GENERAL TERMS AND CONDITIONS

 

I. Scope of Application

These General Terms and Conditions (hereinafter referred to as “Terms and Conditions” or “GTC”) apply to all contracts concluded between GfPS mbh (hereinafter also referred to as “GfPS”) and its contractual partner (hereinafter also referred to as the “Customer”). These Terms and Conditions apply both to orders placed via GfPS’s website at www.gfps.de and contracts concluded otherwise (cf. II.1).

All goods and services that GfPS provides to the Customer are governed exclusively by these Terms and Conditions. Unless GfPS has expressly approved their application in writing, it will not recognize any terms and conditions of the Customer which conflict with or deviate from its own Terms and Conditions. The above provisions will not affect any special agreements made separately.

These Terms and Conditions are only intended for use with entrepreneurs that, at the time of contracting, carry on a trade or exercise a profession as independent contractors, and with legal persons or special funds under public law.

The standard operating procedures (SOPs) and the quality assurance agreement concluded with the Customer shall apply in addition to these Terms and Conditions. In the event of contradictions between the aforementioned regulations and these GTC, the regulations mentioned in sentence 1 shall take precedence.

These Terms and Conditions are organized as follows:

II. Special Conditions for the Provision of Laboratory Services

III. Special Conditions for On-Site Services

IV. Special Conditions for the Sale of Test Kits with or without Analysis

V. General Conditions

 

II. Special Conditions for the Provision of Laboratory Services

1. Quotations, Formation of Contract

Quotations submitted by GfPS are non-binding and subject to change.

The contract is formed when, after the Customer has expressly or implicitly placed an order (in particular, by sending a sample/specimen – hereinafter referred to collectively as a “Sample”), GfPS issues an order confirmation or accepts the Sample sent by the Customer and commences work. When submitting a Sample, the Customer must include the completed order form, which will be sent to it upon request. When placing a digital order, it must include a cover letter. Where GfPS does not wish to accept an order, it will notify the Customer of this without delay after it has received the Sample.

The Customer may, upon request, be permitted to enter or register orders in advance in the login area of GfPS’s website. For these purposes, GfPS will send the Customer login data. The provision of these login data will be at GfPS’s discretion. After the Customer has placed its order, GfPS will send it a confirmation of receipt with a cover letter to include with the Sample. This letter must be printed out and completed, and then returned with the Sample. However, a contract to perform the services is not formed until GfPS has received and accepted the Sample in accordance with the provision above.

2. Performance, Time of Performance

The contractual relationship between the parties is exhaustively governed by the Customer’s order. Amendments and supplements must be made in text form (e.g. by postal mail, e-mail or fax). The Customer is only entitled to require GfPS to implement subsequent changes or additions if GfPS has confirmed them in text form.

GfPS will exercise due care in the performance of its work and perform its work in a timely manner given the technical requirements in the specific case. GfPS will perform its work during normal business hours, i.e. Monday to Friday from 08:00 and 17:00 (except on public holidays, Christmas Eve and New Year’s Eve). Deadlines for the performance of work must be agreed separately in writing. Any agreed deadline for performance will not commence before GfPS has received the order and the Sample and all technical and commercial questions have been resolved.

After GfPS has performed its work, it will dispose of the Samples provided by the Customer in an appropriate manner or – if so agreed – return them to the Customer.

GfPS will send the Customer the test report by mail or by unencrypted e-mail and will archive the report in accordance with the statutory requirements.

3. Remuneration and Payment

The applicable prices are those in GfPS’s price list for the specific Customer at the time of the conclusion of the contract, which the Customer was sent in advance, or the prices stated in the relevant quotation. Prices are subject to the statutory value-added tax applicable at the time of invoicing. All invoices are due and payable in full 10 days from the date of issue. The statutory provisions govern the consequences of a default in payment.

The Customer may only exercise a right of set-off in those cases in which its counterclaims are non-appealable or undisputed or where GfPS has recognized them. This does not apply to counterclaims by the Customer that arise from the same contractual relationship. The Customer is only entitled to exercise rights of retention arising from the same contractual relationship. GfPS is entitled to the full range of set-off and withholding rights stipulated by law.

4. Risk, Unsuitable Shipping

The Customer must, on its own initiative, ensure that hazardous materials and potentially dangerous goods are clearly identified as such on their packaging. Any harm to the staff of GfPS must be avoided at all times. If necessary, the Customer must inform GfPS in advance and provide the relevant documents (e.g. safety data sheets). Where Samples may not be disposed of as household waste, the Customer must label them clearly as such and, furthermore, must inform GfPS of this prior to shipping so as to ensure that GfPS can dispose of them.

GfPS bears the risk of accidental loss or damage to the shipment (Sample/specimen) as from the date of receipt of the shipment at its place of business (Sitz) in Aachen and its acceptance of the order.

Where GfPS has agreed to return the shipment to the Customer (see clause 2), the risk of the accidental loss or damage of the return shipment will pass to the Customer when the goods are duly handed over to the carrier (e.g. DHL, UPS or other carrier). As from the time of the handover, GfPS will also cease to be liable for any delays.

If GfPS determines that the shipment is unsuitable for the performance of its services for reasons for which it is not responsible (e.g. climatic influences on the shipment or other damage during transport, improper shipping by the Customer, incorrect labeling of Samples, insufficient quantities of the Samples, non-compliance with relevant safety regulations), GfPS will be released from the performance of its services. However, it will be entitled to charge for any services that it has already performed on the basis of its actual expenses (including the costs of returns, disposal, etc.) where it was not recognizable that the shipment was unsuitable prior to the performance of its services. In the event that the shipment is unsuitable, GfPS will notify the Customer without delay.

5. Warranty, Audits
   

GfPS will perform its services in accordance with the technical standards current at the time of the conclusion of the contract and will only assign staff who are qualified to perform the agreed services. The provisions of the quality assurance agreement with the Customer apply in all other respects.

If a defect becomes apparent, the Customer will initially be limited to demanding a cure, in which case GfPS may elect to remedy the defect or perform the services specified in the order once again. GfPS will bear the costs associated with providing a cure. In this case, the Customer must provide retention samples free of charge.

If GfPS fails to cure its performance even though the Customer has set it a reasonable deadline for doing so or if it would be objectively impossible to effect a cure or unreasonable to expect the Customer to accept a cure, the Customer will be entitled to rescind the contract. In such case, GfPS will reimburse the Customer for any payments already made for its services. Where there is an ongoing business relationship, reimbursement will be in the form of a credit note. The Customer will only be entitled to a reduction in the purchase price where it shows that the defective work was only suitable to a limited extent for its purposes. The Customer is also entitled to these rights where GfPS’s attempts to cure its performance fail. It must, however, allow GfPS at least two attempts at curing its performance.

With regard to audits by an inspection body of the Customer, the regulations in the SOPs governing unannounced audits by Notified Bodies shall also apply.

The Customer will only have rights to damages or reimbursement of its expenses in accordance with Section V.1.

 

III. Special Conditions for On-Site Services

1. Quotations, Formation of Contract

Quotations submitted by GfPS are non-binding and subject to change. After the Customer has placed an order, a contract is concluded when GfPS confirms the order in writing. The content of the contract will be determined by this written order confirmation.

2. Scope and Performance of Services

The scope of services is set out in the respective contract for services. GfPS will perform its services in accordance with the technical standards current at the time of the conclusion of the contract and will only assign staff who are qualified to perform the agreed services.

GfPS will provide the tools required for the performance of the services unless agreed otherwise in an individual case. GfPS will document the services performed in an appropriate form and in compliance with any applicable laws and other provisions.

3. Dates and Times

As to the dates for the performance of the services to be provided, the Customer will, in each case, coordinate with GfPS in a timely manner. Dates are only binding if GfPS has expressly confirmed them in writing.

GfPS will perform the services during its usual working hours unless the parties have expressly agreed otherwise in the contract for services. If it performs services outside normal working hours, GfPS will add the usual surcharges. The following times are considered to be outside normal working hours: public holidays in the Federal Republic of Germany and in the State of North-Rhine Westphalia, public holidays at the place where the services are to be performed, Christmas Eve and New Year’s Eve.

Where GfPS has specified a time for performance of the services, time will not begin to run until all technical and commercial questions have been resolved. The agreed deadlines and dates are always only estimates and are never binding unless there is an express agreement to the contrary in a specific case. The time for performance is calculated from the date of the order confirmation to the date of completion of the work. Where GfPS exceeds a non-binding date for performance, it will be obliged to perform the agreed services within 2 weeks of receiving a written reminder from the Customer. In the case of long-term orders (e.g. real-time ageing), it will be obliged to commence performance of the services within 2 weeks. Upon the expiry of this deadline, GfPS will be in default. Where a binding date for performance was agreed, GfPS will be in default upon expiry of such deadline. Section V.1. applies with regard to any claims for damages by the Customer.

In addition, GfPS’s compliance with its duty to perform under the contract is conditional upon the Customer’s timely and proper performance of its obligations. The aforegoing is without prejudice to the defense of failure to perform duties owed under the contract. In particular, GfPS reserves the right to withhold any further services if the Customer has not settled GfPS’s invoices for services already partially performed.

4. Duties of the Customer

The Customer will appoint a person to be GfPS’s contact person who will be responsible for coordinating the services at the Customer’s company.

Where GfPS’s employees perform work at the Customer’s premises, the Customer must grant them free and unhindered access to all rooms and items affected by the services, and must ensure that the rooms and items are in a suitable condition for testing or are operational. The Customer must ensure that GfPS’s employees are able to work unhindered and without any restrictions. If necessary, it will, at its own expense, provide the necessary media, such as electricity, including the necessary connections.

Where applicable, the Customer will provide GfPS with all of the information required to enable GfPS to perform the contract in a timely and complete manner, and it will make documents available in a timely manner.

The Customer must take all safety measures that may be necessary and – if required – must inform GfPS’s employees about internal safety regulations. In relation to the services to be provided by GfPS, the Customer is obliged to cooperate if and to the extent necessary.

5. Remuneration and Payment

Unless expressly agreed otherwise, GfPS will invoice the Customer for its services on a time and material basis. All prices are net prices and subject to VAT at the rate applicable at the time that the invoice is issued.

Travel time is considered working time. Travel expenses will be invoiced separately according to expenditure.

Unless the order confirmation provides otherwise, invoices are due and payable in full within 10 days from the date that they are issued. The statutory provisions govern the consequences of a default in payment.

The Customer may only exercise a right of set-off in those cases in which its counterclaims are non-appealable or undisputed or where GfPS has recognized them. This does not apply to counterclaims by the Customer that arise from the same contractual relationship. The Customer is only entitled to exercise rights of retention arising from the same contractual relationship. GfPS is entitled to the full range of set-off and withholding rights stipulated by law.

6. Warranties

GfPS will carry out its services in a professional manner in accordance with recognized technical standards.

If a service performed by GfPS does not meet the contractual requirements/recognized technical standards or is deficient, GfPS may elect whether it will, free of charge, reattempt performance of the service or remedy its performance (cure).

If GfPS fails to cure its performance in spite of being granted a reasonable grace period by the Customer for this purpose or if it is objectively impossible to cure its performance or if a cure would be unreasonable for the Customer, and if the Customer cannot reasonably be expected to adhere to the contract in view of the seriousness of the breach of duty, the Customer will be entitled to terminate the contract for services or it may rescind the contract or it may reduce payment in accordance with the statutory provisions. The Customer is also entitled to these rights where GfPS’s attempts to cure its performance fail. It must, however, allow GfPS at least two attempts at curing its performance.

The Customer will only have rights to damages or reimbursement of its expenses in accordance with Section V.1.

 

IV. Special Conditions for the Sale of Test Kits With or Without Analysis

1. Quotation, Formation of Contract

Quotations submitted by GfPS are non-binding and subject to change. After an order has been placed by the Customer, a contract with the content in GfPS’s written order confirmation is concluded when GfPS issues the confirmation or when GfPS delivers the goods.

The contract is concluded subject to the proviso that GfPS’s own suppliers deliver their goods and services to it in full and on time. This proviso does not apply to short-term disruptions to delivery or in those cases in which GfPS is responsible for its failure to deliver. Consequently, it only applies in those cases in which GfPS, in spite of having entered into a contract to buy the relevant goods, is through no fault of its own unable to obtain them. GfPS will notify the Customer without delay if the goods are not available. Any payments which the Customer has already made will be immediately refunded.

2. Prices and Payment Terms

Except where the order confirmation provides otherwise, prices are “ex works” or “ex warehouse” and do not include the costs of shipment, freight, postage, customs and insurance; these items will be invoiced separately.

GfPS’s prices do not include the applicable statutory value added tax; value added tax will be shown separately in the amount prescribed by law on the date of the invoice.

Unless the order confirmation provides otherwise, invoices are due and payable in full within 10 days from the date that they are issued. The statutory provisions govern the consequences of a default in payment.

The Customer may only exercise a right of set-off in those cases in which its counterclaims are non-appealable or undisputed or where GfPS has recognized them. This does not apply to counterclaims by the Customer that arise from the same contractual relationship. The Customer is only entitled to exercise rights of retention arising from the same contractual relationship. GfPS is entitled to the full range of set-off and withholding rights stipulated by law

3. Delivery Time

Unless expressly agreed otherwise, delivery times are non-binding estimates of when delivery will occur. If it was agreed that the Customer would pay a deposit, the delivery time does not begin to run until payment of same has been received. The delivery deadline is met if, before it has expired, the delivery item has left the manufacturer’s factory or warehouse or if GfPS has given notice that the item is ready for shipment. Where GfPS exceeds a non-binding delivery date, it will be obliged to make delivery within 2 weeks of receiving a written reminder from the Customer. Upon the expiry of this deadline, GfPS will be in default. Where a binding delivery date was agreed, GfPS will be in default upon expiry of this deadline.

GfPS will be liable in accordance with the statutory provisions where the underlying purchase contract qualifies as a contract for delivery on a specific date within the meaning of section 286(2) No. 4 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) or section 376 of the German Commercial Code (Handelsgesetzbuch – HGB). If, in addition thereto, GfPS is responsible for failing to comply with binding delivery dates or has defaulted on delivery, the Customer may, after the expiry of a reasonable grace period for performance, rescind the contract; the Customer will only be entitled to additional damages as provided for in Section V.1 of these Terms and Conditions.

4. Passing of Risk

Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. The risk of accidental loss or damage to the goods passes to the Customer at the time when they are handed over to the freight forwarder, including in cases where carriage paid delivery has been agreed. If the dispatch of the goods is delayed due to fault on the part of the Customer, the risk will pass to it at the time that GfPS gave notice that the goods were ready for dispatch.

In the absence of any special instructions from the Customer, GfPS will, at its discretion, select the best packaging, transport route and mode of transport. At the Customer’s request, GfPS will arrange for transport insurance for the shipment; the costs for this will be borne by the Customer.

5. Warranties

The warranty rights of the Customer are conditional on its having duly performed its obligations under section 377 of the German Commercial Code to examine the goods and to give notice of any defects in them.

Any statements that GfPS makes in respect of the goods or services are not, unless expressly designated as such, warranties as to their characteristics (Beschaffenheitsgarantien).

GfPS warrants that the purchased item conforms with the product description and any other contractual agreements. GfPS’s warranty does not apply, in particular, in respect of damage resulting from incorrect actions or omissions by the Customer, its employees or its vicarious agents, or in respect of damage resulting from failure to follow operating instructions or other guidelines from the manufacturer (e.g. regarding storage or durability).

If the purchased item is defective, GfPS may, at its option, cure its performance by either repair or replacement. Title in replaced products and parts will pass to GfPS.

If GfPS does not comply with its obligation to cure its performance within a reasonable period of time or if it fails to remedy the defect despite repeated attempts to do so, the Customer will be entitled to reduce the purchase price or to rescind the contract. Further claims, in particular claims for reimbursement of expenses or claims for damages for defects or consequential damages may only be brought within the limits specified in Section V.1 of these Terms and Conditions.

The statutory limitation period for notification of defects expires 12 months from the date that the risk passes.

GfPS’s liability under any warranties as to characteristics or durability (Beschaffenheits- oder Haltbarkeitsgarantien) and its liability for fraudulent concealment of a defect, intentional wrongdoing, gross negligence or injury to life, body or health remains unaffected by the aforegoing provisions. In these cases, the statutory provisions / statutory warranty periods apply.

6. Retention of Title (ROT)

GfPS will retain ownership of the goods until the purchase price and a flat fee for shipping costs have been paid in full.

7. Special Provisions for the Analysis of the Test Kits by GfPS

Where this has been agreed between the parties, GfPS will analyze the test kits for the Customer.

GfPS will perform test kit analysis services at its place of business (Sitz). The Customer will make the test kits available to GfPS for this purpose at its own expense and risk.

In all other respects, the Conditions for the Provision of Laboratory Services apply accordingly with regard to the analysis of test kits.

 

V. General Conditions

1. Liability

In all cases in which GfPS is contractually or legally bound to pay damages or reimburse expenses, it will only be liable to the extent that it, its legal representatives or its vicarious agents are guilty of intentional wrongdoing or gross negligence or cause injury to life, limb or health. Liability based on mandatory statutory provisions remains unaffected. In addition, this will not affect GfPS’s liability for any intentional or negligent breach of a material contractual obligation (= a duty whose fulfillment is of the very essence for the proper implementation of the contract and upon whose fulfillment the other party to the contract may regularly rely); thus, except in cases covered by the first and second sentences, GfPS’s liability will be limited to the usual and foreseeable damage. The above provision does not reverse the burden of proof in a way which would be detrimental to the Customer’s interests.

The Customer is responsible for duly performing data backups. GfPS is not liable – subject to any liability pursuant to paragraph 1 – for the recovery of data where the Customer has failed to comply with its obligations under this contract to ensure that data can be reconstructed, at reasonable expense, from data material maintained in machine-readable form.

To the extent to which GfPS’s liability for damages is excluded or limited, this also applies in respect of the personal liability for damages of its employees, representatives and vicarious agents.

2. Force Majeure

Where a force majeure event occurs, GfPS will be entitled to suspend the performance of its services for the duration of the impediment and for a reasonable start-up period thereafter, or GfPS will be entitled, due to the unperformed part of the contract, to rescind the contract, wholly or in part. Force majeure events will include strikes, lockouts as well as unforeseen and unavoidable circumstances, e.g. business disruptions, if they make it impossible for GfPS to perform on time in spite of its making a reasonable effort to do so. GfPS will bear the burden of proving that this was the case. The same applies if the aforementioned impediments occur during a delay or at a subcontractor’s premises. The Customer may request that GfPS notify it within a reasonable period as to whether GfPS intends to rescind the contract or perform its obligations under the contract within a reasonable grace period. If GfPS fails to respond, the Customer may rescind the unperformed part of the contract. If a case of force majeure as described above occurs, GfPS will inform the Customer without delay.

3. Confidentiality

GfPS is subject to a duty of confidentiality for an indefinite term in respect of all information marked confidential as well as in respect of trade and business secrets to which it becomes privy during the performance of the contract. The duty of confidentiality does not apply to information (i) that was already known to GfPS without any duty to maintain confidentiality, (ii) that is or becomes publicly available without any fault on the part of GfPS, (iii) that is lawfully disclosed to GfPS by a third party without any duty to maintain confidentiality, (iv) that can be demonstrated to have been independently developed by GfPS, or (v) whose disclosure has been authorized by the Customer in writing.

4. Subcontractors, Place of Jurisdiction, Severability Clause

GfPS may use subcontractors for the performance of some or all of the agreed services unless the Customer objects to this for objectively justified and good reasons. GfPS will only use subcontractors who are adequately qualified and suitable for performing the work. GfPS will impose the same contractual obligations of confidentiality on its subcontractors as it must adhere to itself.

If the Customer is a merchant (Kaufmann), a public corporation or a special fund under public law, the courts at the place where GfPS has its place of business (Sitz) will have jurisdiction.

The law of the Federal Republic of Germany applies; the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

Should individual provisions of these Terms and Conditions prove to be invalid or unenforceable, in whole or in part, or become invalid or unenforceable as a result of changes in legislation occurring after the conclusion of the contract, the remaining provisions and the validity of the contract as a whole will remain unaffected. The same applies in the event of any omissions. In order to replace the invalid or unenforceable provision or in order to fill the gap in the provision, the parties will agree on the provision which comes as close as legally possible to the economic purpose of the provision that it is replacing.