reg­is­tra­tion, oper­at­ing licenses) and related costs. GBO shall be respon­si­ble for the costs of export cus­toms clearance.

2.3 GBO may deliver, for rea­sons of pack­ag­ing, up to 2% (two per cent) more or less of the quan­tity ordered with­out being in breach of con­tract. In such event, the quan­tity actu­ally deliv­ered shall be charged.

2.4 In case GBO does not deliver in time, the Client must set a rea­son­able cure period for the deliv­ery in writ­ing. In case GBO has defaulted on the extended cure period, the Client may cancel the con­tract sub­ject to these GTC. During the dura­tion of force majeure events (e.g. COVID 19 pan­demic), state­ments of GBO about deliv­ery dates as well as dates in gen­eral, fore­casts and lead times are not bind­ing. GBO is only liable for default based on gross neg­li­gence or will­ful mis­con­duct. If the Client refuses accep­tance on the due date, in par­tic­u­lar if the Incoterm clause FCA applies to the deliv­ery in ques­tion and no car­rier appears from the con­trac­tual part­ner at the agreed deliv­ery time, it shall nev­er­the­less make full pay­ment of the pur­chase price. In such instances, GBO stores the Deliverables at the risk and expense of the Client; at the Client’s request, GBO shall insure the Deliverables at the Client’s expense. Upon Client’s fail­ure to accept the Deliverables within 14 (four­teen) days of GBO’s offer­ing, GBO is enti­tled to rescind the con­tract or claim dam­ages for non-fulfilment.

2.5 In case GBO shall for a tem­po­rary period or over the long term find it impos­si­ble to fulfil its duty of per­for­mance for rea­sons out­side the con­trol of GBO, in par­tic­u­lar due to strikes, lock-out or indus­trial dis­putes, epi­demics, pan­demics, nat­ural cat­a­stro­phes, inter­rup­tion of pro­duc­tion in GBO’s fac­to­ries or at the facil­i­ties of GBO’s sup­pli­ers or sub­con­trac­tors, or in case of default of GBO’s sup­pli­ers or sub­con­trac­tors, gov­ern­men­tal import or export restric­tions or other sov­er­eign mea­sures not attrib­ut­able to GBO (force majeure) and beyond the con­trol of GBO, the deliv­ery period shall be auto­mat­i­cally extended for the dura­tion of such dis­rup­tion. Delays in the per­for­mance of GBO result­ing from the COVID 19 pan­demic shall be qual­i­fied as acts of force majeure. If such dis­rup­tion shall last for longer than 14 (four­teen) days, both par­ties shall be enti­tled to cancel the con­tract sub­ject to these GTC. In this event, the Client shall not be enti­tled to claim dam­ages and GBO is dis­charged from its duty to perform.

2.6 GBO shall be enti­tled to make par­tial deliv­er­ies and render par­tial ser­vices as far as GBO may rea­son­ably expect accep­tance by the Client.

2.7 In case of immi­nent con­se­quences under civil or crim­i­nal law due to the deliv­ery of the Deliverables, GBO is enti­tled at any time to sus­pend deliv­er­ies or cancel them com­pletely. In such cases, the Client shall not be enti­tled to claim damages.

2.8 GBO is not bound to any future deliv­ery oblig­a­tion due to the one-time or con­tin­u­ous deliv­ery of Deliverables to the Client.

 

3. Transfer of risk

Risk of loss passes to the Client accord­ing to the Incoterms indi­vid­u­ally agreed upon. The loss or damage to the Deliverables after the risk has passed to the Client, shall not release the Client from its oblig­a­tion to pay the pur­chase price. If dis­patch or ship­ment is delayed for rea­sons for which the Client is respon­si­ble, the risk of loss shall pass to the Client from the date of readi­ness for dis­patch. Risk of loss shall also pass to the Client if the Deliverables are made avail­able to the Client and the Client unjus­ti­fi­ably refuses accep­tance. Any stor­age expenses incurred after the risk of loss has passed shall be payable by the Client.

 

4. Retention of title

4.1 GBO shall retain title to the Deliverables until full pay­ment of invoice amounts (reten­tion of title).

4.2 Until trans­fer of title, the Client shall hold the Deliverables in safe­keep­ing on behalf of GBO. It shall store the Deliverables in a due and proper manner at its own expense and pro­tect and insure the Deliverables against destruc­tion and dete­ri­o­ra­tion. In the event of pay­ment default, GBO shall be enti­tled with­out set­ting a fur­ther exten­sion of time to with­draw from any con­tract sub­ject to these GTC and to claim return of the Deliverables as well as, if the Client fails to comply, to attend at the Client’s places of stor­age or those of third par­ties in order to repos­sess the Deliverables.

4.3 The Client shall not be enti­tled to use or lend the Deliverables as collateral.

4.4 If the Deliverables to which title is held by GBO is mixed, com­bined or inte­grated with other items, the Client shall assign its rights of own­er­ship or co-own­er­ship in the new item to GBO and shall hold the item in safe­keep­ing on behalf of GBO with due com­mer­cial care.

4.5 The Client may sell the Deliverables to which title is held by GBO only in the con­text of reg­u­lar busi­ness trans­ac­tions, and pro­vided it is not in pay­ment arrears. The Client hereby assigns to GBO its pur­chase-price claims against its cus­tomers aris­ing from resale and shall enter the req­ui­site endorse­ment of valid­ity in its accounts or on its invoices and take all req­ui­site steps to ensure that such assign­ment is legally valid.

4.6 Furthermore, in the event of assign­ment, GBO shall be enti­tled to notify the Client’s end cus­tomer at any time. Consent to resale, pro­cess­ing or com­bin­ing shall auto­mat­i­cally lapse as soon as any insol­vency pro­ceed­ings are insti­tuted in respect of the Client. GBO under­takes to release any col­lat­eral or any part thereof at the request of the Client if the real­iz­able value of the col­lat­eral exceeds the value of the claims to which GBO is enti­tled. GBO shall select the col­lat­eral to be released.

 

5. Prices, payment terms and invoicing

5.1 Unless oth­er­wise agreed in indi­vid­ual cases, all prices and charges are net prices exclu­sive of any statu­tory value added tax and other taxes or duties, as well as exclu­sive of pack­ag­ing sur­charges, trans­port costs and any pro­cess­ing fees that may be incurred. Any with­hold­ing tax to be borne by GBO shall in all cases be borne by the Client.

5.2 The pur­chase price is in prin­ci­ple the price set by GBO, or if the price has not been set, the price stated in the cur­rent price lists of GBO, as valid at the time of the Purchase Order.

5.3 The VAT iden­ti­fi­ca­tion number of GBO is DE812585719. In the case of deliv­er­ies to other EU member states, the Client is obliged to inform GBO imme­di­ately of its VAT iden­ti­fi­ca­tion number. Should the VAT iden­ti­fi­ca­tion number of the Client given with the order lose its valid­ity or have changed at a later date, the Client must inform GBO imme­di­ately. Otherwise GBO reserves the right to make use of the right accord­ing to point 5.6.

5.4 In case of intra-Community sup­plies and exports, tax exemp­tion may only be granted if the legal require­ments are ful­filled at the time the ser­vice is rendered.

5.5 The Client shall, unso­licited and with­out delay, pro­vide GBO with all (transport)proofs, doc­u­ments and deeds in a suit­able form, which are nec­es­sary to obtain a VAT exemp­tion for intra-Community deliv­er­ies or exports.

5.6 If the Client does not comply with this oblig­a­tion, GBO reserves the right to imme­di­ately invoice the legal value added tax which the Client has to pay together with the invoice amount. The Client shall indem­nify and hold GBO com­pletely harm­less against any result­ing dis­ad­van­tages and dam­ages; in par­tic­u­lar, in the event of an audit by the tax author­i­ties and sub­se­quent refusal of tax exemp­tion, the Client shall imme­di­ately pay the value added tax sub­se­quently and sep­a­rately invoiced by GBO.

5.7 The Client shall inform GBO imme­di­ately, if with­hold­ing tax is due in the Client’s coun­try of res­i­dence for the goods or ser­vices sup­plied. Upon receipt of this infor­ma­tion, GBO shall imme­di­ately pro­vide the Client with all doc­u­ments nec­es­sary to obtain a tax reduc­tion, tax exemp­tion or applic­a­bil­ity of a zero-tax rate for the goods or ser­vices sup­plied. It is the Client’s respon­si­bil­ity to ensure that the tax author­i­ties in the Client’s coun­try of res­i­dence receive all nec­es­sary infor­ma­tion in a timely manner so that no or reduced with­hold­ing tax is being levied with respect to the goods or ser­vices supplied.

5.8 The Client shall be liable for all addi­tional tax pay­ments result­ing from incor­rect infor­ma­tion pro­vided by the Client.

5.9 GBO shall not be liable for future tax/legal changes; taxes and duties result­ing from such legal changes shall be borne by the Client. The Client must ensure that these taxes are duly reported and paid.
5.10 GBO shall be at free to trans­mit invoices either by post or elec­tron­i­cally (e.g. via email).

5.11 Within the frame­work of an ongo­ing busi­ness rela­tion­ship, GBO reserves the right to raise the price of the Deliverables as is nec­es­sary based on gen­eral price changes beyond GBO’s con­trol (such as exchange-rate fluc­tu­a­tions, cur­rency reg­u­la­tions, cus­toms changes, a sig­nif­i­cant rise in costs of mate­ri­als and manufacture).

5.12 Invoice amounts shall be paid within 14 (four­teen) days from date of invoice by way of trans­fer to GBO’s account, free of any charges and fees, unless oth­er­wise agreed in writ­ing. The time­li­ness of pay­ment of the invoice depends on the uncon­di­tional cred­it­ing of pay­ment to the account of GBO. GBO and the Client may agree that the Client shall open a letter of credit via a bank accept­able to GBO.

5.13 If the Client wishes to make cheque pay­ment, this shall be agreed in advance with GBO.

5.14 All pay­ments shall be made at the Client’s risk and expense. Client’s pay­ment oblig­a­tion is ful­filled with pay­ment irrev­o­ca­bly, uncon­di­tion­ally and in due time cred­ited to GBO’s account.

5.15 Retention or off­set­ting by the Client based on any coun­ter­claims what­so­ever is prohibited.

5.16 In the event of pay­ment default and/or dete­ri­o­ra­tion in the Client’s credit rating, notwith­stand­ing any fur­ther rights of GBO, GBO shall be enti­tled, at its dis­cre­tion, to: (i) cancel the con­tract sub­ject to these GTC or sus­pend fur­ther deliv­er­ies to the Client; (ii) shorten the Client’s pay­ment period; (iii) demand pay­ment in advance; (iv) request secu­rity in the value of the deliv­ery; or (v) charge default inter­est in the sum of 9% per annum pro­vided GBO does not incur higher costs for obtain­ing credit. Furthermore, the default­ing Client shall bear all expenses related to the col­lec­tion and recov­ery of the out­stand­ing invoice amounts.

 

6. Intellectual property

The Client acknowl­edges that the Deliverables are the intel­lec­tual prop­erty of GBO. GBO reserves all rights, in par­tic­u­lar rights of own­er­ship, in respect of (i) the Deliverables; (ii) man­u­fac­tur­ing processes; (iii) fill­ing and uti­liza­tion processes; (iv) know how, inven­tions and improve­ments; and (v) copy­rights, intel­lec­tual prop­erty rights and appli­ca­tions for intel­lec­tual prop­erty rights. Unless sep­a­rately agreed in writ­ing for a clearly defined use, GBO does not grant any rights or licenses to the intel­lec­tual prop­erty of GBO to the Client. The Client shall not be enti­tled to use trade­marks of GBO, to use them out­side the Intended Use and/or other Instructions, to modify them, to apply for them or to include trade­marks of GBO into its (reg­is­tered) cor­po­rate name with­out the explicit writ­ten per­mis­sion of GBO.

 

7. Warranty

7.1 Unless oth­er­wise agreed in writ­ing, the Deliverables shall con­form with a con­tract sub­ject to these GTC if: (i) it is suit­able for a par­tic­u­lar pur­pose of which GBO is expressly noti­fied upon con­clu­sion of con­tract and GBO has con­firmed the same in writ­ing; (ii) it pos­sesses the fea­tures of an arti­cle which GBO or the Client have pre­sented by way of sample or spec­i­men; or (iii) it is suit­able for the pur­poses for which a Deliverables of the same type is usu­ally used.

7.2 GBO shall not be liable for the Deliverables if, upon for­ma­tion of the con­tract the Client knew or should have known of such defect or mate­r­ial breach.

7.3 GBO shall not be liable for any use of the Deliverables out­side of the Intended Use and/or other Instructions.

7.4 The war­ranty period shall be the shelf life of the Deliverables, but no longer than 2 (two) years upon deliv­ery (trans­fer of risk to the Client in accor­dance with the agreed Incoterm clause).

7.5 The Client must l imme­di­ately, upon receipt of deliv­ery as per Section 7.4, inspect the Deliverables or have it inspected. The Client has no claim for dam­ages for non-con­form­ing Deliverables if it fails to notify GBO imme­di­ately after it has or should have dis­cov­ered the non-con­for­mity or a defect, spec­i­fy­ing the nature of the con­trac­tual breach. The Client shall notify GBO within 3 (three) months upon deliv­ery as per Section 7.4 about a non-con­for­mity or defect or oth­er­wise for­feit its rights.

7.6 In case of deliv­ery of non-con­form­ing Deliverables, the Client shall pro­vide GBO a rea­son­able cure period to fulfil its duties.

7.7 In the event that GBO is not will­ing or able to fulfil its duties, the Client may: (i) reduce the price in the same pro­por­tion as that by which the value of the Deliverables at the time of deliv­ery com­pares with the value which the con­trac­tual Deliverables would have had at the same time; or (ii) with­draw from the con­tract sub­ject to these GTC. If, how­ever, GBO reme­dies a defect in ful­fil­ment of its duties, or if the Client refuses to accept ful­fil­ment by GBO, the Client may nei­ther reduce the price nor with­draw from the con­tract which is sub­ject to these GTC. Moreover, the Client shall lose the right to declare rescis­sion of the con­tract sub­ject to these GTC or to claim sub­sti­tute deliv­ery from GBO if it is unable to return the Deliverables in the same con­di­tion as that in which it was received by the Client.

 

8. Vigilance Reporting System for Distributors of Medical Devices (applicable only if the Client is also a GBO Dealer¹)

8.1 The Vigilance Reporting System for Distributors of Medical Devices aims at ensur­ing the pro­tec­tion of health and safety of patients and users.

8.2 In case of an inci­dent, the Client shall be under a duty to inform GBO imme­di­ately thereof. GBO shall be respon­si­ble for taking fur­ther action and, in the course thereof, is also under a duty to report the inci­dent to the com­pe­tent author­i­ties in accor­dance with applic­a­ble regulations.

8.3 The Client shall comply with the instruc­tions of GBO.

8.4 In case of a noti­fi­able inci­dent con­cern­ing GBO’s prod­ucts, the Client may only com­mu­ni­cate with the com­pe­tent author­i­ties with GBO’s prior writ­ten con­sent. The Client shall keep GBO reg­u­larly informed of any direct con­tact with authorities.

 

9. Vigilance Recall System for Medical Devices (applicable only if the Client is also a GBO Dealer¹)

9.1 The Client is aware that GBO is under a duty to be able to trace indi­vid­ual Deliverables includ­ing those sold to the Client’s cus­tomers (users). The Client shall be under a duty to keep records enabling GBO to trace indi­vid­ual Deliverables sold to the Client. The Client shall be under a duty to retain such records for a period of 12 (twelve) years, com­menc­ing from the date of deliv­ery to the Client’s cus­tomer. The Client must ensure a cor­re­spond­ing system with its own cus­tomers. The Client shall take all nec­es­sary steps to sup­port GBO to iden­tify at all times the loca­tion of indi­vid­ual Deliverables or the cus­tomers of such Deliverables. Such oblig­a­tion is not affected by the ter­mi­na­tion of the con­tract sub­ject to these GTC with the Client.

9.2 GBO shall ini­ti­ate a prod­uct recall if there is a risk that the use of the Deliverables could result in death, seri­ous bodily injury or impair­ment of to health of a user.

9.3 The Client shall be respon­si­ble for inform­ing its cus­tomers of rel­e­vant recall pro­ce­dures as pro­vided by GBO.

9.4 Client’s cus­tomer shall con­firm the receipt and acknowl­edge the infor­ma­tion pro­vided via fax or e‑mail to the Client within a period of 10 (ten) days. Otherwise, the cus­tomer must be informed again by the Client.

9.5 The Client shall col­lect such con­fir­ma­tions and deliver the same to GBO.

 

10. Liability

10.1 GBO shall be liable for its own fault and for the fault of its vic­ar­i­ous agents. Liability based on minor neg­li­gence shall be pre­cluded unless the related claims are manda­tory claims aris­ing from cau­sa­tion of death, phys­i­cal injury and/or damage to health.

10.2 GBO’s lia­bil­ity in rela­tion to the Client in respect of all claims under any con­tract sub­ject to these GTC, what­ever the legal grounds there­for and taking into account the reg­u­la­tion in Section 10.1, shall be lim­ited to the pur­chase price of the Deliverables or – in so far as this shall not be pos­si­ble on the basis of statu­tory pro­vi­sions – a max­i­mum of the simple total of GBO’s busi­ness lia­bil­ity insur­ance, whereby this shall not exceed EUR 2,000,000.00.

10.3 Under no cir­cum­stances shall GBO be liable (whether on the basis of con­trac­tual lia­bil­ity, lia­bil­ity in tort or other lia­bil­ity) for: (i) loss of prof­its; and/or (ii) indi­rect losses or con­se­quen­tial losses; and/or (iii) dam­ages result­ing from changes the Client made to the Deliverables or to items con­cern­ing the Deliverables (e.g. Instructions), which devi­ate from the Intended Use and/or other Instructions, irre­spec­tive of whether or not the par­ties, upon con­clu­sion of a con­tract sub­ject to these GTC, con­sid­ered such losses, and the same were incurred by the Client in con­nec­tion with the said con­tract and/or ful­fil­ment thereof.

10.4 Client shall fully indem­nify, defend and hold harm­less GBO and its affil­i­ates (includ­ing their offi­cers, direc­tors, stock­hold­ers, agents, ser­vants, employ­ees, rep­re­sen­ta­tives and/or sub­con­trac­tors) (“GBO Indemnitees”) from and against
(i) any and all actions, alle­ga­tions, claims, causes of actions and/or demands by a third party (includ­ing those incurred to the Client and/or its affil­i­ates) against any GBO Indemnitee resulting
a. from changes made to the Deliverables and/or to items con­cern­ing the Deliverables (e.g. Instructions), which devi­ate from the Intended Use and/or other Instructions, and/or
b. from a com­bi­na­tion with other prod­ucts out­side the Intended Use and/or any other Instructions (both a. and b. a “Client Claim”);
(ii) any and all actions, alle­ga­tions, claims, causes of actions and/or demands by a third party against any GBO Indemnitee aris­ing – also but not lim­ited to – in case of an infringe­ment of intel­lec­tual prop­erty rights of third par­ties and/or in case of an indi­rect infringe­ment of prop­erty rights caused by actions of or the use by the Client as described in Section 10.4 (i) (a “Client Claim”);
(iii) any and all actions, alle­ga­tions, claims, causes of actions and/or demands by a third party against any GBO Indemnitee aris­ing if GBO pro­duces the Deliverables in accor­dance with spec­i­fi­ca­tions, draw­ings, spec­i­mens or other doc­u­ments pro­vided by the Client which infringe rights, in par­tic­u­lar intel­lec­tual prop­erty rights, of third par­ties (a “Client Claim”);
(iv) all costs, dam­ages, expenses, fines, lia­bil­i­ties, losses, penal­ties, includ­ing any lit­i­ga­tion expenses and attorney’s fees, aris­ing from or related to a Client Claim; at GBO’s request, the Client shall make advance pay­ments for antic­i­pated rea­son­able attorney’s fees and legal costs of prepa­ra­tion, defense, inves­ti­ga­tion and pro­ceed­ings. The lia­bil­ity of the Client shall also include the costs for out-of-court dis­pute set­tle­ment attempts and in any case rea­son­able costs of legal rep­re­sen­ta­tion; and
(v) any costs or expenses, includ­ing any attor­neys’ fees and lit­i­ga­tions costs and expenses, incurred by a GBO Indemnitee to (1) defend a Client Claim (but only to the extent Client does not timely assume the defense thereof) and (2) enforce Client’s defense and/or indem­ni­fi­ca­tion and hold harm­less oblig­a­tions under this sec­tion, which amounts shall be deemed to arise from and relate to a Client Claim.

 

11. Confidentiality

11.1 All infor­ma­tion dis­closed by GBO within the frame­work of a con­tract sub­ject to these GTC shall be deemed con­fi­den­tial unless, at the time of dis­clo­sure, it is expressly iden­ti­fied as non-con­fi­den­tial or, by its nature, is clearly non-con­fi­den­tial. All rights in the con­fi­den­tial infor­ma­tion shall be reserved to GBO and title thereto shall con­tinue to be held by GBO.

11.2 Nothing in these GTC or in a con­tract between GBO and the Client shall be inter­preted as grant­ing or trans­fer­ring any rights to con­fi­den­tial infor­ma­tion by trans­fer­ring own­er­ship rights in the Deliverables.

11.3 No con­fi­den­tial infor­ma­tion may be dis­closed to third par­ties with­out GBO’s prior writ­ten consent.

11.4 Publications of the Client in respect of or in con­nec­tion with Deliverables require GBO’s prior writ­ten consent.

11.5 The duty of con­fi­den­tial­ity will sur­vive the ter­mi­na­tion or expiry of a con­tract sub­ject to these GTC.

 

12. Compliance (applicable only if the Client is also a GBO Dealer¹)

The Client under­takes at all times during the con­trac­tual rela­tion­ship with GBO to comply with the Greiner Code of Conduct for Suppliers and Business Partners https://www.gbo.com/fileadmin/user_upload/Downloads/Others/20180205_Code_of_Conduct_for_suppliers_and_business_partners_EN.pdf, as amended, plus all applic­a­ble laws and pro­vi­sions, in par­tic­u­lar the US Foreign Corrupt Practices Act of 1977 (as amended), as well as the applic­a­ble anti-trust, com­pe­ti­tion and anti-cor­rup­tion laws. Neither the Client, nor those per­sons acting in its name, in par­tic­u­lar exec­u­tives, employ­ees or rep­re­sen­ta­tives, shall make or offer improper pay­ments or gifts in either direct or indi­rect form to third par­ties, includ­ing their employ­ees or exec­u­tives, or to public offi­cials, rep­re­sen­ta­tives of a gov­ern­men­tal agency or author­ity or those of a polit­i­cal party or a can­di­date of the latter. The Client under­takes that its own vic­ar­i­ous agents/partners shall comply with at least com­pa­ra­ble prin­ci­ples to those of the Greiner Code of Conduct. GBO reserves the right to audit the Client at any time during busi­ness hours fur­ther to prior writ­ten notice to verify com­pli­ance to the terms of the said Code of Conduct and all applic­a­ble laws and rules. In the event of non-com­pli­ance, GBO reserves the right to ter­mi­nate the con­tract sub­ject to these GTC at any time and with imme­di­ate effect through writ­ten notice to the Client.

 

13. Miscellaneous

13.1 The Client grants GBO, as well as all affil­i­ated com­pa­nies of GBO, the right to name the Client as a ref­er­ence cus­tomer by using first/last name or com­pany name, address and com­pany logo. This right is granted free of charge and is unlim­ited in time, space and con­tent. The Client can revoke this con­sent at any time in writ­ing to GBO (e.g. via email). The legal­ity of the naming as ref­er­ence cus­tomer up to the revo­ca­tion is not affected by the revo­ca­tion of the con­sent. GBO will remove, under con­sid­er­a­tion of their legit­i­mate inter­ests, as far as eco­nom­i­cally rea­son­able and/or tech­ni­cally pos­si­ble, pub­li­ca­tions already arranged before receipt of the revo­ca­tion dec­la­ra­tion of the Client.

13.2 The Client is not enti­tled to assign any claims to third par­ties aris­ing out of or in con­nec­tion with any con­tract with GBO with­out GBO’s prior writ­ten con­sent and any assign­ment in vio­la­tion of this pro­vi­sion is null and void.

13.3 GBO, as well as all com­pa­nies with which GBO is directly or indi­rectly asso­ci­ated by way of a hold­ing con­sti­tut­ing at least 50% (includ­ing sister com­pa­nies), shall be enti­tled to under­take off­set­ting in respect of claims which may or may not be due and payable, includ­ing future claims, held by GBO against the Client or held by the Client against GBO.

13.4 Nothing in these GTC and con­tracts sub­ject to these GTC shall estab­lish a part­ner­ship, com­pany or joint ven­ture of any type. Neither party shall be enti­tled to act as rep­re­sen­ta­tive of the respec­tive other party for any pur­pose what­so­ever and/or to commit the respec­tive other party or to give under­tak­ings on behalf of the other party. In the event of ter­mi­na­tion of the con­tract, the Client shall not be enti­tled to any con­sid­er­a­tion, indem­ni­fi­ca­tion, or remu­ner­a­tion of costs of market devel­op­ment or amor­tized or non-amor­tized investments.

13.5 If a pro­vi­sion of these GTC or of any con­tract sub­ject to these GTC is or becomes ille­gal, invalid or unen­force­able, that shall not affect the valid­ity or enforce­abil­ity of these GTC, nor Greiner Bio-One GmbH | HRB 224604 | Maybachstraße 2, 72636 Frickenhausen, Germany, T: +49 7022 948–0, F: +49 7022 948–514, E‑Mail: [email protected], www.gbo.com 3/3 the valid­ity or enforce­abil­ity of any other pro­vi­sion of these GTC. The invalid pro­vi­sion shall be replaced in good faith with a valid, legal and enforce­able pro­vi­sion the eco­nomic effect of which comes as close as pos­si­ble to that of the invalid, ille­gal or unen­force­able provision.

13.6 These GTC and all con­tracts sub­se­quently con­cluded between GBO and the Client (out of or in con­nec­tion with these GTC and/or in con­nec­tion with any con­trac­tual rela­tion­ship between GBO and the Client sub­ject to these GTC) shall be exclu­sively gov­erned by and con­strued under German law with the exclu­sion of any con­flict of law pro­vi­sions, the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) and any statute imple­ment­ing this convention.

13.7 Any dis­pute aris­ing out of or in con­nec­tion with these GTC and/or in con­nec­tion with any con­trac­tual rela­tion­ship between GBO and the Client sub­ject to these GTC, includ­ing related to its cre­ation, valid­ity, nul­lity, inter­pre­ta­tion, per­for­mance and ter­mi­na­tion as well as its pre- and post-con­trac­tual effects (“Dispute”), shall be set­tled by the com­pe­tent court in Stuttgart, Germany, having juris­dic­tion over the sub­ject-matter. GBO shall also have the right to submit a Dispute before a court having com­pe­tence with regard to the Client. Particularly with respect, but not lim­ited, to Clients out­side the European Union, GBO may, at its sole dis­cre­tion, alter­na­tively, submit a Dispute for final set­tle­ment under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one arbi­tra­tor appointed in accor­dance with the said Rules; in case GBO sub­mits a Dispute for final set­tle­ment under the Rules of Arbitration of the ICC and in case the amount in dis­pute accrues to more than EUR 1.000.000,00 (one mil­lion euros), either party may opt for a tri­bunal with three arbi­tra­tors appointed in accor­dance with the said Rules. The seat of the arbi­tra­tion shall in each case be Stuttgart, Germany. The lan­guage of the arbi­tra­tion shall be English. To avoid any mis­un­der­stand­ings it is expressly agreed that the gov­ern­ing law of this arbi­tra­tion agree­ment shall be exclu­sively German law with­out regard of the con­flict-of-law rules. The deci­sion and/or award ren­dered by the arbitrator(s) shall be writ­ten, final and non-appeal­able. The losing party shall bear all the costs of arbi­tra­tion includ­ing the fees and expenses of the arbitrator(s) and, in par­tic­u­lar, pay the costs of the suc­cess­ful party (in par­tic­u­lar attor­neys’ and expert fees).

13.8 The Client shall not pass on to cus­tomers and/or third par­ties its access data relat­ing to GBO web por­tals. In the event of depar­ture of an employee from the Client, GBO shall be imme­di­ately noti­fied, and the said employee’s access data must be imme­di­ately amended. The Client shall change its pass­words at reg­u­lar intervals.

GBO applies pri­vacy policy accord­ing to its Data Privacy Statement at https://www.gbo.com/en_DE/data-privacy.html