The terms and conditions set forth in the following shall apply to any quotation or contract made out of or concluded during the course of current or future business transactions of the material testing laboratory (MPA) and to any follow-up order that may be placed by the client. Any arrangements or collateral agreements deviating from the terms outlined here, including conflicting terms and conditions of a client, must be expressly confirmed by the MPA in writing for a contract to become effective.
1. Conclusion of contract
A contract will be concluded between the MPA and the client by the client placing an order on the basis of the quotation submitted by the MPA. The quotation shall specify from case to case the specific assignment, defining the intended use, the scope of the job to be performed, the handling period and the testing and development work.
The remuneration agreed on is quoted without the statutory turnover tax. All payments must be made directly to MPA within four weeks of the date of invoice, without deductions. Any bank charges that fall due shall be borne by the client. The invoiced amount may be offset against any counterclaims of the client only if, and to the extent to which, these are uncontested or have been recognised by declaratory judgement. The right to refuse performance and the right of retention on the part of the client shall be excluded in any case.
The MPA shall have the right to charge interest from the due date at a rate of 5% above the base lending rate in accordance with §1 of the bank rate transitional act (DÜG) of the German Central Bank (Deutsche Bundesbank), plus any commission and charges. Interest shall be fixed above or below this rate if the MPA is able to prove that it is charged with a higher interest rate, or if the client should be able to prove a lower interest rate.
3. Test and development result
The test and development result will be made available to the client upon completion of the project as specified in the quotation. The result will be considered as accepted if no objection has been filed within 30 days of delivery.
The handling and delivery periods specified by the MPA shall commence with the date the order is received, but not before receipt of any advance payments as may have been agreed from case to case, or before the client has complied with any conditions to be met by him, which may include the provision of documents, test materials etc. The risk of an accidental loss of systems shall pass to the client as soon as the consignment has been handed over to the person entrusted with the shipment of such systems, or as soon as it has left the MPA premises for the purpose of shipment. This regulation shall hold irrespective of whether shipment is made from the place of performance and irrespective of who shall bear the freight charges. Should shipment of a system that is ready for shipment be delayed for reasons beyond the MPA’s control, the risk passes to the client upon notice that the shipment of the goods can begin. If shipment is delayed upon request or through fault of the client, the system will be stored at the client’s expense and risk. In this case, notification that the system is ready for shipment shall again be understood to be commensurate with shipment proper.
5. Default in Performance
The delivery periods specified shall be subject to the MPA itself obtaining the supplies correctly and in due time. Any interruption of operations, be they due to industrial action or any other exceptional circumstances, such as acts of state, traffic hold-ups, unfavourable weather conditions or the like, irrespective of whether these occur at the MPA’s end or that of its suppliers, shall release the MPA from the obligation to deliver as long as the circumstances are effective or, should they render delivery impossible, release the MPA from the obligation to deliver altogether. In other respects, default in performance shall, under the liability conditions as set forth in clause 8, entitle the client to claim damages for non-performance as an alternative to withdrawing from the contract. In the case of delay, assertion of this right presupposes that a reasonable additional period of time granted to the MPA has elapsed without success. The MPA shall inform the client as soon as it recognises that the envisaged process time is not sufficient. An appropriate extension time including any explanation of the reasons will be given.
6. Reservation of Title
The supplied systems shall remain the property of the MPA (reserved goods) until all remuneration claims, including accessory claims, have been fully paid. This includes all additional claims that arise, or will arise, for the MPA from this contract and the business relations with the client, irrespective of the legal basis on which these claims may be based. MPA is entitled to take back the reserved goods if the client infringes the terms of the agreement. After taking back the reservation goods, MPA is entitled to dispose of the goods; the proceeds thereof must be offset against the client’s liabilities, minus appropriate disposal costs. The terms of the insolvency legislation remain unaffected.
The client is entitled to resell the reserved goods in normal business dealings. The seller assigns purchaser claims from the resale of the reserved goods to MPA to the value of the final invoiced amount (including VAT) that was agreed with MPA. This assignment applies irrespective of whether the reserved goods have been resold without or after further processing. The client is still entitled to withdraw the claim after assignment has taken place. MPA’s entitlement to withdraw the claim itself remains unaffected. However, MPA will not withdraw the claim provided that the client meets his payment obligations from the received proceeds, is not in arrears with his payments and, what is particularly important, insolvency has not been applied for and payments have not been suspended. If the reserved goods are combined with other goods by the client, MPA is entitled to co-ownership of the new item. This will be a proportion of the invoice value of the reserved goods in relation to the invoice value of the other goods and the processing value. If the MPA’s ownership rights are cancelled due to interconnection or processing, at the point in time when the contract is concluded, the client will transfer to MPA the ownership right entitlement to the new item for the amount of the invoice value of the reserved goods and keep it for MPA free of charge.
Upon the request of the client, the MPA shall at the client’s discretion release the securities it may claim under the above regulation to such an extent as the realisable value of such securities exceeds the claim to be secured by 20%.
The MPA warrants that all due scientific care will be exercised and that the generally accepted technological standards will be applied. It does, however, not guarantee that a specific test result or development objective will actually be achieved. In the case of defects, which also includes the absence of guaranteed characteristics, the MPA shall assume responsibility to the extent that the defect will be rectified once a reasonable percentage of the remuneration that account for the defect noted has been paid. As long as the MPA meets its obligations for rectification, the client is not entitled to claim that the remuneration be reduced or that the contract be cancelled, except for the event that the rectification measures taken should prove to have failed.
The MPA shall be liablet
The client shall indemnify the MPA against any third party claims in the case of restricted or unrestricted use of the test and development results.
The legal limitation periods for warranty claims shall apply mutatis mutandis to all claims where the client may have the right of asserting against the MPA, with the exception of claims in tort and the disposal of used items. However, when new items are being sold that do not fall under the sale of consumer goods as per §474 ff. of the German Civil Code (BGB) or used items are being sold to consumers, the warranty period is limited to 1 year. No warranty is given whatsoever if used items are sold to businesses. The duty to examine and the requirement to give notice of defects that apply to merchants as per §§377 and 378 of the German Commercial Code (HGB) remain unaffected.
The MPA and the client agree that during the term of the agreement and after termination of the contractual relationship, any information of a technical or commercial nature, which is exchanged between the two parties and which has been declared to be confidential, will not be made available to third parties. This does not apply to information that is generally accessible or for which the MPA or the client have renounced the confidentiality thereof in writing.
11. Publication, Advertising
The client has the right to make the test and development results public, provided that the name of the author or originator is given and that agreement has been reached with the MPA as to publication of the results. The agreement thus reached shall safeguard that PhD dissertations, theses, applications for patent, or the like will not be infringed or prejudiced. An agreement shall be reached with the client on publications made by the MPA, which affect the intended use and for which the client claims exclusive rights.
12. Final Provisions
The place of performance and jurisdiction for all supplies and payments, for actions on documents or bills of exchange and any other disputes that may arise between the parties from their contractual relationship shall be Hanover, provided the client is a registered merchant or a legal person or special asset governed by public law. The legal relationship between MPA and the client shall be subject to the laws of the Federal Republic of Germany. Should individual regulations forming part of additional arrangements, be or become ineffective, this will be without prejudice to any of the other regulations. top of page