Terms and Conditions

Cellbox Solutions GmbH enters into contracts with customers regarding the purchase (see Part A in this regard) or lease (see Part B in this regard) of the “Cellbox” transport container developed by Cellbox Solutions GmbH and the Fraunhofer Institute for Marine Biotechnology and Cell Technology.

A. Standard Terms and Conditions of Sale

1. Scope

(1) The Cellbox Solutions GmbH (“Cellbox GmbH”) Standard Terms and Conditions for the sale of the Cellbox (“Purchased Item”) stated here apply to business operators, legal entities under public law, and entities specially funded under public law (“Customer”) within the meaning of Sec. 310 (1) of the German Civil Code (Bürgerlichesgesetzbuch, BGB).

(2) All products, services, and offers of such from Cellbox GmbH are provided exclusively on the basis of these terms and conditions, which also govern all future dealings with Customer involving legal transactions of an identical or similar nature.

(3) Applicability of Customer’s terms and conditions is herewith rejected. Any of Customer’s terms and conditions that deviate from or conflict with these terms and conditions apply only where Cellbox GmbH has expressly consented to such in writing.

2. Contract formation

(1) Cellbox GmbH can accept an order from Customer that can be classified as an offer to enter into a contract of sale within two weeks by sending written confirmation or by performing the contracted service within the same period of time.

(2) Offers by Cellbox GmbH are provisional and non-binding unless Cellbox GmbH has expressly indicated that they are binding.

(3) Illustrations, measurements, weights, and other data regarding products or services are binding only where this has been expressly stipulated in writing.

3. Delivery

(1) Cellbox GmbH can procure the services of a shipping company to dispatch the Purchased Item.

(2) Cellbox GmbH’s obligations regarding delivery are subject to Cellbox GmbH receiving its own stock correctly and in a timely manner, except where Cellbox GmbH is responsible for the incorrect or delayed receipt of such.

(3) Cellbox GmbH then has the right to provide partial deliveries or services only where such are of interest to Customer given the purpose of the contract and where they do not cause Customer to sustain any significant additional expense.

(4) Information on delivery times is approximate unless otherwise agreed with Customer. Periods set for delivery commence only after all of the details regarding order fulfillment have been clarified in their entirety and Customer has satisfied its obligations properly and in a timely manner.

(5) In the event Customer delays acceptance of the Purchase Item, Cellbox GmbH has the right to demand damages for any loss it sustains. At the time such acceptance becomes delinquent, the risk of accidental deterioration and accidental destruction of the Purchased Item transfers to Customer.

(6) Force majeure, strike, lockouts, and other events over which Cellbox GmbH has no control amend the periods set for delivery by the amount of time such circumstances cause disruptions to operations.

(7) This does not affect further statutory claims and rights accruing to Customer due to delayed delivery.

4. Prices and payment

(1) The prices valid at the time of Customer’s order apply. Prices do not include transportation costs, insurance charges, and the sales tax (VAT) applicable at the time.

(2) The charges for the packaging normally required for transportation or shipping are calculated at cost price unless otherwise agreed with Customer.

(3) Payments are to be sent via electronic funds transfer to the Cellbox GmbH bank account indicated in the currency stated on the invoice.

(4) The purchase price is due and payable immediately and without deduction upon formation of the contract. Customer is considered to be in default, at the latest, if Customer has not made payment within 30 days of the due date and receipt of an invoice or equivalent schedule of payment(s) due. Customer is not considered to be in default where payment has not been made due to circumstances beyond Customer’s control. Where Customer defaults on payment, the statutory provisions apply.

5. Offsetting and rights to withhold payment

(2) Customer may exercise a right to withhold payment only where Customer’s counterclaim is based on the same contractual relationship.

6. Transfer of risk when items are shipped

(1) Where Customer has requested that the Purchased Item be shipped, the risk of accidental destruction and accidental deterioration of the Purchased Item transfers to Customer as soon as Cellbox GmbH has turned the Purchased Item over to the shipper, the carrier, or other individual or establishment designated to dispatch the shipment.

(2) If shipping is delayed at Customer’s request, the risk transfers at the time Customer is notified that the Purchased Item is ready to be shipped.

7. Retention of title

(1) As security for payment of the purchase price, Cellbox GmbH retains the title to Purchased Items delivered (“goods subject to retention”) until payment of the charges giving rise to the business relationship has been made in full. Customer must treat goods subject to retention with care and put them to use exclusively in accordance with their intended use. The intended use comprises use of a transport container that facilitates the transportation of cell cultures in simple cell culture vessels. In the event of multiple charges or open accounts, the retention of title is considered security for the payment of the entire balance due, even where individual deliveries of goods have already been paid for.

(2) In the event of conduct by Customer in breach of contract, in particular default on payment, Cellbox GmbH has the right to rescind the contract and demand that Customer return goods subject to retention. Upon rescission, Cellbox GmbH has the right to re-sell goods subject to retention. After deduction of a reasonable amount for the costs of resale, the proceeds from such sale will be deducted from amounts owed by Customer.

(3) Where third parties assert rights to goods subject to retention, in particular in the event of their seizure, Customer must immediately inform Cellbox GmbH of such in writing – and verbally in advance of that – and advise the third party in writing in a documentable manner of Cellbox GmbH’s title to the item(s). In particular, Customer must immediately report to Cellbox GmbH any theft, loss of, or damage to goods subject to retention.

(4) Provided Customer is not in default, Customer has the right to process and sell goods subject to retention in the ordinary course of its business. Pledging the goods or assigning them as a security interest is not permitted. As collateral, Customer hereby assigns to Cellbox GmbH the total amount of any receivables resulting from such resale or other legal basis (insurance, action in tort) that arise in relation to goods subject to retention. Cellbox GmbH hereby authorizes Customer to collect the receivables assigned to Cellbox GmbH for Customer’s own account in its own name; this authorization is revocable. The authority granted to Customer to collect such monies will lapse if Customer fails to duly satisfy its payment obligations, experiences financial difficulties, if measures are taken to enforce judgments against Customer, or a petition to commence bankruptcy proceedings is filed against Customer’s assets or such proceedings are rejected due to insufficient assets.

(5) Upon request by Customer, Cellbox GmbH must relinquish the security interests to which it is entitled to the extent that the realizable value of such security interests exceeds Cellbox GmbH’s secured receivables by more than 10%; Cellbox GmbH has the right to select which security interests are to be relinquished.

8. Warranty

(1) The statutory warranty rights accrue to Customer with respect to Cellbox GmbH in accordance with the terms laid out as follows.

(2) For Customer to exercise warranty rights, Customer must have duly satisfied its obligations to examine goods and report any problems as set out in Sec. 377 of the German Commercial Code (Handelsgesetbuch, HGB).

(3) Customer is not entitled to claims for defects where the only deviations in stipulated features are inconsequential.

(4) When handling the Purchased Item, Customer must follow the operating instructions, in particular the included directions from Cellbox GmbH on how to clean it. In the event that a defect arises due to the Purchased Item being incorrectly operated and/or incorrectly cleaned or not cleaned by Customer, this voids the warranty rights.

(5) Customer may not reconfigure or process the Purchased Item. Any kind of alteration is performed at Customer’s own risk and will void Customer’s warranty rights.

(6) Where there are legitimate complaints of defects that have been reported in a timely manner, Customer is entitled to a cure during the warranty period. Cellbox GmbH has the right to select the type of cure (remedy of the defect or replacement with an item free from defects). Where the cure fails or further attempts at a cure are untenable for Customer, Customer has the right to reduce payment or to rescind the contract.

(7) Cellbox GmbH is responsible for any expenditures required for the cure of defects, in particular the costs of transportation and travel, labor, and materials, provided the expenditures are not increased due to the Purchased Item supplied by Cellbox GmbH being brought to a location other than the specified delivery address, except where such transfer to a different location is in keeping with its intended use.

(8) Customer can assert claims for damages due to a defect as set out in the terms in Section 9 only after the cure has failed or Cellbox GmbH has refused to cure the defect. This does not affect Customer’s right to assert more extensive damages claims as set out in the terms in Section 9.

(9) Solely Customer can assert claims against Cellbox GmbH for defects and such claims cannot be assigned.

(10) In the event claims are made against Customer by its customers or by a consumer due to a defect in the Purchased Item supplied and such defect already existed at the time of transfer of risk, or a consumer in his or her capacity as the ultimate user has registered a complaint regarding such, Customer’s statutory rights of recovery from Cellbox GmbH under Secs. 478 and 479 BGB remain unaffected.

(11) The period of limitation for defects claims is one year from the date of transfer of risk. This does not apply where the law, as set out in Sec. 438 (1) no. 2 BGB (buildings and building materials), Secs. 478 and 479 BGB (rights of recovery from suppliers) and Sec.634a (1) no. 2 BGB (construction defects), stipulates longer limitation periods, or in the event of loss of life and limb, health, or well-being, or for breaches of contract arising out of willful misconduct or gross negligence on the part of Cellbox GmbH or where a defect has been concealed with fraudulent intent.

9. Cellbox GmbH’s liability

(1) Claims by Customer for damages are barred.

(2) The foregoing does not apply to liability for losses that are due to breaches of contract arising out of willful misconduct or gross negligence on the part of Cellbox GmbH or a legal representative or a party assisting with performance.

(3) Furthermore, this does not affect liability for the breach of material duties under the contract; a material duty comprises an obligation the satisfaction of which is essential for proper performance of the contract to occur at all or compliance with which Customer has placed or should be able to place its trust in. In the event of the breach of material duties under the contract arising due to ordinary negligence, liability is limited to such loss as is foreseeable and typical for such contracts.

(4) The foregoing limitations of liability do not apply to loss of life and limb, health, or well-being arising due to negligence or willful misconduct. Moreover, Cellbox GmbH cannot claim an exclusion or limitation of liability insofar as it has concealed a defect with fraudulent intent or has offered a guarantee of features. This does not affect liability as set out in the German Product Liability Act (Produkthaftungsgesetz).

(5) Insofar as Cellbox GmbH’s liability is excluded or limited, this also applies with respect to the personal liability of legal representatives and parties assisting with performance.

10. Place of performance, venue, governing law

(1) Where the parties to the contract are businesspersons, legal entities under public law, or entities specially funded under public law, or are not subject to a court of general jurisdiction within Germany or in another EU Member State, the place of performance for any and all performance obligations on the part of Cellbox GmbH and for other duties owed by either party under the contract shall be Lübeck, and venue shall be proper there for all disputes arising under this contractual relationship. However, Cellbox GmbH also has the right to file actions against Customer at Customer’s principal place of business.

(2) The sales contracts and these terms and conditions as well as the legal relationships between Customer and Cellbox GmbH in their entirety are governed by the law of the Federal Republic of Germany without regard to any references to other legal systems and international treaties. Application of the UN Convention on the International Sale of Goods is excluded.

11. Final provisions

Should individual provisions of these Standard Terms and Conditions be or become invalid, this shall not affect the validity of the remaining terms. The invalid term is to be replaced by such valid term as most closely approximates the economic effect and content of the invalid one.

B. Standard Terms and Conditions of Lease

1. Scope

(1) The Cellbox (“Leased Item”) is leased by Cellbox Solutions GmbH (“Cellbox GmbH”) exclusively in accordance with these Standard Terms and Conditions of Lease, which also govern all future dealings with Customer involving legal transactions of an identical or similar nature.

(2) These Standard Terms and Conditions apply to business operators, legal entities under public law, and entities specially funded under public law (“Customer”) within the meaning of Sec. 310 (1) BGB.

2. Contract formation

(1) Cellbox GmbH can accept an order from Customer that can be classified as an offer to enter into a lease within two weeks by sending written confirmation or by performing the contracted service within the same period of time.

(2) Offers by Cellbox GmbH are provisional and non-binding unless Cellbox GmbH has expressly indicated that they are binding.

(3) Illustrations, measurements, weights, and other data regarding products or services are binding only where this has been expressly stipulated in writing.

3. Lease term

(1) The minimum lease term is one week. Cellbox GmbH must provide the Leased Item to Customer for the lease period.

(2) With respect to a leasing arrangement entered into for a fixed lease period, the lease period stipulated in the contract applies. The leasing arrangement ends once the period has expired, provided it has not been terminated for cause or extended in situations as are permitted by law.

(3) Where a leasing arrangement is established for an indefinite period of time, the lease commences at the time the Leased Item is delivered and ends by way of cancelation in accordance with the statutory provisions.

(4) The time spent by Cellbox GmbH to carry out maintenance and servicing during the lease period and the time spent for necessary repairs will be counted toward the lease period. Time spent for inspections and repair work for which Customer is not responsible is excluded from the foregoing.

(5) Early return of the Leased Item will not result in the lease period being shortened.

(6) Any extension of the lease term requires the lessor’s prior written consent. If Customer would like to extend the stipulated lease term, Customer needs to notify Cellbox GmbH of this prior to the expiration of the stipulated lease period.

(7) In the event Customer does not return the Leased Item by the date stipulated, the lease period will be extended for an indefinite period of time, provided neither of the parties expresses its intention to the contrary to the other party within two weeks. The cutoff period begins for Cellbox GmbH on the date that it learns of the continuation and for Customer upon continuation of use. Where Customer has submitted a security deposit, Cellbox GmbH can deduct outstanding lease payment amounts from the security deposit. Payments owed in excess of the security deposit will be invoiced; any amount of the security deposit remaining will be refunded to Customer.

(8) During the lease term and where the lease period has been exceeded, Customer is liable for any damage to, loss, or destruction of the Leased Item for which it is responsible. Customer must nevertheless remit payment for any outstanding lease payment installments for the duration of the leasing arrangement. Customer is liable for any resulting costs consequently sustained by Cellbox GmbH, in particular loss of lease income and administrative fees.

4. Lease payment amount, payment terms, default

(1) The lease payment amount is calculated on either a weekly or monthly basis, depending on what has been agreed.

(2) The prices valid at the time of Customer’s order apply. Prices do not include transportation costs, insurance charges, and the sales tax (VAT) applicable at the time.

(3) The charges for the packaging normally required for transportation or shipping are calculated at cost price unless otherwise agreed with Customer.

(4) The lease payment is to be sent via electronic funds transfer to the Cellbox GmbH bank account indicated in the currency stated on the invoice.

(5) Insofar as nothing to the contrary is stipulated, the lease payment amount is due and payable without deduction immediately upon receipt of the invoice.

(6) Customer is considered to be in default, at the latest, if Customer has not made payment within 30 days of the due date and receipt of an invoice or equivalent schedule of payment(s) due. Customer is not considered to be in default where payment has not been made due to circumstances beyond Customer’s control. Where Customer defaults on payment of the lease payment due, the statutory provisions apply. In the event that Customer has defaulted on payment, Cellbox GmbH has the right to rescind the contract and demand that Customer return the Leased Item.

(7) Cellbox GmbH reserves the right, in addition to the stipulated lease payment amount, to demand a reasonable, non-interest bearing security deposit in an amount up to the replacement value of the Leased Item as collateral. The security deposit will be refunded to Customer after the Leased Item has been returned intact.

5. Offsetting and rights to withhold payment

(1) Customer can utilize only undisputed, legally upheld charges that are acknowledged by Cellbox GmbH or charges that are an element of reciprocal performance vis-à-vis charges by Cellbox GmbH to offset Cellbox GmbH’s accounts receivable from Customer. After the lease period has expired, Cellbox GmbH has the right to use any security deposit submitted to offset outstanding receivables.

(2) Customer may exercise a right to withhold payment only where Customer’s counterclaim is based on the same contractual relationship.

6. Delivery

(1) Cellbox GmbH must turn over the Leased Item to Customer in a condition that is suitable for its use in conformity with the contract and must maintain it in this condition during the lease period. Cellbox GmbH will procure the services of certain shipping companies to dispatch the Purchased Item.

(5) Where Customer is delinquent with its acceptance of the Leased Item, the risk of accidental deterioration and accidental destruction of the Leased Item transfers to Customer. Where Customer delays acceptance of the Leased Item, Cellbox GmbH has the right to demand damages for any loss it sustains.

(7) This does not affect further statutory claims and rights accruing to Customer due to delayed delivery.

7. Retention of title

(1) The Leased Item remains the property of Cellbox GmbH during the lease period. During the lease period, Customer must treat the Leased Item with care and put it to use exclusively in accordance with its intended use. The intended use comprises use of a transport container that facilitates the transportation of cell cultures in simple cell culture vessels.

(2) Where third parties assert rights to the Leased Item, in particular in the event of its seizure, Customer must immediately inform Cellbox GmbH of such in writing – and verbally in advance of that – and advise the third party in writing in a documentable manner of Cellbox GmbH’s title to the item(s). In particular, Customer must immediately report to Cellbox GmbH any theft, loss of, or damage to goods subject to retention.

(3) Any processing or alteration of the Leased Item is always undertaken for the benefit of but without obligation on the part of Cellbox GmbH. Where the Leased Item is processed together with other objects that are not the property of Cellbox GmbH, this shall cause Cellbox GmbH to acquire co-ownership of the new item(s) in the same proportion the value of the Leased Item bears to the other processed objects at the time of processing. Where the Leased Item is combined or inseparably integrated with other objects that are not the property of Cellbox GmbH, this shall cause Cellbox GmbH to acquire co-ownership of the new item(s) in the same proportion the value of the Leased Item bears to the other or integrated objects. Where the combination or integration results in Customer’s item(s) being considered the principal item(s), it is deemed to have been stipulated that Customer transfers proportional co-ownership of the new item(s) to Cellbox GmbH. Customer is to safeguard the resulting co-ownership for Cellbox GmbH.

8. Further duties owed by Customer

(1) Any provision of the Leased Item for use by third parties requires Cellbox GmbH’s prior written consent.

(2) Customer may not assign any rights arising under this contract or grant rights of any kind in the Leased Item without Cellbox GmbH’s consent.

(3) Upon request, Customer must immediately inform Cellbox GmbH of the Leased Item’s respective location or site of operation.

9. Warranty

(1) The statutory warranty rights set out in Sec. 536 BGB et. seq accrue to Customer with respect to Cellbox GmbH in accordance with the terms laid out as follows.

(2) Customer is not entitled to claims for defects where the only deviations in stipulated features are inconsequential.

(3) In the event the Leased Item is damaged or otherwise impaired during the lease period, Customer must immediately report to Cellbox GmbH in writing the details of the event resulting in the damage to the Leased Item. The same applies where, during the lease period, it becomes necessary to take action to protect the Leased Item from an unforeseeable hazard or a third party claims a right in the Leased Item. In the event Customer fails to report such immediately, Customer must compensate Cellbox GmbH for the resulting loss. Where Cellbox GmbH has not been able to remedy the situation due to the omission of such report, Customer does not have the right to reduce the lease payment amount, to demand damages, or to cancel without setting a reasonable deadline for such remedy.

(4) Where a defect in the Leased Item clearly has an effect on its technology, Customer does not have the right to remedy the defect itself or to have third parties perform repairs. The remedy of defects of this kind is to be carried out or delegated solely by Cellbox GmbH. Where Cellbox GmbH expressly authorizes Customer to carry out or delegate the remedy of the defect, the foregoing does not apply. Cellbox GmbH will be responsible for the ensuing costs.

10. Cellbox GmbH’s liability

(1) Claims by Customer for damages are barred.

(4) The foregoing limitations of liability do not apply to loss of life and limb, health, or well-being arising due to negligence or willful misconduct. Moreover, Cellbox GmbH cannot claim an exclusion or limitation of liability insofar as it has concealed a defect with fraudulent intent. This does not affect liability as set out in the German Product Liability Act (Produkthaftungsgesetz).

(5) Insofar as Cellbox GmbH’s liability is excluded or limited, this also applies with respect to the personal liability of legal representatives and parties assisting with performance.

11. Return of the Leased Item

(1) Based on what has been agreed, Customer must send the Leased Item back to Cellbox GmbH at the end of the lease period at Customer’s expense and risk, or must hold the Leased Item for pickup by Cellbox GmbH after it has been cleaned, packed up, and made ready for transport. Customer must return the Leased Item in good condition in conformity with the lease.

(2) Prior to return, Customer must clean the Leased Item in accordance with the directions for cleaning found in the operating instructions and confirm that this has been done by signing the document. If the Leased Item is returned without the signed document regarding the cleaning performed, acceptance of the Leased Item will be refused and the lease term will be extended accordingly until the Leased Item is delivered with the document attached. Where it is evident despite the written confirmation that the Leased Item has not been cleaned, Cellbox GmbH has the right to send the Leased Item back to Customer so that the required cleaning can be performed. Customer will be responsible for the costs of sending the Leased Item back to it. If it is not possible to send the Leased Item back, Customer will be responsible for the costs of cleaning incurred by Cellbox GmbH.

(3) The requirement to return Leased Items also extends to defective items.

(4) Where it is impossible for Customer to comply with the obligation to return the Leased Item and Customer is at fault for this, Customer must pay damages.

12. Purchase of the Leased Item

(1) The purchase of the Leased Item is possible only where this has been separately agreed in writing by Cellbox GmbH and Customer.

(2) The Cellbox GmbH Standard Terms and Conditions of Sale (Part A) govern the purchase of the Leased Item.

13. Place of performance, venue, governing law

(2) The leases and these terms and conditions as well as the legal relationships between Customer and Cellbox GmbH in their entirety are governed by the law of the Federal Republic of Germany without regard to any references to other legal systems and international treaties. Application of the UN Convention on the International Sale of Goods is excluded.

14. Final provisions