General Terms & Conditions of R-Biopharm AG
Version as of August 2024
1. Scope
1.1 These General Terms and Conditions („GTC“) apply to all contracts with R-Biopharm AG, unless otherwise agreed. Deviating agreements must be evidenced by a writing or other memorialization on a permanent medium.
1.2 These GTC become part of the contract upon R-Biopharm AG‘s acceptance of an order for goods or services. Acceptance of any order is subject to the pre-condition that Customer assents to the General Terms and Conditions of R-Biopharm AG.
1.3 R-Biopharm AG does generally not deliver goods or services to consumers. These Terms and Conditions apply exclusively to merchants (“Unternehmer”), businesses, public and semipublic entities or funds pursuant to Sec. 310 of the German Civil Code (“BGB”) (hereinafter referred to as “Customer”). Customer and R-Biopharm AG are jointly referred to as “Parties” herein.
1.4 Customer’s general terms and conditions of purchase or business that contradict these GTC do not apply, even if not expressly contradicted, unless there is an express contrary agreement in writing (including E-mails or Fax, i.e. “Textform”).
1.5 These GTC, as revised from time to time, apply to all present and future transactions between R-Biopharm AG and its customers. Existing customers will receive prompt notice of changes and updates to such GTC.
2. Order Acceptance
2.1 Orders for goods or services may be made by mail, telephone, fax, or E-Mail at the addresses provided on the R-Biopharm AG homepage under https://r-biopharm.com/de/kontakt/. Webshop GTC apply to orders through R-Biopharm AG’s Webshop: https://shop.r-biopharm.com/media/agb/agb_de_en_2023-12.pdf.
2.2 Orders for goods or services, regardless of form are legally binding only if confirmed by R-Biopharm AG through fax or E-Mail („Confirmation“).
2.3 Delivery of ordered goods, commencement of services, or acceptance of payment by R-Biopharm AG from Customer is deemed confirmation.
2.4 R-Biopharm AG has the right to complete deliveries within 5% (+/-) of order quantity.
3. Place of Performance, Transport, Partial Delivery and Delivery Times
3.1 Delivery and performance is made EXW (Incoterms® 2020) Shipping Gate R-Biopharm AG, An der neuen Bergstraße 17, 64297 Darmstadt („Erfüllungsort“).
3.2 Customer accepts partial delivery of goods or performance.
3.3 Delivery and performance is as soon as practicable, conditional upon timely supply of material and parts.
3.4 R-Biopharm AG will provide Textform notice of new times, if it cannot delivery or perform in time.
4. Reserved Goods or Services
4.1 Goods or services delivered by R-Biopharm AG remain the property of R-Biopharm AG until payment in full (“Reserved Goods”).
4.2 Customer may, subject Export Controls (5), use and sell Reserved Goods in the ordinary course of business provided there is no payment default. Customer hereby fully assigns all payment claims arising from such a resale to R-Biopharm AG. R-Biopharm AG may collect such claims in its own name and for its own account. Reserved Goods must be clearly marked to distinguish them as property of R-Biopharm AG.
4.3 If there is a default in payment, Customer may only resell goods upon transfer of title to Customer.
5. Electronic Instructions for Use
From January 1, 2023, instructions for use of R-Biopharm products are primarily provided electronically. They can be called up through QR codes on packaging and from the R-Biopharm homepage. Upon customer request such instructions may also be provided in paper or other form during normal business hours.
6. Export Controls
6.1 Customer acknowledges that all goods, services, software, and technology obtained from R-BIOPHARM AG, their activities, as well as the know-how, trade secrets, or other protectable intellectual property contained therein (together “Product”), may be subject to ever varying national and international trade regulations, export controls, economic sanctions, embargoes, or other foreign trade regulations, as well as R-BIOPHARM policies which may restrict or prohibit (direct or indirect) Distribution as well as transactions with certain financial institutions, currency export or swaps, direct and indirect credit or loan extensions, assumptions, guarantees, or purchases (together “Export Controls”). R-BIOPHARM complies with all Export Controls to which it may be subject, including those which restrict availability of certain Products (“Restricted Product”) for use in or distribution into the Russian Federation, the Republic of Belarus, or areas controlled by them, as well as EU and US regulations in general.
Distribution or “to Distribute” as used herein refers to any acts or sequence of acts which make Product (and any part thereof), as well as related support, services, know-how, trade secrets and other protectable intellectual property, directly or indirectly available to others, including but not limited to supply, (re)sale, (re)export, (sub)licensing, any other transfer, granting of or acquiescence to use or access rights, post-sale support, service, spare parts supply or technical assistance, and warranty services.
6.2 Any Distribution of Product is subject to and conditional upon full Export Control compliance, even if not expressly referenced in a particular transaction. R-BIOPHARM expressly reserves the right to withdraw from any order, sale, delivery, service, support, or other agreement to Distribute, if due to Export Controls Distribution is made impossible, economically impractical (e.g.: unusual or disproportionate associated risks or costs), risks access to financial accounts or institutions, or subjects R-BIOPHARM to undue reputational risks. Such decision is within R-BIOPHARM’s sole discretion and R-BIOPHARM disclaims any liability for such withdrawal.
6.3 For purposes of Export Control, the act of sale or delivery by R-BIOPHARM for Product Distribution in a particular territory, country, or area, does not imply or provide clearance, consent, or permission for Distribution, outside of such territory, country, or area. Product distributed for a declared end user or end use, is limited to such end user and end use. Express or implied licenses to use any protectable intellectual property are limited to permitted uses and users within the licensed territory, country, or area only.
6.4 Export Controls currently in effect and to which R-BIOPHARM is subject, in particular those regarding Restricted Product, apply to any party within a commercial distribution chain, including commercial agents, re-sellers, and end users, and thus make any party within the chain responsible and liable for assuring compliance through implementation of appropriate contractual monitoring and compliance provisions.
6.5. Customer must provide R-Biopharm AG with all necessary information and documents necessary to permit proper authorities to conduct export control, to ensure compliance with Export Controls and to apply for required export control permits. This includes in particular complete end user information and end user certificates when apropriate.
6.6 CUSTOMER acknowledges represents, and warrants for itself and its principals:
6.6.1 That it Is not sanctioned or sanction listed under applicable Export Controls , nor directly or indirectly acting for, owned or controlled by, or benefiting persons or entities (individually or in the aggregate) sanctioned or listed, and does not directly or indirectly participate in any business, ventures, or financial transactions in areas where Product distribution is restricted or prohibited due to Export Controls, nor maintain places of business or real property interests in such areas; and
6.6.2 That it will:
a) Not Distribute or otherwise make Product its components, derivatives, related services and support available (directly or indirectly) in or for any destination, person, entity, or end use prohibited or restricted under applicable Export Controls; and
b) Comply and keep informed as to applicable Export Controls and changes; and
c) Adopt and incorporate similar contractual provisions for their own distribution chain and set up and maintain adequate record keeping and monitoring mechanisms throughout to evidence compliance and detect, prevent, and report conduct intended to circumvent or frustrate Export Controls; and
d) Defend and hold R-Biopharm AG, its employees and directors harmless for and from third-party claims or damages caused by breach of contract or Export Control violations attributable to CUSTOMER.
6.7 Customer must provide R-Biopharm AG with all necessary information and documents necessary to ensure compliance with Export Controls, to apply for any required export control authorization and to enable the competent authorities to carry out export control audits. This includes in particular making available a completed end use declaration and providing all necessary end user information.
6.8 Any violations of the foregoing Customer’s representations and warranties will be considered material breaches of any agreement between the parties that entitle R-BIOPHARM to take one or more of the following actions, without prejudice to any other rights or remedies or showing of actual damages:
a) Order rejection, Termination, withdrawal, recall or rescission of sales, delivery, support, or service;
b) Report to applicable regulatory authorities;
c) Revocation of related use or other licenses;
d) Retention of advances and payments made;
e) Collection of a breach fine appropriate for the breach to be credited against damages later proven. The reasonableness of any amounts assessed are subject to judicial review
7. Compensation and Pricing
7.1 Goods and services are provided at R-Biopharm AG the list prices published and applicable at the time of order.
7.2 R-Biopharm AG can adjust prices in its reasonable discretion and upon reasonable notice to take account of changed costs, if no specific price was confirmed and if deliveries or services are to be provided or are delayed because of Customer for more than one month after order confirmation. This applies in particular to changes of raw material, energy, or transportation costs (including Tolls), collective wages, or collective and legal social benefits borne by R-Biopharm AG. When adjusting prices, R-Biopharm AG will consider cost factor offsets between cost increases against cost reductions. Cost reductions will be taken into account only to the extent not offset by increases in other cost factors.
7.3 R-Biopharm AG reserves the right to charge a surcharge for orders of EUR 300 or less (“Small Quantity Fee”). The amount of such Small Quantity Fee will be disclosed no later than at order confirmation.
7.4 Prices are understood not to include sales taxes.
7.5 Fees, commissions, and expenses charged by financial institutions for services provided are borne by the parties themselves.
7.6 Additional taxes and costs (e.g. customs duties) may be incurred when importing goods into a country, neither paid nor invoiced through R-Biopharm AG, but paid directly by Customer to the respective customs or taxing authorities. These are borne by Customer.
7.7 R-Biopharm AG will reimburse expenses (e.g. travel and accommodation costs) only on submission of original receipts and with prior written (Textform) consent. Travel generally counts as compensated work time.
8. Invoicing, Due Dates and Default
8.1 Customer will receive e-mailed invoices when an order is ready for dispatch or performance can commence, provided Customer registered for electronic invoicing. Otherwise, Customer will receive paper invoices.
8.2 Payments are due after 30 (thirty) days.
8.3 Customer can pay before the invoices due date. There is no right to an early payment discount, Customer payments are by bank transfer only.
8.4 -Biopharm AG may set a reasonable period of time within which Customer must either pay in installments or provide security, if circumstances arise after contract formation indicating Customer cannot meet payment obligations (e.g. because the customer is in arrears with other payments to R-Biopharm AG). R-Biopharm AG may withdraw from the agreement and demand damages or compensation for expenses if such period expires without effect. R-Biopharm Ag reserves the right to demand pre-payment at any time.
8.5 Customer may offset claims only if undisputed, recognized by R-Biopharm AG, established by final court order, or if such claim is a counterclaim to R-Biopharm AG’s claim pursuant to Sec. 320 BGB.
8.6 Interest and a lump sum for delay is due pursuant to Sections 288(2) and 288(5) BGB respectively, if Customer is in arrears. We reserve the right to assert a higher rate of interest and additional damages. The lump sum amount is credited towards damages.
9. Force Majeure
9.1 If a force majeure event or circumstance occur after an agreement, preventing a party from meeting one or more contractual obligations (e.g. civil war, acts of terrorism, piracy, currency and trade restrictions, compliance with laws or orders, embargo, sanctions, plague, unexpected pandemic, epidemic, natural disaster or extreme natural event, general labor unrest, etc.), that party will be released from those contract obligations, damage liability, or other legal obligations for breach of contract from the point that such impediment renders performance impossible, provided the other party is informed immediately. Otherwise, such release will only apply upon receipt of actual notice.
9.2 If the effect of the impediment asserted is temporary, the relief applies as long as the impediment prevents the affected party from contract performance. A party may terminate the Contract with two (2) weeks written notice, if the effects last more than 120 (one hundred and twenty) days and result in depriving such party of its legitimate contract expectations.
9.3 A party may invoke force majeure only upon proof that the impediment is beyond its reasonable control, was not reasonably foreseeable at the time of contract entry and the effects could not have been reasonably avoided or overcome by the concerned party. An affected party must take all reasonable steps to limit the effects of the event.
9.4 Regardless of whether an unforeseen event (an event for which R-Biopharm bears no responsibility) qualifies as force majeure, R-Biopharm AG is under no duty to deliver goods or provide services if such delivery would be unreasonable under the circumstances (e.g. significant increases in production costs for a product), if delivery could violate applicable laws or regulations (e.g. embargos), or would result in violate licenses or other current contractual obligations. Damage claims are therefore excluded. Liability for intent, gross negligence, injury to life, body, health and other mandatory liability provisions remains unaffected.
10. Notice of Defect, Acceptance and Claims
10.1 Customer must examine goods or performance immediately upon risk transfer pursuant to Incoterms® (See Sec. 4.1). Customer is deemed to have accepted if no written claim is made within two (2) working days as to obvious defects (e.g. transport damage, packaging, incorrect or incomplete delivery, and similar), and five (5) working days as to defects detectable through examination. R-Biopharm AG must be informed in writing by Customer at or before contract formation, if industry standard goods examination requires additional time, e.g. a time-consuming analysis. Otherwise, the above inspection and notice periods apply. Customer agrees to complete inspections as quickly as possible.
As to other defects, goods are deemed accepted by Customer, if not claimed immediately, in writing and within the limitations period of Sec. 10.3, but no later than two (2) working days after such defect became apparent. If a defect was discoverable earlier during normal use, the notice period runs from such earlier point in time. Examination must occur prior to processing if goods are intended for such further processing.
10.2 A claim not made timely or correctly precludes any Customer claim for breach due to material defect. Such limitations do not apply to damage claims from the assumption of an express warranty against defects or of procurement risks (within the meaning of Sec. 276 BGB), claims for injury to life, body, or health, fraudulent, intentional, or grossly negligent acts of R-Biopharm.
10.3 R-Biopharm AG warrants against material and legal defects for a period of 12 months (or in the case of goods with a shorter shelf life, until the expiration date). The period is calculated from the day of the risk transfer (See Sec. 10.1), or if Customer refusal to accept goods or services from the notice of availability. Claims are subject to timely proper notice in form and content. Such limitations do not apply to damage claims from the assumption of an express warranty against defects or of procurement risks (within the meaning of Sec. 276 BGB), claims for injury to life, body, or health, fraudulent, intentional, or grossly negligent acts of R-Biopharm, or when a longer period of limitation is mandated by law. Sec. 305b BGB (priority of verbal or written individual agreements) is not affected. This section is not intended to reverse the burden of proof.
10.4 The determination of a defect is dependent on the subjective requirements for the goods in questions, which are determined based upon agreed quality, the suitability for the contractually stipulated or agreed use and complete delivery with agreed accessories and instructions.
10.5 R-Biopharm AG does not assume liability for (a) user changes or modifications; (b) use or processing inconsistent with contractually agreed purpose or general product safety. Liability (a) due to incorrect or unsuitable use or storage, or through chemical, electromagnetic, mechanical or electrolytic influences, (b) or which cannot be sufficiently traced to faulty material or workmanship, design, manufacturer materials or instructions for use is especially excluded.
10.6 R-Biopharm AG may in its own discretion, change or replace goods, material, or services to cure a legal defect or to provide lacking use rights to Customer. R-Biopharm AG has a termination right, if this is not possible.
10.7 An acknowledgement of a duty breach requires a writing in any case. Sec. 305b BGB (priority of individual agreement) is not affected.
10.8 Expiration of the use by date after delivery is not considered a material defect.
11. Liability
11.1 Damages against R-Biopharm AG for ordinary negligent breach of material contract obligations (obligations that are essential for achieving the purpose of the contract and on whose compliance the contractual partner can regularly rely) is limited to damages typically foreseeable under the agreement. Liability for ordinary negligent breach of non-material obligations is excluded. Liability for damages resulting from injury to life, body, or health, fraudulent, intentional, or grossly negligent acts of R-Biopharm, failure to meet expressly agreed delivery times, assumption of express warranties of quality, specific results, or of procurement risks, and legally imposed liability, in particular under Product Liability Law and for malice remains unaffected. The above liability provisions equally apply to any liability of R-Biopharm AG’s legal representatives, employees, and vicarious agents.
11.2 All further defect claims, or for consequential damages, regardless of reason, exist only pursuant to Sec. 10.
12. Intellectual Property
12.1 Revocable, limited and non-exclusive, non-transferable and non-sublicensable, commercial and non-commercial use and exploitation rights for Custom Services (including but not limited to documentation, designs, concepts, diagrams and the like) and the intellectual property contained in provided goods are granted to Customer (in all known and unknown types of use) upon delivery, acceptance of the work performed or completion of other services, but limited to the contractual purposes in terms of time, space and content.
12.2 Each party remains the sole owner of all use and ownership rights of their intellectual property, including know-how, copyright, trade secrets, as well as all other intellectual property, irrespective of whether it is legally protectable.
12.3 Customer may not use the name of R-Biopharm AG, company logo, or trademarks of R-Biopharm AG, or its affiliated companies as a reference or for self-promotion without prior written or Textform consent. If approved, Customer undertakes to comply with R-Biopharm AG’s design specifications, and to use logos in the best possible quality and comparable prominence to other logos. Distortions, color adjustments, retouching or other changes are not permitted. Consent can be revoked at any time, cannot be transferred to third parties, and expires upon termination of the contractual relationship.
13. Tools, Models and Samples
13.1 Items made available by R-Biopharm AG to assist in contract performance or otherwise made available (in particular substance or material samples, or miscellaneous documents) remain the property of R-Biopharm AG and may only be used to achieve the contract purpose. Reverse engineering is not permitted.
13.2 A Use for other purposes and transfer to third parties is permitted only with R-Biopharm AG’s prior consent in Textform. R-Biopharm AG may demand the return of its items if Customer violates these obligations without waving any further claims.
13.3 R-Biopharm AG is or becomes a co-owner of goods manufactured using its items equal to the value of such item as a percentage of the total value of the resulting goods. Customer must provide compensation for loss or depreciation.
14. Returns, Rejections and Claims Handling
14.1 All returns require pre-authorization by R-Biopharm AG’s customer service. It is available at +49 (0)6151/8202-0, weekdays from 9 a.m. to 1 p.m. (CET). Customer will not receive credit for returns without R-Biopharm AG’s prior written consent. If return is authorized in R-Biopharm AG’s sole discretion, the goods must arrive at R-Biopharm AG in satisfactory resale condition in original packaging and, if applicable, refrigerated. Products must be shipped DDP (Incoterms® 2020) R-Biopharm AG, An der neue Bergstraße 17, 64297 Darmstadt, Germany, and must arrive weekdays between 9 a.m. and 5 p.m.
14.2 Returns are generally only available for cause, in particular in case of material defects within the warranty period.
Returns for other reasons, e.g. mistakenly ordered goods, are not accepted.
14.3 Customer must consult with R-Biopharm AG as to the process to be followed when initiating a claim:
14.4 Personal information must be removed and only the data necessary for processing a claim must be communicated, if material examination is necessary in the course of claims processing. Material may be destroyed after process completion.
14.5 R-Biopharm AG may demand a fee equal to 25% of the respective gross sales price for return processing, goods verification, re-stocking or disposal (Return Fee), should it make an exception and accept a return without being obligated to do so. The return fee, shipping, and other costs (e.g. customs duties) of such a good will return will be deducted from the total amount credited or billed to the customer as a consequence.
14.6 Customer claims pursuant to Sec. 10 as to incorrect deliveries, or defective, or damaged goods, as well as R-Biopharm AG liability pursuant to Sec. 11 remain unaffected.
15. Confidentiality
15.1 Customer is obligated to keep R-Biopharm AG’s Confidential Information secret and to use and exploit it solely for purposes of the contract.
15.2 “Confidential Information” is any information communicated for contractual purposes and marked as confidential, and regardless of whether marked or not, all information that, due to its nature or the circumstances of disclosure, could or should be regarded as a trade or business secrets within the meaning of Sec. 2 of the German Trade Secrets Act (GeschGeh). This includes, by way of example and without limitations, all financial, technical, legal, and tax information as to R-Biopharm AG’s business activities, secret know-how (i.e. identifiable knowledge or experience with commercial value, accessible to a very limited number only, and capable of objective customization), intellectual property, as well as generally all items or samples provided by R-Biopharm AG for contractual purposes.
15.3 Confidential Information at the time of disclosure generally known, published, part of general technical knowledge or general state of art, individually known to or in control of the receiving Customer, or Customer developed without recourse to Confidential Information, is exempt. Customer must notify R-Biopharm AG in not less than Textform within 14 (fourteen) days of the relevant information disclosure, if Customer wishes to rely on such exception.
15.4 If Customer is required to disclose R-Biopharm’s Confidential Information to a court, or other government authority because of a binding judicial order, official demand, or other legal requirements,
Customer must give R-Biopharm AG an opportunity to protect its Confidential Information and provide immediate prior written notice to R-Biopharm of such demands and may only disclose Confidential Information to the extent absolutely necessary to comply. If prior notice is not legally possible, R-Biopharm AG must be informed as soon as permitted.
15.5 Confidential Information may be shared on a need-to-know basis within Customer’s organization solely to those who agree to comparable confidentiality and limited use. Customer may pass Confidential Information to third parties only as absolutely necessary for contract performance and provided such third party is obliged to comparable secrecy and limited use. Information transfer to competitors requires separate consent from R-Biopharm AG.
15.6 Customer is obligated to prevent unauthorized disclosure, use, or exploitation of Confidential Information, in particular dissemination, publication, destruction, or loss, with the same degree of care used to protect Customer’s own comparable information, but not less than that of an ordinary business person ( i.e. “entrepreneurial diligence”, within the meaning of Sec. 2 (9) of the German Unfair Competition Act (“UWG”): “Standard of specialized knowledge and good faith diligence that can reasonably be expected from an entrepreneur within the area of competence and as to consumers, taking into account fair business practices).
15.7 Commercial exploitation, copying or reverse engineering of confidential information outside the scope of the permitted contract scope is not permitted.
15.8 Confidential Information is provided by R-Biopharm AG as found and available. It assumes no warranties or guaranties that any Confidential Information provided is complete, accurate, customary for the trade, or can be used by Customer for contractual purposes. R-Biopharm AG is not liable for Customer’s damages through use or disclosure of such Confidential Information, reliance on completeness, correctness, customary industry use, or suitability for contractual purposes. R-Biopharm AG is not responsible for violations of third-party rights.
15.9 Nothing in these non-disclosure provisions may be construed as conferring any express or implied right or license as to Confidential Information or any items containing such Confidential Information. All Confidential Information and items contained therein remain the property of R-Biopharm AG.
15.10 Use of Confidential Information must seize immediately upon request of R-Biopharm AG, but no later than completion of contractual performance. Tangible Confidential information, in particular, but not limited to documents, objects, storage media, models, samples, and other material, must be returned to R-Biopharm AG or destroyed by Customer upon request. Electronically stored confidential information must be deleted irrevocably and completely, except for automatic back-up and data recovery copies of data traffic until their deletion in the ordinary course. Customer may keep a copy in its confidential files to evidence compliance with this Sec. 15. The same applies if statutory retention periods preclude return or destruction. The provisions of this Sec. 15 apply to such retained copies.
15.11 The confidentiality obligation applies for not less than five (5) years from R-Biopharm AG’s order confirmation and is indefinite as to business secrets pursuant to GeschGehG.
16. Data Protection
16.1 Customer warrants compliance with the principles of the European General Data Protection Regulation (EU-GDPR) and the German Data Protection Act (BDSG neu). Customer must therefore in particular ensure that employees with data processing authority have been obligated to confidentiality (previously data secrecy) and instructed as to relevant data protection rules. Customer must additionally protect personal data with the state of the art, considering DSGVO Art. 32.
16.2 Customer may disclose R-Biopharm AG’s information and data to third parties with express written consent only.
16.3 The parties will conclude a separate order processing agreement pursuant to EU-DSGVO Art. 28, if Customer is to process personal data for R-Biopharm AG as part of contractual performance.
16.4 R-Biopharm AG processes transmitted data exclusively for the purpose of contractual performance with a respective customer. Additional data protection information pursuant to GDPR Articles 13 and 14 can be found in the data protection declaration on R-Biopharm AG’s webpage: https://r-biopharm.com/data-privacy-statement/
17. Code of Conduct
17.1 Customer must always comply with the current version of R-Biopharm AG’s Code of Conduct, as amended from time to time, as published at https://r-biopharm.com/compliance-coc/.
This Code of Conduct embodies R-Biopharm AG’s core values. Customer is responsible for providing the content to its employees and business partners and any third parties indirectly involved in its supply chain.
17.2 R-Biopharm AG may terminate any order or the entire contractual customer relationship for cause and without notice, if such Code of Conduct is intentionally violated. Damage claims remain unaffected. Customer must indemnify R-Biopharm AG from all third-party claims resulting from Customer’s willful violation of obligations and assumes all damages and expenses that R-Biopharm AG may incur or has incurred in connection with such claims. Any contributory negligence of R-Biopharm AG will be considered pursuant to Sec. 254 BGB.
18. Additional Terms regarding Software
18.1 The General Terms and Conditions or the respective user agreements in their most current version also apply to software use. Customer is expressly advised that such Terms and Conditions and user agreements are subject change when updating.
18.2 R-Biopharm distributed software, either as a standalone products or components of other products, is subject to additional terms and conditions of R-Biopharm AG, manufacturers as well as developers. Certain software or software components are subject to foreign laws. If written sales, rental, licensing, or other terms of use deviate from these General Terms and Conditions, said terms and conditions apply. Unless otherwise agreed, R-Biopharm AG’s software usage and licensing rights are non-exclusive, non-transferable, non-sublicensable, and revocable rights to use the software for internal company purposes on the purchased, loaned, or rented hardware at the customer’s headquarters or the device location.
18.3 R-Biopharm AG will install any R-Biopharm AG software to be utilized, unless the parties have otherwise agreed in not less than Textform. R-Biopharm AG must provide updates only as legally required.
18.4 To ensure software functionality during its normal lifespan, regular maintenance and necessary updates are required. Customer is responsible for software maintenance through installation of updates provided. R-Biopharm assumes no warranty or liability for the consequences of errors that could have been avoided through installation of provided updates. Liability for losses or damages (e.g. data loss) which were avoidable through the use of standard state of the art security technologies and procedure is disclaimed.
18.5 No permission to resell, rent, lend, license or otherwise make R-Biopharm AG software code, access data, databases or license keys available to third parties is implied when providing Software. Source code is legally protected. Therefore, reverse engineering through decompiling, other changes or additions are not permitted. Reproductions (except backup copies) are only permitted with the prior written consent of R-Biopharm AG. Data and other information contained in the software that contains R-Biopharm AG know-how or other intellectual property worthy of protection may not be stored or made accessible outside the European Union without prior written permission, even if used internally by the customer. In the event of a violation of this section, R-Biopharm AG is entitled to terminate the license immediately without notice. Upon termination, the customer must immediately return software including the relevant documentation to R-Biopharm AG or upon request verifiably delete the same.
18.6 Customer is liable to R-Biopharm AG for all damages that arise from the failure to update, unauthorized third-party use which can be attributed to the acts or omissions of customer. Customer will hold R-Biopharm AG harmless from any resulting third-party claims, but contributory negligence on the part of R-Biopharm AG will be considered.
18.7 R-Biopharm AG endeavors to ensure trouble-free operation of the software but does not provide any software warranties or guarantees for a specific performance or outcome, suitability for a specific purpose, or a procurement risk, unless this has been expressly agreed in writing and then only to that extent. Short term service interruptions cannot be ruled out and therefore do not constitute a defect.
18.8 The warranty and indemnification provisions of Sec. 10 do not apply to purchased, rented, or other third-party software made available by R-Biopharm AG. Instead, R-Biopharm AG transfers all its third-party warranty rights to Customer and Customer accepts said transfer. Relevant Customer claims must be directed at such third parties.
18.9 Software is to be used in accordance with user documentation. R-Biopharm is not liable for damages resulting from Customer’s software use inconsistent with user documentation.
18.10 R-Biopharm AG is liable for data loss only to the extent of recovery expenses typical for state-of-the-art regular data backup.
19. Writing Requirement, Severability Clause and Choice of Law
19.1 Changes and additions must be in writing for evidentiary reasons.
19.2 All disputes arising out of or in connection with these General Terms and Conditions will be settled under the Arbitration Rules of the International Chamber of Commerce (ICC) through a sole arbitrator appointed in accordance with such Rules. Provisions for emergency arbitrators and expedited proceedings are inapplicable. German law applies but excluding its conflict of laws provisions. The place of the arbitration shall be Frankfurt am Main. Parties and witnesses may participate in the proceedings virtually and submit all documents and correspondence electronically. Proceedings will be in German and each party will bear its own translation and interpretation costs. The proceedings and all correspondence, decrees, orders as well as arbitration awards remain confidential and will not be published. The parties may at any time, without prejudice to any other proceedings, attempt to settle disputes arising out of or in connection with these Terms and Conditions in accordance with the ICC Mediation Rules. The foregoing is not intended to prevent either party from applying for interim injunctive relief before a court of competent jurisdiction.
19.3 This English version is a translation only. The German language version is conclusive as to GTC interpretation.