I General – scope of application – warnings
- Deliveries and services of neoFroxx are exclusively subject to the following general terms and conditions. These general terms and conditions apply only to merchants and entrepreneurs in accordance with § 14 BGB (German Civil Code). These general terms and conditions shall also apply to all subsequent transactions between the contracting parties, without special renewed reference. They shall also apply if neoFroxx does not expressly refer to them in subsequent contracts or if neoFroxx provides deliveries or services to the customer without reservation in the knowledge that the customer’s terms and conditions of purchase contradict or deviate from these general terms and conditions. The general terms and conditions of Business have been brought to your attention through our forms, e-mail deliveries and internet publications. The scope of application of these general terms and conditions refers to all delivery countries in which German law is applicable or has been validly agreed.
- neoFroxx products are intended exclusively for research and laboratory use. They may not be used on humans, animals or in the household or for other private use. The use of the products in the diagnostic or therapeutic field is subject to the respective legal provisions. The resale of neoFroxx products to private individuals is not permitted. neoFroxx shall not be liable for damage to property or personal injury resulting from improper use, handling or storage. Express reference is made to the regulations in sections VII. to IX.
- Some of neoFroxx’s products are extremely toxic and dangerous and are labelled as such in accordance with legal regulations. Missing hazard warnings on the labels of neoFroxx products do not mean that the product in question is harmless. neoFroxx also refers here to the regulations in sections VII. to IX.
- neoFroxx intends to deliver exclusively to commercial enterprises, public research, examination and teaching institutions. Purchasers who do not belong to this clientele are obliged to inform neoFroxx of the status and/or business operations of their company or person when first contacting or ordering. If this information is not provided, neoFroxx shall be free of any liability resulting therefrom. neoFroxx shall be entitled to refuse orders if there are indications of misuse of its products.
II Offers and conclusion of contract – content of performance
- neoFroxx offers to the customer are non-binding. The order of the customer is deemed to be a binding offer. Acceptance of this offer shall take place at the discretion of neoFroxx within four (4) weeks by sending an order confirmation or unconditional provision of the ordered deliveries or services.
- The technical data and descriptions in the respective product information or advertising materials of neoFroxx are not guarantees of quality or durability of the goods to be delivered or services to be rendered by neoFroxx. Guarantees are not given unless they have been expressly agreed on in an individual contract.
- With regard to paragraph 2 above, we point out in particular that we provide information on the origin, manufacturing process and quality of the preliminary products and merchandise used by us to the best of our knowledge and belief. In this respect, we are partly dependent on the statements, assurances and certificates of our suppliers, as we are not able to subject all preliminary products at our production stage to our own comprehensive control. Particularly as our own traceability is not possible at all in individual cases, we must expressly exclude any liability arising from this.
- In the case of sales based on samples or specimens, these merely describe professional trial conformity, but do not constitute a guarantee for the quality or durability of the goods to be supplied or services to be rendered by neoFroxx.
III Prices – terms of payment – default in payment
- The prices agreed upon conclusion of the respective contract, in particular those stated in the order form or the order confirmation, apply in EURO. If a price is not expressly determined, the prices valid at the time of conclusion of the contract shall apply in accordance with neoFroxx’s current price list. In addition to these prices, the value added tax applicable on the day of delivery shall be added at the respective statutory rate.
- Deliveries within Germany shall be ex works. The following flat freight rates apply from 19.09.2022:
Order value up to € 150.00: 17.00 €, over 250.00 €: 0.00 €.
Dry ice flat rate: € 25,00. Wet ice flat rate: € 12,50.
Hazardous goods flat rate for order values up to € 250.00: 17.00 €, over 250.00 €: 0 €. Changes to the flat rates do not require prior notification by neoFroxx. The prices include the costs for proper packaging. They do not include – unless otherwise agreed in individual contracts – the transport costs and the costs of transport insurance. For deliveries abroad, the conditions for packaging and transport are to be agreed on separately. For export deliveries (EXW) we charge a flat rate for the handling of dangerous goods. This lump sum amounts to at least €30.00. For goods with a value of €600.00 or more, the lump sum amounts to 5% of the value of the goods. Foreign deliveries can only be ordered by telephone, email and fax – but not via the webshop.
- neoFroxx reserves the right to adjust the prices appropriately if, after conclusion of the contract, cost changes occur due to tariff agreements, price increases of the upstream suppliers or exchange rate fluctuations.
- neoFroxx invoices are to be paid within the payment period stated on the invoice. After expiry of the due date stated on the invoice, the customer shall be in default in accordance with § 286 para. 2 no. 2 BGB (German Civil Code). From the day on which the due date for payment is exceeded, interest on arrears shall be charged in accordance with § 288 BGB, subject to the assertion of further claims.
- The customer shall only be entitled to rights of set-off or retention if his counterclaims have been legally established, are not disputed by neoFroxx within two (2) weeks of becoming aware of the set-off or have been acknowledged by neoFroxx.
- If the customer does not pay due invoices, exceeds a granted term of payment or if the financial circumstances of the customer deteriorate after conclusion of the contract or if neoFroxx receives unfavourable information about the customer after conclusion of the contract which calls into question the solvency or creditworthiness of the customer, neoFroxx is entitled to call due the entire remaining debt of the customer and to demand advance payment or provision of security or immediate payment of all claims after delivery which are based on the same legal relationship under modification of the agreements made. This applies in particular if the purchaser stops his payments, a cheque of the purchaser is not honored, a bill of exchange issued by the purchaser is not paid by the purchaser, insolvency proceedings on the assets of the purchaser have been applied for or opened or insolvency proceedings have not been opened due to lack of assets.
IV Time of delivery and performance – Delay in performance
- Stated delivery times are not fixed dates, unless a fixed date has been expressly agreed in writing. If nevertheless agreed delivery periods are exceeded due to circumstances for which neoFroxx is responsible, the customer may withdraw from the contract after the fruitless expiry of a reasonable period of grace set by him. The withdrawal must be made in writing. The delivery time is usually less than 3 days for the products listed in the respective valid catalogue, but no longer than 2 weeks.
- neoFroxx shall only be in default after expiry of a reasonable period of grace set by the customer. In the event of force majeure and other unforeseeable, extraordinary circumstances for which neoFroxx is not responsible, e.g. operational disruptions due to fire, water and similar circumstances, failure of production plants and machines, delivery delays or delivery failures of suppliers as well as operational interruptions due to shortage of raw materials, energy or labor, strike, lockout, difficulties in procuring means of transport, traffic disruptions or official interventions, neoFroxx is entitled – insofar as neoFroxx is prevented from the timely fulfilment of its performance obligations through no fault of its own due to the aforementioned circumstances – to postpone the delivery or performance for the duration of the hindrance plus a reasonable start-up period. If the delivery or service is delayed by more than one month as a result, both neoFroxx and the customer are entitled to withdraw from the contract in writing with regard to the quantity affected by the disruption in delivery, to the exclusion of any claims for damages.
- neoFroxx’s liability for damages in any case of delay shall be limited in accordance with the provisions of Section VIII Nos. 1 to 6.
- neoFroxx is entitled to partial deliveries and partial performance within the agreed delivery and performance times, provided this is reasonable for the customer.
V Transfer of risk – packaging handling
- Unless expressly agreed otherwise in writing between neoFroxx and the customer, delivery shall be made at the risk and expense of the customer. The risk of accidental loss and accidental deterioration of the delivery items shall pass to the customer upon handover to the carrier (even in the case of carriage paid delivery or delivery insured by neoFroxx).
- Packaging and containers may not be used for other purposes or for holding other products. They are intended exclusively for the transport of the goods delivered by neoFroxx. Labels may not be removed. The transport packaging and all other packaging may be taken back in accordance with the Packaging Ordinance or must be disposed of properly by the customer. In particular, it must be ensured that these are not used for other materials as storage containers even after they have been emptied. If a return is desired, the conditions for this must be contractually agreed on with the order. Otherwise, the costs of the return shipment and all other incidental costs incurred shall be borne by the buyer. The reusable means of transport are only provided to the customer on loan; the customer is obliged to return them in proper condition, i.e. completely empty and without damage. In the event of contamination or damage to the means of transport, the customer shall bear the costs of repair or the customer shall be obliged to compensate for the value insofar as repair is impossible. Insofar as a different arrangement is made, neoFroxx shall name a third party to the customer who will accept the packaging in accordance with the Packaging Ordinance for an appropriate fee.
VI Obligations of the purchaser – reservation of ownership
- The delivered products shall remain the property of neoFroxx until full payment of the purchase price and all other present or future claims to which we are entitled against the customer from the business relationship. The inclusion of the purchase price claim against the customer in a current account and the recognition of a balance shall not affect the retention of title.
- The customer is obliged to treat the object of sale with care; in particular he is obliged to insure it at his own expense against loss and damage and destruction, e.g. against fire, water and theft, sufficiently at the replacement value. The customer hereby assigns his claims from the insurance contracts to neoFroxx. neoFroxx accepts this assignment.
- The customer may neither pledge nor assign by way of security the goods owned by neoFroxx. However, he is entitled in accordance with the following provisions to resell the delivered goods in the ordinary course of business. The aforementioned entitlement does not exist insofar as the purchaser has assigned or pledged the claim against his contractual partner arising from the resale of the goods – in each case effectively – to a third party in advance or has agreed a non-assignment clause with him.
- The customer hereby assigns to neoFroxx as security for the fulfilment of its claims referred to in Section VI No. 1 all claims – including those arising in the future and conditional claims – arising from a resale of the goods delivered by us with all ancillary rights in the amount of 110% gross of the value of the goods delivered with priority over the remaining part of its claims. neoFroxx hereby accepts this assignment.
- As long as and insofar as the customer meets his payment obligations towards neoFroxx, he is authorised to collect the claims against his customers assigned to neoFroxx within the framework of proper business management. However, he is not entitled to agree a current account relationship or a prohibition of assignment with his customers with regard to these claims or to assign or pledge them to third parties. If, contrary to sentence 2, a current account relationship exists between the customer and the purchasers of our goods subject to retention of title, the claim assigned in advance shall also relate to the recognised balance and, in the event of the purchaser’s insolvency, also to the then existing balance.
- At the request of neoFroxx, the customer shall individually prove the claims assigned to neoFroxx and notify his debtors of the assignment with the request to pay neoFroxx up to the amount of neoFroxx’s claims against the customer. neoFroxx shall be entitled to notify the customer’s debtors of the assignment itself at any time and to collect the claims. However, neoFroxx will not make use of these powers as long as the customer meets his payment obligations properly and without default, an application for the opening of insolvency proceedings by the customer has not been filed and the customer does not cease his payments. However, if one of the aforementioned cases occurs, neoFroxx can demand that the customer informs neoFroxx of the assigned claims and their debtors, provides all information necessary for the collection of the claim and hands over the associated documents.
- In the event of seizure or other interventions by third parties, the customer must inform neoFroxx immediately in writing so that neoFroxx can, if necessary, bring an action in accordance with § 771 of the Code of Civil Procedure.
- neoFroxx made a commitment to release the securities to which it is entitled at its choice at the request of the customer to the extent that the realisable value of the securities exceeds neoFroxx’s claims against the customer to be secured by more than twenty percent (20%).
- In the event of breach of contract by the customer, in particular in the event of default in payment of more than ten percent (10%) of the invoice amount for a not insignificant period of time, neoFroxx shall be entitled – without prejudice to further (damage) claims to which it is entitled – to withdraw from the contract and demand the return of the goods delivered. neoFroxx shall be entitled to realise the goods delivered by it after taking them back. The proceeds of the realisation shall be credited against the customer’s existing liabilities to neoFroxx – deducted by reasonable realisation costs.
VII Obligations upon receipt of goods – rights of the purchaser in the event of defects
- The customer is obliged to subject the purchased goods to an incoming goods inspection customary in the industry after receipt. He shall exercise the care of a prudent businessman.
- neoFroxx must be notified in writing by the buyer of obvious material defects, wrong deliveries and quantity deviations immediately, at the latest, however, seven (7) days after receipt of the goods by the buyer. Hidden defects must be reported to neoFroxx in writing within a period of eight (8) days after their discovery. After three (3) months from the transfer of risk to the buyer in accordance with Section V No. 1, notices of hidden defects shall be excluded and shall be deemed to have been given late, insofar as they were reasonably recognisable. In the event of a notification of defects which is delayed or not properly asserted in accordance with section VII no. 1 sentences 1 to 7, the customer shall lose his rights in respect of defects under the conditions of section VIII no. 1 to 6 of these terms and conditions of sale, unless the defect has been fraudulently concealed by neoFroxx.
- In the event of defects in goods delivered by neoFroxx, neoFroxx shall only be obliged to rectify the defect or to deliver defect-free goods (subsequent performance) at its own discretion. If neoFroxx is not prepared or not in a position to provide supplementary performance, in particular because this is delayed beyond reasonable periods for reasons for which neoFroxx is responsible, or if the supplementary performance fails in any other way, the customer is entitled, at his discretion, to withdraw from the contract or to demand a reduction in the purchase price. A subsequent improvement shall be deemed to have failed after the third attempt, unless the nature of the item or other circumstances indicate otherwise. Insofar as the customer has suffered damage or has incurred futile expenses due to defects in goods delivered by neoFroxx, the liability of neoFroxx for this shall be governed by section VII no. 1, section VIII nos. 1 to 6 and section IX.
VIII Rights and obligations of neoFroxx
- Liability on the part of neoFroxx for damage or futile expenditure – irrespective of the legal grounds – only occurs if the damage or the futile expenditure
- a) have been caused by neoFroxx or one of its vicarious agents through culpable breach of an essential contractual obligation or
- b) are due to a grossly negligent or intentional breach of duty by neoFroxx or one of its vicarious agents.
- Pursuant to Section VIII No. 1 letters a) and b), neoFroxx shall only be liable for damage or futile expenditure caused by advice or information not to be remunerated separately in the event of intentional or grossly negligent breach of duty, insofar as this breach of duty does not constitute a material defect pursuant to § 434 BGB of the goods delivered by neoFroxx.
- If neoFroxx is liable pursuant to Section VIII No. 1 letter a) for the breach of an essential contractual obligation without gross negligence or intent, its liability for damages shall be limited to the foreseeable, typically occurring damage. neoFroxx shall not be liable in this case in particular for loss of profit of the customer and not for unforeseeable indirect consequential damage. The above limitations of liability according to sentences 1 and 2 apply in the same way to damages caused by gross negligence or intent on the part of neoFroxx employees or agents.
- neoFroxx shall not be liable for indirect damage incurred by the customer due to the assertion of contractual penalty claims by third parties.
- If neoFroxx is liable in accordance with section VIII no. 1 letter a) for the breach of an essential contractual obligation without gross negligence or intent being present, its liability is limited in amount to 1.0 million euros per case of damage. neoFroxx undertakes to take out and maintain insurance with cover of at least 1.5 million euros – maximised twice in the insurance year.
- The aforementioned limitations of liability in section VIII no. 1 to 3 do not apply insofar as neoFroxx’s liability is mandatory on the basis of the provisions of the Product Liability Act or if claims are asserted against us on the basis of injury to life, limb or health. If the goods delivered by neoFroxx lack a guaranteed characteristic, neoFroxx shall only be liable for such damages whose absence was the object of the guarantee.
- Any further liability for damages than provided for in section VIII no. 1 to 4 is excluded – irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo pursuant to Section 311 (3) BGB, positive breach of contract pursuant to Section 280 BGB or claims in tort pursuant to Section 823 BGB. 8.
- Insofar as liability for damages is excluded or limited in accordance with section VIII no. 1 to 5, this shall also apply with regard to the personal liability for damages of neoFroxx’s employees, representatives and vicarious agents.
IX Limitation of claims
- claims of the customer due to defects in goods delivered by neoFroxx or due to services rendered by neoFroxx in breach of duty – including claims for damages and claims for reimbursement of futile expenses – shall become statute-barred within two (2) years from the statutory commencement of the limitation period, unless otherwise provided for in the following section IX nos. 2 and 3.
- If neoFroxx has incorrectly provided advice and/or information which is not to be remunerated separately, without having supplied goods in connection with the information or advice, or without the incorrect advice or information representing a material defect in accordance with § 434 BGB of the goods supplied by neoFroxx, claims against neoFroxx based thereon shall become statute-barred within one year from the statutory commencement of the limitation period. Claims of the buyer/customer against neoFroxx arising from the breach of contractual, pre-contractual or statutory obligations which do not constitute a material defect pursuant to § 434 BGB of the substances to be delivered by neoFroxx shall also become statute-barred within one year from the statutory commencement of the limitation period. Insofar as the aforementioned breaches of duty constitute a material defect according to § 434 BGB of the goods delivered by neoFroxx in connection with the advice or information, the provisions made in number 1 shall apply to the limitation of the claims based on this.
The provisions made in numbers 1 and 2 do not apply to the limitation of claims due to injury to life, body or health and not to the limitation of claims according to the Product Liability Act. Furthermore, they do not apply to the limitation of claims of our buyer/customer which are based on the fact that neoFroxx fraudulently concealed defects in substances delivered by neoFroxx or intentionally or grossly negligently breached an obligation. In these aforementioned cases the statutory limitation periods shall apply to the limitation of these claims.
X Prohibition of assignment
Rights or claims due to defects in goods delivered by neoFroxx or breaches of duty committed against neoFroxx may not be transferred to third parties or pledged to third parties, either in whole or in part, without the express written consent of neoFroxx;
- 354a of the German Commercial Code remains unaffected by this.
XI Place of performance, place of jurisdiction, applicable law, commercial clauses
- Unless mandatory statutory provisions to the contrary exist, the place of performance and exclusive place of jurisdiction for all claims between neoFroxx and merchants or legal entities under public law or special funds under public law shall be Einhausen. neoFroxx shall, however, also have the right to bring an action against a customer at the customer’s statutory place of jurisdiction.
- The legal relationship between neoFroxx and the customer shall be governed exclusively by the law of the Federal Republic of Germany, as it applies between German merchants and could be validly agreed in the respective countries of delivery (see Section I of these Terms and Conditions of Sale). The application of the provisions on the international sale of goods (CISG – UN Convention on Contracts for the International Sale of Goods) and German private international law are expressly excluded.
- Insofar as trade clauses in accordance with the International Commercial Terms (INCOTERMS) have been agreed, the INCOTERMS shall apply in the latest version (currently INCOTERMS 2020).
XII Final Provisions
- Should any of the above provisions be invalid, partially invalid or excluded by a special agreement, the validity of the remaining provisions shall not be affected thereby.
- neoFroxx stores data of its customers within the scope of the mutual business relations in accordance with the Federal Data Protection Act.