General Business Terms and Conditions
The following general business terms and conditions (hereinafter referred to as GBT’s) shall apply exclusively for all deliveries and services of PROOF-ACS GmbH (hereinafter referred to as PROOF-ACS). His GBTs shall be deemed as having been accepted when the order is placed with PROOF-ACS. They shall also apply for all future business relations, even if no reference is expressly made again to their validity.
Any deviating or additional agreements, in particular business terms and conditions of the customer shall only become a part of the contract, if PROOF-ACS has confirmed and acknowledged this in writing. The silence of PROOF-ACS shall not be deemed as an agreement. Counter-confirmations of the customer with deviating conditions are hereby and now expressly objected to by PROOF-ACS.
Any changes to the GBT's will from their validity also become a part of current contracts, if the customer despite special reference to his right of objection does not file an objection within a deadline of one month after notification of the change.
1. Scope and execution of the services/sending risk in the case of goods deliveries
1-1 The agreed services of PROOF-ACS may be derived from the written order confirmation from PROOF-ACS. PROOF-ACS reserves the right to an oral order confirmation or that which is declared by conclusive action. The written form shall apply for all agreements, including supplements, modifications and collateral agreements. Supplements and changes and collateral agreements to an order entered into in writing may be agreed upon without observing the written form, if this is expressly agreed to by PROOF-ACS.
1-2 The observance of the service obligations of PROOF-ACS assumes the timely and proper in particular timely fulfilment of the obligations of the customer.
1-3 Dates and deadlines for deliveries and services shall only be binding if they are confirmed in writing by PROOF-ACS.
1-4 All reports refer exclusively to the material or specimens, that PROOF-ACS has provided to the customer.
1-5 Any objections to the quality of material/an assessment are to be asserted in writing and specified immediately, however, no later than within seven days after receipt. Should within this deadline no objections be filed, material, assessments or invoices will be deemed as having been approved. In the case of a reciprocal commercial transaction the obligations of the Customer under § 377 HGB to inspect and complain shall also apply for work performance and services of PROOF-ACS.
1-6 Occurrences of force majeure, strike, lock-out, official directives, general difficulties with energy and other supply, disturbances at transport companies and breakdowns at PROOF-ACS as well as the consequences of such occurrences, shall release PROOF-ACS for the duration of the disturbance and to the extent of its implications from the duty to perform, insofar as PROOF-ACS shall not be responsible for such occurrences and their consequences. Such occurrences and their consequences shall further entitle PROOF-ACS under the exclusion of a duty for compensation, not to provide services agreed as per contract. In these cases PROOF-ACS shall inform the customer immediately about the circumstances and immediately refund any monies which have already been paid.
1-7 In the case of deliveries of goods all risks of the loss or damage to the goods shall pass to the customer, as soon as the consignment is handed over to the carrier. In case the consignment shall be impossible without the fault of PROOF-ACS, the risk shall pass to the customer when he is notified in writing that the goods are ready for dispatch.
1-8 PROOF-ACS neither guarantees nor assumes responsibility on the permanently and continuously availability of PROOF-ACS, including the website.
1-9 PROOF-ACS shall be free to subcontract the preparation of goods as well as the homogeneity testing and stability testing to competent subcontractors.
2. Prices/Terms of Payment/Reservation of Title
2-1 The current prices of the current applicable price lists of PROOF-ACS shall apply accordingly upon conclusion of the contract. The prices shall apply ex headquarter Bremen. The costs for dispatch (packaging and transport) can be charged separately. Price information in a quotation is based on an estimate of the required scope of performance and is therefore not binding. Excepted from these are fixed-price agreements.
2-2 Invoices shall be due and payable within a deadline of 14 days after receipt without deduction. The statutory provisions shall apply in the event of default of payment.
2-3 The customer shall only be entitled to set off and retention with counter-claims if these are either undisputed or have been determined by law.
2-4 PROOF-ACS reserves the right to the property of all delivered analysis reports and/or goods until all claims for payments already incurred on the date of the delivery against the customer have been satisfied in full.
3. Subsequent performance in case of defects
3-1 PROOF-ACS shall perform his work and services in accordance with the generally recognised standards of technology at the time the order is placed and with the customary due care and attention. PROOF-ACS shall assume liability in case of a defect – insofar as technically possible – by repeating the work or service free of charge.
3-2 The customer shall only be entitled to the right for reduction or to withdraw from the contract if the subsequent performance according to 3-1 fails or is impossible for other reasons.
3-3 The claim for subsequent performance must be asserted in writing by the customer immediately after the defect has been determined. The claim expires if legal action is not taken within a four week deadline after the work subsequently found to be defect has been delivered.
3-4 Reversing the burden of proof, i.e., requiring PROOF-ACS to prove that PROOF-ACS is innocent of a deficiency, is ruled out.
4. Liability and compensation
4-1 PROOF-ACS shall be liable to an unlimited extent in accordance with the provisions under the Product Liability Act, due to a guarantee, in case of breaches of obligations due to wilful intent and gross negligence and in case of claims due to injury to life, body or health. Incidentally, PROOF-ACS shall be liable, insofar as the customer is another company,
in case of breaches of obligations due to slight negligence of his simple vicarious agents only if an essential contractual obligation shall have been breached,
in case of breaches of obligations due to negligence, which shall not fall under Clause 1, in the amount as limited to the typical and foreseeable damages as per contract.
4-2 The regulations under 4-1 shall apply to all claims for damages, no matter upon which legal reason they are based.
4-3 Any personal liability no matter for what legal reasons of the vicarious agents of PROOF-ACS towards the customer is limited to acts of wilful intent and gross negligence.
4-4 In the event of default PROOF-ACS shall be liable for the damages caused due to the delay only to the amount of the agreed remuneration for the service, with which PROOF-ACS is in default, unless an absolute fixed transaction was agreed.
4-5 PROOF-ACS is not liable for economic damages or consequential damages made to the costumer following the service provided. In the context of Analytical Competence Schemes and by providing surplus Test Material the analytical skills of the laboratories are objectified. The assessment contains recommendations for the improvement of the analytical skills. The execution of these recommendations and the consequences thereof are the sole responsibility of the customer.
5. Statute of limitations
The statute of limitations for claims is oriented towards the statutory regulations. Statute of limitations of one year shall apply for claims for defects from deliveries and services of PROOF-ACS to other companies.
6. Protection of the working results/Publications
6-1 PROOF-ACS shall reserve the copyright to the services performed – insofar as these are suitable for this. The customer may only use an assessment, with all tables, calculations and other details prepared within the framework of the order for the purpose, for which it was determined in the agreement.
6-2 Prior written consent must be obtained from PROOF-ACS for the publication and reproduction of assessments, attestations and of service brands of PROOF-ACS for advertising and other business purposes also their use in parts. The same shall apply for the use for advertising purposes of the name/the company of PROOF-ACS in public and/or towards third.
6-3 PROOF-ACS reserves the right to use any data associated with Analytical Competence Schemes or Reference Material and to publish the anonymised data as far as legitimate interests of the customer are not affected.
7. Delivery and storage of material/specimens
7-1 The customer shall bear the costs and the risk for the delivery of material/specimens.
7-2 PROOF-ACS undertakes to inform the customer of all information of which it is aware with regards to any dangers and handling, if PROOF-ACS should deliver material or specimens containing dangerous substances. PROOF-ACS hereby assures that all material and specimens shall not pose any risk if handled by qualified and trained staff under the general applicable safety measures and the additionally provided safety instructions.
7-3 In the event that nothing else is agreed the material/specimens shall be stored according to the information provided along with the material/specimens and in line with state-of-the-art technology. Under those conditions the material can be considered to be stable at least until the deadline of results reporting or until the date noted in the accompanying document.
8. Final provisions
8-1 It is not permitted to assign rights and obligations of the customer from the contract with PROOF-ACS without the prior consent of PROOF-ACS.
8-2 Insofar as nothing else is expressly agreed by the parties the registered seat of PROOF-ACS shall be the place of performance for both contractual parties. Bremen shall be the exclusive venue if the customer is a full merchant, legal entity under public law or is special assets under public law.
8-3 The legal relations between PROOF-ACS and the customer are subject to the law of the Federal Republic of Germany.
8-4 In the event that individual provisions of these General Business Terms are either in whole or in part invalid then this shall have no effect on the validity of the remaining provisions. The invalid provision shall be replaced by another provision that shall reasonably fulfil the commercial purpose of the contract taking due note of the mutual interests of both parties.
9. Confidentiality and data protection
9-1 PROOF-ACS shall be entitled taking into account the data protection act to save and process personal or commercial data of the customer, no matter whether they stem from him or a third party (see Data Protection Regulation for more details).
9-2 Each Party shall treat confidential information belonging to the other Party as confidential and shall not disclose it to any person except to such persons and to such extend as may be necessary for the performance of the proficiency tests under this contract.