Eurofins PHAST GmbH

§ 1 Scope

1.1 Our terms and conditions of business, delivery and payment shall apply exclusively. Any terms and conditions deviating from these must be made in writing to be valid. They are only effective if they are made with a person authorized to do so. Only the managing director, the business managers and the department managers of Eurofins PHAST GmbH shall be deemed to be authorized. Agreements made with other employees, especially by telephone, shall only be valid if they are confirmed in writing by one of the above-mentioned persons.

1.2 Conflicting terms and conditions of our customer shall not apply.

§ 2 Order placement

2.1 The scope of laboratory work and other services shall be specified in writing before the order is placed. Changes to the agreed scope of services must be made in writing. They can be made with an employee of Eurofins PHAST GmbH authorized for this purpose.

2.2 The order of substances and pharmaceutical data is a binding offer. This offer can be accepted by Eurofins PHAST GmbH within two weeks from the order date by sending an order confirmation or the ordered products or data. The order must be placed in writing (also by fax or e-mail). If the order is only placed verbally, transmission errors and any misunderstandings shall be borne by the customer. If a written order confirmation is available (also by fax or e-mail), the scope and content of the order shall be derived from this confirmation.

§ 3 Deliveryg

3.1 Deadlines for the execution of orders for laboratory work and services or the delivery of substances or pharmaceutical data are non-binding unless expressly agreed in writing as binding. Eurofins PHAST GmbH shall be liable in accordance with the statutory provisions insofar as the delay in performance is due to an intentional or negligent breach of contract for which Eurofins PHAST GmbH is responsible; fault on the part of Eurofins PHAST GmbH representatives or vicarious agents shall be attributed to Eurofins PHAST GmbH.Insofar as the delay in delivery is not due to an intentional breach of contract for which Eurofins PHAST GmbH is responsible, Eurofins PHAST GmbH's liability for damages shall be limited to the foreseeable, typically occurring damage. The delivery time shall be extended in any case by the periods during which the delivery was demonstrably delayed due to operational disruptions for which Eurofins PHAST GmbH is not responsible, unforeseeably long official processing times, default on the part of suppliers or force majeure, unless a commercial fixed date transaction has been agreed. The Customer shall be entitled to rescind the contract if, after expiry of the originally agreed delivery period, he sets a grace period and Eurofins PHAST GmbH fails to perform within the grace period set. The duration of the period of grace to be set by the Customer shall be two weeks, commencing upon receipt of the period of grace by Eurofins PHAST GmbH.

3.2 Domestic deliveries of laboratory results are made free of packaging, postage and freight charges. We reserve the right to make partial deliveries. Deliveries abroad as well as deliveries of substances shall always be made at the expense of the customer. Eurofins PHAST GmbH expressly reserves the right to accept an order. The delivery of pharmaceutical data is made as hardcopy.

3.3 All our deliveries and services (performance of the contract) are subject to the proviso that there are no obstacles to performance due to national or international regulations, in particular export control regulations as well as embargoes or other restrictions. Eurofins PHAST GmbH and the Customer mutually undertake to provide all information and documents which may be required for the export/transfer/import. Insofar as delays occur due to export inspections or licensing procedures, these shall override agreed deadlines and delivery times. If and to the extent that approvals required for the performance of the contract are not granted within the scope of export controls, embargoes or other restrictions, the contract shall be deemed not to have been concluded with regard to the parts concerned; any claims for damages in this respect and due to the aforementioned exceeding of deadlines shall be excluded.

§ 4 Prices, due date, default

4.1 In the case of laboratory work and services, the remuneration shall be agreed separately when the order is placed; the same shall apply to the prices of substances. Payment of the invoiced amount shall be made without deduction, excluding set-off and retention, unless the counterclaim to be set off is undisputed or has been finally determined by a court of law. The amount is due after receipt of the final invoice. It is payable strictly net, without discount. The fixed prices are exclusive of the statutory value added tax.

4.2 Eurofins PHAST GmbH reserves the right to process the order against cash on delivery, partial prepayment or prepayment. If necessary, the customer will be informed accordingly in advance.

In case of default of payment by the Customer, Eurofins PHAST GmbH shall be entitled to charge interest at the statutory rate. If Eurofins PHAST GmbH is able to prove a higher damage caused by delay, it shall be entitled to claim such damage.

4.3 If the Customer is in arrears with an agreed instalment payment, in whole or in part, for more than 14 days, Eurofins PHAST GmbH shall have the right either to demand immediate payment of the entire remaining debt or to withdraw from the contract after setting a grace period to no avail. In this case, the Customer shall compensate Eurofins PHAST GmbH for any resulting damage.

§ 5 Return

Chemical substances, biological preparations, Pharmaceutical Analytical Impurities and reference spectra are excluded from the right of return. Also excluded from the right of return are pharmaceutical results.

§ 6 Data storage

Note according to § 33 German Federal Data Protection Act: Customer data is stored. The collection, processing or use of personal customer data is for the fulfillment of the order placed. The data will not be passed on to third parties. Exception is the order processing with the participation of qualified subcontractors.

§ 7 Warranty claims

Eurofins PHAST GmbH shall be liable for the defectiveness of the delivered substances, laboratory work or other services (advice, information) by repeating the defective delivery or service free of charge. Warranty claims shall be subject to the condition that the Customer has duly complied with his obligations to examine the goods and to give notice of defects in accordance with § 377 of the German Commercial Code (HGB). If the rectification of defects fails, or if Eurofins PHAST GmbH is not willing or able to rectify the defect or to deliver a replacement, or if such rectification or replacement is delayed beyond a reasonable period of time for reasons for which Eurofins PHAST GmbH is responsible, the Customer shall be entitled to withdraw from the contract or to demand a reduction of the purchase price. Claims for damages and for reimbursement of futile expenses due to a defect shall be governed by §8 Liability. Claims for defects on the part of the customer shall become statute-barred one year after delivery of the goods. Instead of this one-year period, the statutory limitation periods shall apply in the following cases: in case of liability due to intent, in case of fraudulent concealment of a defect, for claims due to damages resulting from injury to life, body or health, which are based on a negligent breach of duty by the Contractor or an intentional or negligent breach of duty by a legal representative or vicarious agent of the Contractor, for claims due to other, which are based on a grossly negligent breach of duty by the Contractor or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the Contractor, and in the event of recourse by the Purchaser based on the provisions on the sale of consumer goods. Obvious inaccuracies in the work result, such as typing errors, calculation errors or formal defects can be corrected by Eurofins PHAST GmbH at any time, also towards third parties.

§ 8 Liability

8.1 Eurofins PHAST GmbH shall only be liable - irrespective of the legal basis - if the damage has been caused by a culpable breach of a material contractual obligation in a manner jeopardizing the achievement of the purpose of the contract or if the damage has been caused by gross negligence or wilful misconduct on the part of Eurofins PHAST GmbH.

8.2 Eurofins PHAST GmbH shall be liable. 8.2 shall apply in the same manner to damage caused by gross negligence or intent on the part of employees or agents of Eurofins PHAST GmbH who are not members of the management, executive board or senior management.

8.4 In the cases of 8.2 and 8.3 Eurofins PHAST GmbH shall not be liable for indirect damages, consequential damages or loss of profit.

§ 9 Transport damages

If the customer detects damage to the packaging (transport damage), he must have the damage certified by the carrier upon acceptance of the shipment. Damages in transit, which are only detected after unpacking the goods, must be reported to Eurofins PHAST GmbH in writing and received within 3 working days.

§ 10 Protection of work results

The Client warrants that the test reports, expert opinions, advice and information, the contents of the dossiers of standard substances and the substances themselves prepared by Eurofins PHAST GmbH within the scope of the investigations shall only be used for his own purposes. The reproduction of excerpts of these testates, expert opinions, advice, information, dossiers and data or similar requires express written consent. The client undertakes not to pass on the documentation, dossiers or data, parts thereof or results contained therein to third parties, not even in modified form. This does not include the disclosure to public authorities. If the client is part of a subordinate or equal group, these are also considered third parties in the sense of these contractual conditions (prohibition of sublicensing). The copyright remains reserved.

§ 11 Confidentiality

Eurofins PHAST GmbH undertakes to make all results obtained in connection with laboratory work and services available to the Customer and not to publish them or disclose them to third parties without the Customer's consent. Eurofins PHAST GmbH further undertakes to keep confidential all information received from the Customer in connection with the order.

§ 12 Sample storage

Unless otherwise agreed in writing, the samples provided for testing will be stored at Eurofins PHAST GmbH for a maximum of three months, insofar as their condition permits. After this time the samples may be destroyed. If a return of samples is desired, this shall be at the expense and risk of the customer.

§ 13 Retention of title

Eurofins PHAST GmbH retains title, including all copyrights, to the delivered items (substances, documents, data and data carriers) until full payment has been received. The Customer shall immediately notify Eurofins PHAST GmbH of any change of its place of business as long as claims for delivered substances or data are outstanding, or substances or data have not yet been delivered. Any processing or transformation of the items by the Customer shall always be carried out on behalf of Eurofins PHAST GmbH. If the items are processed / mixed with other items not belonging to Eurofins PHAST GmbH, Eurofins PHAST GmbH shall acquire co-ownership of the new items in proportion of the value of the delivered items to the other processed / mixed items at the time of processing / mixing. If the Customer's item is to be regarded as the main item, the Customer shall assign to Eurofins PHAST GmbH pro rata co-ownership of the mixed item. The Customer shall be entitled to resell the new items in the ordinary course of business. The Customer hereby assigns to Eurofins PHAST GmbH its claims arising from the resale of the items in the amount of the final invoice amount agreed with Eurofins PHAST GmbH (including the statutory value added tax). This assignment shall apply regardless of whether the items have been resold without or after processing. The Customer shall remain authorized to collect the claim even after the assignment. The authority of Eurofins PHAST GmbH to collect the claim itself shall remain unaffected. However, Eurofins PHAST GmbH shall not collect the claim as long as the Customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, as long as no application for the institution of insolvency proceedings has been filed or payments have not been suspended. Eurofins PHAST GmbH undertakes to release the securities to which it is entitled upon the Customer's request to the extent that their value exceeds the claims to be secured by more than 20%.

§ 14 Cancellation

The termination of laboratory work and other services is possible by both contracting parties at any time. If the Customer terminates the contract, the Customer shall reimburse Eurofins PHAST GmbH for the material costs, travel costs and expenses actually incurred up to that point. In addition, Eurofins PHAST GmbH shall be entitled to a percentage of the agreed fee in the event of termination by the Customer. This percentage is calculated by putting the actual development time in relation to the time that has been charged for the order. In this case, however, the customer shall have no claim to the handing over and delivery of the documentation on the completed partial sections or partial results of the process development. If Eurofins PHAST GmbH terminates the contract, the Customer shall be entitled to documentation of the partial results achieved up to that point, but shall reimburse the Company for the hours worked pro rata temporis as well as for material and travel costs and expenses.

§ 15 Cancellation for an important reason

If it becomes apparent during a process development that the achievement of the intended goal (development of a specific process) is impossible for factual, legal or economic reasons, Eurofins PHAST GmbH shall be entitled to terminate the contract for good cause, whereby it shall be entitled to a percentage share of the agreed fee in addition to the claim for reimbursement of the material and travel costs incurred as well as expenses. This share shall be calculated in accordance with § 14. In this case, the Customer shall be entitled to receive the documentation of the previous partial sections and partial results.

§ 16 Compliance with international sanctions lists and embargoes

16.1 The (Customer/Supplier/Seller) warrants, during the term of this Agreement, with respect to economic and trade sanctions imposed by the United Nations, the European Union, the United States of America or any other country, that: a) it is not subject to any economic sanctions; b) to the best of its knowledge, it is not controlled by or is not economically benefited by any such person or entity subject to economic sanctions; c) compliance with applicable laws and regulations relating to economic sanctions. Without limiting the generality of the foregoing, (Customer/Supplier/Seller) shall not (i) export, re-export, transship or otherwise provide, directly or indirectly, any Services or any part thereof, or (ii) broker, finance or facilitate any transaction in violation of any lawful provision of economic sanctions; (d) be involved in any proceeding or be the subject of any governmental investigation for alleged violations of any lawful provision of economic sanctions.

16.2 The (Customer/Supplier/Vendor) shall indemnify Eurofins PHAST GmbH against all losses, liabilities, damages, penalties and costs (including but not limited to legal costs including but not limited to court costs and litigation expenses) and expenses incurred by or against the Customer/Supplier/Vendor as a result of any breach by the Customer/Supplier/Vendor of clause 1.1..

16.3 Without prejudice to any other claims and remedies, Eurofins PHAST GmbH may terminate the contract with immediate effect by written notice to the customer/supplier/seller if the customer/supplier/seller breaches the provisions of clause 16.1. The customer/supplier/seller shall not be entitled to claim damages or other payments.

16.1 The customer/supplier/seller shall not be entitled to claim damages or other payments.

For purposes of this clause: Economic Sanctions include any economic sanctions, restrictive measures, or trade embargoes adopted by the UN Security Council, the European Union, the United States, or any other sovereign government. Legal Provisions of Economic Sanctions include all laws, rules and regulations relating to economic sanctions.

§ 17 Applicable law, place of performance, place of jurisdiction

German law shall apply. Place of performance is the registered office of Eurofins PHAST GmbH. If the customer is a merchant, the place of jurisdiction shall be Homburg / Saar.

Status: 01.03.2019

© 2019 Eurofins PHAST GmbH, Kardinal-Wendel-Str. 16, 66424 Homburg, Germany

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