Terms of Delivery and Payment

 

1. General Terms

  1. These general terms of delivery and payment are exclusively applicable to the business relationship for its entire duration. Olympus Life Science Research Europa GmbH shall not recognise any conditions of the Customer which are in conflict with or deviate from these conditions unless Olympus Life Science Research Europa GmbH has expressly agreed to these in writing. These general terms of delivery and payment shall also apply should Olympus Life Science Research Europa GmbH unconditionally execute a delivery to the customer in full knowledge of the conflicting or deviating terms of the customer.
  2. All agreements concluded between Olympus Life Science Research Europa GmbH and the customer for the purposes of execution of this contract are to be set down in writing in this contract. Any subsidiary oral agreements which are in conflict with the content of the written agreement shall only apply if confirmed in writing by Olympus Life Science Research Europa GmbH.

2. Quotations and Orders

  1. Olympus Life Science Research Europa GmbH quotations shall always be non binding.
  2. Although in principle, contracts with Olympus Life Science Research Europa GmbH only come into force once Olympus Life Science Research Europa GmbH has issued a written confirmation, they also come into force with the commencement by Olympus Life Science Research Europa GmbH of the execution of an order. Olympus Life Science Research Europa GmbH’ confirmation of order or, where no such confirmation of order exists, Olympus Life Science Research Europa GmbH’ quotation is authoritative for the content of the contract.
  3. Olympus Life Science Research Europa GmbH reserves the right to make technical, and design changes, in particular improvements, even after confirming an order, in so far as this is reasonable for the Customer.
  4. Where a declaration by Olympus Life Science Research Europa GmbH exists that has been designated as a description of a service or product, this description conclusively and completely specifies the characteristics and qualities of the supplied product or service. In cases of doubt, these types of discriptions, illustrations, references to DIN standards etc. should not be assumed to constitute receipt of a warranty. In cases of doubt, only explicit written declarations by Olympus Life Science Research Europa GmbH are authoritative in terms of receipt of a warranty

3. Prices

  1. Prices are indicated in Euro or in another agreed currency and do not include Value Added Tax (VAT). VAT shall be invoiced at the currently valid rate.
  2. Prices shall be calculated on the basis of the prices in effect on the date of delivery/performance, in so far as no agreement to the contrary has been made.
  3. The prices apply ex works. Freight charges or tariff rates are not included.

4. Terms of Payment

  1. Invoices are payable no later than by the due date indicated in the invoice. Payment shall be made without any deduction and free of all charges. No deduction of a discount is permitted unless such discount was expressly agreed upon. Should the deduction of a discount be stipulated in the respective quotation/agreement or in the respective invoice, such discount is granted only if and to the extent that at the date of receipt of payment no balance is due in favour of Olympus Life Science Research Europa GmbH. In case of repairs and deliveries of spare parts the possibility of deduction of a discount is excluded.
  2. Payments are regarded as having been made on the day that these sums are at the disposal of Olympus Life Science Research Europa GmbH. Cheques are accepted as payment but are subject to the customary reservations. Promissory notes are only accepted after prior agreement and only as payment subject to the customary reservations. All costs arising in connection with cheques or promissory notes are borne by the Customer.
  3. The Customer is only entitled to offset amounts in commercial transactions if his counterclaim has been legally established, uncontested or is recognised by Olympus Life Science Research Europa GmbH. The Customer shall have no right to redebit or retain monies unless this is based on the same contractual relationship.
  4. In the event of default in payment, the Customer shall be obliged to pay interest for default as of the date on which he defaults on payment, which annual interest shall amount to 10% above the applicable base rate of the European Central Bank and shall be no less than 12%. The right of Olympus Life Science Research Europa GmbH to demonstrate a higher loss and the right of the Customer to demonstrate a significantly lower loss remain unaffected. In any case the Customer shall be liable for statutory default interest. No interest is payable on down payments and advance payments. Olympus Life Science Research Europa GmbH shall also be entitled within reasonable limits to withhold deliveries, even those from different orders, and to perform delivery only against prepayments or on a cash-on-delivery basis.
  5. Notwithstanding the rights contained in these terms of delivery and payment, Olympus Life Science Research Europa GmbH’ legal rights in respect of default of payment and ability to pay remain unaffected. Delivery times agreed to by Olympus Life Science Research Europa GmbH shall be extended by the period of default of payment.
  6. In the event of a perceptible deterioration in the Customer’s financial circumstances, suspension of payments by the Customer, excessive indebtedness, a petition for institution of insolvency proceedings being filed, or the dishonouring of cheques by the Customer, all of Olympus Life Science Research Europa GmbH’ debts shall become payable immediately. In such cases, Olympus Life Science Research Europa GmbH shall be entitled at its discretion to demand advance payment or provision of security or, should the Customer definitively refuse to meet the terms of the contract and/or to provide security, to terminate the contract or demand damages for non-performance.

5. Delivery

  1. Delivery times/deadlines shall only be binding if confirmed by Olympus Life Science Research Europa GmbH in writing.
  2. The delivery deadlines shall be considered to have been met if, by the time of the deadline, the delivery item has been dispatched or collected from Olympus Life Science Research Europa GmbH, or, should this dispatch or collection be delayed for reasons for which Olympus Life Science Research Europa GmbH is not responsible, if notification of readiness to deliver is given within the stipulated time.
  3. Delivery times that have agreed upon in writing shall be extended by a reasonable period should their nonobservance after conclusion of a contract be as a result of force majeure, mobilisation, war, riots, strikes, lock-outs, attachments, embargoes, or the occurrence of other unforeseen hindrances which cannot be eliminated by reasonable means and which are outside of the sphere of responsibility of Olympus Life Science Research Europa GmbH. The same shall apply should such circumstances affect subcontractors and ancillary suppliers. Should delivery be impossible in whole or in part because of the nonculpable failure of Olympus Life Science Research Europa GmbH to obtain supplies itself, as a result of force majeure or of difficulties not caused by negligence of Olympus Life Science Research Europa GmbH, Olympus Life Science Research Europa GmbH shall be entitled to terminate the contract. In this event, the Customer shall not be entitled to claim damages or delivery of whatever kind.
  4. The Customer’s right to termination upon expiry of a reasonable period of grace granted to Olympus Life Science Research Europa GmbH without result shall remain unaffected.
  5. Claims for compensation or reimbursement of expenses as a result of impossibility of − or delay in − performance of the service or delivery shall be restricted to the amount of damages which could have been foreseen at the conclusion of contract. There shall be no liability in respect of the above in the event of simple negligence on the part of Olympus Life Science Research Europa GmbH. Compensation entitlements in respect of intentional damage, damage to health, personal injury or death remain generally unaffected.
  6. Should dispatch or delivery of the goods be delayed by circumstances lying within the sphere of responsibility of the Customer, Olympus Life Science Research Europa GmbH shall be entitled to charge the resulting additional expenses to the Customer’s account.
  7. Part deliveries shall be permitted. To the extent that such part deliveries can be used on their own, they shall be considered as independent deliveries in respect of the due date of payment.

6. Dispatch and Packing

  1. Dispatch within the territory of the Federal Republic of Germany shall be from a location to be specified at the discretion of Olympus Life Science Research Europa GmbH unless otherwise stipulated by the parties. The manner of delivery shall be subject to Olympus Life Science Research Europa GmbH’ discretion. Special requests of the Customer shall be met in so far as this is possible. The Customer shall bear any resulting additional expenses.
  2. The goods shall be delivered in packaging which is suitable for dispatch and transport. Should means of packing or transport be desired above and beyond this transportability requirement, the Customer shall bear the additional expenses.
  3. For after-sales service deliveries (replacement parts, repair equipment), postage and packaging shall be calculated separately.
  4. Should damaged packaging have to be replaced, Olympus Life Science Research Europa GmbH reserves the right to charge for the replacement if Olympus Life Science Research Europa GmbH did not cause the damage.

7. Passing of Risk

The risk lies with the Customer for all deliveries, including any returns, even if freight prepaid, f.o.b., or c.i.f. delivery has been agreed. The risk shall pass to the Customer as soon as the consignment leaves the warehouse of Olympus Life Science Research Europa GmbH or of a warehouse maintained by Olympus Life Science Research Europa GmbH. Should delivery be delayed at the Customer’s request or as a result of circumstances for which the Customer is responsible, the risk shall pass to the Customer for the duration of the delay as of the date of notification of readiness to deliver.

8. Reservation of Title

  1. Olympus Life Science Research Europa GmbH shall retain title to the goods until all present and future claims against the Customer to which Olympus Life Science Research Europa GmbH is entitled as a result of mutual business have been settled (reserved goods). Olympus Life Science Research Europa GmbH’ claims shall not be extinguished upon being included in any current account balance and Olympus Life Science Research Europa GmbH recognising this balance. The Customer shall store the reserved goods in a proper manner and insure them sufficiently at his own expense. The Customer shall be entitled to resale of the reserved goods only within the framework of his ordinary course of business, either against payment in cash or upon agreeing upon a reservation of title. The Customer shall be prohibited from transferring ownership by way of security, pledging, or otherwise disposing of the reserved goods in any manner which thwarts or impedes the reservation of title in functioning as security. Should third parties attach reserved goods in the Customer’s possession, the latter shall inform such third parties of Olympus Life Science Research Europa GmbH’ reservation of title, and shall inform Olympus Life Science Research Europa GmbH in writing of the attachment enclosing the order of attachment and a statutory declaration which declares that the goods attached are identical with the reserved goods supplied. The Customer shall bear any costs arising from attempts to prevent attachments by third parties in the event that proceedings are successful and in the event that attempts to enforce the judgement on the third parties in question are not successful.
  2. Any modification or processing of the reserved goods effected by the Customer on behalf of Olympus Life Science Research Europa GmbH shall not give rise to any obligations for Olympus Life Science Research Europa GmbH. In the event of processing, combination, or mixing of the reserved goods with other non-Olympus Life Science Research Europa GmbH goods, Olympus Life Science Research Europa GmbH shall be entitled to the resulting fractional share of co-ownership of the new item, in accordance with the ratio between the value of Olympus Life Science Research Europa GmbH reserved goods and that of the other goods processed at the time of processing, combination, or mixing. Should the Customer acquire sole ownership of the new item, he shall grant Olympus Life Science Research Europa GmbH co-ownership of the new item in proportion to the value of Olympus Life Science Research Europa GmbH’ reserved goods and shall hold the item in safe custody for Olympus Life Science Research Europa GmbH free of charge.
  3. In the event of resale or leasing of the reserved goods, the Customer assigns to Olympus Life Science Research Europa GmbH in advance and by way of security his claims against his customers arising from this resale or leasing, up to the value of the reserved goods sold in each individual case; this assignment shall apply until all claims of Olympus Life Science Research Europa GmbH arising from business dealings with the Customer have been settled. Should the reserved goods be resold or leased together with goods from other suppliers and should an overall invoice be issued for both types of goods, the Customer shall assign to Olympus Life Science Research Europa GmbH that portion of the total price charged and/or of the total rental fee corresponding to the reserved goods included in the overall invoice; the same shall apply to ancillary rights (reservation of title, transfer of ownership by way of security, bills of exchange and the like). In a fiduciary capacity and for the account of Olympus Life Science Research Europa GmbH, the Customer shall be entitled to collect claims arising from resale which have been assigned to Olympus Life Science Research Europa GmbH, and shall be entitled to enforce ancillary rights. The Customer’s authorisation to collect and the authority to enforce ancillary rights can be cancelled for good cause, in particular in the event of a substantial deterioration in his financial position. The above-mentioned authorisations in particular the Customer's authorisation to collect, shall extinguish definitively should he fail to fulfil his financial obligations to Olympus Life Science Research Europa GmbH, should insolvency proceedings be instituted against him, or should the institution of such proceedings against him be refused for insufficiency of assets. The Customer shall not be authorised to dispose of the assigned claims by other means, e.g., by assignment to third parties (in particular to financial institutions), without prior written consent of Olympus Life Science Research Europa GmbH.
  4. In the event of default by the Customer in making payment to Olympus Life Science Research Europa GmbH, dishonouring of promissory notes or cheques, suspension of payments, excessive indebtedness, or should his assets be the subject of insolvency proceedings, or should the institution of such proceedings be refused for insufficiency of assets, the entire balance of his debts shall become payable, including promissory notes with later maturities. In this event, the Customer shall, at the request of Olympus Life Science Research Europa GmbH, provide Olympus Life Science Research Europa GmbH with a list of all goods still in his possession which are subject to reservation of title, and a list of debts assigned to Olympus Life Science Research Europa GmbH, which list shall include names and addresses of debtors and the amount of the debts. Should the conditions described above apply, the Customer shall, upon request of Olympus Life Science Research Europa GmbH, inform the debtors of the assignment of the debt to Olympus Life Science Research Europa GmbH. Olympus Life Science Research Europa GmbH shall be entitled to bring about the notification of such third party debtors itself. Olympus Life Science Research Europa GmbH shall also be entitled to repossess the goods subject to its reservation of title with a view to utilisation or discharging the balance of the debts.The Customer shall be obliged to procure possession of the goods for Olympus Life Science Research Europa GmbH or to allow the authorised representative of Olympus Life Science Research Europa GmbH access to the business premises during normal business hours. The demand for return or the seizure of the goods shall not constitute termination of the contract.
  5. At the Customer’s request, Olympus Life Science Research Europa GmbH shall be obliged to release security at the Customer’s discretion where the total value of such security exceeds the value of Olympus Life Science Research Europa GmbH’ claims against the Customer arising from current business dealings by more than 20%.
  6. Should the proposed reservation of title not be legally effective in the territory in which the goods are located, the parties agree that the legal stipulations in that territory which are most similar to the rights of retention of title are to apply. Where special requirements are necessary to meet these stipulations, the Customer is obliged to ensure that these requirements are met at his own cost.

9. Complaints and Warranties

Any complaints regarding incomplete, false or defective deliveries are to be reported in writing immediately after delivery. Hidden defects are to be reported in writing after these have been established. Olympus Life Science Research Europa GmbH shall be liable for defects in the consignment subject to the following conditions:

  1. As a rule, the warranty period shall last 12 months – unless otherwise agreed in writing – from the date of delivery to the Customer. The warranty period shall be extended by the period in which the delivered product cannot be used because of the need for remedy of defects or replacement of goods. However, remedy of defects shall not result in a new warranty period except for the newly fitted of repaired parts. In case of death, personal injury or damage to health as well as in case of intent, violation of material contract obligations or grossly negligent violence of other obligations under the contract the statutory period of limitation applies. Where a defect causing damage forms part of an indemnity agreement between Olympus Life Science Research Europa GmbH and the Customer or where a defect was fraudulently concealed a limitation or reduction of the statutory period of limitation is excluded. The provisions contained in Sections 478 and 479 German Civil Code (BGB) remain unaffected as a whole.
  2. During the warranty period, Olympus Life Science Research Europa GmbH shall at its own discretion either replace or repair free of charge any parts which are found to be unserviceable or of substantially impaired serviceability as a result of circumstances which are shown to have existed before the passing of risk. Defective design, poor materials, and faulty construction shall constitute such circumstances.
  3. The Customer shall fulfil all his contractual obligations, in particular the stipulated terms of payment. The Customer shall be entitled to withhold payment because of a defect only if a complaint in respect of a defect of goods has been filed within the applicable time period. In this event, the payment withheld shall be in reasonable proportion to the extent of the defect noted.
  4. The Customer shall grant Olympus Life Science Research Europa GmbH the necessary time and occasion to fulfil the warranty obligations. Should he refuse to do so, Olympus Life Science Research Europa GmbH shall be released from the warranty obligation and from the liability for defects.
  5. Should Olympus Life Science Research Europa GmbH allow a reasonable period of grace to expire without remedying the defect or replacing the goods, or should Olympus Life Science Research Europa GmbH refuse to take either action, or should remedy or replacement be impossible, the Customer shall be entitled to avail himself of his right to termination of contract or reduction of the purchase price.
  6. Any improper repairs or modifications effected by the Customer or by third parties shall nullify any warranty or liability, unless the Customer proves that the defect is not the result of this intervention.
  7. The liability for defects shall not apply to normal wear and tear, nor to damage occurring after passage of risk as a result of faulty or negligent handling, overuse, inappropriate equipment, or such chemical, electro-chemical, or electrical influences as are not provided for in the contract.
  8. Any further claims or rights of the Customer against Olympus Life Science Research Europa GmbH or against persons employed by Olympus Life Science Research Europa GmbH resulting from defects in supplied goods shall be barred, in particular claims for damage not affecting the supplied goods themselves. This shall not apply where there is wilful misconduct, damage to health, personal injury or death. The above exclusion of liability shall also not apply where the defect causing the damage or loss is the subject of a warranty agreement between Olympus Life Science Research Europa GmbH and the customer or where the defect was fraudulently concealed. The provisions contained in Section 478 of the German Civil Code (BGB) remain unaffected.
  9. In so far as the Olympus Life Science Research Europa GmbH product is equipped with accessories from third-party companies and the warranty terms and conditions of the third-party company are included with the Olympus Life Science Research Europa GmbH product, Olympus Life Science Research Europa GmbH shall assume these terms and conditions only in so far as they are not more disadvantageous for Olympus Life Science Research Europa GmbH than the above provisions. Otherwise the above provisions shall apply.
  10. Warranty claims arising from any batteries included shall be barred. Such batteries shall only be for demonstration purposes and operational tests.

10. Liability

  1. Unless otherwise explicitly stipulated in these terms, or in the contract on which the delivery is based, Olympus Life Science Research Europa GmbH shall also be liable for damages which are caused by gross negligence or with intent of Olympus Life Science Research Europa GmbH, its agents or its executives. However, notwithstanding the above, Olympus Life Science Research Europa GmbH shall also be liable for simple negligence in cases of material breach of contract. This liability for material breach of contract is restricted to such damage as is foreseeable and typical for the agreement in question. In respect of nonmaterial breach of contract, Olympus Life Science Research Europa GmbH is also only liable for such damages in cases of gross negligence.
  2. In the event of damage to health, personal injury or death, where liability pursuant to the German Product Liability Act [Produkthaftungsgesetz] exists, and where there is wrongful intent, the liability of Olympus Life Science Research Europa GmbH is unrestrictedly subject to the statutory regulations. Liability in respect of impossibility or delay in delivery/performance is solely subject to Item 5.5. of these Terms of Delivery and Payment.

11. Assignment of Claims

Claims arising from this contractual relationship and all claims against the damaging party or its insurer arising from the loss of or damage to reserved goods may only be assigned to third parties with prior written permission of Olympus Life Science Research Europa GmbH.

12. Export control rulings

  1. The export of certain goods, information, software and documentation can for example, by very nature of their type or their purpose or end purpose be subject to the approval agreement. The end user shall strictly abide by the relevant export regulations pertinent to the goods, information, software and documentation in question, in particular with regard to the EU, EU member states as well as the USA.
  2. In abidance with the legislation governing export controls of the Federal Republic of Germany, as well as of the EU member states and the USA the end user/ordering person or body/purchaser is under obligation to procure at his own cost and before the actual export of products or technical information, which he has received from Olympus Life Science Research Europa GmbH, all the required export licenses and any such other documents necessary.
  3. The end user/ordering person or body/purchaser shall be under obligation, not to sell, export, re-export, deliver or otherwise pass on, whether directly or indirectly, such products or technical information to persons, companies or to other countries in so far as this be in breach of laws and rulings of the Federal Republic of Germany, other EU member states or the USA. The end user/ordering person or body/purchaser is obliged to inform all recipients of these products and/or of any technical information of the requirement to abide by these laws and rulings.
  4. The end user/ordering person or body/purchaser shall procure at his own cost all licenses and documents required for export and import, which may also be required for using the products. Refusal of export permission does not entitle the end user/ordering person or body/purchaser to withdraw from the contract or to claim for damages.

13. Privacy

Data will be processed according to the applicable laws and taking account of our privacy policy. Data collected from the Customer will only be collected, processed and used to the extent required for the conclusion and performance of the sales agreement and/or any further agreements between the Customer and Olympus Life Science Research Europa GmbH.

14. Place of Performance

The place of performance for deliveries, payments and warranties shall be Munich.

15. Place of Jurisdiction

  1. For all disputes Munich shall be the agreed place of jurisdiction for merchants, legal entities under public law, and separate public estates.
  2. For all cases listed in Item 13.1. Olympus Life Science Research Europa GmbH shall also be entitled to take legal action before the customer’s court of jurisdiction.

16. Validity of the Olympus Life Science Research Europa GmbH Terms of  Delivery and Applicable Payment Law

  1. Should individual provisions of the contract outside these Terms of Delivery and Payment be invalid, this shall affect neither the validity of the other provisions nor that of the contract.
  2. The Terms of Delivery and Payment and the contracts concluded within the framework of these terms and conditions are subject to German law. The Vienna Convention (UN Convention on Contracts for the International Sale of Goods of 11 April 1980) is not applicable.

17. Business Dealings with Non-Commercial Entities

  1. The above provisions shall apply to business dealings with purchasers who are not commercial entities/business persons [Unternehmer] within the meaning of Section 14 of the German Civil Code [BGB], with the following amendments:
  2. Item 3.2. shall apply subject to the provision that the price calculation is based on the prices applicable on the date of delivery/performance if the delivery or performance occurs more than four months after conclusion of the contract.
  3. The reservation of current account in Item 4.1. shall not apply. The interest rate stated in Item 4.4. shall be 5% above base rate, subject to a minimum interest rate of 7%.
  4. Item 5.7. – Partial deliveries – shall not apply.
  5. Item 6.4. – Packaging damages – and Item 7 – Passing of risk – shall not apply.
  6. Item 8 – Reservation of title – shall apply with the following wording: Olympus Life Science Research Europa GmbH shall retain title to the goods delivered until the purchase price has been paid in full. Olympus Life Science Research Europa GmbH’ claims shall not be extinguished upon being included in any current account balance and Olympus Life Science Research Europa GmbH recognising this balance. The Customer shall be entitled to resale of the reserved goods only within the framework of his ordinary course of business, either against payment in cash or upon agreeing upon a reservation of title. In the event of sale, the Customer shall assign to Olympus Life Science Research Europa GmbH all resulting claims against the purchaser in full and with all ancillary rights (reservation of title, transfer of ownership by way of security) until all debts arising from the purchase price have been paid in full. The reservation of title shall also extend to new products manufactured by combining the goods which Olympus Life Science Research Europa GmbH has delivered with other objects. In the event of combination with other objects, Olympus Life Science Research Europa GmbH shall acquire coownership, which co-ownership the Customer shall hold in safe custody for Olympus Life Science Research Europa GmbH.
  7. Item 9.1 shall apply with the following wording: The warranty period shall last 24 months from the date of delivery to the user.
  8. Item 9.2. shall apply with the following wording: During the warranty period, Olympus Life Science Research Europa GmbH shall at the choice of the user either replace the goods or remedy the defect free of charge.
  9. Item 9.4. Sentence 2 shall not apply


Munich, December 2007

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