General Terms and Conditions
Analytical Services at ChemiLytics GmbH &Co. KG
1. ChemiLytics GmbH & Co. KG – referred to in the following as ‘ChemiLytics’ – enters into contracts with its clients for analytical services (laboratory services) based exclusively on these General Terms and Conditions. By placing an order the client recognises these Terms and Conditions as legally binding. They are also valid for all future business relationships, even if they are not expressly agreed again where the legal transactions are of a related type.
2. Discrepant or additional agreements, particularly the terms and conditions of the client, will only become a constituent part of the contract if ChemiLytics recognises this in writing. Silence on the part of ChemiLytics is not a valid consent. Reconfirmations by the client with discrepant conditions are hereby expressly contradicted by ChemiLytics. Contradictory or additional terms and conditions or other limitations by the client are not recognised, except if ChemiLytics has agreed to these explicitly in writing.
3. Modifications to these Terms and Conditions also become a constituent part of current contracts when they become valid if the client does not object to them within a period of one month after notification of the modification despite being made aware of their right to object.
4. Modifications or additions must be in text form in order to be effective. This also applies to the revocation of the requirement of the text form.
II. Offers, Agreement of the contract, Assignment
1. Offers from ChemiLytics are subject to change and non-binding.
2. The order by the client represents a binding offer. It can be made in writing, in text form or by telephone/orally. The contract enters into force when accepted by ChemiLytics.
3. The client may not assign rights from contracts with ChemiLytics without the prior written consent of ChemiLytics.
III. Scope and execution of the contractual performance
1. The scope of the contractual performance is determined prior to placing the order. ChemiLytics will execute the orders conscientiously and in accordance with the technical requirements.
2. Due dates that relate to the execution of the contractual performance are considered non-binding if they are not agreed as binding expressly in text form; a binding agreed due date will not begin before the order is received by ChemiLytics or before the test object (sample) is received.
3. Test results are non-binding until the final version of test reports, control reports or expert opinions have been signed by the Director of Analytical Services or a corresponding representative (‘by order of’). Provisional or otherwise communicated test results remain non-binding.
4. All results, analysis reports/expert opinions refer exclusively to the sample that ChemiLytics received from the client and for which the references are included on the confirmation of receipt from ChemiLytics for the sample. ChemiLytics is only responsible for ensuring that the sample is representative if ChemiLytics has been expressly commissioned with the drawing of samples and this commission was accepted.
5. Transfer of the results of the test report or conclusions from the test report are the sole responsibility of the client. The rights to the test report belong to ChemiLytics. The test report may not be duplicated and/or distributed/published – even in part – without the written authorisation of ChemiLytics. It is also not permitted to use the ChemiLytics trademarks.
6. ChemiLytics is not obligated to store the samples or the documentation and therefore the client is bound to examine the result delivered by ChemiLytics immediately in direct or corresponding application of Section 377 of the German Commercial Code and to report identified defects immediately.
IV. Payment conditions, transactions
1. Where the parties have not agreed anything to the contrary the prices are valid as given in the ChemiLytics price list at the time of the order.
2. Invoices from ChemiLytics are due within 14 days of receipt of the invoice without deductions. The client must check the invoice within 10 days of its receipt. If no objection is expressed within this period then the invoice is considered accepted.
3. Downpayments and advance payments must be made with any turnover tax that is required by law. The client is liable for the turnover tax required by law if this is not invoiced within the meaning of the German turnover tax law (UStG).
4. Payments are only considered effected once the sum is finally credited to an account belonging to ChemiLytics.
5. The client may only offset payments or claim rights of retention for legally effected or undisputed demands. The client also only has retention rights to the extent that his counterclaims are based on the same contractual relationship.
V. Deterioration of assets
1. If it is discovered following agreement of a contract with the client that the fulfilment of the contractual obligations is endangered because of their financial situation (particularly in cases of bankruptcy, application for bankruptcy proceedings, attachment or enforcement measures, levy of bill or cheque protests and direct debit returns, including the above in business with or to third parties) then ChemiLytics is entitled, at the discretion of ChemiLytics, to retain performance until an advance payment is made for the price or provision of appropriate security. This is also valid if there are reasonable doubts regarding the client’s solvency or credit worthiness following delayed payments from the client.
2. If there is a current account relationship as part of the business relationship then ChemiLytics is also entitled, in the case of item IV.1, to retain performance until all payments are made from acknowledged balances or appropriate security has been provided.
3. If the advance payment or security payment in accordance with item V.1 is not paid by the client within two weeks then ChemiLytics is entitled to withdraw from the relevant contract.
VI. Risk assumption
1. Where nothing is agreed to the contrary delivery will be made ‘EXW’ (Incoterms ® 2010) Goslar. If the parties have agreed shipping to a different location in individual cases then ChemiLytics retains the right to select the shipping route and type. Additional costs incurred because of special shipping requests of the client must be carried by the client. The same is true for any increases in freight rates that are made after the contract is agreed and any additional cost for diversion, storage costs etc. where delivery is not agreed freight-paid.
2.The delivery dates are found in the relevant order confirmation and are only valid subject to correct and punctual delivery by ChemiLytics.
3. Where a fixed delivery date has been agreed the client must set a reasonable deadline for supplementary performance in the event of delay. The client is only entitled to withdraw from the contract following the fruitless lapse of this deadline except if a grace period is dispensable by law in exceptional circumstances.
4. The risk of destruction, loss or damage of the delivery item is transferred to the client when the delivery item is provided for collection by the agreed date. Where shipping is agreed in exceptional cases the risk is transferred to the client when the delivery item is shipped.
5. Any delivery date that is not accepted in good time will be stored for the account and at the risk of the client.
VII. Force majeure
Force majeure of any kind, e.g. war, terrorism, riot, fire, floor or another unforeseeable circumstance that is not the responsibility of the party obligated to provide performance, in particular operational, traffic and shipping disturbances, lack of labour, power or raw materials, strike, lockout, official decrees or incorrectly or non-timely self-delivery that prevents the party obligated to provide performance from fulfilling its contractual obligations will release the party from the contractual obligation to perform for the duration and scope of the hindrance. The party that is obligated to provide performance will inform the other party of the circumstances, the hindrance and the expected duration of the delay. If the hindrance lasts longer than eight weeks then both parties are entitled to withdraw from the contract.
VIII. Compensation claims
1. The liability of ChemiLytics for damage in cases of ordinary negligence is limited to damages caused by violations of cardinal contractual obligations, the fulfilment of which makes the execution of the contract possible in the first place and upon which fulfilment the contractual partner regularly relies and may rely; in this case, however, the liability shall be limited to typically foreseeable damages. This limitation of liability shall equally apply to damages caused by gross negligence of employees or agents of ChemiLytics who are not executives or salaried employees of ChemiLytics.
2. The limitation period is two years from the point of time, when the claim was created and the client became aware of the circumstances upon whichsuch claim is founded. The claim shall become time-barred three years after the event causing the damage, independently of whether the client was aware of it. The limitation period for compensation claims for damage caused by defects is based on item X.
3. The liability limitations shall apply to all compensation claims independently of the legal grounds with the exception of compensation claims by the client (i) due to intent, (ii) under product liability law, (iii) for fraudulent concealment of defects, (iv) defects in relation to which a guarantee of quality had been assumed, (v) from injury of life, body or health or (vi) for gross negligence of executives or salaried employees of ChemiLytics.
IX. Notice of defects
Notices of defects will only be taken into account if ChemiLytics is notified immediately, at the latest within ten days of the receipt of the results, in text form and specifically stating the defect. In the case of concealed defects the notice must follow immediately, at the latest ten days after the defect is discovered; the burden of proof that the defect was concealed is to be borneby the client.
X. Claims for defects
1. In the case of justified claims for defects the client is first entitled to claim supplementary performance; the supplementary performance is provided without acknowledgement of any legal obligation. ChemiLytics is entitled at its discretion to either resolve the defect or provide the performance specified in the order again. The client must provide the test object again, free of charge, for this purpose. If the supplementary performance by ChemiLytics fails then the client can, at his discretion, either reduce the purchase price or withdraw from the contract. Claims by the client regarding the necessary expense for the supplementary performance, in particular for transportation, route, labour and material cost, are excluded if the expenses increase because the delivery item has been brought subsequently to another location than the premises of the client except if the transportation corresponds to its correct use; ChemiLytics may invoice the client the additional costs incurred by this.
2. Damage compensation claims in accordance with item VIII. remain unaffected. The client is not entitled to make further claims for defects.
3. The client will carry the reasonable costs of the unjustified assertion of claims for defects (e.g. if the goods were not defective).
4. Claims based on damages become time-barred one year from the transfer of services. However this limitation is not valid if (i) a defect was fraudulently concealed or (ii) a guarantee was assumed for the quality of a performance. In the case of compensation claims for damages this limitation is also not valid in the following cases: (i) injury of life, body or health, (ii) intent and (iii) gross negligence by executives or salaried employees of ChemiLytics. The agreement of a guarantee must be made in writing in order to be effective. A declaration of guarantee is only effective if it describes the content of the guarantee and the duration and geographical area of validity of the guarantee protection sufficiently precisely.
XI. Quality, advice, use and processing
1. Only the qualities of a performance described in the specifications of ChemiLytics will be considered as valid.
2. Advice from ChemiLytics orally, in writing and by means of tests, is given in all conscience but is only valid as non-binding information, also with reference to any industrial property rights of third parties, and does not release the client from his own review of the results provided by ChemiLytics with regard to their suitability for the intended processes and purposes. The application, use and processing of the results take place outside the control of ChemiLytics and are thus the exclusive responsibility of the client.
3. It is the sole responsibility of the client to ensure that the use intended by the client has been registered in an orderly manner. Use for non-registered purposes is prohibited. The client has sole and unlimited liability for violations. This is equally valid for observance of the relevant national and international control provisions in their legally valid versions. The client must arrange all the necessary approvals and licences in good time as well as all other required permits for the use or export of the delivery item in accordance with all applicable laws. The client will submit documentation at ChemiLytics’s request if this is necessary for the execution of the order.
1. The client undertakes to keep information obtained from ChemiLytics confidential from third parties – also beyond the scope of the contract. If there are doubts regarding the confidentiality of any information then the client must obtain consent from ChemiLytics before forwarding this information.
2. The obligation in accordance with item XII.1. is only valid for information that the client can prove to have been aware of prior to its communication by ChemiLytics or to have established or otherwise rightfully obtained independent of the client or that became commonly known without violation of item XII.1. or that is subject to regulatory or judicial duty of disclosure.
XIII. Applicable law, Court of jurisdiction, Miscellaneous
1. Any and all legal relationships in connection with the contract shall exclusively be governed with the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. Exclusive place of jurisdiction shall be Braunschweig, Germany.
3. If individual clauses in these general terms and conditions are or become invalid then this shall not affect the validity of the remaining clauses. The parties have to replace any ineffective regulation with a regulation that comes as close as possible to the economic purpose of the ineffective regulation and which is effective.
Goslar, October 2018