Terms and Conditions
General Terms and Conditions of
THE BIOMATERIALS GmbH
For Biomaterials and Culture Media Supplements (hereinafter also “THT”)
Last updated: 10032021
– “THT” means The Human Touch a synonym the THT BIOMATERIALS GmbH the extracellular Platform technology company, the user of these General Terms and Conditions, with registered office in Dr. Bohr Gasse 9, 1030 Vienna, Austria.
– “THT Material(s)” means materials acquired from THT as documented in the THT Quote and as detailed in the Product Data Sheets(PDS).
– “Quote” means an order submitted for THT Materials in a form and format as defined by THT.
– “Party” THT and the Purchaser, together the “Parties”.
– “PDS” means Product Data Sheets.
– “Principal Investigator” means the Purchaser’s principal scientist or researcher using the THT Material(s).
– “Purchaser” means the natural or legal person with whom THT has entered into, or intends to enter into a quote.
– “Product(s)” shall mean any THT-Material, including but not limited to biomaterials and culture media supplements.
– “Third Party” means any person or entity other than THT and Purchaser and their affiliates. 2
1.1. These General Terms and Conditions apply to the entire business relationship between the Parties with regard to all offered Products. These General Terms and Conditions shall also apply to any future contractual relationships even if these General Terms and Conditions are not expressly referred to in collateral contracts.
1.2. These General Terms and Conditions may be subject to modifications by THT.
1.3. Any conflicting general terms and conditions on the part of the Purchaser shall be invalid unless they have been explicitly accepted in writing (including signature) by THT.
1.4. THT shall not be required to object to any terms and conditions of the Purchaser.
1.5. By entering into an agreement based on these General Terms and Conditions, the Customer agrees to the applicability thereof in respect of future agreements, even if this is not expressly stated.
1.6. By submitting a signed Quote, Purchaser agrees on these General Terms and Conditions.
2. Conclusion of the Agreement
2.1. To conclude an agreement with THT a person has to be at least 18 years of age, shall not be limited in its legal capacity and/or shall be authorized to conclude legal transactions on behalf of the Purchaser.
2.2. The Products represent an offer without any binding commitment for THT to provide the Products to the Purchaser. By placing an order of Products (by signing the Quote) the Purchaser makes a binding offer to THT to conclude an agreement. THT may accept the Purchaser’s binding order within five (5) working days by sending a written confirmation of the order via E-mail (under no circumstance THT accepts Purchaser’s general terms and conditions). In case of an unanswered expiration of the period of five (5) calendar days an offer is considered as refused; an explicit refusal by THT by E-mail or in any other form is not required.
3. Delivery Date
3.1. THT shall make reasonable commercial efforts to deliver all Products at the earliest opportunity provided there is stock available. If Products are not available after signature of the Quote, the Purchaser shall be informed by email without undue delay. 3
3.2. Products are dispatched as follows:
3.2.1. Dispatch within Austria: Monday, Tuesday and Wednesday (before noon).
3.2.2. Dispatch outside of Austria: Monday and Tuesday (before noon).
3.3. The delivery of Products usually takes place after the signature of the Quote, unless applicable import or export regulations, sanctions etc. conflict with it.
3.4. If the delivery of Products is delayed and/or impossible due to a fault of pre-suppliers, THT shall not be liable for any inconveniences and/or damages of the Purchaser.
4. Packaging and Forwarding
4.1. The Incoterms according to the Quote shall apply, except in case Purchaser engages its own carrier/logistics company in which case the Incoterm shall be EXW.
4.2. Cost of shipment and packaging charges as well as applicable import or customs fees and duties shall be borne by Purchaser.
4.3. A transport insurance at the expense of the Purchaser is optional. Any damages due to transport have to be notified to the carrier/logistics company immediately.
5. Prices and Payment
5.1. All prices are indicated in Euro (EUR) and do not contain Austrian value-added tax (VAT) of 20 % at present, if applicable.
5.2. Invoicing products in a currency other than EUR, THT shall have the right to convert the foreign currency to EUR based on currency rates, calculated by THT in line with the current expense rates at the invoice date. The Purchaser will be informed accordingly before the invoice is issued.
5.3. For check payments an additional charge of EUR 50 excl. VAT will be charged. Foreign currencies shall be calculated according to Section 5.2.
5.4. The prices do not include costs for shipment or packaging as well as optional insurances if not actively requested by the Purchaser. In case the shipment costs for whatever reason for the delivery are higher than stated, THT reserves the right to adjust these shipment costs; THT will in addition inform the Purchaser in advance.
5.5. In case of an actualization of prices any information with regard to the price given by THT at an earlier point of time shall be no longer binding. THT shall not be liable for errors and misprints. The prices stated by THT at the time the Purchaser is submitting an offer shall be relevant. 4
5.6. Late Payment. If Purchaser does not pay within the time stipulated, THT is entitled to charge interests on overdue payments at a rate of eight percent (8%) above the applicable prime interest rate on the due date. The payment of such interest shall not foreclose THT from exercising any other rights it may have because of the lateness of any payment.
6. Reservation of Proprietary Rights
Until full payment, the ordered Products remain the property of THT. In case of default in payment, THT is entitled to reclaim the Products from Purchaser. In this case, the Purchaser has to bear the shipment costs. The reclaim of the product does not constitute a rescission of the Quote, unless THT stated this is expressly. In case of a rescission of the agreement, THT may at its sole option claim a contractual penalty for 20 % of the order value without waiving any other available legal or contractual remedies.
7. Material Transfer Agreement
The delivery of certain Products (e.g. Cell Lines) requires the conclusion of a Material Transfer Agreement between THT and the Purchaser.
8.1. THT warrants that
8.1.1. Biomaterials included in the THT Material shall be viable upon storage at -80°C for a period of twelve (12) month (“Warranty Period”), if Purchaser strictly adheres to the specifications on the PDS.
8.1.2. Any THT Material shall meet the specifications on the PDS.
8.2. Purchaser’s exclusive remedy, and THT’s sole liability, for breach of the warranties set forth in this Section is for THT to, at THT’s sole option, either
8.2.1. Grant a fair and reasonable price reduction for such THT Material (exclusive of shipment and handling charges), or
8.2.2. Replace the THT Material.
8.3. The warranties set forth in this Section apply only if Purchaser handles and stores the THT Material as described in the applicable PDS. 5
8.4. To obtain the exclusive remedy, Purchaser shall report the lack of viability or non-conformation to specifications to THT BIOMATERIALS GmbH, Dr. Bohr Gasse 6, 1030 Vienna, Austria (email: email@example.com) in writing within the applicable Warranty Period.
8.5. Any expiration date specified on the THT Material shipment documentation states the expected remaining useful life, but does not constitute a warranty or extend any applicable Warranty Period. Except as expressly provided above, the THT Material and any technical information and assistance provided by THT are provided as-is, without warranties of any kind, express or implied, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, typicality, safety, accuracy and/or non-infringement.
8.6. THT makes no representation or warranty that the use of the THT Material will not infringe any patent or other proprietary right and regarding the existence or the validity of such rights. Purchaser shall have the sole responsibility for obtaining any intellectual property licenses necessitated by its possession and use of the THT Materials.
9. Limitation of Liability
9.1. In no event will THT be liable for any use of the THT Material by Principal Investigator, or laboratory personnel under Principal Investigator’s control, or by Purchaser, or for any loss, claim, damage or liability of any kind or nature, that may arise from or in connection with the MTA (if the MTA is applicable) or with the use, handling, storage or disposition of the THT Material. In addition, in no event shall THT be liable for any indirect, special, incidental or consequential damages of any kind in connection with or arising out of the MTA (if the MTA is applicable) or THT Materials (whether in contract, tort, negligence, strict liability, statute or otherwise) even if THT has been advised of the possibility of such damages.
9.2. Damage claims of the Purchaser prescribe six (6) months after the damages were or could have been known to the Purchaser.
9.3. THT’s aggregate liability for any claims of Purchaser in connection with the Quote shall not exceed 50% of the aggregate amount paid during a twelve months period by Purchaser to THT under the Quote, provided, however that this limitation of liability shall not apply
9.3.1. Where the applicable Law is compulsory and excludes any limitation;
9.3.2. To claims in cases of gross negligence, where the aggregate liability for any claims shall be capped at 75% of the foresaid aggregate amount; and
9.3.3. to claims arising from intentional or willful misconduct or intentional breach by THT.
9.4. THT shall not be liable for damage based on whatever legal ground if such damage was caused by slight negligence. 6
9.5. These provisions shall not affect the provisions of the Product Liability Act.
Purchaser shall, at all times, indemnify, defend and hold harmless THT and THT’s trustees, directors, officers, employees, agents, investigators and affiliates from and against all claims, proceedings, demands and liabilities of any kind whatsoever, including legal expenses and reasonable attorneys’ fees (collectively “Claim”), resulting from Purchaser’s use, handling, storage or disposition of the THT Material and other activities relating to THT Material, provided that Purchaser’s liability shall be limited to the extent that any such Claim arises out of THT’s gross negligence or willful misconduct.
11. Data Privacy and Data Protection
The EU General Data Protection Regulation, the Data Protection Act 2000 and the Data Protection Amendment Act 2018 stipulate the rights to protection of personal data. THT processes Purchaser’s data exclusively based on legal regulations (DSGVO, DSG 2018).
Purpose, Legal Basis, Duration of Storage and Data Receiver
Purchaser expressly agrees that its personal information (IP-address, name, function, address, credit card details, phone number, email-address, and sex) will be electronically collected, stored and processed. THT needs the collected personal data for the fulfillment of the agreement, set-off, assertion of agreement claims, for the purpose of customer service and for advertising purposes. The data is collected, stored, processed and used for these purposes.
The legal basis for the processing of Purchaser’s personal data is the fulfillment of the agreement, legitimate interests, and the fulfillment of THT’s legal or contractual obligations as well as Purchaser’s consent.
THT processes Purchaser’s personal data, as far as necessary, for the duration of the entire business relationship (from initiation, execution to termination of the agreement) as well as in accordance with the statutory storage and documentation obligations arising, inter alia, from the Austrian Commercial Code (UGB), the Federal Tax Code (BAO) and the termination of any legal dispute, ongoing warranty and guarantee periods, etc. In addition, the statutory limitation periods are considered.
Purchaser’s personal information may be shared with legal entities, which also are required to protect the information. Occasionally, THT may benefit from providing certain personal information about Purchaser to other companies with whom THT has entered into a strategic partnership or who operate for THT. These Service Providers can help THT to process information, provide loans, execute Purchaser orders, deliver products, manage and maintain Purchaser data and provide customer service. These companies are also committed to keep 7
Purchaser’s personal information in line with THT’s Privacy Note to protect Purchaser’s privacy.
The Purchaser hereby agrees to receive occasional emails about products and services of THT. In text form, the subscription is to cancel at any time. THT collects stores and processes the data for their own marketing purposes. Utilization of this data is free for objection at any time, whether overall or in regards individual measures. For further information and/or adjustments to the data and/or for un-subscription, please address: firstname.lastname@example.org
For sending and managing newsletters, THT uses Service Providers. These have committed themselves to comply with the applicable data protection regulations. Processing contracts conclude in accordance with Art 28 DSGVO.
The data processing takes place based on the legal regulations of the Art 6 para 1 lit a DSGVO (consent).
THT uses technical and organizational security measures to protect the stored personal data against accidental or intentional manipulation, loss or destruction and against access by unauthorized persons.
Purchaser always has the right to get information about the relevant personal data stored at THT or THT’s Service Providers. In case there is no statutory storage obligation, Purchaser has the right to request the deletion of this data and object to the processing. Purchaser also has the right to correct the data as well as to restrict processing, to transfer data and to file a complaint with the Austrian Data Protection Authority (Barichgasse 40-42, 1030 Wien, e-mail: email@example.com see also https:/www.data-protection-authority.gv.at/
Please contact THT regarding Purchaser’s rights under firstname.lastname@example.org or write to THT BIOMATERIALS GmbH, Dr.Bohr-Gasse 7, 1030 Vienna.
All photos represented on THT’s website https://tht-biomaterials.com/all logos, texts, reports, scripts and program routines, which are developments of THT or have been processed by THT must not be copied or used without the prior written consent of THT. All further rights are reserved. 8
13. Force Majeure
A Party shall not be held liable to the other for any delay in performance or non-performance of that Party directly or indirectly caused by reason of force majeure including, but not limited to, industrial disputes, strike, lockouts, riots, mobs, fires, floods, or other natural disasters, civil strife, embargo, lack or failure of transport facilities, currency restrictions, or events caused by reason of laws, regulations or orders by any government, governmental agency or instrumentality or by any other supervening circumstances beyond the control of either Party. Provided, however, that the Party affected shall: give prompt written notice to the other Party of
– the date of commencement of the force majeure,
– the nature thereof,
– expected duration and
shall use its best efforts to avoid or remove the force majeure to the extent it is able to do so; and shall make up, continue on and complete performance when such cause is removed to the extent it is able to do so.
14. Jurisdiction and Governing Law
The competent commercial court of Vienna shall have jurisdiction over all disputes, claims or controversies arising out of, relating to, or in connection the Quote, the Material Transfer Agreement and these General Terms and Conditions, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach or termination. However, THT may at its sole option alternatively select a different place of jurisdiction to assert its claims. The agreements between THT and Purchaser are governed by the laws of Austria except for
– its conflict of law´s provisions and
– for the UN Convention on Contracts for the International Sale of Goods.
15.1. The Purchaser is not entitled to set off any claims against payment obligations to THT.
15.2. The Purchaser hereby agrees that THT may wholly or partially transfer the Purchaser’s rights and obligations to Third Parties. Within this context, Purchaser states that if THT transfers its company as defined in Art 38 of the Austrian Business Code it will not raise an objection as defined in Art 38 Section 2. 9
15.3. The Purchaser shall immediately notify THT in case of a change of address and/or contact details. Otherwise, any communication of THT to the Purchaser shall be deemed to be received by the Purchaser if addressed by THT to the address/contact details originally provided by the Purchaser.
15.4. If any provision of these General Terms and Conditions is or becomes invalid, the other provisions and any contracts concluded pursuant to these provisions shall not be affected thereby. The invalid provision shall be replaced by a provision which best corresponds to the intention and economic purpose of the invalid provision.