GENERAL TERMS AND CONDITIONS AND CLIENT INFORMATION

Table of Contents

1. Scope of Application
2. Conclusion of the Contract
3. IP rights
4. Prices and Payment Conditions
5. Shipment and Delivery Conditions
6. Force Majeure
7. Delay in Performance
8. Reservation of Title
9. Warranty Claims
10. Liability
11. Statute of Limitation
12. Retention, Assignments
13. Applicable Law and Jurisdiction

1) Scope of Application

1.1 These Terms and Conditions of XL-protein GmbH (hereinafter referred to “XL-protein”) shall apply to all contracts concluded between a personal or legal entity or an entrepreneur (hereinafter referred to as “Customer”) and XL-protein relating to all products made available by XL-protein (“Products”) presented in the online shop of XL-protein. All Products in the online shop are supplied for use by the Customer solely within the scope of the licence granted in Clause 3.6. The inclusion of the Customer’s own conditions is herewith objected to, unless other terms have been stipulated among XL-protein and Customer in writing.

1.2 These Terms and Conditions shall also apply exclusively if XL-protein performs the order without reservation in the knowledge that the Customer’s terms and conditions may conflict with or deviate from their own.

2) Conclusion of the Contract
2.1 The product descriptions displayed in XL-protein’s online shop do not constitute a binding offers on the part of XL-protein, but are merely descriptions which allow the Customer to submit a binding offer

2.2 The Customer may submit the offer using the online order form integrated into XL-protein’s online shop. By clicking the button finalizing the order process, after having placed the goods and/or services selected in the virtual shopping basket and passed through the electronic ordering process, the Customer submits a legally binding offer of contract with regard to the goods and/or services contained in the shopping basket.

2.3 XL-protein may accept the Customer’s offer within five days in one of the following manners:
by transmitting a written order confirmation or an order confirmation in written form (fax or e-mail) to the Customer, insofar as the receipt of the order confirmation by the Customer is decisive, or by delivering ordered goods to the Customer, insofar as the receipt of goods by the Customer is decisive, or
by requesting the customer to pay after submitting his order, or provided direct debit payment is offered and the Customer chooses this payment method, by collecting the total price directly from the Customer’s account, insofar as the time of debiting the Customer’s account is decisive. The contract shall be concluded at the time when one of the aforementioned alternatives occurs . Should XL-protein not accept the Customer’s offer within the aforementioned period of time, this shall be deemed as rejecting the offer, with the effect that the Customer is no longer bound by his statement of intent.

2.4 In case of an order via XL-protein’s online order form, the contract’s content will be stored by XL-protein and will be sent to the Customer in writing including these Terms and Conditions (for example via e-mail, fax or letter) after the Customer has submitted his order. In addition, the contract’s content will be stored on XL-protein’s website and can be found by the Customer via the password-protected customer account by entering the respective login information, provided that the Customer has created a customer account in XL-protein’s online shop prior to submitting his order.

2.5 Prior to submitting his binding order via the online order form of XL-protein, the Customer can correct all the data entered via the usual keyboard and mouse function. In addition, prior to submitting the order, all data entered will be displayed in a confirmation window and can be corrected here as well, via the usual keyboard and mouse function.

2.6 The German and English language are exclusively available for the conclusion of the contract.

2.7 Order processing and contacting usually take place via e-mail and automated order processing. It is the Customer’ responsibility to ensure that the e-mail address he provides for the order processing is accurate so that e-mails sent by XL-protein can be received at this address. Particularly, it is the Customer’s responsibility, if SPAM filters are used, to ensure that all e-mails sent by XL-protein or by third parties commissioned by XL-protein with the order processing can be delivered.

2.8 In the event of stipulation of special conditions by the parties, the aforesaid special conditions do not apply to contractual relationships running simultaneously and in the future with the Customer.

2.9 In the event that the Customer is financially unable to fulfill his obligations to XL-protein, XL-protein is entitled to end existing exchange contracts with the Customer without notice by means of withdrawal. The same applies even in the event of the Customer pleading insolvency. Section 321 German Civil Code and section 112 German Insolvency Act remain unaffected. The Customer will inform XL-protein in writing about his impending insolvency in good time.

3. IP RIGHTS
3.1 “IP Rights” means trademarks, patents, rights to inventions, copyright and related rights, rights in designs, rights to use, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered.

3.2 The supply of the Products by XL-protein shall not confer any right upon the Customer to use any of XL-protein’s IP Rights.

3.3 Licensed Product: XL-protein grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Product(s) for Customer’s own internal research save that in respect of any control the supply with a Product is limited to use only to validate the relevant Product; and not:

(a) for any commercial purpose of any kind including, without limitation, for any therapeutic or diagnostic purpose or manufacturing;

(b) the provision of services to third parties;

(c) the resale or transfer in any form (including as part of a kit) to a third party of any Product; (d) any analysis or reverse engineering of the Product.

3.4 Enabled Product means any product other than the Licensed Product which is or incorporates any modification or derivative of the Licensed Product. For clarity, any product that is made, produced or derived by use of the PASylation® technology, such as a fusion protein or peptides shall be deemed an Enabled Product.

3.5 Except for the limited rights granted herein, any and all IP Rights to the Licensed Product and Enabled Product shall remain in XL-protein. No ownership rights are transferred to the Customer. If the Customer wishes to use a Product for any purpose other than those set out in Clause 3.3, the Customer must obtain an additional license from X_protein and must contact bd@xl-protein.com for further details.

3.6 No warranty or representation is given by XL-protein that the Products do not infringe any IP Rights of third parties.

3.7 XL-protein excludes all liability for any infringement of a third party’s IP Rights which may arise as a result of the handling or use of the Products.

4) Prices and Payment Conditions

4.1 All prices indicated by XL-protein are net prices plus the legal value-added tax. Costs for packaging, loading, freight, insurance (in particular transport insurance), duties and charges will be calculated separately.

4.2 Payment can be made using one of the methods mentioned in the seller’s online shop.

4.3 If prepayment has been agreed upon, payment shall be due immediately upon conclusion of the contract.

4.4 Payment shall be deemed to have been made if the equivalent value has been credited to one of XL-protein’s accounts. In the event of delayed payment, XL-protein may demand default interest in the amount of ten percent above the relevant base interest rate. All other legal rights to which XL-protein is entitled in the event of delayed payment of the Customer remain unaffected. Provided that claims are overdue, payments received shall be applied first to possible costs and interest and subsequently to the oldest claim.

4.5 If unforeseeable cost increases should occur (such as currency fluctuations, unexpected rise in prices of suppliers), XL-protein is entitled to pass on such price increases to the Customer. However, this only applies if delivery has been agreed to occur later than four months after conclusion of the contract.

4.6 When choosing the payment method “PayPal” , the handling of payments is done via the payment service provider PayPal (Europe) S.a.r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449, subject to the conditions of use which can viewed at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full. This would require, among other things, that the Customer has opened a PayPal account or that he already has such an account.

4.7 If a payment method offered via the payment service “PayPal” is selected, the payment shall be processed via PayPal, whereby PayPal may also use the services of third-party payment service providers for this purpose. If XL-protein also offers payment methods via PayPal that involve advance payments to the Customer (e.g., purchase on account or payment by instalments), he shall assign his payment claim to PayPal or to the payment service provider commissioned by PayPal and specifically named to the Customer. Before accepting XL-protein’s declaration of assignment, PayPal or the payment service provider commissioned by PayPal shall carry out a credit check using the transmitted Customer data. XL-protein reserves the right to refuse the Customer the selected payment method in the event of a negative check result. If the selected payment method is approved, the Customer must pay the invoice amount within the agreed payment period or in the agreed payment intervals. In this case, he can only make payment to PayPal or the payment service provider commissioned by PayPal with debt-discharging effect. However, even in the case of assignment of claims, XL-protein remains responsible for general customer enquiries, e.g., about the goods, delivery time, dispatch, returns, complaints, cancellation declarations and deliveries or credit notes.

5) Shipment and Delivery Conditions

5.1 Goods are delivered on dispatch route and to the delivery address indicated by the Customer, unless otherwise agreed upon. In the processing of the transaction, the delivery address indicated during XL-protein’s order processing shall be applicable.

5.2 XL-protein is entitled to make partial deliveries, in so far as it seems reasonable for the Customer. In the event of permissible partial deliveries, XL-protein is entitled to issue partial invoices.

5.3 XL-protein reserves the right to withdraw from the contract in the event of his own suppliers failing to deliver or if such delivery is incorrect. This only applies if XL-protein is not liable for the non-delivery and if XL-protein has concluded a congruent covering transaction with his supplier. XL-protein shall make every reasonable effort to obtain the goods. In the case of the unavailability or the partial availability of the goods, the Customer will be informed without delay and payments made by the Customer will be immediately refunded.

5.4 The risk of accidental destruction and accidental deterioration of the goods shall be transferred to the Customer upon delivery of the goods to an adequate forwarding company. The same applies as well if XL-protein bears the costs of the transport. Transport insurance is provided only upon the Customer’s instruction and at his own cost. If installation and assembly are owed by XL-protein, the risk passes to the Customer with the handing over of the completely installed and assembled goods to the Customer.

5.5 Should delivery of the goods to the Customer be delayed for reasons for which he is responsible, the risk passes to him with the notification of the readiness for dispatch. Possible storage costs incurred after the risk has been transferred are borne by the Customer.

5.6 Personal collection is not possible for logistical reasons.

6) Force Majeure

In cases of force majeure having an impact on the performance of the contract, XL-protein is entitled to postpone the delivery for the duration of the hindrance and, in the event of a longer-term impediment, to withdraw from the contract without giving rise to claims asserted against him by the Customer. The term “force majeure” shall mean any event which is unforeseeable for XL-protein; or any event, even if it were foreseeable, would be beyond the control of XL-protein, and whose impact on the performance of the contract could not therefore be averted despite reasonable efforts made by XL-protein. Possible legal claims of the Customer remain unaffected.

7) Delay in Performance

7.1 In case of delay in performance, the Customer is entitled to withdraw from the contract within the framework of the statutory provisions provided that XL-protein bears the responsibility of delay.

7.2 In the event of default on the part of XL-protein, the Customer is obliged to give notice within a reasonable period of time, whether he wishes to withdraw from the contract or insists on the delivery being carried out.

7.3 If shipping is delayed at the request of the Customer for more than one month after he has been duly notified of the readiness for shipment, the Customer will be charged a monthly fee for the storage costs to the amount of 0,5% of the goods to be delivered, however, these fees shall not amount to more than 5% of the total price.

7.4 The proof of a higher or a lower damage is expressly reserved to both parties.

7.5 The above liability limitations do not apply in the event of intent, malice aforethought, gross negligence and in event of damages caused by injury to life, physical injury or injury to health.

8) Reservation of Title

8.1 XL-protein reserves the right of ownership of the delivered goods until complete payment of the purchase price has been effected. In addition, XL-protein reserves the right of ownership of the goods until all his claims arising from his business relationship with the Customer are met.

8.2 In the case of processing of delivered goods, XL-protein shall be considered the manufacturer and shall acquire ownership of the newly arising goods. If processing is done with other materials, XL-protein acquires ownership in proportion to the invoice amount of his delivered goods to the value of the other used materials. In the case of combination or mixing of goods belonging to XL-protein with objects belonging to the Customer, the article belonging to the Customer is considered to be the main object. In this case, XL-protein acquires the co-ownership of this new object in proportion to the purchase price of his goods or – in the absence of such a purchase price – in proportion to the current market value. In those cases the Customer is considered to be the custodian.

8.3 Goods under reservation of title may neither be pledged nor transferred by way of security. The Customer, in his capacity as a reseller, is only allowed to resell in the normal course of business on condition that the Customer’s claims against his customers arising from the resale will be assigned effectively to XL-protein and the ownership of the goods will be transferred under the condition of payment. By concluding a contract, the Customer assigns his claims against his customers arising from those sales to XL-protein by way of security. XL-protein accepts that assignment simultaneously.

8.4 The Customer has to give notice to XL-protein immediately, if he has access to goods belonging or co-belonging to XL-protein or to claims assigned. He has to pay to XL-protein any amounts assigned to XL-protein he has collected, insofar as XL-protein’s claims are due.

8.5 Insofar as the value of XL-protein’s security rights exceeds the amount of the secured claims by more than 10%, XL-protein will release a corresponding part of his security rights at the Customer’s request.

9) Warranty Claims

In cases of defects the legal provision will apply. Deviating therefrom, the following shall apply to items which have not been used in accordance with their normal use for a building and which have caused its defectiveness.

9.1 An insignificant defect does not cause warranty claims and does not entitle the Customer to refuse delivery of the goods. Should part of the goods be defective in a significant manner, the Customer is not entitled to refuse total delivery. This does not apply if partial delivery is of no interest to the Customer. Furthermore, payments effected by the Customer may only be retained to an extent which is appropriately proportionate to the occurred defect. If the item is made available at no cost, XL-protein’s liability for defects is excluded except for cases involving intent and gross negligence.

9.2 Warranty claims do not arise in cases of natural wear and tear or in cases of damages after the passing of risk which are caused by incorrect or negligent treatment, excessive stress, and unsuitable operating equipment or caused by special external influences not covered by the contract, or caused by non-reproducible disturbances. If the Customer or a third party undertakes modifications or maintenance works which are improper, no warranty claims can be made for the resulting damages, unless the Customer can prove that the notified defect was not caused by those modifications or maintenance works.

9.3 Warranty claims are excluded in cases of used goods.

9.4 The limitation period for any claim arising from defects is one year calculated from delivery of the goods. Subsequent performance (new delivery or remedying of a defect) shall affect exclusively the period of limitation for claims arising from defects which led to the subsequent performance.

9.5 The aforementioned limitations of liability and reduction of limitation shall not apply
– to items which have been used in accordance with their customary use for a building and have caused its defectiveness,
-to claims for damages and compensation of expenses the Customer can make according to the relevant legal provisions related to defects
– in the event that XL-protein has fraudulently concealed the defect, and
– to the right of recourse (Section 445a German Civil Code)
Section 12 will apply in the aforementioned cases.

9.6 If the Customer is a business person, he has to comply with the commercial obligation to inspect and to give notice of defects pursuant to section 377 German Commercial Code. If the Customer fails to comply with those obligations, the goods shall be deemed as approved, unless the defect was not recognizable during inspection.

9.7 In the case of subsequent performance, XL-protein has the right to choose between rectification and replacement delivery.

9.8 In the case of replacement delivery, the Customer is obliged to send back first the goods delivered within 30 days. The return parcel must contain the reason for return, the name of the Customer and the number assigned to the purchase of the defective goods in order to enable XL-protein to identify the returned goods. So long as and insofar as the identification of the returned goods is not possible on grounds for which the Customer is answerable, XL-protein is not bound to accept returned goods and to refund the purchase price. The costs for resending the goods will be borne by the Customer.

9.9 If XL-protein delivers a defect-free item in order to comply with his duty of subsequent performance, he may claim compensation for use pursuant to section 346, para 1 German Civil Code. Further legal claims remain unaffected.

10) Liability

Liability for being in default is exhaustively provided for by the section “Delay in Performance”. Furthermore, XL-protein shall be liable for any claims arising from damages and compensation based on contract, quasi-contract and on legal provisions or on tort as follows.

10.1 XL-protein is liable for every legal reason without limitation:

In cases of intent or gross negligence, or
in cases of negligent or willful physical injury or negligent or willful injury of life, body or health of a person, or,
on the grounds of a warranty promise, unless otherwise agreed,or,
on the grounds of compulsory statutory liability as defined, for example, in the product liability law.
10.2 If XL-protein has violated essential contractual obligations through negligence, his liability is limited to foreseeable damage typical of the contract, unless unlimited liability applies pursuant to section 13, para 1. Essential contractual obligations are those obligations the contract imposes on XL-protein which are material to the contract and whose fulfillment makes the due performance of the contract possible and on the performance of which the Customer normally relies and is intended to rely.

10.3 Otherwise, XL-protein’s liability is excluded.

10.4 The aforementioned liability provisions will also apply in the case of XL-protein’s liability for his assistants and legal representatives.

11) Statute of Limitation

The Customer’s claims against XL-protein – except those mentioned in the section “Warranty Claims”- expire by limitation no later than one year after the time of knowledge and at the latest five years after delivery of the performance, unless unlimited liability applies pursuant to the aforementioned section.

12) Retention, Assignments

12.1 The right of retention and the right to retain performance are excluded, unless XL-protein does not deny the underlying counterclaims or unless those claims have been recognized by declaratory judgment.

12.2 The assignment of claims by the Customer arising from the contract with the Customer, in particular the assignment of Customer’s warranty claims, are excluded.

13) Applicable Law and Jurisdiction

13.1 The laws of the Federal Republic of Germany shall apply to all legal relations between the parties to the exclusion of the laws on the international purchase of movable goods.

13.2 If the Customer is a business person, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract is the place where XL-protein has his principle place of business. The same applies if the Customer has no general place of jurisdiction in Germany or if his domicile or normal place of residence is not known at the time of the institution of legal proceedings. In any event regarding the aforementioned cases, XL-protein is entitled to appeal to the court at the Customer’s domicile.

Alternative Dispute Resolution in accordance with Art. 14 (1) ODR-VO and § 36 VSBG:
The European Commission provides a platform for online dispute resolution (OS) which is accessible at https://ec.europa.eu/consumers/odr. We are not obliged nor willing to participate in dispute settlement proceedings before a consumer arbitration board.