GENERAL TERMS AND CONDITIONS (GTC)
I. Scope of application
The following General Terms and Conditions (GTC) apply to all contracts between GfPS mbH – hereinafter referred to as the Contractor – and its contractual partner – hereinafter referred to as the Client. The GTC apply both to orders placed via the contractor’s website at www.gfps.de and to other contracts (see II.1).
The GTC apply exclusively to all services and deliveries that the Contractor provides for the Client. The Contractor shall not recognize any terms and conditions of the Client that conflict with or deviate from these Terms and Conditions unless the Contractor has expressly agreed to their validity in writing. Individual agreements remain unaffected by the above provisions.
These terms and conditions only apply to entrepreneurs who are acting in the exercise of their commercial or independent professional activity when concluding the contract, as well as to legal entities under public law or special funds under public law.
In addition to these conditions, the standard operating procedures (SOPs) and the quality assurance agreement concluded with the client shall apply. In the event of contradictions between the aforementioned provisions and these GTC, the provisions mentioned in sentence 1 shall prevail.
These GTC are further structured as follows:
II Special provisions for the provision of laboratory services
III Special provisions for on-site services
IV. Special provisions for the sale of test kits with or without evaluation
V. General provisions
II Special provisions for the provision of laboratory services
1. offer, conclusion of the contract
The Contractor’s offers are subject to change.
The contract shall come into effect following an express or implied order by the Client (in particular by sending a sample/specimen – hereinafter collectively referred to as “sample”) by the Contractor’s order confirmation or by acceptance of the sample sent by the Client and commencement of the execution of the order. The sample sent by the client must be accompanied by a completed order form, which will be sent to the client on request, or a sample cover letter in the case of digital order entry. If the contractor is not prepared to accept the order, the client shall be informed of this immediately after receipt of the sample.
Upon request, the Client may have the option of entering or registering orders in advance in the login area of the Contractor’s website. The Contractor shall send the Client login data for this purpose. The provision of this login data is at the discretion of the contractor. After the order has been entered, the client receives a confirmation of receipt with a sample cover letter, which must be printed out, completed and enclosed with the sample. However, a contract for the performance of the services shall only come into existence upon receipt of the sample by the Contractor and acceptance of the sample by the Contractor in accordance with the above provision.
2. provision of services, time of performance
The contractual relationship is conclusively limited by the customer order. Amendments and supplements must be made in text form. The Client shall only be entitled to implement subsequent changes or additions if these have been confirmed by the Contractor in text form.
The Contractor shall carry out the orders with conscientious care and in a timely manner in accordance with technical requirements. The services are performed during normal working hours from Monday to Friday between 08:00 and 17:00 (with the exception of all public holidays, Christmas Eve and New Year’s Eve). Order deadlines must be agreed separately in writing. Any agreed period shall not commence before receipt of the order and the test sample and only after clarification of all technical and commercial questions.
After the service has been carried out, the samples provided by the client shall be professionally disposed of by the contractor or – if agreed accordingly – returned to the client.
The test report is sent to the client by post or by unencrypted email and archived by the contractor in accordance with the legal requirements.
3. remuneration and payment
The Contractor’s current client-specific price list, which was sent to the Client in advance, or a corresponding offer shall apply. Prices are subject to VAT at the statutory rate applicable at the time the invoice is issued. All payments are due 10 days after invoicing without any deductions. The statutory regulations regarding the consequences of late payment shall apply.
The Client shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been recognized by the Contractor. This does not apply to counterclaims of the client arising from the same contractual relationship. The client shall only be entitled to a right of retention insofar as it is based on the same contractual relationship. The Contractor shall be entitled to set-off and retention rights to the extent permitted by law.
4. assumption of risk, unsuitable shipment
Dangerous goods and potentially dangerous components must be marked on the shipping packaging by the client without being requested to do so. Damage to the contractor’s employees must be ruled out at all times. If necessary, the client must inform the contractor in advance and provide the relevant documents (e.g. safety data sheets). Samples that cannot be disposed of with household waste must be labeled and the contractor must be informed before sending in the samples to ensure that these samples can be disposed of.
The Contractor shall bear the risk of accidental loss of or accidental damage to the consignment (sample/specimen) from receipt of the consignment at its registered office in Aachen and acceptance of the order.
If a return shipment of the consignment has been agreed with the customer (cf. Section 2), the risk of accidental loss or accidental damage to the return shipment shall pass to the customer upon proper handover to the carrier (DHL, UPS or other carrier). The Contractor shall no longer be liable for any delays from this point in time.
If the consignment proves to be unsuitable for the execution of the order for reasons for which the Contractor is not responsible (e.g. climatic effects or other damage during transport, improper shipment by the client, incorrect sample labeling, insufficient quantities, non-compliance with relevant safety regulations), the contractor shall be released from the execution of the order, but shall be entitled to charge for services already rendered, according to actual expenditure (including returns, disposal, etc.), provided that the unsuitability of the consignment was not recognizable before the service was rendered. The Contractor shall inform the Client immediately if the consignment is unsuitable.
5 Warranty, audits
The Contractor shall provide its services in accordance with the state of the art at the time the contract is concluded and by personnel who are qualified to provide the agreed services. In all other respects, the provisions of the quality assurance agreement with the client shall apply.
If a defect becomes apparent, the Client shall initially and exclusively be entitled to demand subsequent performance, in which case the Contractor shall have the choice of remedying the defect or providing the services specified in the order again. The Contractor shall bear the costs associated with the subsequent performance. The client must provide reference samples free of charge.
If the Contractor fails to fulfill its obligation to provide subsequent performance despite a reasonable deadline set by the Client or if subsequent performance is objectively impossible or unreasonable for the Client, the Client shall be entitled to withdraw from the contract; in this case, any fees paid for this service shall be refunded, which shall be done by issuing a credit note in the case of an ongoing business relationship. The right to a reduction shall only be considered if the client proves that defective services were only suitable for its purposes to a reduced extent. The client shall also have these rights if the subsequent performance fails. However, he must first have given the contractor at least two opportunities for subsequent performance.
The regulations in the SOPs on unannounced audits by Notified Bodies also apply with regard to audits by the client’s inspection bodies.
Claims for damages or reimbursement of expenses by the client shall only exist within the scope of Section V.1.
III Special provisions for on-site services
1. offers, conclusion of the contract
The Contractor’s offers are subject to change. After the client has placed an order, the contract is concluded by the contractor’s written order confirmation. This written order confirmation is decisive for the content of the contract.
2. service content and execution
The scope of the service is set out in the respective service contract. The Contractor shall provide its services in accordance with the state of the art at the time the contract is concluded and by personnel who are qualified to provide the agreed services.
The Contractor shall provide the tools required for the service, unless otherwise agreed in individual cases. The Contractor shall document the services rendered in an appropriate form and in compliance with any applicable statutory and other regulations.
3. dates and times
The Client shall agree the dates for the services to be provided with the Contractor in good time. Deadlines are only binding if they have been expressly confirmed in writing by the contractor.
The Contractor shall perform the services during its usual working hours, unless the parties have expressly agreed otherwise in the service contract. Services performed by the Contractor outside normal working hours shall be remunerated at the applicable surcharges. Public holidays in the Federal Republic of Germany and the federal state of North Rhine-Westphalia and at the respective location of the service to be provided as well as Christmas Eve and New Year’s Eve are not considered normal working hours.
The start of the performance period specified by the Contractor, if applicable, shall be subject to the clarification of all technical and commercial issues. Agreed deadlines and dates are always approximate and are generally non-binding, unless expressly agreed otherwise in individual cases. The performance time is calculated from the day of order confirmation until completion of the work. If a non-binding delivery date is exceeded, the Contractor shall be obliged to perform the contractually agreed service within 2 weeks of receipt of a written reminder from the Client or, in the case of longer-term orders (e.g. real-time aging), to commence performance within 2 weeks. Upon expiry of this period, the Contractor shall be in default. If a binding performance period is agreed, the Contractor shall be in default upon its expiry. With regard to any claims for damages by the client, V.1 shall apply.
Compliance with the Contractor’s obligation to perform further presupposes the timely and proper fulfillment of the Client’s obligations. The defense of non-performance of the contract remains reserved. In particular, the Contractor reserves the right to withhold further services if the Client is in arrears with the settlement of invoices for partial services already rendered.
4. obligations of the client
The Client shall appoint a contact person for the Contractor who shall coordinate the services in his company.
The Client shall grant the Contractor’s employees free, unhindered access to all rooms and objects affected by the service in a condition suitable for inspection or servicing. The Client shall ensure that the Contractor’s employees can work unhindered without restriction and shall provide any necessary media, such as electricity, including the necessary connections, at its own expense.
The Client shall provide the Contractor with all information required for the execution of the order in good time and in full and shall make documents available in good time.
The Client shall take all necessary safety measures and – where necessary – inform the Contractor’s employees about internal safety regulations. The Client is obliged to cooperate in the services to be provided by the Contractor, if and to the extent necessary.
5. remuneration and payment
Unless expressly agreed otherwise, the Contractor’s services shall be invoiced on a time and material basis. All prices are net plus VAT. the statutory value added tax at the time of invoicing.
Travel times are considered working hours. Travel expenses will be invoiced additionally according to expenditure.
Unless otherwise stated in the order confirmation, invoices are due for payment without deduction within 10 days of the invoice date. The statutory regulations regarding the consequences of late payment shall apply.
The Client shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been recognized by the Contractor. This does not apply to counterclaims of the client arising from the same contractual relationship. The client shall only be entitled to a right of retention insofar as it is based on the same contractual relationship. The Contractor shall be entitled to set-off and retention rights to the extent permitted by law.
6. warranty
The Contractor shall carry out the services to be provided in accordance with the contract properly and in accordance with the recognized rules of technology.
If a service provided by the Contractor does not meet the contractual/state of the art requirements or has a defect, the Contractor shall, at its discretion, either make good or rectify the defect free of charge (subsequent performance).
If the Contractor fails to meet its obligation to provide subsequent performance despite the Client setting a reasonable deadline, or if subsequent performance is objectively impossible or unreasonable for the Client, the Client shall be entitled to terminate the service contract, to withdraw from the contract or to reduce the remuneration in accordance with the statutory provisions if it can no longer be expected to continue the contract due to the seriousness of the breach of duty. The client shall also have these rights if the subsequent performance fails. However, he must first have given the contractor at least two opportunities for subsequent performance.
Claims for damages or reimbursement of expenses by the client shall only exist within the scope of Section V.1.
IV. Special provisions for the sale of test kits with or without evaluation
1. offer, conclusion of contract
The Contractor’s offers are subject to change. After the Client has placed an order, the contract is concluded by the Contractor’s written order confirmation and in accordance with its content or by execution of the delivery.
The conclusion of the contract is subject to complete and timely delivery to us. This reservation shall not apply to short-term delivery disruptions or to cases in which the Contractor is responsible for non-delivery. It therefore only applies in cases in which the contractor cannot receive the goods through no fault of his own despite concluding a congruent hedging transaction. The Contractor shall inform the Client immediately of the non-availability of the goods. Payments already made by the client will be reimbursed immediately.
2. prices and terms of payment
Unless otherwise stated in the order confirmation, prices are ex works or ex warehouse excluding shipping, freight, postage, customs and insurance costs; these items will be invoiced separately.
Statutory VAT is not included in the prices; it is shown separately on the invoice at the statutory rate on the day the invoice is issued.
Unless otherwise stated in the order confirmation, invoices are due for payment without deduction within 10 days of the invoice date. The statutory regulations regarding the consequences of late payment shall apply.
The Client shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been recognized by the Contractor. This does not apply to counterclaims of the client arising from the same contractual relationship. The client shall only be entitled to a right of retention insofar as it is based on the same contractual relationship. The Contractor shall be entitled to set-off and retention rights to the extent permitted by law.
3. delivery time
The stated delivery times are non-binding approximate times, unless expressly agreed otherwise. If advance payments by the client have been agreed, the delivery period shall only commence upon receipt of the advance payment. The delivery deadline shall be deemed to have been met if the delivery item has left the manufacturer’s works or warehouse or readiness for dispatch has been notified by the time it expires. If a non-binding delivery date is exceeded, the Contractor shall be obliged to carry out the delivery within 2 weeks of receipt of a written reminder from the Client. Upon expiry of this period, the Contractor shall be in default. If a binding delivery time is agreed, the Contractor shall be in default upon its expiry.
The Contractor shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of § 286 para. 2 No. 4 BGB or Section 376 HGB. If, in addition, the Contractor is responsible for non-compliance with bindingly agreed delivery deadlines or is in default of delivery, the Client shall be entitled to withdraw from the contract after expiry of a reasonable grace period; further claims for damages by the Client shall only exist within the scope of Section V.1 of these General Terms and Conditions.
4. transfer of risk
Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. The risk of accidental loss or accidental damage to the goods shall pass to the customer upon handover of the goods to the commissioned transport company, even in the case of carriage paid delivery. In the event of delays in dispatch for which the client is responsible, the risk shall already pass upon notification of readiness for dispatch.
In the absence of special instructions from the Client, packaging and the choice of transport route and means of transport shall be at the Contractor’s best discretion. If the Client so wishes, the Contractor shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the Client.
5. warranty
The client’s rights in respect of defects presuppose that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
Information on the subject matter of the delivery or service does not constitute a guarantee for the quality of the goods, unless it is expressly designated as such.
The Contractor warrants that the purchased item corresponds to the product description and any other contractual agreements. In particular, the Contractor’s warranty shall not apply to damage caused by faulty actions or omissions on the part of the Client and its employees / vicarious agents, as well as damage caused by non-compliance with the operating instructions or other specifications of the manufacturer (e.g. storage, shelf life).
If there is a defect in the purchased item, the Contractor shall be entitled, at its discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. Replaced products and parts shall become the property of the Contractor.
If the Contractor fails to fulfill its obligation to provide subsequent performance within a reasonable period of time or if subsequent improvement fails despite repeated attempts, the Client shall be entitled to reduce the purchase price or withdraw from the contract. Further claims, in particular claims for reimbursement of expenses or compensation for damages due to defects or consequential damages, shall only exist within the framework of the provisions of Section V.1 of these General Terms and Conditions.
The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
Liability for quality or durability guarantees as well as liability for fraudulent concealment of defects, intent, gross negligence and injury to life, limb or health shall not be affected by the above provisions. In these cases, the statutory provisions and warranty periods shall apply.
6. reservation of title
The goods remain the property of the contractor until final payment of the purchase price plus shipping costs.
7. special regulations for the evaluation of the test kits by the contractor
If this has been contractually agreed between the parties, the Contractor shall evaluate the test kits for the Client.
The service for evaluating the test kits is carried out at the contractor’s headquarters. The Client shall make the test kit available to the Contractor for this purpose at its own expense and risk.
In all other respects, the provisions for the provision of laboratory services shall apply accordingly with regard to the evaluation of the test kits.
V. General provisions
1. liability
In all cases in which the Contractor is obliged to pay compensation for damages or expenses on the basis of contractual or statutory claims, it shall only be liable insofar as it, its executive employees and vicarious agents are guilty of intent, gross negligence or injury to life, limb or health. Liability based on mandatory statutory provisions remains unaffected. Liability for the culpable breach of essential contractual obligations (= obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely) shall also remain unaffected; however, liability in this respect shall be limited to the foreseeable damage typical for the contract, except in the cases of sentences 1 and 2. A change in the burden of proof to the detriment of the client is not associated with the above provisions.
Proper data backup is the responsibility of the client. The Contractor shall not be liable – subject to liability in accordance with paragraph 1 – for the recovery of data if the Client has not ensured within the scope of its obligations under this contract that this data can be reconstructed from data material held in machine-readable form with reasonable effort.
Insofar as liability for damages against the Contractor is excluded or limited, this shall also apply with regard to the personal liability for damages of the Contractor’s employees, workers, staff, representatives and vicarious agents.
2. force majeure
Events of force majeure shall entitle the Contractor to postpone performance for the duration of the hindrance and a reasonable start-up period, or to withdraw from the contract in whole or in part due to the part of the contract not yet fulfilled. Force majeure shall include strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions, which make it impossible for the Contractor to perform on time despite reasonable efforts; the Contractor must provide evidence of this. This shall also apply if the aforementioned impediments occur during a delay or at the sub-supplier. The Client may request the Contractor to declare within a reasonable period of time whether the Contractor intends to withdraw from the contract or perform within a reasonable grace period. If the Contractor does not provide an explanation, the Client may withdraw from the unfulfilled part of the contract. The Contractor shall notify the Client immediately if a case of force majeure as described above occurs.
3. secrecy
The Contractor shall be obliged for an unlimited period of time to maintain secrecy about all information or business and trade secrets designated as confidential which become known to the Contractor in connection with the performance of the contract. The obligation to maintain confidentiality shall not apply to information which was already known to the Contractor beforehand without an obligation to maintain confidentiality or which is or becomes generally known without the Contractor being responsible for this, or which is lawfully disclosed to the Contractor by a third party without an obligation to maintain confidentiality or which has demonstrably been developed independently by the Contractor or which has been released for disclosure in writing by the Client.
4. subcontractors, place of jurisdiction, severability clause
The Contractor shall be entitled to use subcontractors in whole or in part for the provision of the agreed services if the Client does not object to this for objectively justified, important reasons. Only entities that are suitably qualified and suitable for this purpose are selected as subcontractors. The Contractor shall oblige the subcontractors to maintain confidentiality in accordance with the contractual agreement.
If the Client is a merchant, a legal entity under public law or a special fund under public law, the Contractor’s place of business shall be the place of jurisdiction.
The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods 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 after conclusion of the contract, the remaining provisions and the validity of the contract as a whole shall remain unaffected. The same applies in the event of a regulatory gap. In place of the invalid or unenforceable provision or to fill the loophole, the parties shall find a provision that comes closest to the economic purpose of the provision to be replaced in a legally permissible manner.