Terms - DNA Plus - center for genetics

Standard terms of business
of DNA Plus – Zentrum für Humangenetik UG (haftungsbeschränkt), Gewerbegasse 6, 83395 Freilassing, +49 8654 4803 808, www.DNAplus.de, hereinafter referred to as the Vendor.

Standard terms of business for the conduct and placement of genetic analyses by “DNA Plus - Zentrum für Humangenetik UG” (haftungsbeschränkt) (25.2.2010)

1. General

DNA Plus GmbH is a network of medical laboratories responsible for the placement of and the logistics for the conduct of genetic analyses on human beings for medical purposes.
The scope of performance is exclusively the placement of genetic analyses.
These Standard terms of business (STB) shall apply to all services, including future services, by DNA Plus. Differing, contradictory or supplementary standard terms of business shall not be part of the contract, even if known, unless their application is expressly consented to in writing.
Consumers within the meaning of these terms of business shall be natural persons with whom we enter into a business relationship, without such being attributable to a commercial or self-employed professional activity.
Entrepreneurs within the meaning of these terms of business shall be natural or legal persons or partnerships with legal capacity with whom we enter into a business relationship and who act in the pursuit of their commercial or self-employed professional activity.
Customers within the meaning of the terms of business shall be both consumers and entrepreneurs.
The terms contained in these Standard terms of business shall always include both female and male persons.

2. Information for customers who are consumers:

Company name: DNA Plus, www.DNAplus.de
Trade pursued: marketing of genetic tests for preventive medical purposes
Registered under: HRB 19437 at the Traunstein Commercial Court;
Value-added Tax Identification Number (VAT ID): to be supplied shortly
Contact details for the company: office@DNAplus.de

3. Main features of the service:

Placement of genetic analyses on the basis of cells provided and, where appropriate, medical clinical findings
The price of the service including all taxes plus postage costs shall be stated by the assigning doctor or on the website, knowledge and acceptance of the price by the patient being confirmed by his signature on the declaration of consent.

4. Conclusion of the contract:

The delivery and shipment costs for the provision of the service amount to € 15.- and shall be added to the basic price.
By placing his order, the customer expresses a binding offer to conclude a contract. Receipt of the order shall be confirmed immediately by DNA Plus.
Validity of the offer: The customer’s offer shall be binding for a period of two weeks following receipt of the offer by DNA Plus.
The assigning doctor confirms that if a patient is not entered beyond doubt in the order form as the maker of the offer to DNA Plus to conclude a contract, and if the patient has not provided all necessary declarations at the appropriate points in the order form, the maker of the offer to DNA Plus to conclude a contract shall be the assigning doctor, who shall thereby be DNA Plus’s contracting partner. This shall also apply in the event that the doctor is entered as the addressee of the invoice.
The customer consents to DNA Plus commencing the performance of the service within seven working days.
If the contract is concluded with one of our marketing partners, any legal issues and legal claims shall transfer at this time to DNA Plus - Zentrum für Humangenetik UG (haftungsbeschränkt).

5. Period of the validity of the price:

The prices shall be valid for the specific contract concluded.
The geographical address of the branch of the enterprise at which the consumer can submit any complaints: DNAplus Zentrum für Humangenetik, Gewerbegasse 6, 83395 Freilassing, +49 8654 4803 808, www.DNAplus.de

6. Prices:

The prices offered shall be the prices applicable on the day and shall apply until further notice. Price details are without obligation. The prices shall include statutory value added tax.
The customer shall not incur any additional costs when placing the order by telecommunications means.
The customer can pay the price by bank transfer or via PayPal. We reserve the right to refuse individual payment methods.

7. Payment, payment default and prohibition on offset

The DNA Plus invoice shall be sent with binding effect to the address specified in the order letter.
The invoice amount shall be payable in whole within four weeks after invoice in the currency specified in the invoice. After expiry of this period, the customer shall be in payment default.
In particular in the case of payments from outside Germany, the customer shall ensure that the invoice amount is received by DNA Plus in full without deductions, with the result that the customer shall bear all expenses, in particular in the case of foreign transfers.
Consumers shall pay interest on the debt at a rate of 5% above the base rate of interest for the duration of the default.
Entrepreneurs shall pay interest at a rate of 8% above the base rate of interest for the duration of the default. With respect to entrepreneurs, we reserve the right to prove and assert a higher default interest loss.
All customers (including consumers) shall in the event of payment default bear all expenses associated with the monitoring and collection of the debt, such as reminder costs, collection fees, the costs for the involvement of an attorney and for his extrajudicial activities or other costs necessary for the appropriate prosecution of the rights. In such cases too, the customer shall bear all consequences of the default.
Entrepreneurs shall only be entitled to offset if their counterclaims have been determined with final legal effect or are recognized by us.
Consumers shall only be entitled to offset in the event of insolvency on our part or for counterclaims that are in a legal connection with the consumer’s liability, that have been determined by the court or are recognized by us.

8. General withdrawal from the contract and effects of the Genetic Diagnosis Act

The customer shall generally be entitled to withdraw from the contract within a period of seven working days following the taking of the sample and the date of signature.
The patient’s possibility of stating that he does not wish to learn the result of the analysis and the consequences derivable from such shall have no influence on the contract concluded, irrespective of whether he himself is a contracting partner or whether a contract has been concluded between the doctor and DNA Plus.
If the patient withdraws his consent to a genetic analysis, DNA Plus shall terminate all activities and shall in addition be released from the provision of its service and withdraw from the contract. If the performance of the DNA Plus service has already commenced, costs to the amount of 50% of the purchase price shall be payable as compensation for expenditure.

9. Loss of the rights to withdraw, including for consumers

The customer expressly consents to DNA Plus beginning the performance of the service within seven working days following receipt of the sample. The customer also issues this consent expressly in the light of the fact that this leads to the loss of his right of withdrawal. Moreover, the service carried out is customer-specific and hence beyond doubt tailored to the personal needs of the customer. The customer therefore expressly notes that the fact that work is begun on the execution of the service within seven working days and that the service carried out is customer-specific means that he shall have no right of withdrawal, even if he is a consumer. The rights to which the consumer is as a rule entitled in the case of contracts concluded by remote sales would permit him to withdraw from the contract or to withdraw his declaration of contract within seven working days (Saturdays not being counted as working days) or even up to three months in the event of faulty/insufficient information from the enterprise (here: DNA Plus) starting from the day of conclusion of the contract.
The withdrawal need not contain any justification and shall be in written form.
The deadline is satisfied if the withdrawal is sent in time.

10. Loss/destruction/damage/modification/deficiency of the sample

If the sample sent by the customer to DNA Plus is destroyed, damaged or modified during transportation, or if it is lost, such shall fall within the customer's sole sphere of responsibility.
If an incorrect or faulty result is the consequence of damage to or modification of the sample during transportation, this shall not fall within the sphere of DNA Plus’s responsibility, with the result that no liability can be derived from such.
If no DNA can be isolated from the samples, the patient confirms that he is willing to provide a second sample without being entitled to demand costs or refund for such. Doctors’ own and third-party costs resulting from the provision of a new sample cannot be charged by the doctors to DNA Plus.
DNA Plus’s service shall be provided by sending the results of the analysis and where appropriate the finding to the assigning doctor or the customer, and shall thereby be concluded. However, DNA Plus shall be available for enquiries for at least four weeks following the receipt of the result.
Unless agreed otherwise in writing, the provision of the service shall be commenced by DNA Plus as quickly as possible and in any event within seven working days following conclusion of the contract. The customer's attention is drawn to the fact that the genetic analysis takes roughly four to eight weeks.
The customer shall only be entitled to withdraw from the contract on the grounds of failure to comply with the deadline for the performance if he has in writing set DNA Plus a reasonable grace period of at least two weeks, unless a fixed delivery date has been expressly agreed.
If a circumstance arises that makes it probable that there will be a significant delay in performance or that DNA Plus, DNA Plus shall be entitled to withdraw from the contract. If DNA Plus is at fault in this impairment of the performance or if otherwise it is its responsibility, DNA Plus shall be liable for the losses caused, which shall however only apply if DNA Plus has caused these circumstances deliberately or with gross negligence.
Liability for slight negligence, or compensation for consequential losses and financial losses, savings not made, interest loss and damage resulting from third-party claims against the customer shall be excluded. These limits on liability shall not apply to damage to persons attributable to DNA Plus and, as against consumers, in the case of damage to property delivered to DNA Plus for processing.
The purchaser shall at most be entitled to a claim to compensation for delayed performance or non-performance to the amount of the loss actually incurred, and only if DNA Plus is responsible for any deliberate or at least grossly negligent act. Liability for slight negligence, or compensation for consequential losses and financial losses, savings not made, interest loss and damage resulting from third-party claims against the customer shall be excluded.
These limits on liability shall not apply to damage to persons attributable to DNA Plus and, as against consumers, in the case of damage to property delivered to DNA Plus for processing.

11. Limit on liability

DNA Plus shall only be liable for losses incurred by the customer as a result of gross negligence or intent by DNA Plus or its employees.
Liability for slight negligence, or compensation for consequential losses and financial losses, savings not made, interest loss and damage resulting from third-party claims against the customer shall be excluded.
These limits on liability shall not apply to damage to persons attributable to DNA Plus and, as against consumers, in the case of damage to property delivered to DNA Plus for processing.
We should like to draw your attention to the fact that the results of genetic analyses are statistical probabilities and that the result of a genetic analysis is a technical assessment. Our genetic analyses are always carried in accordance with the latest state of the art, but we reserve a technical fault rate of 1%.
In addition, we should like to draw your attention to the fact that DNA Plus - Zentrum für Humangenetik UG (haftungsbeschränkt) excludes any claims for liability that might arise as a result of future illnesses. The prevention programmes offered by DNA Plus can reduce the risk of illness but not completely exclude it. It is therefore possible that the illness may develop despite compliance with the precautionary measures. Moreover, DNA Plus - Zentrum für Humangenetik UG (haftungsbeschränkt) excludes any liability that might arise as a result of psychological complications and illnesses in connection with the genetic analysis.
The genetic analysis contracted or carried out by DNA Plus - Zentrum für Humangenetik UG (haftungsbeschränkt) only examines the contracted field or the contracted gene. Other fields of the gene or other genes are excluded from the analysis and no statements can be made about them.

12. Data protection

DNA Plus shall maintain confidentiality with respect to the data obtained in the genetic analysis and shall comply with the following provisions:

As the person examined, the customer shall be granted the right to view all data concerning him upon demand.
In particular if the person examined has not requested such, this notification shall be provided in such a way that it does not have a disconcerting effect on the person examined.
Variations that have not been sufficiently documented scientifically at the time of the analysis and whose clinical effects can therefore not be interpreted beyond doubt will not be communicated to the customer.
Data in non-anonymous form shall only be used for a purpose other than that for which it was originally collected with the express written consent of the person examined.

2. Data shall only be communicated

to persons who are directly involved with the determination, processing or analysis of the data in the institution in which the data has been collected,
to the person examined,
to the persons specified,
to the doctor who has requested the genetic analysis and the treating or diagnosing doctor,
to other persons only to the extent that the person examined has issued his express written consent, such consent being revocable in writing.
Information pursuant to Sections 4 b and 4 c
Federal Data Protection Act: DNA Plus – Zentrum für Humangenetik UG (haftungsbeschränkt) shall for the purpose of the performance of the contract with the customer (Sec. 4 c Para. 2 of the Federal Data Protection Act) communicate his personal details to partner enterprises in Germany and partner enterprises in other member states of the European Union who shall provide a part of the service offered by DNA Plus – Zentrum für Humangenetik UG (haftungsbeschränkt). These enterprises shall only receive such data as is necessary for the provision of the service in question.
Pursuant to Sec. 4 c of the Federal Data Protection Act, these enterprises have been contractually obliged to ensure that the data communicated is only processed or used for the purpose for which it is communicated.
Data must be protected appropriately against access by unauthorised persons.
Non-anonymous data shall only be processed by computer in the institution in which it has been collected and only by the doctor who has requested the genetic analysis; it shall be stored separately from other data types and shall only be accessible to persons entitled according to this Federal Act and only retrieved using a special access possibility.
These obligations shall also apply to persons who participate in the performance of genetic analyses or in the storage or administration of the data obtained.
Please note that we cannot assume any responsibility or liability for the content of linked external Internet pages and hereby expressly disassociate ourselves from the content of linked sites that might be accessed by means of the integration of external links on our page. Third-party content on pages that can be reached by links from our pages and our sub-pages is not adopted by DNA Plus, which therefore assumes no responsibility for such. We expressly disassociate ourselves from inadmissible or unlawful content.

13. Miscellaneous

Taking into account the order form and the declaration of consent, including the declarations by the customer set out therein and any cooperation agreements, these STB constitute the complete agreement between DNA Plus and the customer and shall replace all prior agreements between such concerning the subject matter of the contract. No oral collateral agreements have been concluded.
Binding notices, undertakings and commitments can only be attributed to DNA Plus or accepted by DNA Plus if they have been made by DNA Plus itself. As against the customer who is a consumer, the doctor who requested the genetic analysis or the treating doctor shall in any event not to be attributable to DNA Plus, with the result that he cannot bind DNA Plus.
Additions or amendments to these Standard Terms of Business shall only be valid if agreed in writing.
If DNA Plus or the customer fails to exercise any right resulting from these STB or fails to enforce a right, this shall not be deemed to be the waiver of such right and the exercise or assertion of such at a later date shall not be excluded.
If any provision, part of a provision of these STB or any other agreement shall be ineffective, invalid or unenforceable in whole or in part, this shall not affect the effectiveness, validity or enforceability of the other provisions. Under such circumstances, the provision found to be ineffective, invalid or unenforceable shall be deemed to be replaced by a provision that comes as close as possible in commercial significance to the ineffective, invalid or unenforceable provision. If the customer is a consumer, the provision found to be ineffective, invalid or unenforceable shall be deemed to be replaced by a provision that comes as close as possible in commercial significance to the ineffective, invalid or unenforceable provision.
DNA Plus shall be entitled to assign, modify, transfer or subcontract a contract or its rights and obligations resulting from such contract taking into account the provisions of the Genetic Diagnosis Act.
DNA Plus reserves the right to have the genetic analysis carried out exclusively in our partner laboratory of Novogenia GmbH.
DNA is entitled to contact the customer within the framework of marketing campaigns and to inform him about such. Contact can be made by e-mail, telephone, SMS, post or any other modern means of communication. At the customer's request, the making of further contact for marketing purposes shall be terminated.

14. Applicable law, legal venue, place of performance

These STB and all contracts shall be subject to the law of the Federal Republic of Germany.
If the customer is a consumer, this choice of law shall only apply to the extent that the guaranteed protection provided by binding provisions of the law of the country in which the consumer has his ordinary place of residence is not withdrawn.
If the customer is a merchant, a public law corporation or a public law special asset, the exclusive legal venue for all disputes under this contract shall be our registered office.
If individual provisions of the contract with the customer, including these Standard terms of business, shall be or become ineffective in whole or in part, this shall not affect the validity of the remaining provisions. The provision that is ineffective in whole or in part shall be replaced by a provision that comes as close as possible to the ineffective provision in terms of commercial effect.