Analytical Services of ChemiLytics GmbH & Co. KG

 

I. General/scope.

1. ChemiLytics GmbH & Co. KG – hereinafter “ChemiLytics” – concludes agreements with its Principals regarding analytical services (laboratory services) solely on the basis of these General Terms and Conditions (GTC). When placing an order, the Principal acknowledges the GTC as legally binding. These terms also apply to all future business relations, even those that have not yet been expressly agreed upon, insofar as they involve legal transactions of a related nature.

2. Different or additional agreements, especially terms and conditions stipulated by the Principal, shall only be considered part of the agreement if ChemiLytics has confirmed and acknowledged this in writing. Silence on the part of ChemiLytics does not constitute consent. ChemiLytics hereby expressly objects to any counterclaims by the Principal under different conditions. Contradictory or supplementary terms and conditions or other limitations proposed by the Principal shall not be recognized unless ChemiLytics has expressly agreed to each particular case in writing.

3. Starting on their validity date, amendments to the GTC shall be considered part of current contracts if the Principal, despite special reference to the right to object, does not object within one month of receiving notice of the amendment.

4. Amendments and additions must be made in writing. This also applies to nullification of this clause requiring them to be made in writing.

II. Offers, effective date of the agreement, assignment.

1. Offers from ChemiLytics are neither obligatory nor binding.

2. The placement of an order by the Principal constitutes a binding offer. It can be made in writing, in text form or verbally (including by phone). The agreement comes into effect when ChemiLytics accepts it.

3. Rights arising from agreements with ChemiLytics cannot be transferred by the Principal without prior written consent from ChemiLytics.

III. Scope and fulfillment of the contractual services.

1. The scope of the contractual services is determined before the order is placed. ChemiLytics shall fulfill the orders with conscientious care in accordance with the technical requirements.

2. Deadlines affecting the fulfillment of the contractual services shall be considered non-binding unless expressly agreed upon in writing as binding; a deadline agreed upon as binding shall not begin before the order is received at ChemiLytics or before the date on which the test subject (sample) is received.

3. Study results are non-binding until the laboratory manager (Director of Analytical Services) or an appropriate representative (“on behalf of”) has signed the final draft of the test reports, inspection reports or certificates. Preliminary study results and those transmitted by other means shall remain non-binding.

4. All results, analysis reports and certificates refer exclusively to the sample that ChemiLytics received from the Principal and whose references appear on the confirmation of receipt issued by ChemiLytics for the sample. ChemiLytics is only responsible for ensuring that the sample is representative if ChemiLytics received and accepted an explicit order to take the sample. Information provided by the Principal shall be clearly identified as such on the test report and ChemiLytics shall not be held responsible for it. No statements shall be made regarding conformity with a specification or standard.

5. Communication of the results from the test report or drawing of conclusions from the test report are the sole responsibility of the Principal. The rights to the report remain with ChemiLytics. The test report may not be reproduced, and/or distributed/published as a whole or in part without written permission from ChemiLytics. Use of ChemiLytics trademarks is also not permitted.

6. ChemiLytics has no obligation to store samples, including documentation. In direct or analogous application of Art. 377 of the German Commercial Code (HGB), the Principal is therefore required and obliged to promptly inspect the results delivered by ChemiLytics and promptly report any identified defects.

IV. Terms of payment, transactions.

1. Unless the Parties agree otherwise in writing, the prices that were indicated on the ChemiLytics price list when the order was placed shall apply.

2. Invoices from ChemiLytics are payable without any deductions within 14 days of the invoice date. The Principal must review the invoice within 10 days of receipt. If no objections are raised within this period, the invoice shall be considered accepted.

3. Payments and advance payments must include any applicable statutory sales tax. The Principal shall be liable for the applicable statutory sales tax if it is not included on the invoice within the meaning of the German VAT Act.

4. Payments shall not be considered complete until the amount has been irrevocably credited to an account belonging to ChemiLytics.

5. The Principal may only offset payment obligations or assert retention rights on the basis of legally established or undisputed claims. Furthermore, the Principal is only entitled to retention rights insofar as its counterclaims are based on the same contractual relationship.

V. Asset deterioration

1. If, after a contract is concluded with the Principal, it is determined that the fulfillment of the Principal’s contractual obligations is endangered due to its asset situation (especially in the case of suspension of payment, application for bankruptcy proceedings, seizure or foreclosure measures, check or bill of exchange protests, and direct debit returns, including with respect to or towards third parties) ChemiLytics is entitled, at its discretion, to withhold service until the price has been paid in advance or an appropriate security has been provided. This shall also apply in cases where reasonable doubts exist regarding the Principal’s creditworthiness or ability to pay due to late payment.

2. Furthermore, if the business relationship involves a current account agreement, ChemiLytics is authorized, in the cases specified in paragraph IV.1, to withhold services until all payments have been received or an appropriate security has been provided.

3. If the Principal does not provide the advance payment or security stipulated in paragraph V.1 within two weeks, ChemiLytics is entitled to terminate the corresponding agreement.

VI. Risk assumption

1. Unless otherwise agreed, deliveries shall be made “EXW” (Incoterms ® 2010) from Goslar. In cases where the Parties have agreed on delivery to a different location, ChemiLytics reserves the right to choose the shipping route and method. Any additional costs resulting from special shipping requests by the Principal shall be payable by the Principal. The same applies to any increases in freight rates occurring after the contract is concluded, any additional costs for rerouting, storage costs, etc., unless the Parties have agreed to freight-free shipping.

2. The delivery dates are specified in the corresponding order confirmation and are subject to correct and timely delivery to ChemiLytics.

3. If a fixed delivery date has been arranged and a delay occurs, the Principal shall set a suitable deadline for later delivery. The Principal may only cancel the agreement after the deadline passes without delivery, save in special cases where the grace period is waived for legal reasons.

4. The risk associated with destruction or loss of, or damage to, the delivery item shall pass to the Principal once the delivery item is provided for pickup on the agreed delivery date. In cases where the Parties have agreed to shipment, the risk passes to the Principal when the delivery item is sent.

5. Delivery items that are not picked up on time shall be stored at the expense and risk of the Principal.

VII. Force majeure

Force majeure of any kind, such as war, terrorism, riot, fire, flood or other unforeseeable circumstances, including operational, traffic or shipping disruptions, labor, energy or raw material shortages, strikes, lockouts, official decrees or incorrect or late self-delivery, that are not the responsibility of the Parties to the agreement and that hinder the Party with the duty to perform from fulfilling its contractual service obligations shall relieve the Party of the obligation to provide those services for the duration of and within the scope of the hindrance. The Party with the duty to perform shall inform the other Party of the circumstances surrounding the hindrance and the expected duration of the delay. If the hindrance lasts more than eight weeks, both Parties are entitled to cancel the agreement.

VIII. Claims for damages

1. ChemiLytics’s liability for damages due to negligence is limited to damages caused by violations of important contractual obligations, the fulfillment of which is essential for the proper execution of the contract and adherence to which the contract partner regularly relies and may rely upon. In this case, however, liability is limited to typical, predictable damages. This limitation of liability applies in the same way to damages caused due to gross negligence on the part of employees or agents of ChemiLytics who are not senior employees or agencies of ChemiLytics.

2. The limitation period is two years after the date when the claim arose and the Principal was informed of the circumstances justifying the claim. The claim shall expire three years after the event that caused the damage, regardless of the Principal’s knowledge of the circumstances. The limitation period for damage claims due to defects is based on paragraph X.

3. The liability limitations apply to all claims for damages, regardless of legal grounds, with the exception of damage claims asserted by the Principal (i) due to willful intent, (ii) according to product liability law, (iii) due to fraudulently concealed defects, (iv) due to defects covered by a quality guarantee, (v) resulting from injury to life, body or health, or (vi) due to gross negligence on the part of agencies or senior employees of ChemiLytics.

IX. Complaints

Complaints shall only be considered if they contain specific details regarding the defect and are promptly presented to ChemiLytics in text form no later than ten days following receipt of the results. In the case of hidden defects, the complaint must be promptly submitted within ten days after the defect is identified; the burden of proof lies with the Principal to show that the issue involves a hidden defect.

X. Claims for defects

1. In the case of justified claims for defects, the Principal is initially entitled to demand supplementary performance. Supplementary performance shall occur without admission of liability. ChemiLytics is entitled, at its own discretion, to either rectify the defect or re-perform the services specified by the order. The Principal is required to make the test item available for this purpose free of charge. If supplementary performance by ChemiLytics fails to rectify the defect, the Principal may choose either to reduce the purchase price or to cancel the agreement. Claims by the Principal regarding expenditures required for supplementary performance are excluded, in particular transport, travel, labor and material costs, insofar as the expenditures are incurred because the object to be delivered has subsequently been shipped to a location other than the Principal’s site, unless the shipment is justified by the object’s intended use. ChemiLytics may invoice the Principal for any resulting costs.

2. Claims for damages based on paragraph VIII remain unaffected. The Principal is not entitled to any other claims for defects.

3. The Principal shall bear any reasonable costs resulting from an unjustified assertion of claims for defects (e.g. if the goods were not defective).

4. Claims for defects expire one year after the service is delivered. However, this limitation shall not apply in cases where (i) a defect has been fraudulently concealed or (ii) a guarantee has been made regarding the quality of a service. In the case of claims for damages, this limitation shall also not apply in the following cases: (i) injury to life, body or health, (ii) willful intent, and (iii) gross negligence on the part of agencies or senior employees of ChemiLytics. A guarantee must be concluded in writing to take effect. A guarantee declaration is only effective if the contents of the guarantee and the duration and territorial application of the protection offered by the guarantee are adequately described.

XI. Quality, advice, use and processing

1. The quality of a service applies solely to the quality described in the specifications from ChemiLytics.

2. ChemiLytics provides advice in written and verbal form and in the form of testing to the best of its knowledge. However, this advice is only to be considered non-binding information, including with regard to any third-party property rights. The Principal still has to check the results provided by ChemiLytics to determine their suitability for the intended processes and purposes. ChemiLytics has no control over the use, application and processing of the results. These are therefore the sole responsibility of the Principal.

3. The Principal is solely responsible for determining whether the application intended by the Principal is properly registered. Use for unregistered purposes is forbidden. The Principal is solely liable for violations. This applies equally to compliance with the legally binding versions of any applicable national and international monitoring regulations. The Principal shall obtain any required permits and licenses in a timely manner, as well as any other permissions that are required by all applicable laws in order to use or export the delivery item. The Principal shall submit any documents required for the execution of the order upon request from ChemiLytics.

XII. Secrecy/confidentiality

1. The Principal agrees to treat the information obtained from ChemiLytics confidentially with respect to third Parties – including beyond the duration of the agreement. In cases where it is unclear whether information is confidential, the Principal shall obtain consent from ChemiLytics before passing it on.

2. The obligation stipulated in paragraph XII.1. does not apply to information that the Principal demonstrably knew about before being informed of it by ChemiLytics, or that the Principal demonstrably obtained independently or lawfully in some other way, or that had become general knowledge without any violation of paragraph XII. 1 or in the case of an official or legal obligation to provide information.

3. ChemiLytics agrees to treat all information confidentially, unless the Principal makes the information publicly available or ChemiLytics and the Principal come to a different agreement on the matter. If ChemiLytics is legally obliged or contractually authorized to disclose confidential information, the Principal in question will be informed of the disclosure, unless prohibited by law.

XIII. Applicable law, place of jurisdiction, miscellaneous

1. All legal relationships connected with the agreement are based exclusively on the laws of the Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).

2. The exclusive place of jurisdiction is Braunschweig.

3. If individual clauses of these General Terms and Conditions are or become invalid, the effectiveness of the remaining clauses shall remain unaffected. The Parties must replace any ineffective regulation with one that comes closest to the economic intention of the ineffective regulation and is effective.

Goslar, November 2022