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Terms and conditions

Section 1 General Provisions

  1. These General Terms and Conditions (hereinafter “GTC”) apply to all service contracts entered into between Biofidus AG, Gütersloher Str. 54, 33649 Bielefeld (hereinafter “Biofidus”), and its business partners (hereinafter the “Customer”). Biofidus does not recognize any deviating, conflicting, or supplementary terms and conditions of the Customer unless Biofidus has expressly agreed to them in writing.
  2. These GTC shall only apply in the business transactions with companies within the meaning of Section 310 Para. 1 German Civil Code [Bürgerliches Gesetzbuch – BGB], legal entities under public law or a special fund under public law. They shall also apply to all future similar business transactions, until a follow-up version of these GTC is published and is announced, in line with the statutory regulations.References to the applicability of statutory provisions are for clarification only. Accordingly, statutory provisions apply even without such clarification, insofar as they are not directly amended or excluded by these GTC.


Section 2 Scope of Services and Samples

  1. Biofidus offers various services in the field of analytics of proteins, nucleic acids, and biochemical metabolites and molecular formats derived therefrom. Biofidus will perform the services with reasonable care and expertise in accordance with the Customer’s instructions. In the absence of such instructions, the following shall apply:
    a) Biofidus’ standard specifications; and/or
    b) all relevant trade customs, practices, or usages; and/or
    c) such methods as Biofidus deems appropriate for technical, operational, and/or economic reasons.
  2. The information provided in reports and findings is based on the results of development, inspection, or testing procedures which, in Biofidus’ professional opinion and in accordance with the above principles, must be considered by Biofidus.
  3. The findings reports prepared following the testing of samples reflect only Biofidus’ opinion regarding those specific samples. The reports prepared by Biofidus merely reproduce the determined result as obtained in accordance with the above requirements.
  4. Biofidus is obliged to provide the services owed under the contract. In performing its activities, however, it is not subject to any instructions regarding the manner of performance, the place of performance, or the time of performance.
  5. Biofidus is entitled to engage third parties as subcontractors for the provision of the service.
  6. All samples will be stored for a maximum of three (3) months and then disposed of at Biofidus’ discretion. The period may be shorter if the nature of the sample prevents longer storage. After expiry of this period, Biofidus is no longer responsible for the samples. Upon the Customer’s request, the samples will be returned to the Customer; the Customer shall bear the costs of return shipment and disposal. If the Customer requests longer storage, the Customer shall also bear the associated costs. Ownership of the samples shall in no case pass to Biofidus; the Customer remains the owner of the samples.


Section 3 Formation of Contract

A contract requires an agreement between Biofidus and the Customer. Biofidus’ offers constitute an invitation for the Customer to submit an offer. A mere acceptance of Biofidus’ offer by the Customer is not sufficient to conclude a contract. If, after receipt of the offer, the Customer sends a confirmation to Biofidus, this confirmation constitutes the Customer’s offer in the legal sense, and Biofidus may conclude the contract by issuing an order confirmation or by commencing the work.


Section 4 Customer’s Cooperation Obligations

  1. The Customer shall support Biofidus in the performance of the contractually owed services by providing reasonable cooperation as required. In particular, the Customer shall provide Biofidus with the necessary information, data, and samples.
  2. The Customer is obliged to provide all relevant information, instructions, and documents in due time (and in any event no later than 48 hours before the desired deployment/use).
  3. Samples provided by the Customer must be soluble for analysis. If this is not the case, Biofidus reserves the right to charge the Customer for any additional costs incurred.


Section 5 Duties of Loyalty

Biofidus is and may also be active for other clients.


Section 6 Remuneration

  1. Biofidus shall receive remuneration for its activities, which shall be agreed on a case-by-case basis. Prices are stated in euros. The remuneration covers all claims for remuneration by Biofidus in connection with the provision of the contractual services (subject to sample handling pursuant to Section 2 (6)).
  2. Unless otherwise specified in the offer or a valid service agreement, remuneration shall be due for payment 14 days after receipt of an invoice by Customer.
  3. The Customer may offset claims only against claims that are undisputed or have been finally adjudicated.


Section 7 Suspension and Termination of the Contract

  1. Biofidus is entitled, at Biofidus’ discretion, to suspend or terminate the provision of services if:
    a) the Customer fails to meet any of its obligations under this contract and such failure is not remedied within ten (10) days after the Customer has been notified of the failure; or
    b) the Customer fails to fulfill its cooperation obligations under Section 4.
  2. Any suspension or termination must be declared in writing.
  3. In these cases, Biofidus assumes no liability for early termination of the contract.
  4. Upon termination of the contract, Biofidus shall return or delete provided work and business documents as well as other work materials, except for documents and data for which a statutory retention obligation exists, but only until the expiry of the respective retention period.


Section 8 Grant of Rights and Intellectual Property

  1. Biofidus acknowledges that all rights to all results of activities (including research and development work) as well as all patent and utility model rights, design rights, copyrights, trademark rights, database rights, know-how rights, and any other industrial property rights (hereinafter “IP Rights”) that exist in the results of activities, arise from their use and/or are embodied therein, shall pass to the Customer in full and without restriction at the time they come into existence.
  2. If the transfer of rights provided for in paragraph (1) cannot be effected under mandatory applicable law, in particular with regard to copyright, Biofidus hereby grants the Customer a comprehensive, exclusive, unlimited (in terms of territory and time) right of use for all types of use, to the results of activities and/or IP Rights. To the extent permissible under applicable law, Biofidus hereby unconditionally and irrevocably waives all moral rights in already existing or future results of activities, including the right to be named as author and the right to prevent distortion.
  3. Biofidus excludes any warranty for the non-infringement of third party rights arising in the course of or as result of the assignment of the IP Rights to the Customer. The examination and clarification of the developed IP Rights is the sole responsibility of the Customer.
  4. Biofidus does not claim any intellectual property rights in an end product or in the services performed by it on behalf of the Customer; however, all methods, arrangements, and intellectual property existing at Biofidus prior to the performance of services by Biofidus remains with Biofidus.


Section 9 Liability

  1. Unless otherwise stated in these terms, including the following provisions, Biofidus shall be liable for breaches of contractual and non-contractual obligations in accordance with the applicable laws of Germany.
  2. Regardless of the legal basis, and within the scope of fault-based liability Biofidus shall be liable for damages in cases of intent and gross negligence.  Subject to any more lenient statutory standard of liability (e.g., diligence in one’s own affairs), in cases of simple negligence, Biofidus shall only be liable for:
  1. damages resulting from injury to life, body, or health;
  2. damages resulting from the significant breach of an essential contractual obligation (an obligation whose fulfillment is essential for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, Biofidus’ liability is limited to compensation for the foreseeable damage typically occurring.
  1. The limitations of liability arising from paragraph 2 of this Section 6 also apply to breaches of duty by or for the benefit of persons for whose fault Biofidus is responsible under statutory provisions. They do not apply if Biofidus fraudulently concealed a defect or assumed a guarantee for the quality of the goods, or for claims of the Customer under the German Product Liability Act.
  2. In the event of a breach of duty that does not consist of a defect, the Customer may only withdraw from or terminate the contract, if Biofidus is responsible for the breach of duty. A right of termination for convenience (free right of termination) on the part of the Customer is excluded. Otherwise, the statutory requirements and legal consequences apply.
  3. Any delivery date stated in an offer is an estimate by Biofidus. Biofidus will use its best efforts to meet the estimated delivery date. However, Biofidus shall not be liable for any damages incurred by the Customer due to a delay in delivery.
  4. To the extent an offer prepared by Biofidus is based on the Customer’s specification details, Biofidus shall not be responsible for lack of suitability, fitness for purpose, or satisfactory quality insofar as these are attributable to the Customer’s specifications.
  5. Biofidus performs its services based on the state of science and technology at the time the contract is concluded. Biofidus shall not be held responsible for any material changes to relevant requirements occurring after conclusion of the contract, and the consequences resulting therefrom.


Section 10 Data Protection and Data Security

  1. The parties shall comply with applicable data protection laws.
  2. The contracting parties agree that the subject matter and duration of processing, the nature and purpose of processing, the type of personal data, the categories of data subjects, and the Customer’s obligations and rights within the scope of processing on behalf of the Customer shall be defined separately in a commissioned data processing agreement.
  3. The Customer shall immediately inform Biofidus if it determines that the data provided by Customer to Biofidus, are to be regarded personal data under applicable data protection laws. If no such information is provided, Biofidus assumes that no such obligations exist and that no agreement pursuant to paragraph (2) of this Section 10 is required.


Section 11 Final Provisions, Place of Jurisdiction

  1. The laws of the Federal Republic of Germany shall apply without giving effect to the choice of laws principles thereof which would result in the application of the laws of another jurisdiction. The Convention on Contracts for the International Sales of Goods (CISG 1980) shall not apply. The exclusive place of jurisdiction is Bielefeld. However, Biofidus is entitled to sue the Customer at its general place of jurisdiction or at the place of jurisdiction of a branch office.
  2. Amendments and additions to the order and to these GTC shall require a written form in order to be valid.
  3. There are no side agreements. They also require written form to be effective.
  4. The invalidity of individual regulations of these GTC shall have no effect on the validity of the other regulations. The parties will, in the event of the invalidity of a clause, conduct negotiations in good faith to agree upon a valid regulation to replace the invalid regulation, which shall as far as possible correspond with the commercial purpose of the invalid regulation.
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