§ 1 Preamble
- Our General Terms and Conditions (GTAC) shall exclusively apply to all contracts between us and our clients.
- Any different conditions and terms of Customer are herewith objected to and shall not apply. Any agreement affecting the execution of this contract must be confirmed by LABFISH in writing.
§2 Offers and conclusion of contract
- All offers by LABFISH are subject to change and non-binding.
- The contract shall be concluded by the order of Customer and the transmission of the order confirmation by LABFISH.
- The respective rent which LABFISH notifies to Customer shall apply. The rent shall be calculated at the rate of one full month's rent for each month or part thereof that the rental item is provided. An increase of the rent during the contractual rental period shall be excluded.
§3 Installation, transfer of possession, familiarization
- LABFISH will be responsible for delivery, pickup at the end of the rental period and disposal of the rental objects. LABFISH will also be responsible for operational installation of the rental objects and/or familiarization of employees of Customer or employees of a third party contracted and authorized by Customer with the use and operation of the rental objects if such operational installation or familiarization is required by law. LABFISH will also be responsible for operational installation of the rental objects and/or familiarization of employees of Customer or employees of a third party contracted and authorized by Customer with the use and operation of the rental objects and perform such services for Customer for consideration if such operational installation or familiarization is not required by law but desired by Customer; the corresponding costs will be included in the respective order confirmation.
- If Customer does not specify a delivery time when placing the order, LABFISH shall deliver or dispatch the rental object as soon as they are ready for delivery or dispatch. To the extent required by law, LABFISH shall set up the rental object ready for operation and instruct the employees of Customer or the employees of a third party commissioned and authorised by Customer in the operation and technology of the rental object. If there is no legal obligation, LABFISH shall provide this service at the request of Customer at a charge; the costs incurred for this shall be included in the corresponding order confirmation.
- LABFISH will, for a fee, carry out an Installation Qualification/Operation Qualification (IQ/OQ) in connection with the installation and familiarization at the request of Customer, which will specify in writing the precise criteria and parameters to be included in the rental contract; the corresponding costs will also be included in the respective order confirmation.
- LABFISH will, at no further cost to Customer, provide Customer or the third party contracted and authorized by Customer with the operating instructions for the rental objects as well as all other documents required for the proper use of the rental objects that were supplied by the manufacturer with the rental objects upon delivery of the rental objects.
- Customer or a third party contracted and authorized by Customer will at no expense to LABFISH prepare the premises required for installation of the rental objects and make available the utilities required for operation (e.g., electricity, fresh water, wastewater, compressed air, gases, etc.) in a timely manner. If Customer fails to meet these requirements, Customer will reimburse LABFISH for any additional expenditures occurred for unsuccessful service provision as well as storage and maintenance of the rented object.
- The adequate space necessary for the installation of the rental objects and the media necessary for the operation of the rental objects (e.g. electricity, water, waste water, compressed air, gases, etc.) shall be set up in good time by Customer or by a third party commissioned and authorised by Customer. LABFISH shall not incur any costs for this. If Customer fails to do so, Customer shall be obliged to compensate LABFISH for the additional expenses which LABFISH had to incur for the unsuccessful offer to provide the services as well as for the storage and maintenance of the rental objects.
- Customer or a third party contracted and authorized by Customer will carry out a functional test after the rental objects is installed and operational. This will involve an inspection to ensure that the rental objects is in compliance with contractual specifications, operational and ready for use as well as written notification of LABFISH without delay in the event of any obvious defects; Customer or a third party contracted and authorized by Customer will notify LABFISH without delay of any concealed defects that become obvious. Customer or a third party contracted and authorized by Customer will upon completion of acceptance notify LABFISH of acceptance of the rental objects (with mention of any defects ascertained).
- Before commissioning the rented item ready for operation, Customer or the authorised third party commissioned by Customer shall check the functionality of the rented item. In doing so, they shall check the contractual condition as well as the fitness for use and functionality. If a defect becomes apparent, Customer shall notify LABFISH thereof without undue delay. § Section 536 of the German Civil Code (BGB) shall not apply. If Customer fails to notify LABFISH, Customer shall be obliged to compensate LABFISH for any resulting damage.
- After takeover has taken place, Customer or an authorised third party commissioned by Customer shall send a takeover confirmation by e-mail within seven working days, which records the takeover of the rental object delivered in accordance with the contract (if applicable, with the defects found).
- If Customer or the authorised third party commissioned by Customer refuses to accept the rental object for reasons for which LABFISH is not responsible, the rental period shall commence at the latest on the date on which acceptance was refused. If the Customer or a third party commissioned by the Customer fails to send the confirmation of acceptance within this time limit, the delivery shall be deemed to have been taken over faultlessly and completely.
§4 Rent, Terms of Payment, Default
- The total amount to be paid as stated in the order confirmation shall include all services of LABFISH which are governed by these GTAC.
- All amounts stated in the order confirmation are net amounts without statutory value added tax. To the extent that payments are subject to statutory VAT, Customer shall pay such amount additionally to LABFISH in accordance with the applicable statutory and regulatory requirements.
- Customer shall pay the total amount stated in the order confirmation in advance as a one-off payment after invoicing.
- Customer shall be obliged to make payment without deduction within 14 days after receipt of the invoice.
- The statutory provisions shall apply with regard to default.
§5 Service, rights and obligations of LABFISH
- LABFISH shall repair the rented item in the event of malfunctions, defects and/or deficiencies that occur during contractual use by Customer or by a third party commissioned and authorised by Customer, without incurring any costs for Customer. LABFISH warrants the use of each rental item during the term agreed in the respective rental agreement. In the event of a defect, a deficiency or any other deviation from the contractual and intended condition of the rental object, LABFISH shall, upon notification, restore the contractual and intended functionality and/or freedom from defects by repair. Instead of the repair, LABFISH may in any case, at its own discretion, provide a replacement item, provided that this does not impose an unreasonable burden on Customer or a third party commissioned and authorised by Customer.
- Costs for the repair of damage to the rental object caused by improper handling by Customer or by a third party commissioned and authorised by Customer shall not be compensated with the payment of the rental fee. LABFISH shall invoice these costs according to the time and material costs incurred at the hourly rates customary in the market and the procurement costs for spare parts customary in the market. LABFISH shall send a copy of all invoices for services rendered by a third party commissioned by LABFISH or the manufacturer of the rental objects to Customer upon request by Customer.
- LABFISH is obliged to provide Customer or the authorised third party commissioned by Customer with usable and functioning rented items for use during the rental period.
- LABFISH shall be liable to Customer in the event of intent and gross negligence. In case of injury to life, body or health and in case of essential contractual obligations LABFISH shall be liable without limitation. In the latter case, the liability shall be limited to the foreseeable damage typical for the contract. Material contractual obligations are obligations the fulfilment of which is necessary for the proper performance of the contract and on the observance of which Customer and/or the third party commissioned and authorised by Customer regularly relies and may rely or which LABFISH has to guarantee to Customer according to the content of the contract. LABFISH shall not be liable for indirect consequential damage (such as loss of profit), unless the conduct of LABFISH is fraudulent, intentional or grossly negligent.
- LABFISH shall be entitled, after prior notification to Customer, to have all services performed by third parties.
§6 Rights and obligations of Customer
- Upon rental, Customer or a third party authorised and commissioned by Customer shall be granted the right to use the rented objects for its intended purpose in return for payment. Customer or a third party commissioned and authorised by Customer shall be the direct owner of the rental object for the duration of the transfer of use and shall fulfil the obligations associated therewith. LABFISH shall only retain indirect possession.
- Customer or an authorised third party commissioned by Customer shall handle the rental object with care. To this end, he shall operate the rental object exclusively in accordance with the manufacturer's operating instructions. Furthermore, Customer or a third party commissioned and authorised by Customer shall keep the rental object in a well-kept visual condition. This includes, among other things, keeping the rental object free of scratches, dents and discolouration. If Customer or an authorised third party commissioned by Customer affixes his own stickers, lettering or other markings to the rental object, these must be removed without residue and without damaging the rental object upon return. If Customer fails to do so, they shall be obliged to compensate LABFISH for any resulting damage.
- Customer or an authorised third party commissioned by Customer is obliged to perform inspections and/or maintenance of the rental object inspected at the interval prescribed by law or recommended or prescribed by the manufacturer of the respective rental object. Customer or the third party commissioned and authorised by Customer guarantees the completeness of the documentation of this work. Customer shall carry out the documentation in accordance with the statutory requirements and any supplementary written requirements of the manufacturer. Customer or the authorised third party commissioned by Customer shall send LABFISH the comprehensive documentation (inspection report, work report or similar) immediately after the work has been carried out. The costs for the inspection and/or maintenance of the rental object shall be borne by Customer. With regard to the treatment of the rented item, Customer shall be responsible for the actions or omissions of an authorised third party commissioned by Customer as for his own actions or omissions.
- The obligation for inspections and/or maintenance of the rental object at the interval prescribed by law or recommended or prescribed by the manufacturer of the respective rental object can only be transferred to LABFISH if this is expressly stated in detail in the order confirmation.
- Customer or the authorised third party commissioned by Customer shall immediately notify LABFISH of any malfunctions or defects of the rental objects occurring between the individual maintenance sessions. If Customer fails to notify LABFISH, Customer shall be obliged to compensate LABFISH for any resulting damage.
- Claims of Customer for further services by LABFISH which go beyond the scope regulated and defined in these GTAC are excluded.
- Customer shall be obliged to notify LABFISH without delay of any changes in connection with the rented item or which may have an effect on the existence of the rental agreement. This shall apply in particular
a. in the event of replacement,
b. in the event of a change of location.
- For the transport and installation work required in connection with a change of location, Customer shall make use of the specialists employed by LABFISH or commissioned by LABFISH. In this respect, Customer and LABFISH shall enter into a mutual agreement prior to the performance of the transport and installation work, which shall also include an agreement on the costs for such work, which shall be invoiced in accordance with the market remuneration for such work on the basis of the actual expenditure and shall be borne by Customer.
- Customer shall treat the rental object with care and protect it from destruction and misuse. The risk of accidental destruction, loss, damage, also by unauthorised persons, as well as the loss of the usability of the rental object shall be borne by Customer from the installation of the rental objects in accordance with § 2 of these General Terms and Conditions until their collection by LABFISH. Customer shall immediately notify LABFISH in writing of the accidental loss, the loss, the damage, also by unauthorised persons, as well as the loss of the usability of the rental objects.
- If such an event occurs, either contracting party may terminate the rental agreement for the rented objects concerned by giving one month's notice to the end of any month.
- If Customer or an authorised third party commissioned by Customer is responsible for the accidental destruction, loss, damage, also by unauthorised persons, and the loss of usability, Customer shall, in the event of termination of the rental agreement, pay the agreed total rent to LABFISH after settlement by LABFISH; § 4 of these GTAC shall apply in this respect.
- Customer or an authorised third party commissioned by Customer may not sell the rental object, pass it on to third parties, pledge it or assign it as security. LABFISH shall be notified immediately in the event of seizure by third parties by way of execution or in the event of insolvency.
- For the avoidance of doubt, clinical trial sites that have a contractual relationship with Customer shall be expressly permitted to use the rental object in the context of conducting clinical trials; they shall be treated as authorised third parties within the meaning of these GTAC. Any subletting of the rented item by Customer to third parties shall otherwise require the express written consent of LABFISH.
- LABFISH's warranty shall lapse if Customer or a third party commissioned and authorised by Customer does not handle the rental object with care in accordance with § 6 para. 2 or if the location of the rental object (see § 6 para. 7) has been changed without LABFISH's consent.
- The ordinary termination of the rental agreement before the expiry of the agreed term is excluded. If the respective rental agreement is not terminated by Customer or LABFISH within a period of one month prior to the expiry of the agreed basic term, the term of the respective rental agreement shall be extended by a further month in each case.
- Termination for cause is possible at any time in accordance with the statutory provisions. LABFISH shall be entitled to extraordinary termination in particular if:
a. Customer is in default of payment of the rent or a not insignificant part thereof despite two written reminder with a reasonable period of notice.
b. Customer substantially breaches its contractual obligations or fails to remedy the consequences of such breaches of contract without undue delay despite a warning.
- In the event that LABFISH exercises its right of termination without notice for any of the aforementioned reasons, Customer shall be obliged to pay damages in accordance with the statutory provisions.
- Customer has the right to terminate the rental agreement without notice for good cause, in particular if:
a. LABFISH violates any provisions of these GTAC and continues its conduct in breach of the contract or maintains the condition in breach of the contract, although LABFISH has been warned twice by Customer in writing with a reasonable period of notice,
b. LABFISH breaches essential duties of care, fails to comply with its duty to provide information and Customer or a third party commissioned and authorised by Customer is threatened with substantial disadvantages as a result.
§8 Return, collection
- After expiry of the rental period agreed in the respective rental agreement or in the event of termination, LABFISH shall collect the rental item from the location specified in the respective rental agreement. Customer shall not be entitled to return the rented item without authorisation. Customer or an authorised third party commissioned by Customer shall make the respective rental item available for collection at the agreed location, cleaned and disinfected in accordance with the hygienic regulations and complete with all accessories and the complete documents handed over upon delivery.
- Customer or an authorised third party commissioned by Customer shall observe any instructions given by LABFISH in preparation for the collection of the rental object.
- In case of a collection with the white glove service ("free point of use"), the service partner commissioned by LABFISH shall pack the rental item securely for transport, including accessories and documents.
- Customer or an authorised third party commissioned by Customer shall properly pack rented items that have been delivered by a parcel service in the original packaging delivered. If the original packaging is no longer available, Customer or a third party authorised and appointed by Customer shall inform LABFISH prior to the collection date so that LABFISH can provide a replacement packaging at Customer's expense. If the rented item is damaged during shipment and has not been properly packed in the original packaging or the replacement packaging, Customer shall reimburse LABFISH for the costs of replacing the rented item, limited to the replacement value and any resulting damage.
- Customer or an authorised third party commissioned by Customer shall be obliged to draw up a handover protocol in which existing defects are recorded. LABFISH shall check the rented item for completeness and defects after return. If LABFISH discovers an incomplete return delivery or defects in the rented item which go beyond the wear and tear caused by contractual use and for which Customer is responsible, LABFISH may demand the replacement of the missing parts or the rectification of such defects at Customer's expense. If the cost of remedying such defects exceeds the replacement value of the rental object, the costs to be reimbursed by Customer shall be limited to the replacement value; LABFISH shall provide Customer, prior to the remedying of any defects, with a list of the individual defects and the estimated customary market expenses required for their remedying. If Customer considers the estimated expenses to be unreasonable, Customer may, at its own expense, commission an estimate of the costs of an alternative recognised German specialist company or the manufacturer's Customer service of the rental item. The costs to be reimbursed shall be based on the costs actually invoiced by the specialist company or manufacturer after repair. Necessary special cleaning, e.g. due to heavy soiling resulting from improper operation, shall be borne by Customer.
- In the event of the impossibility of returning the rental object, accessories, other documents etc. for which Customer is responsible, Customer shall reimburse the costs of procuring a replacement, limited to the replacement value, as well as any further damage resulting therefrom.
- A continuation of the use of the rental object by Customer shall not be deemed an extension of the contractual relationship, the application of § 545 German Civil Code (BGB) is excluded. If the rental object is not returned on time, Customer shall be charged 1/30 of the monthly rent agreed for the rental period and the costs caused by the delay in return as a basic amount for each day exceeded. Otherwise, Customer's obligations under the contractual relationship shall continue to apply during this period.
§9 Special provisions for software
- As with any other software, the use of the system software for individual rental items leads to acceptance of the manufacturer's license conditions.
- Upon termination of the contract, irrespective of the legal reason, the respective license shall also terminate. Upon LABFISH's first request and at LABFISH's option, Customer shall either:
• return all software products, including copies, complete documentation, accessories and data carriers (also for updates, patches and extensions) to LABFISH or a third party designated by LABFISH,
• destroy all Software Products and any copies made thereof
• to confirm in writing and in a legally binding manner to LABFISH or a third party designated by LABFISH that no products and copies are any longer with Customer or to confirm the destruction of all products and copies.
- LABFISH shall be entitled to terminate the rental agreement without notice and to immediately take possession of all hardware and the software products together with all copies if Customer violates the provisions of the respective software license agreement.
§10 Data protection, confidentiality
- LABFISH shall be entitled to store and process the data of Customer for the purposes of the rental in compliance with the provisions of the Federal Data Protection Act.
- LABFISH and Customer shall be obliged to keep confidential all information and documents accessible in connection with the rental which are marked as confidential or which are clearly recognisable as business or trade secrets under other circumstances and, unless required to achieve the purpose of the contract, neither to record nor to pass on or exploit them. Confidentiality shall also apply beyond the termination of the contractual relationship.
§11 Final provision
- Customer shall only be entitled to set off its own claims against claims of LABFISH if Customer's claims are undisputed or have been finally determined by a court of law; rights of retention due to claims not arising from the rental agreement or the respective order shall be excluded. The transfer of the claims and rights to which Customer is entitled under the respective rental agreement shall require the consent of LABFISH, unless such claims and rights are transferred to a company affiliated with Customer, a branch of Customer and/or clinical trial centres which have a contractual relationship with Customer.
- The sale of its business operations does not release Customer from its obligations under the rent.
- Upon LABFISH's request, Customer shall provide LABFISH with the information and documents necessary to fulfil its identification obligation pursuant to § 4 of the German Money Laundering Act (“Geldwäschegesetz”) and shall notify LABFISH in writing of any changes occurring during the term of the contract (e.g. change of legal form, in the case of a representative body).
- Amendments and supplements to the rental contract must be made in writing to be effective. Verbal ancillary agreements shall not be made. Amendments to the rental agreement shall only be valid if they comply with this formal requirement.
- The place of performance and jurisdiction shall be the registered office of LABFISH.
- The law of the Federal Republic of Germany shall apply to the exclusion of German private international law.
- Should one or more provisions of these GTAC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of these GTAC. In such a case, the parties undertake to agree to a new provision which comes as close as possible to the economic purpose of the invalid provisions and which they would have agreed if they had known of the invalidity. This shall also apply if a provision that is necessary in itself has been omitted from the GTAC.