Pharma Innovation for the next Generation
General Business Terms and Conditions of Gen-Plus GmbH & Co.KG
Valid as of 3 September 2018
§ 1 Scope of Application
(1) These General Business Terms and Conditions (in the following „GBT“) shall apply for all offers, proposals, deliveries, shipments, development-, consultancy- and other services of the Gen-Plus GmbH & Co.KG, Staffelseestr. 6, 81477 München, Germany (in the following „GenPlus“). The GBTs are integral part of all contracts being concluded with contracting partners (in the following „Clients“) regarding offered shipments, development- consultancy- and other services. They also apply to subsequent and followup contracts regarding deliveries, shipments, development- consultancy- and other services even if they are not agreed again separately.
(2) Contradictory GBTs of Clients, notwithstanding their wording do not apply even if Gen-Plus does not disagree explicitly. This does also apply in cases where Gen-Plus refers to an offer or writing of the Client which comprises such stipulations. Such reference does not mean the acceptance of such stipulations. Changes or other conditions of contracting party are only valid if Gen-Plus has agreed to them in writing.
§ 2 Proposal, Purchase order, Purchase confirmation, Contract conclusion
(1) Gen-Plus service proposals are without obligations.
(2) Proposals of a Client are only valid if explicitly confirmed by Gen-Plus. Gen-Plus reserves the right to accept offers from a Client within 4 weeks after delivery. They become valid only after explicit acceptance.
(3) Declarations with the meaning of conclusion, variation or termination of contracts must be in written form.
§ 3 Scope of Supply and Services and Service provision
(1) Scope of supply and services, way of conduct, specification of deliverables or any other agreed services are determined in the order confirmation by Gen-Plus if not agreed otherwise between the Clients in writing.
(2) Gen-Plus is not obliged to achieve a success or produce a work (§§ 631 ff. German Civil Code), in particular neither economic nor scientific kind without written consent.
(3) The scope of supply and services always refer to contracted objectives of development, experiment or manufacturing. Solely the Client bears the risk of adequate applicability or usefulness. Specific objectives or applicability regarding the service deliverables require explicit written agreements.
(4) Gen-Plus reserves the right of providing and invoicing partial deliveries unless otherwise agreed in writing.
§ 4 Service terms or Schedules
(1) Service terms or schedules are basically given as an orientation unless explicitly agreed otherwise in writing.
(2) Variations of or additions to the contracted objectives will extend the time of conduct and postpone the date of delivery including an adequate extension of the time of conduct. The same applies to any delays caused by the Client or being at the responsibility of the Client.
(3) In and to the extent to which service provisions depend on deliverables or shipments of third parties any service terms and schedules are provisional with respect to their timeliness. GenPlus will not be liable for delays caused by acts of God or force majeure or other events not foreseeable by the time of contract conclusion in particular war, labor union conflicts, terror or other events outside the responsibility of GenPlus. In the case that fulfillment of the contract becomes unreasonable due to such events, Gen-Plus reserves the right to terminate the contract for good cause.
(4) Gen-Plus will duly report delays or hindrance with reasons and estimated timelines.
(5) If terms und dates of deliveries are not met by Gen-Plus the Client is entitled to financial compensation and/or of withdrawal only when Gen Plus defaults and has been given an adequate time for subsequent improvement. Further the Client must declare - deviating from §§ 281 and 323 BGB - to refuse delivery or acceptance after this rectification period. Upon expiry of this period any claim for contract fulfillment will be excluded. Any claims for compensation of damages whatsoever are subject to §§ 6 and 8 hereunder.
§ 5 Remuneration, Side costs and Payment terms
(1) The remuneration is agreed in the respective contract or purchase order.
(2) Side costs like travel expenses, accommodation, audits, license and other fees, consultant, expenses for drawings, copies, mailing and shipment costs, are payable upon the presentation of respective receipts if not agreed otherwise.
(3) Payments of projects are structured according to the project milestone plan as provided with the Gen-Plus project or service proposals. Payments for Milestone I (Project Preparation) are due at contract signature or arrival of a purchase order. Payments for consecutive Milestones are due by the achievement of the respective Milestone.
(4) Payment of invoices are due immediately unless other payment terms have been agreed.
(5) Defaults of payment cause default interests of eight percent points above the base interest rate of Deutsche Bundesbank. Gen-Plus reserves the right to claim a higher actual damage.
(6) During payment delays Gen-Plus reserves the right to withhold deliverables or shipments.
(7) Client may only withhold or offset due payments against their own counter-claims if these are uncontested or have been found to be legally binding.
(8) Gen-Plus reserves the right to claim pre-payments under circumstances which become known after contract signature which indicate jeopardy of Client´s ability to fulfill its payment obligations.
§ 6 Warranty
(1) Gen-Plus obeys the state-of-the-art principles of research and development concerning deliverables and services.
(2) Gen-Plus does not warrant for the possibility of scientific, economic or regulatory utilization of scientific results and data.
(3) Warranty claims of the Client expire 12 months after the transfer of accidental loss.
(4) Warranty claims of the client are excluded in cases of Client´s responsibility, in particular if Documents like recipes, specifications, manufacturing prescription, control prescriptions of the Client are misleading, incomplete or wrong or proved to be not applicable; - Materials are to be used by Client´s directives leading to material or quality flaws due to inadequacy.
§ 7 Limitation of liability
(1) In case of a breach of contractual obligations, defective deliveries or tortuous acts, Gen-Plus shall only be obliged to compensate damages or expenses – subject to any other contractual or statutory conditions for liability – if Gen-Plus has acted intentionally or with gross negligence or in cases of minor negligence, if such negligence results in the breach of an essential contractual duty (a duty the breach of which puts the fulfilment of the purpose of the contract at risk). However, in case of minor negligence, Gen-Plus’ liability shall be limited to typical damages which are foreseeable at the time of the conclusion of the contract.
(2) The liability of Gen-Plus for losses caused by late delivery due to minor negligence shall be limited to 5% of the agreed gross contract value. Beyond this each and all lability of Gen-Plus for indirect or collateral damages, financial loss in particular for losses of production or loss of profit is excluded.
(3) The exclusions and limitations of liability in sections § 7 Sect. 1 and 2 shall not apply in cases of a quality warranty in accordance with section 444 of the German Civil Code, in cases where Gen-Plus has maliciously failed to disclose a defect, in case of damages resulting from death, injury to health or physical injury or where the laws on product liability impose overriding liabilities which cannot be excluded.
(4) The limitation period for claims against Gen-Plus – based on whatever legal ground – shall be 12 months from the date of delivery to the Client and in case of tortious claims, 12 months from the date the Client becomes aware or could have become aware of the grounds giving rise to a claim and the liable person, had the Client not been grossly negligent. The provisions in this clause shall neither apply in cases of intentional or gross negligent breaches of duty nor shall they apply in cases referred to in § 7 Sect. 3.
(5) The liability of Gen-Plus for software supplied by Gen-Plus shall be limited to liability for losses or alteration of data caused by the program; however, Gen-Plus shall not be liable for any losses or alteration of data which could have been avoided by the Client’s compliance with its duty to secure such data at appropriate intervals and at least once per day.
§ 8 Exemption from Liability
(1) Solely the Client will be liable for his products. This applies even if under the contract between Client and Gen-Plus, work results have been incorporated into the development or production of those products and these products are used on humans or animals. Client hereby expressly keeps Gen-Plus indemnified from any third party liability for defects of the products,
in particular with respect to claims for product or drug liability.
(2) The Client guarantees to have sufficient insurance coverage, in particular Drug product liability insurance - Volunteer liability insurance - Other liability insurances relevant for the subject of this contract.
§ 9 Results of Research and Development, Right to Use
(1) The research and development result („work results“) shall be made available to the Client after completion of the project according to the offer or contract. Work results are in particular certifications of analyses, reports, expert opinions or other documents handed over to Client under the contract.
(2) The Client shall be granted a nonexclusive, royalty-free right of use for the purpose of application on which the contract is based to inventions generated during the performance of the project as well as to industrial property rights filed by and granted to Gen-plus for these inventions. The Client shall reimburse Gen-plus an appropriate part of the costs for registration, maintenance and defense of the industrial property rights to be agreed upon the contracting parties and shall pay, in case of use of the inventions, a comprehensive employee inventor´s fee, the amount of which shall be agreed in each individual case.
(3) Upon request and in lieu of the right according to § 9 (2), the Client shall be granted an exclusive, royalty bearing right of use for the purpose of application on which the contract is based to inventions generated during the performance of the project as well as to industrial property rights filed by and granted to Gen-plus for these inventions. The request shall be made in writing, at the latest three months after the client’s notification of the invention. Gen-plus shall insofar retain a nonexclusive, royalty-free right of use for purposes of research and development, irrespective for whom.
(4) The client shall be granted a nonexclusive, royalty-free right of use for the purpose of application on which the contract is based to copyright protected works, databases, and know-how created during the performance of the project. The granting of an exclusive right of use for the purpose of application on which the contract is based shall require a separate written agreement.
(5) Inventions jointly achieved by the contracting polarities during the performance of the project („joint inventions“) may be used and licensed by each contracting party without any financial compensation. The contracting parties shall each bear a to-be agreed portion of the costs for registration, maintenance and defense of the industrial property rights in question. In case of copyright protected works jointly created during the performance of the project („joint authorship“) § 5 (5) sentence 1 shall apply correspondingly.
(6) If during the performance of the contract already existing industrial
property rights or copyrights of Genplus are used which are required for the Client’s commercialization of the research and development project, then Client shall be granted a nonexclusive, royalty-bearing right of use under a separate written agreement unless otherwise agreed in writing.
§ 10 Non-disclosure and Copy rights
(1) Each and any information or documents provided by Gen-Plus, in particular recipes, sample documents, samples etc. remain unlimited property of Gen-Plus and have to be treated as confidential by the Client.
(2) The secrecy obligation does not apply to information and documents which have been publicly known before o rare part of the state-of-the-art.
(3) The secrecy obligation survives the termination of the contract.
§ 11 Term and Termination
(1) Upon termination or regular finalization of the service- or project contract or of a purchase order the obligation to pay for any incurred costs including any costs deriving from project related third party agreements will survive until full payment.
(2) In the case of termination by the Client before the regular finalization any Milestone which has been started before the effective date of the termination will be finished and is due for full payment.
(3) Upon regular finish of a service- or project contract any documents and data will be archived free of cost for five years. The archiving period can be prolonged upon written request of the Client against an upfront fee. Destruction or hand-back of material and documents is payable according to respective invoices.
§12 Data storage
(1) Contractors data pertaining to business relationship (in particular company, business address, family and given names of the company representatives, telephone numbers and e-mail addresses) will be stored.
(2) Purpose of the storage of such data is the set-up and maintenance of a customer´s data base, the documentation of customer relationships and the support of mailings.
(3) Contractor can stop and forbid such mailing any time.
§13 Archiving (non-GMP)
(1) Gen-Plus will store any data pertaining to the project or contract up to five years free of charge beginning from the date of sending the first draft report. Upon expiry of this period and unless being instructed otherwise by the client Gen-Plus will erase and destroy the data archive. Incurred costs derived from such destruction will be invoiced.
(2) The client may choose to prolong the storage period at will against upfront payment of a storage fee. Prolongation requires a written statement of the client 3 months before the expiry data.
§ 14 Final provisions
(1) Governing law shall be the law of Germany with the exclusion of the international conflict of laws provisions thereof and with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).Client
(2) The place of execution and jurisdiction shall be Ulm, Germany. However, Gen-Plus may also take legal action against Client at Client’s place of business.
(3) Should any of the clauses of these GBTs be or become wholly or partially invalid or void, the validity of the remaining clauses or parts thereof shall not be affected. Instead of the invalid or void provisions, regulations shall apply which are closest to the economically desired objectives of this contract. The same shall apply for gaps in GBTs and contract.