Terms and Conditions
The following Terms and Conditions are translated from the German AGB. Please be aware that the German AGB are legally binding!
1.1. BIAMETRICS does not conclude any contracts with consumers within the meaning of § 13 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). By accepting these terms of sale, the Purchaser confirms that it is not a consumer.
1.2. These terms of sale of BIAMETRICS apply exclusively; BIAMETRICS will not recognise provisions of the customer which run counter to or deviate from these terms of sale unless BIAMETRICS has expressly agreed to their validity. These terms of sale shall also apply if BIAMETRICS delivers the goods to the customer without any reservations, while being aware of provisions which run counter to or deviate from these terms of sale.
1.3. BIAMETRICS shall only provide services upon conclusion of a separate agreement.
2. Quotations and prices
2.1. Unless a quotation from BIAMETRICS stipulates otherwise, the price of the products is the price quoted by BIAMETRICS excluding any customs duties, packaging and shipping costs, turnover tax and other taxes. Any quotations which BIAMETRICS submits for the delivery of products shall apply for the period indicated in the quotation. If no such period is indicated, BIAMETRICS will be bound by this quotation for a period of 30 days. If BIAMETRICS has not indicated any price, the current price list of BIAMETRICS shall apply.
3.1. Unless agreed otherwise, the purchase price must be paid by means of a transfer to the bank account of BIAMETRICS within 14 days of invoicing, without any deductions. A cash discount is only permitted subject to a separate written agreement.
3.2. In case of late payments, BIAMETRICS reserves the right to suspend deliveries and/or to withdraw from any of its outstanding obligations and to charge interest on arrears in the amount of 8 % above the applicable base interest rate p.a. BIAMETRICS reserves the right to claim greater damage due to delay in performance.
4. Changes to products
4.1. Subject to prior announcement, BIAMETRICS is entitled to vary product characteristics which have only a minor effect on the installation, performance and price of the products.
5.1. The Purchaser shall bear any costs associated with delivery of the goods – i.e. costs for transportation, insurance and for taxes and other (customs) duties. The property risk shall be transferred from BIAMETRICS to the Purchaser upon handover to the carrier indicated by the Purchaser.
5.2. BIAMETRICS is entitled to make partial deliveries – insofar as these are reasonable for the Purchaser – and to submit staggered invoices accordingly. Should the Purchaser fail to accept the products (or the respective product parts) within a reasonable period of time, BIAMETRICS will be entitled to dispose of or store the products (or the respective product parts) at the Purchaser’s expense.
5.3. In case of any default in delivery which has not resulted due to BIAMETRICS’ intent or gross negligence, BIAMETRICS shall be liable for each full week of default within the scope of flat-rate compensation for default amounting to 0.5% of the value of the delivery for which this default in delivery has occurred, but for not more than 5% of the value of the delivery for which this default in delivery has occurred. BIAMETRICS will not be liable for delays in delivery outside the responsibility of BIAMETRICS.
5.4. The Purchaser must notify BIAMETRICS of any obvious defects within five (5) working days of delivery. BIAMETRICS must be notified of any further defects without delay following their discovery.
5.5. BIAMETRICS shall not be liable for any delays in deliveries resulting because an export license must be applied for or other formalities must be fulfilled before a delivery is dispatched, due to the destination.
6. Passage of risk and reservation of title
6.1. If the goods are sent to the Purchaser at its request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon their dispatch to the Purchaser and, at the latest, as of the goods leaving the works/warehouse of BIAMETRICS. This applies irrespective of whether the goods are shipped from the place of performance or who bears the freight charges.
6.2. BIAMETRICS reserves title to the goods until they have been paid in full.
7. Usage restrictions
7.1. In case of any restrictions for use of products stipulated in catalogues, operating instructions, manuals or other usage notices or other product specifications which are provided to the Purchaser by or on behalf of BIAMETRICS, these restrictions shall form part of the sales contract. The Purchaser is obliged to comply with these instructions. Guarantee and warranty claims shall lapse if and insofar as the products delivered by BIAMETRICS are not used in accordance with these instructions and thus not used in accordance with their intended purpose and defects or damage thus arise. The Purchaser shall have sole responsibility for use of the products delivered by BIAMETRICS in accordance with applicable statutory provisions. Should the customer assert compensation or other claims against BIAMETRICS due to use of the products which deviates from their intended purpose of use, the Purchaser shall indemnify BIAMETRICS against any such claims – irrespective of their cause in law – and compensate BIAMETRICS for any damage, costs, expenses and any other liability.
7.2. The Purchaser shall be responsible for use of BIAMETRICS products for diagnostic and other clinical and medical purposes. The competent medical personnel will be responsible for any decisions resulting from such use.
8. Warranty and notice of defects as well as recourse/recourse against manufacturer
8.1. Unless otherwise stipulated, Items 8.2-8.5 regulate liability for defects. Warranty rights of the Purchaser assume that it has duly fulfilled its duty of inspection and its duty to provide notice of defects in accordance with § 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
8.2. BIAMETRICS shall ensure that the delivered consumable materials match specifications from BIAMETRICS as of the date of delivery. Warranty claims will fall under the statute of limitations 12 months after delivery of the goods to the Purchaser. The statutory limitation period applies for compensation claims in case of intent and gross negligence as well as loss of life, physical injury and damage to health which results from an intentional or negligent breach of obligations on the part of the user.
8.3. Should the delivered goods feature a defect – despite all of the care taken – which was already present as of the moment of passage of risk, subject to timely notification of defects BIAMETRICS shall at its discretion either repair the goods or deliver replacement goods. BIAMETRICS must always be granted the opportunity for supplementary performance within a reasonable period of time. Rights of recourse shall remain unaffected by the above provision, without any limitation. In the event that supplementary performance is to no avail, irrespective of any compensation claims the Purchaser may withdraw from the contract or reduce the volume of remuneration.
8.4. Warranty claims shall not apply in case of a merely insignificant deviation from the agreed property, a merely insignificant reduction in usability, natural wear and tear and damage which arises following the passage of risk due to incorrect or careless treatment, excessive strain, inappropriate equipment or due to specific external factors which are not assumed under this contract. Nor will any warranty claims apply for inappropriate repairs or changes implemented by the Purchaser or third parties, or for any resulting consequences.
8.5. In particular, liability for defects is excluded for the consumable materials delivered by BIAMETRICS in case of failure to comply with the instructions for proper storage and packaging, protection against external influence (in particular, chemical and electromagnetic interference or radiation) and use of the respective products. These instructions may be found in the documentation for the respective products which is enclosed with these products or may be requested from BIAMETRICS.
8.6. An expiry date may apply for the consumable materials delivered by BIAMETRICS which is indicated on the respective product. The respective products will no longer be usable upon expiry of this expiry date. The Purchaser is aware that this date may be prior to the statute of limitations becoming effective for any warranty claims.
8.7. Claims of the Purchaser due to the expenses necessary for supplementary performance – in particular, transportation, delivery, work and material costs – are excluded insofar as these expenses increase because the goods delivered by BIAMETRICS have been subsequently transferred to a place other than the place of delivery, unless this transfer is in accordance with their intended use.
8.8. The Purchaser shall only have rights of recourse against BIAMETRICS insofar as the Purchaser has not concluded any agreements with its customer beyond the scope of the imperative statutory warranty claims. Moreover, Subsection 6 shall apply mutatis mutandis in relation to the scope of the Purchaser’s right of recourse against the supplier.
9. Limitation of liability
9.1. BIAMETRICS will be liable in accordance with the respective statutory provisions insofar as the customer asserts compensation claims due to intent or gross negligence, including intent or gross negligence of the representatives or vicarious agents of BIAMETRICS. Insofar as BIAMETRICS is not accused of any intentional breach of contract, liability to provide compensation will be limited to the foreseeable level of damage typically occurring. BIAMETRICS will be liable in accordance with the respective statutory provisions insofar as BIAMETRICS culpably violates a cardinal contractual obligation; however, in this case liability to provide compensation will be limited to the foreseeable damage typically arising. BIAMETRICS will only be liable for any loss of data if the Purchaser has ensured that the affected data may be mechanically retrieved from data storage with reasonable time and effort.
9.2. BIAMETRICS will not be liable for lost profit, interruption of business or similar indirect damage in case of ordinary negligence or violation of non-material contractual obligations.
9.3. Except in cases of culpable damage resulting from loss of life, personal injury or injury to health or in case of liability under the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG), a limitation period of one year shall apply.
9.4. Liability due to culpable damage resulting from loss of life, personal injury or injury to health shall remain unaffected; this also applies for liability under the German Product Liability Act. Unless otherwise stipulated above, liability is excluded in other respects.
10. Copyrights and industrial property rights
This contract does not grant any licenses for industrial property rights or copyrights held by BIAMETRICS or its licensors.
11. Data protection
Insofar as personal data are registered, processed or stored during the execution of this contract, the Purchaser and BIAMETRICS will ensure that the applicable statutory provisions are complied with.
The Purchaser is required (i) to ensure that the products are appropriate and can be used safely for the Purchaser’s intended purpose; (ii) to ensure that appropriate safety measures are implemented when using the products and that the applicable safety regulations are complied with.
13.1. The Purchaser shall indemnify BIAMETRICS against any claims asserted against BIAMETRICS
13.2. (i) because the Purchaser is alleged not to have used the products in accordance with their intended purpose; or
13.3. (ii) the Purchaser’s use of the products is alleged to have violated third-party industrial property rights and copyrights, unless such claims have arisen due to fault on the part of BIAMETRICS.
14. Force majeure
If BIAMETRICS is unable to fulfil its obligations under this contract due to force majeure, BIAMETRICS will be released from its obligations under this contract for the duration of this interruption. If BIAMETRICS is unable to fulfil its obligations for a period of more than one (1) month in case of force majeure, BIAMETRICS will be entitled to terminate the contract. Compensation claims are excluded. In particular, the following events are force majeure: war, acts of terror or associated threats, unrest, government acts, sabotage, strikes and lockouts and other industrial action, natural disasters, geological changes and interference.
15. Export control
15.1. In the event that the Purchaser exports or re-exports the products, it undertakes to comply with any applicable export restrictions – in particular, but not exclusively, those of the United Nations, the EU, the USA, the country of origin or the original exporting country. The Purchaser will not export or re-export the products without any permit or license which may be necessary. Upon request, the Purchaser shall provide BIAMETRICS with copies of all of the documents associated with this exportation.
16. Place of jurisdiction – place of performance
This contract shall be governed by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the contracting party is a merchant, a legal entity under public law or a special public fund, the registered office of BIAMETRICS shall be the place of jurisdiction. However, BIAMETRICS is entitled to sue the customer before the competent court for its legal residence or before the court which is competent for the customer’s place of abode.