Terms & Conditions

1. General

1.1 The following General Terms & Conditions (hereinafter "GTC") shall apply exclusively to the ordering, purchase and supply of all Hyglos GmbH (hereinafter “Hyglos”) products and services and shall constitute the entire agreement between Hyglos and the party requesting such products and services (hereinafter "Customer"), unless expressly agreed otherwise in writing by both parties.
1.2 To each individual order Hyglos’ GTC shall apply in their respective current version which is in force and effective at the moment of the respective offer by Hyglos.
1.3 Alternate or additional conditions of the Customer shall only become part of the agreement between Hyglos and the Customer, if Hyglos has explicitly agreed to them and accepted them in writing. This shall also apply to any waiver of this written form requirement. Hyglos' failure to object or respond to any additional terms and conditions shall not be regarded as approval. Hyglos explicitly rejects any conflicting conditions not agreed to and accepted in writing.

2. Offer and Acceptance

2.1 After submission of a completed request form by the Customer, Hyglos will issue a written quotation by regular mail, facsimile or e-mail, which includes the requested products or in case of a customized service the project specification and the price quote and specifies the scope of deliverables, services and project success criteria that will be provided by Hyglos under a respective project. Hyglos reserves the right to refuse any request submitted and not to issue an offer for the same. Hyglos' offer – including in particular the price quotes - is valid for 30 calendar days as of the date of the offer by Hyglos.
2.2 The contract is concluded by sending a regular purchase order for Hyglos products and services or if the Customer accepts the offer (see 2.1) in writing, by regular mail, facsimile or e-mail (hereinafter "Agreement"). This acceptance constitutes the purchase order (hereinafter "Purchase Order"). Upon receipt of the Purchase Order, Hyglos will issue a written order confirmation and send it to its Customer by facsimile, e-mail or regular mail.

3. Subsequent Changes/Revisions/Cancellations

All subsequent agreements, amendments, changes and ancillary agreements are subject to Hyglos’ approval, must be made in writing and may be subject to a price change. Cancellations are subject to a cancellation fee.

4. Subcontractors

Hyglos shall be entitled to involve subcontractors for the performance of the services and supply of products.

5. Deliverables

5.1 Delivery dates and deadlines for deliveries and completion of services and supply of products are a best case estimate of a specific delivery date. Delivery dates and deadlines shall not commence, unless Hyglos has received all information and material necessary for rendering its services and the supply of the products under a respective Purchase Order.
5.2 Subject to prior approval of its Customer, Hyglos reserves the right to make partial shipments of products and services in fulfilling a Purchase Order. Each partial shipment shall be considered a separate transaction that can be invoiced separately.

6. Shipping

The products shall be delivered by Hyglos on the basis of cost insurance freight (CIF) or in case of shipping with Customers account, ex works (EXW) (Incoterms 2000) to the delivery address provided by the Customer. Customer shall bear the costs and the risk of this delivery.

7. Payment Terms

7.1 The total amount due will be invoiced upon shipment of the product unless otherwise agreed in writing. Invoices must be paid without deduction within 30 days of the date of the invoice by Customer unless otherwise agreed upon in writing. Forwarding charges and taxes (including VAT at the rate in effect at the time of delivery (if applicable)) will be itemized separately on each invoice and charged separately to the Customer. For all deliveries customs duties can be incurred, the extent of which is unknown to Hyglos. Hyglos points out expressly that all customs duties (tariff and taxes) of the importing country have to be paid by the Customer.
Payment to Hyglos must be made by wire transfer, credit card (VISA, American Express and MasterCard) or another method agreed upon with Hyglos. All payments shall be made in Euro (€) or optional in U.S. Dollars ($).
7.2 Hyglos reserves the right to require from Customer full or partial payment (at least 50%) in advance, or other security that is satisfactory to Hyglos, at any time that Hyglos believes in good faith that Customers's financial condition does not justify the terms of payment specified.
7.3 In case of late payment Hyglos shall – without prejudice to any other right or remedy available to Hyglos – charge the Customer interest on the amount unpaid at the rate of 8 % per annum above the base lending rate applicable at the respective time, until payment has been made in full. Hyglos reserves the right to assert claims for a higher rate of interest and further losses. Additionally, the Customer agrees to reimburse Hyglos for any collection charges should they be required.
7.4 Withholding of payments and offsetting with counterclaims which are disputed or not res judicata are expressly excluded. In as far as there is a contractual relationship between merchants, a right of retention may not be asserted under any circumstances, even if there is a complaint regarding the subject of delivery.

8. Customer's obligations

8.1 Hyglos’ compliance with its contractual obligations requires that the Customer ensures the availability of all information and materials (if applicable) required by Hyglos. Information and materials must be supplied by the Customer in due time and in an orderly manner. Customers that provide Hyglos with information and/or materials for the processing of the order bear the costs and the risk of delivery to Hyglos.
8.2 The Customer is obligated to provide Hyglos with all handling information and notify Hyglos about of any known dangers of any materials supplied. The Customer is liable for any damage, injuries and illnesses that Hyglos or one of its representatives, employees, agents, subcontractors or vicarious agents suffers due to the Customer's information or material, provided that Customer has not, incorrectly or incompletely informed Hyglos in writing about the respective handling and the dangers involved with the information and/or the material . Hyglos reserves the right to refuse any Customer supplied material if it deems such material inappropriate for its processes.

9. Intellectual Property

All rights, title and interest to know-how and intellectual property rights owned or controlled by Hyglos during the contractual relationship with a respective Customer shall remain with Hyglos.

10. Permitted Use

10.1 The Customer shall be entitled to use the services performed and the products delivered by Hyglos for his own research purposes. Use of Hyglos products or services performed for therapeutic or diagnostic purposes, shall only be admitted if such use is permitted according to the legal provisions the Customer and the user are bound to, and, if as far as necessary, approval has been given by the competent authority.
Customers who utilize Hyglos' products for industrial production, do that at their own peril. Since Hyglos cannot anticipate or control the possible procedures and processes for such an industrial application of its products, Hyglos must reject here any and every form of warranty or liability. Hyglos application instructions in such cases are only to be considered as recommendations, which do not commit Hyglos in any way.
10.2 The Customer shall not be entitled to use the services performed and the products delivered by Hyglos beyond what is defined in Section 10.1. above, in particular the Customer shall not be entitled to:

  • reproduce the services performed by Hyglos or parts of it or
  • integrate the services performed and the products delivered by Hyglos into Customer's own technology platform, especially by using the services performed and the products delivered by Hyglos for third parties (e.g. offering research services to third parties) or by enabling third parties to use the services performed and the products delivered by Hyglos.

10.3 The use of the services performed and the products delivered by Hyglos for other purposes than specified in Sections 10.1 and 10.2 above requires a separate agreement with Hyglos.
10.4 In case of a violation by the Customer of this Section 10 Hyglos assumes no liability for the services performed and the products delivered.
The buyer guarantees purity and correct documentation of the basic material to be delivered by him. Any possible losses Hyglos GmbH or the buyer shall sustain by impurification or by faulty documentation, shall fall to the full extent upon the buyer.

11. Interdiction to pass on the results

11.1 The Customer is not allowed to resell or otherwise pass on the services performed and the products delivered by Hyglos to third parties.
11.2 The resale or passing on of the services performed and the products delivered by Hyglos requires a separate agreement with Hyglos.
11.3 In case of violation by the Customer of this Section 11 Hyglos assumes no liability for the services performed and the products delivered.

12. Warranty

12.1 Hyglos shall not be liable in case that the supplied goods are not suitable and useful for the purpose desired by the Customer.
Hyglos’ obligation is limited to meeting or exceeding the project success criteria as defined in the project specifications documentation provided by Hyglos with the offer.
12.2 The Customer cannot claim compensation or assert other warranty claims for defects, unless the Customer examines the products without undue delay according to § 377 (1) German Commercial Code upon their delivery and informs Hyglos without undue delay in writing of any complaints regarding apparent defects upon their discovery.  If the Customer fails to notify Hyglos the products shall be deemed to have been accepted without reserve. With regard to latent defects, which were not detected by the Customer at the moment of the examination of the products in spite of careful investigation, the rights are excluded if the Customer fails to notify Hyglos of these defects in writing immediately upon their discovery.
12.3 If Hyglos has been notified of a defect in a timely and proper manner, Hyglos may, at its own discretion, chose to improve and / or replace such defective products within a reasonable period of time free of charge.
12.4 The liability of Hyglos is excluded if the Customer adulterates, alters or modifies the products in any way or if the products are used, handled, maintained or stored improperly or in any manner not strictly in accordance with industry practice or Hyglos’ recommendations and procedures.

13. Liability

13.1 Hyglos shall be fully liable in the event of intentional misconduct or gross negligence by Hyglos itself or its vicarious agents. In addition, Hyglos shall be fully liable (i) in the case of non-compliance with guarantees, (ii) in the case of culpable injury to life, body and health and (iii) in case of a statutory liability according to mandatory law such as under the German Product Liability Act.
13.2 In the case of a culpable violation of essential contractual obligations, meaning principal obligations enabling the proper execution of the contract and upon which the Customer therefore relies and may rely, Hyglos shall be liable on the merits. The liability shall in this case, however, be limited to the contractually typical damage that can be reasonably foreseen.
13.3 In all other cases, any claims for direct or indirect damages (on any legal basis whatsoever, including any compensation claims based on breach of any pre-contractual duty, or tortuous claims) shall be excluded.

14. Customer's Guarantees and Indemnification

14.1 The Customer guarantees that Hyglos has freedom to operate to use any material and/or information provided or specified by the Customer and that such material and/or information does not infringe any third party’s rights.
14.2 The Customer shall indemnify and hold harmless Hyglos from and against all claims, suits, losses, damages and expenses (including but without limitation, court costs and attorney's fees) arising out of the use of the material and/or information by Hyglos according to this Agreement.
14.3 The Customer guarantees compliance with all relevant laws and regulations in connection with the Purchase Order and the Agreement, in particular in connection with the information and materials provided to Hyglos. The Customer guarantees that Hyglos has been notified of all relevant laws and regulations in connection with the order fulfillment.
14.4 Regulations concerning the export and import of the goods into the Customer’s specific geographic location are solely the responsibility of the Customer.

15. Confidentiality

15.1 The Customer shall procure that any information delivered by Hyglos or arising under a Purchase Order regarding the services performed and the products delivered by Hyglos and / or Hyglos’ intellectual property and know-how regarding the production of proteins, e.g. the project specifications, data or reports delivered by Hyglos (hereinafter collectively "Hyglos Confidential Information") shall be maintained in confidence by the Customer, shall not be used for any purpose not directly related to the Agreement and shall not be disclosed or otherwise made available to any third party without Hyglos’ prior written consent. Hyglos shall procure that any materials delivered by Customer and any information disclosed by Customer in connection with a Purchase Order relating to such materials or the projects intended by Customer (hereinafter collectively "Customer Confidential Information"; the Hyglos Confidential Information and the Customer Confidential Information collectively the "Confidential Information") shall be maintained in confidence by Hyglos, shall not be used for any purpose not directly related to the Agreement and shall not be disclosed or otherwise made available to any third party, except the sub-contractors of Hyglos without Customer's prior written consent.
15.2 The confidentiality and non use obligations of this Agreement shall not apply to information which the receiving party can demonstrate by competent evidence:

   a) is in the public domain at the time of disclosure; or
   b) after its disclosure, becomes part of the public domain by publication or 
       otherwise, except in breach of this Agreement; or
   c) was in its possession at the time of disclosure or was subsequently and
       independently developed by employees or staff of the receiving party who
       had no knowledge of the information disclosed; or
   d) is received from a third party, provided, however, that such information
       was not obtained by the said third party, directly or indirectly, from the
       disclosing party under conditions of confidentiality.

15.3 Notwithstanding this Section 16, the receiving party may disclose Confidential Information, without violating its obligations under this Section, to the extent the disclosure is required by applicable law or by a valid order of a court or other governmental body having jurisdiction, provided that the receiving party gives reasonable prior written notice to the disclosing party of such required disclosure and, at the disclosing party's request and expense, cooperates with the disclosing party's efforts to obtain a protective order preventing or limiting the disclosure, requiring that the Confidential Information so disclosed be used only for the purposes for which the law or order requires, and/or to obtain other confidential treatment of the Confidential Information so disclosed.
15.4 The obligation of confidentiality under this Section shall survive the termination or expiration of this Agreement.

16. Miscellaneous

16.1 The Customer shall not assign or otherwise transfer the Agreement or the rights and duties under the Agreement in any manner whatsoever without the prior written consent of Hyglos.
16.2 Unless stated otherwise herein, all notices required or permitted under this Agreement shall be in writing and delivered by any method providing proof of delivery or receipt. Any notice shall be deemed to have been given on the date of receipt.
16.3 Amendments and additions to this Agreement must be made in writing to be effective. This shall also apply to a waiver of this written form requirement.
16.4 If individual provisions of this Agreement should be or become invalid or should there be a lacuna that should be filled, the rest of the Agreement shall continue to be valid. In this event, the parties promptly undertake to agree on a valid provision that most closely reflects the parties' economic intention to replace the invalid provision or lack of provision.
16.5 This Agreement shall be governed solely by the law of the Federal Republic of Germany, excluding the applicability of its conflicts of laws provisions as well as the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.6 If this Agreement contains some German terms as a translation for some English terms, the German term shall be binding for the interpretation of this Agreement. Notwithstanding the Parties' use of the English language for the formulation of this Agreement, the language and legal interpretation of this Agreement shall be based on the principles and the understanding predicated under German law.
16.7 The exclusive place of jurisdiction for all disputes arising from or in connection with this Agreement shall be Munich, Germany. Hyglos shall, however, be entitled to also bring an action at the registered seat of the Customer.
16.8 Nothing contained in this Agreement shall be construed to constitute the Customer, on the one hand, or Hyglos, on the other hand, as a partner or agent of the other Party or to create any other form of legal association that would impose liability upon the Customer, on the one hand, or Hyglos on the other hand, for the act or omission of the other Party or provide the Customer, on the one hand, or Hyglos, on the other hand, with the right, power, or authority to create or impose any duty or obligation on the other Party. Each Party shall remain independent and shall act on its own name and for its own account.