1. Scope of application, derogations from the GTCS
The following General Terms and Conditions of Sale ("GTCS") shall be applicable to all contracts which are accepted by "Protean s.r.o.", reference number C 16608 filed by the court of České Budějovice, headquarter address Dobrá Voda u Českých Budějovic, Pod Lesem 1300/9, 37316, Czech Republic (referred to hereinafter as "Protean", the company to which individual contracts are awarded shall be referred to hereinafter
as the "Contractor"). They shall also apply to contracts concluded by telephone and to those contracts which
arise through the provision of samples. A contract subject to these GTCS shall arise as a consequence of the
Contractor’s acceptance of a contract. A contract notified to the Contractor shall either be accepted
pursuant to (a) the Contractor’s performance of the contract (in such a case the written confirmation of
the Contractor shall not be required) or (b) the Contractor’s written acceptance of the contract.
Apart from Directors or authorized representatives of the Contractor, no employee, representative or
sub-contractor of Protean shall be entitled to authorize any derogation from the provisions of the GTCS or to
waive their application or to bind the Contractor in any manner which would lead to the applicability of any
contrary provisions which in terms of their content might conflict with the GTCS or take precedence over them.
Such a modification or waiver of the applicability of the GTCS shall only be binding upon the Contractor to the
extent that it is given in writing and is signed by directors or authorized representatives.
These GTCS in their respective version (see section 13.1) shall also apply to future deliveries, services or
offers to the Customer, even if they are not agreed again separately.
The provisions set out in section 1.3, section 3.3 sentence 2 to 4, section 8.2, section 12.2 and section 12.3 shall not apply if the
Customer is a consumer within the meaning of section 13 of the Czech Civil Code. Consumer is any natural person
who concludes a legal transaction for a purpose which can neither be attributed to its commercial nor its
independent professional activity.
2. Conclusion of contracts; non-applicability of contrary contractual terms and conditions; non-acceptance of logistical services
To the extent that no contrary provisions are expressly agreed in writing and signed by a director or an authorized representative
of the Contractor, the General Terms & Conditions of Business of a Customer shall be without any effect,
even if such Customer refers or has referred at some point in time to its General Terms & Conditions of
Business. Furthermore, any earlier acceptance of special terms and conditions in the context of a previous
contract (including special provisions in relation to price) shall not mean that such special conditions shall
be accepted in the future in the context of any subsequent contracts. Each contract which is accepted by the
Contractor shall to such an extent be viewed as a separate contract between the Contractor and the Customer
unless otherwise agreed in writing in a binding form.
In the event that the Customer subsequently stipulates additional requirements in connection with an already concluded contract, the Contractor
shall be entitled to invoice a management and administration fee in the amount of up to €25.00 in a
addition to the charges for these requirements. Should the Customer stipulate additional requirements in
connection with samples which have already arrived at the laboratory, this shall be deemed to constitute a new
contract and may lead to a corresponding postponement of the previously estimated delivery dates.
3. Conclusion of contracts; non-applicability of contrary contractual terms and conditions; non-acceptance of logistical services
Any logistical service which is to be provided outside of the laboratory (in particular collections and
sampling) and of which the Customer does not avail itself in spite of the agreement reached by the parties, must
be paid for in full. Only those costs which should have been saved by the Contractor in accordance with section
649 of the Czech Civil Code (please refer in this connection to these provisions) may be deducted from the full
price. The above provisions shall not apply if the Customer is contractually or legally entitled to withdraw
from the contract or if the commissioned logistical service is cancelled or modified at the latest, if the
service consists of a collection, 48 hours prior to the provision of the service, or if the service consists of
sampling, 96 hours prior to the provision of the service.
4. Prices and payment terms
Prices shall be stipulated "ex works" (Incoterms 2000). All additional costs or expenditure (e.g. such costs and
expenditure as may be incurred by the Contractor in connection with the contract; in particular costs of
shipping) shall be borne by the Customer unless otherwise agreed. For contracts in the field of gene synthesis,
the Contractor delivers "DDP" (Delivered Duty Paid; Incoterms 2000) to the domicile of the Customer. Even in
such a case, the Customer bears the costs of shipping pursuant to the price list of the Contractor unless
otherwise agreed.
Prices shall be stipulated net of any taxes payable (including value-added
tax) and shall be based upon the tariffs applicable on the date of the conclusion of the contract. Taxes shall
be calculated on the basis of the rates applicable on the date of the issue of the invoice.
To the extent that no express agreement to the contrary is reached, payments must be made at the latest within a
period of 30 days from the date of the invoice. Any complaint in relation to an invoice must be submitted within
the payment period unless the complaint concerns defects or other circumstances which were not apparent in the
ordinary course of business within this period. Should the Customer default on any payment, all sums owed by the
Customer – including any sums owed pursuant to other contracts – shall become immediately due and
payable. The Contractor shall be entitled in the event of default to apply default interest of 8 percentage
points above the base rate. The right of the Contractor to assert its claims in respect of any demonstrable
losses suffered as a result of such default which may exceed such rate shall not be affected hereby.
If at the request of the Customer a new invoice must be issued, the Contractor may invoice an
administration fee in an amount of up to €15.00. This shall not apply to corrections due to errors of
invoicing.
Payments shall be made by way of a bank transfer or by direct debit. Other means
of payment shall require the prior consent of the Contractor. The Customer shall be obliged to provide the
required bank account details to the Contractor.
5. Obligations of the Customer in connection with the delivery of samples or materials
Samples or materials must be in a condition which permits the production of reports / analyses or the
production of the products commissioned without any problems arising. The Contractor shall be entitled to
carry out an examination of any sample or materials on their
delivery in order to establish their condition prior to the processing of the sample or the production of a
report or their use in the production process. The Customer shall be obliged to bear the costs of such an
inspection on delivery, should it emerge that the sample or materials do not comply with the requirements set
out in this section 4.1. In the event that the result of the inspection on delivery reveals that analysis or
production will be impossible or only possible in more onerous circumstances than originally anticipated –
for example because the sample or materials have been mixed with foreign materials or substances which were not
provided by the Customer or if they have degraded – the Contractor shall be entitled to withdraw from the
contract or to suspend the performance of the contract. In such a case the Customer shall bear the costs which
the Contractor has incurred until such point in time.
The Customer must ensure and hereby
warrants that the samples shall constitute no danger to the property and any other legal interests of the
Contractor and to their employees and other agents – either on the factory premises of the Customer or
during shipment, in the laboratory or on any other premises belonging to the Contractor. It shall be the
responsibility of the Customer to comply with the statutory provisions relating to special waste and hazardous
materials. Such obligations shall relate to the provision of information, shipment and removal. In particular
the employees or other agents of the Contractor must be informed of any health or safety concerns in connection
with the samples. Such concerns shall include in particular those in connection with known or presumed toxic
substances or any other contamination of a sample and the presumed level of the contamination, as well as any
risks to the property and other legal interests of the Contractor and to their employees and other agents
pursuant to such contamination. In the event of any wrongful breach of these obligations the Customer shall be
liable for any costs, damage and any other prejudice which are incurred or suffered by the Contractor or their
personnel or other agents as a result thereof; this shall be the case irrespective of whether such damage is
suffered on the premises of the Customer (for instance in the context of the taking of a sample), during
shipment, in the laboratory or on any other premises belonging to the Contractor. Such liability shall also
include a corresponding obligation to indemnify the Contractor in the event of any proceedings being instigated
against them by third parties. The Customer shall bear the costs of the reasonable removal of special waste and
hazardous materials which are incurred as a result of the nature of the samples provided by the Customer. This
shall be the case irrespective of whether or not the sample has been designated as special waste or a hazardous
material. At the request of the Contractor the Customer shall be obliged to notify to the Contractor the precise
composition of any sample.
6. Rights of title in the samples; storage of samples
All samples shall be the property of the Contractor to the extent that that this is necessary in order to
perform the contract. To the extent that storage has not been agreed, the Contractor shall not be obliged to
ensure the storage and/or refrigeration of any sample. If storage has been agreed, the Contractor shall take
commercially reasonable measures in accordance with standard industrial practices to store the
samples.
The Contractor shall be entitled to dispose of or destroy samples immediately
upon the completion of analyses, unless storage has been agreed in writing. If a specific retention period has
been agreed, the Contractor shall be entitled to dispose of or destroy the sample without prior notice on the
expiry of such period. Should such disposal or destruction be subject to specific statutory provisions (e.g. in
the case of special waste or hazardous materials), the Customer shall bear any costs which are incurred in
connection therewith. In the event that the Customer requests the return of unused sample materials, the
Customer shall return such sample materials at the expense and risk of the Customer.
7. Delivery dates, completion periods
Delivery dates and completion periods shall be estimates and shall
not be binding upon the Contractor. The Contractor shall nonetheless be required to use its commercially
reasonable endeavours to comply with the estimated completion periods. We reserve the right to make slight
deviations from information provided regarding measurements, weight, condition and quality.
Results shall as a rule be sent on the completion of the analysis by e-mail and/or post or by any other
electronic means to those persons designated by the Customer on the conclusion of the contract.
The Contractor shall be entitled to deliver in instalments. Each instalment may be separately invoiced.
Where products are required to be shipped the choice of transport company and means of transport shall
be up to the Contractor. The risk shall be transferred to the Customer with shipment. Where shipment or delivery
is delayed for reasons which are the Customer's responsibility, risk shall be transferred by notice of shipment
or readiness for transfer respectively. The costs arising from the same (in particular storage costs) shall be
for the account of the Customer. The Contractor shall not be obliged to insure or have anyone else insure the
shipment against damage during transport unless it has undertaken such obligation towards the Customer in
writing. Excluded from this provision are contracts for which delivery “DDP” is agreed (cf. section
3.1). In such cases the risk shall be transferred with delivery to the Customer.
Where the Contractor's goods are subject to export control provisions (in particular licences, permits and approvals),
the Contractor shall ensure these are complied with. The Customer shall observe the provisions regarding the
import of the goods into the Customer's country or a third country. The Contractor cannot guarantee they will be
granted.
8. Transfer of title and other rights; residual rights in the results of the analyses
The rights of title and any other rights in the results of the analyses, products, equipment, software
or like items held by the Contractor in the context of the services provided to the Customer shall be retained
by the Contractor until such time as all invoices relating to such services have been paid in full by the
Customer. Until such invoices have been paid in full the Customer shall have no rights of title in or any other
rights to exploit the services provided. Should the Customer be in arrears with the settlement of any sums which
are payable to the Contractor or ES, the Contractor shall be entitled to suspend the performance of the contract
and any other work being carried out on behalf of the Customer. This shall also apply if the payment which is
late is payable pursuant to another contract.
Even after a payment has been made in full by the Customer, the Contractor shall have the right to retain the
results of any analyses carried out and
to make use of such results in an anonymised form which does not permit the identification of the Customer, and
to publish such results to the extent that this does not cause a prejudice to any legitimate interests of the
Customer which are known to the Contractor.
The goods delivered or the results of the
analyses shall remain the property of the Contractor until all its claims against the Customer arising from the
business connection are met. The Customer shall be entitled to sell the goods subject to the title retention
provided it complies with its obligations under the contract and in particular that it is not in arrears. No
pledges or assignments by way of security shall be permitted. The Customer shall be obliged to dispose of the
goods subject to the retention of title. Where the goods subject to the title retention are sold they shall be
replaced by the purchase price paid. The Customer hereby assigns to the Contractor all claims arising from any
sale. It shall be entitled at any time prior to a revocation by the Contractor to call in the claims assigned to
the Contractor from the further sale. Where the claims of the Contractor are due it shall be obliged immediately
to pass on to the Contractor any amounts collected. The assignment of the claims to third parties shall not be
justified in any circumstances. Where the amount of the claims assigned to the Contractor exceeds the
Contractor's secured claims by more than 10%, the Contractor shall be obliged at the request of the Customer to
release the security selected by the former.
9. Limited warranties and liability; liability and indemnity obligations of the Customer; safety warnings
Contracts shall be performed under the
supervision of the Contractor in the best possible conditions in accordance with the state of the art. Results
cannot be 100% accurate and/or relevant in all cases. Analyses, interpretations, estimates, consultancy services
and inferences shall be completed, arrived at, compiled, provided and drawn with a commercially reasonable
degree of care. However, the Contractor cannot warrant that such analyses, interpretations, estimates,
consultancy services and inferences shall in all cases be accurate or wholly relevant. The Contractor shall not
be liable for ensuring that its products are suitable and applicable for the Customer's desired purpose. The
warranty period for such limited warranty shall be twelve months from the date of acceptance. The parties agree
that services, goods etc. shall be deemed to have been accepted in the event that the Customer notifies nothing
to the contrary within the period of one week from the date of receipt. In each case the Customer shall be
obliged to verify the cogency of the results, interpretations, estimates and inferences provided by the
Contractor with a reasonable degree of care and at its own risk, in the event that the Customer wishes to rely
on such results, interpretations, estimates and inferences in any material connection. Should it be apparent
that the results are inaccurate, the Customer shall be obliged to contact the Contractor immediately and to
inform it of such fact. In the event that the Customer is a merchant within the meaning of the Czech Commercial
Code and does not comply with this obligation, the performance given by the Contractor shall be deemed to have
been given in accordance with the contract. Section 377 of the Czech Commercial Code shall be analogously
applied mutatis mutandis.
Where the Customer challenges the accuracy of the result of
an analysis or the quality of a product, this shall not entitle it to withhold payment unless the defectiveness
of the analysis result or the deficient quality of the product and the Customer's counterclaims resulting from
the same are undisputed, have been accepted by the Contractor or are the subject of a final, non-appealable
court judgment. In the case of failure of supplementary performance the Customer retains the right to reduce the
purchase price or to elect to rescind the contract.
Each report on an analysis shall relate
exclusively to the samples analysed by the Contractor. To the extent that the Contractor is not expressly
commissioned to produce a sample schedule (including a determination of which samples of which raw materials and
which finished products are to be analysed with which frequency), subject to the specification of the precise
scope of the analyses to be carried out, or if and to the extent that the Customer fails to comply with the
relevant recommendations of the Contractor, the Contractor shall have no liability should it emerge that the
sample schedule and/or the specification of the scope of the analysis is insufficient or
inappropriate.
The Customer shall be responsible for the due and proper delivery of
samples and the materials to be examined or analysed and which are being provided for the purposes of
production. If and to the extent that nothing is agreed to the contrary in writing, the Contractor shall have no
liability in the event that a sample is lost or damaged during shipment. The Customer shall be exclusively and
at all times liable for the security, packaging and insurance of the sample from the time of its dispatch to the
time of its delivery to the offices or laboratories of the Contractor. In the event of a collection by the
Contractor the Customer shall be responsible for the proper preparation of the sample.
The Customer warrants and undertakes to the Contractor to ensure that all samples which are sent to the
Contractor for the purposes of carrying out any analysis shall be in a secure and non-volatile form. The
Customer furthermore undertakes to indemnify the Contractor and their personnel or other agents in respect of
any loss, costs and other damage suffered or incurred by them due to the fact that a sample is hazardous or
volatile, unless such fact is not attributable to the Customer. In the event that a sample is dangerous or is
constituted by special waste/a hazardous medium, the Customer must so inform the Contractor in writing prior to
its dispatch. The Customer shall be furthermore obliged to appropriately label any packaging, samples and/or
containers.
To the extent that the Parties do not agree anything to the contrary, the
contractual relationship shall exist only as between the Customer and the Contractor. No contract shall be
concluded on behalf of third parties or with a protective effect for third parties pursuant to which the
Contractor may be bound by any obligations owed to such third parties, if and to the extent that such an
arrangement does not arise pursuant to the contract and/or these GTCS. The Customer shall be obliged to
indemnify the Contractor in respect of all third party claims which may be brought against the Contractor in
connection with the Customer or the contract with the Customer, if and to the extent any wrongful conduct has
been engaged in by the Customer.
In the event that the Contractor delivers any software to
the Customer, the Customer must use such software in accordance with any applicable licence conditions,
instructions and manuals.
It shall be expressly made clear that all products are intended
exclusively for laboratory and research purposes. The Contractor shall therefore only deliver such products to
public research, analytical and teaching institutions, technical commercial operations or relevant industry. The
Contractor refutes all liability for damage which could arise from improper handling or in case of domestic use
or use on people or animals. The Contractor expressly prohibits the passing on of poisonous (hazardous)
materials to private individuals. Furthermore, reference is expressly made to the fact that the absence of a
hazard warning shall not mean that the relevant product is harmless. Similarly, any liability on the part of the
Contractor for damage and injury to persons or things arising as a result of improper handling or storage of the
products at the Customer's premises shall be excluded. To the extent that relevant national or international
statutes or regulations apply to dealings, including delivery, storage, processing or trade in certain products,
these shall also be observed by the Customer.
10. Limitation on liability
The Contractor shall be liable for losses which are due to an intentional or grossly negligent breach of obligations
by one of its legal representatives or vicarious agents.
Furthermore, the Contractor
shall be liable for losses from injury to life, body or health which are due to an intentional or negligent
breach of obligations by a legal representative or vicarious agent of the Contractor.
For the rest, the liability for losses which are due to a simply or slightly negligent breach of obligations or
a simply or slightly negligent tort by a legal representative or vicarious agent of the Contractor shall be
excluded unless material obligations with which compliance is necessary to achieve the purpose of the agreement
or which arise from a legitimate laying claim to particular trust (cardinal obligations) are neglected. In these
exceptional cases, the liability shall be limited to the compensation of losses which are
foreseeable.
The liability according to the Czech Product Liability Act and for
granting a warranty for the condition of an item or for the adoption of a procurement risk shall remain
unaffected.
The above provisions shall also apply in favour of the legal
representatives or employees of the Contractor in regard to claims directly directed against them.
11. Carrying out of new analyses
Complaints in relation to test results may only be notified subject to the
rules set out in section 9.1. In each case where the inaccuracy of the first results of the analyses is not
established, the Customer shall bear the costs of any new tests or the verification of the foregoing tests.
12. Force majeure / contractual impediments
The Contractor shall not be liable to pay any
compensation in respect of any delays, errors, damage or other problems which are caused by events or
circumstances which were unforeseeable by the Contractor or which are beyond its control or which result from
compliance with official orders, legislation or regulations.
Where the Contractor is
affected by significant disadvantages (availability of materials to be used; amendment of legal framework
provisions) as a result of performance interruptions or delay which are not the responsibility of the
Contractor, in particular difficulties in meeting deadlines, the Contractor shall be entitled wholly or
partially to rescind the contract in respect of the element not yet performed. Where the impediment lasts longer
than 6 weeks the Customer shall be entitled, following the unsuccessful expiry of a reasonable additional time
limit, to rescind the element of the contract not yet performed. The Contractor undertakes in such case to
inform the Customer without delay of the interruption in performance or delay and shall, following the
Customer's rescission of the contract, compensate the Customer without delay for the counter-performance already
rendered.
13. Confidentiality and processing of customer data
The Contractor shall be
entitled to store and process any personal or commercial data which it receives in any manner whatsoever from
the Customer in accordance with the applicable statutory provisions relating to data protection, irrespective of
whether or not such data is provided directly by the Customer or by a third party. The Contractor shall be
obliged to use its commercially reasonable endeavours to deal with such data confidentially in accordance with
the law.
For the purpose of carrying out the commission the Contractor shall process
and use personal data – such as that concerning the Customer’s institutions, contacts and/or persons
responsible for the project. The Customer is aware that for the purpose of securing the best possible services,
including the use of existing expertise and know-how, not only personal data but also data about the commission,
such as analysis questions and their results, may be passed on to the Protean Ltd. Protean Ltd. shall be bound
by a corresponding confidentiality agreement which shall be made available upon request. The Customer may object
to this with the Contractor in writing. Furthermore, the Contractor shall process and use the data for the
purpose of obtaining a further commission. The Customer may object to this with the Contractor in writing or by
email via info@protean.bio.
The Contractor shall be obliged to use its commercially
reasonable endeavours to keep all results of the analyses and service reports confidential. These obligations
shall not apply to the rights of the Contractor pursuant to section 9.2 or to any requirement to adduce proof of
an entitlement to receive payment for services rendered.
The results of any analyses
shall be produced and disclosed for the exclusive use of the Customer only and may not be made available to
third parties for any purposes whatsoever without the prior written consent of the Contractor. Furthermore, the
Customer shall be obliged to ensure confidentiality in connection with all of the services provided by the
Contractor. In addition, any results and the composition of products and software which are delivered by the
Contractor, as well as the results of any analyses, may not be published or commercially exploited without the
prior written consent of the Contractor. Furthermore, in the event that such written consent is given, the
Customer shall remain (a) liable for any consequences of the disclosure of such results to a third party and any
reliance placed by such third party on such results, and (b) hereby undertakes to indemnify the Contractor, its
parent company, subsidiaries and sister companies and their manual workers, employees, representatives, members
of the management and advisors in respect of any claims brought by a third party as a result of the disclosure
of such results and / or any reliance placed thereon and any – actual or alleged – loss resulting
therefrom.
14. Miscellaneous provisions
These GTCS shall be amended in writing
from time to time by the Contractor. In each case the version of these GTCS in force on the date of the
acceptance of the offer shall be the version applicable to the resulting contract.
In the event that a court strikes down any provisions of these GTCS, limits them in their application or finds them to
be invalid, unlawful or unenforceable, the remaining provisions shall remain valid to the fullest extent
possible.
In the event that either the Contractor or the Customer refrains from asserting
any rights which arise pursuant to these GTCS, this shall neither constitute a waiver of such rights nor shall
it result in the forfeiture of such rights.
15. Governing law / Place of jurisdiction
All contracts to which these GTCS apply shall be governed by Czech law. The provisions of the United Nations
Convention on Contracts for the International Sale of Goods (CISG) shall not apply. The exclusive place of
jurisdiction shall be Ceske Budejovice, Czech Republic, to the extent that the Customer is a merchant, a legal
person in accordance with public law or special fund constituted in accordance with public law. However, the
claimant shall alternatively be entitled to commence proceedings before the Arbitral Tribunal of the Czech
Institution of Arbitration, instead of before the courts of record. In such a case the Arbitral Tribunal shall
have exclusive jurisdiction. The place of arbitration shall be Ceske Budejovice, Czech Republic.
