Terms and Conditions (T&Cs) of the MFPA Leipzig GmbH
Section 1 — General — Scope of Application
(1) MFPA Leipzig GmbH (hereinafter referred to as: MFPA) shall provide technical services in the form of inspections, monitoring, certifications, assessments, measurements, laboratory services, research, development and consultations.
(2) The services provided by MFPA are governed by the following conditions only. The Client (hereinafter referred to as: AG) shall accept the Terms and Conditions valid at the time the order was placed. Any agreements reached between MFPA and AG are set out in the contract, these conditions and the order confirmation.
(3) These Terms and Conditions shall apply to operators as well as any legal entities and special assets under public law pursuant to section 310 of the BGB (Bürgerliches Gesetzbuch [German Civil Code]), unless expressly stated otherwise.
Section 2 — Order Execution
(1) The scope of the order is determined in writing upon placement thereof. Should there be any changes or enhancements to the scope of the order previously determined as the order is being duly executed, these should be agreed upon in writing. To this end, AG shall pay the remuneration agreed, or where no agreement has been made, an appropriate amount of remuneration.
(2) MFPA shall execute the order on an unbiased basis and in accordance with standard engineering practice.
(3) MFPA may instruct specialists to provide the services as stipulated in the contract. Where necessary or appropriate for orders involving expert opinions and where the specialist has personal responsibility, the specialist may receive assistance from specialised staff at MFPA when preparing and providing an expert opinion.
(4) At AG’s expense and in order to properly execute the order, MFPA is entitled to perform the standard assessments and tests required after due consideration has been given or have them performed, as well as make enquiries, conduct investigations, make journeys and conduct visits, without any of these needing special consent from AG. Prior consent should be obtained from AG if unforeseen assessments, or assessments which are costly in terms of both money and time in relation to the purpose of the (technical) services, should become necessary.
(5) AG shall authorise MFPA to collect the information required in order to produce the documents necessary as a result of the order from persons involved, authorities and third parties, as well as to perform surveys. Where necessary, AG should grant MFPA special powers in this regard.
(6) The order shall be executed during MFPA Leipzig GmbH’s usual business hours. These are Monday to Friday, 7am to 4pm. Services performed outside of these business hours must be arranged separately.
(7) Any samples provided to MFPA for the purposes of executing the order are only to be returned, where this is technically possible, if this has been expressly arranged when the order was placed. The costs incurred shall be borne by AG. If no arrangement has been made in this regard, MFPA shall correctly dispose of samples after testing. Differing regulations with regard to accredited test procedures remain unaffected.
(8) After samples have been recalled by AG, they shall be stored free of charge for up to two weeks after MFPA have announced the test results. Storage for a longer period than that specified above shall be subject to costs. The storage costs which need to be paid from this point in time depend on the individual case and shall be borne by AG. AG shall be informed of the amount which needs to be paid without delay.
(9) MFPA shall not assume any liability should it not be possible for testing to be performed or should services be delayed, where this is due to force majeure or other events which were unforeseeable at the time the contract was concluded (e.g. malfunctions of any kind, difficulties in procuring materials or power, transportation delays, strikes, lawful lockouts, a lack of manpower, energy or raw materials, difficulties in procuring the official permits required, official measures or incorrect or delayed delivery, or lack of delivery, by suppliers) and MFPA is not to blame. Where such events make it extremely difficult or impossible for MFPA to perform the service they are required to perform and this hindrance is not simply temporary, MFPA shall be entitled to withdraw from the contract. For temporary hindrances (e.g. if a laboratory condition derived from accreditation, such as temperature or wind conditions, cannot be satisfied), the time frames for providing the service or the deadline for delivery shall be extended by the duration of the hindrance, plus an appropriate startup period. Where it would be unreasonable to expect AG to accept the delivery or service following a delay, they may withdraw from the contract with MFPA by providing prompt written notice. Furthermore, the regulations on liability in section 7 shall also apply.
Section 3 — Evaluation of conformity
(1) In a case where the Client requests a statement as to conformity (evaluation of conformity) with regard to technical specifications or standards for tests accredited in terms of DIN EN ISO/IEC 17025 (e.g. “Passed”/“Not passed”; “Within the tolerance”/“Outside the tolerance"), the regulations under sec. 3 para. 2 through sec. 3 para. 5 shall be applicable to evaluations of conformity.
Conformity shall be evaluated within the scope of application assessed by the accrediting body (DAkkS [German Accreditation Body]). If conformity needs to be evaluated within a flexible scope of application, the Client must be informed regarding the boundaries of this flexible assessment and the conformity evaluation must be agreed on with the Client in the contract.
Should the requirements for the conformity evaluation change during processing/analysis (e.g. during a validation process), AG shall be informed that it is not possible for any conformity evaluation reports/certificates to be produced, where applicable.
(2) A decision rule describing the way in which measurement inaccuracy is taken into account will be applied to any and all statements concerning conformity.
(3) If AG has issued any guidelines on the decision rule to be used, they shall apply. All other cases shall be subject to sec. 3 para. 4 or sec. 3 para. 5.
(4) If there are guidelines on the decision rule to be used in the technical specifications or standards, then MFPA shall apply them provided that AG has not issued any other guidelines on the decision rule to be used. All other cases shall be subject to sec. 3 para. 5.
(5) MFPA shall apply the following decision rule provided that there are no guidelines on the decision rule to be used indicated in the technical specifications or standards and AG has not issued any other guidelines on the decision rule to be used. 1) “Passed”: the results fall into the “conformity” range; 2) “Passed”: the results fall into the insecurity range within the tolerance; 3) “Passed”: the results exactly correspond to the tolerance limits; 4) “Not passed”: the results fall into the insecurity range outside the tolerance; 5) “Not passed”: the results fall into the “nonconformity” range.
Section 4 — AG’s Duty to Cooperate
AG shall ensure that MFPA has all the information and documents required to execute the order, free of charge and in good time. AG shall provide MFPA with all the information on building materials, components and drawings required to produce the documents. It is usually the case that AG delivers the test pieces to MFPA. It is also usually the case that MFPA carries out assembly on the test bench, unless expressly agreed otherwise.
Section 5 — Time Frames
(1) The time frames indicated by MFPA are not binding, unless it has been expressly promised or agreed upon otherwise.
(2) In the event that a time frame has been agreed upon for delivery of the contractual service, this time frame shall begin upon conclusion of the contract. If MFPA requires documents from AG to provide the service, or where an advance payment has been arranged, the time frame shall start only when MFPA has received the full documents or advance payment.
(3) MFPA shall be bound to the services offered for three months, unless another time frame has been expressly indicated in the offer.
Section 6 — Warranty
(1) The warranty shall only cover the services expressly indicated by MFPA as part of the order in accordance with sec. 2. No liability shall be assumed for the entire system to which the assessed or tested parts belong working correctly. In particular, MFPA shall not bear any responsibility for the design, material selection or build of the tested systems if these aspects are not expressly indicated in the order.
(2) Claims made by AG under warranty shall be initially limited to demanding rectification free of charge within an appropriate time frame. Failing rectification, or in other words, if rectification is impossible or unreasonable demands are made by AG or MFPA refuses without grounds or causes an unreasonable delay, AG shall be entitled, at their discretion, to demand that the remuneration be reduced or to withdraw from the contract.
(3) AG must inform MFPA of any obvious shortcomings in writing as soon as they have been detected. Any claims made in this regard are excluded if they are made over 1 year after the work was accepted.
Section 7 — Extended Liability
(1) Claims for damages are excluded regardless of how an obligation has been violated, including any tortious actions, where neither intent nor gross negligence were involved. The sums covered under third-party liability insurance can be specified upon request.
(2) If any major contractual obligations (cardinal obligations) are violated, MFPA shall assume liability in the event of negligence, however only for damages which are foreseeable for this kind of contract. Compensation shall only be provided for collateral and consequential damage occurring as a result of shortcomings in the products provided by MFPA where such damage is to be expected when the product is used as intended.
(3) The liability limitations and exclusions specified in paragraphs 1 and 2 shall not apply to claims that have arisen due to malicious behaviour on the part of MFPA, as well as, for products of a quality as agreed on by contract, to claims in accordance with the Law on Product Liability and damages arising due to loss of life, bodily injury or damage to health.
(4) Where MFPA’s liability is excluded or limited, this shall apply to their bodies, legal representatives, employees and other vicarious agents to the same extent.
Section 8 — Remuneration
(1) MFPA shall be entitled to received remuneration in an amount agreed under contract. All prices shall apply plus the VAT applicable at the time of billing.
(2) Reasonable advances on costs and payments on account may be requested. As a basic principle, it shall be assumed that partial services shall be performed and billed.
(3) The remuneration agreed upon shall be due upon receipt of the service at AG — and the documents produced following orders. The documents produced following completed orders may be sent via post along with a demand for remuneration due by cash on delivery. Money orders, cheques and bills of exchange shall only be accepted by special arrangement and taking collection and discount charges into account, as well as exclusively in payment.
(4) If AG delays payment or advance payment, MFPA may withdraw from the contract after determining an appropriate grace period. For the duration that AG delays payment, MFPA may apply interest at a rate of 8 percentage points p.a. over the applicable base rate for any amounts outstanding.
(5) MFPA shall reserve the right to claim higher damages due to delay upon presentation of the relevant proof.
(6) Where payment conditions are not satisfied, MFPA shall be entitled to make any remuneration claims payable immediately. This shall also apply if cheques and bills of exchange are not honoured.
Section 9 — Offsetting/Right of Retention
AG may only offset by way of a counterclaim against MFPA if it has been determined to be undisputed or legally binding. AG is authorised to exercise the right of retention where their counterclaim is based on the same contractual relationship.
Section 10 — Confidentiality
(1) MFPA shall not disclose, forward or exploit or otherwise use any business or trade secrets entrusted to them within the scope of their work without authorisation, when doing so is not required in order to fulfil their contractual obligations. This confidentiality obligation shall apply for the duration of the contractual relationship.
(2) MFPA is authorised to disclose, forward or otherwise use this information if MFPA is required to do so as per legal regulations or if AG expressly releases MFPA from the confidentiality obligation in writing.
Section 11 — Copyright
(1) If any documents protected by copyright have been produced when executing the order, MFPA shall grant AG the simple, nontransferable right of use where this is necessary in accordance with the purpose laid down by contract.
(2) Other rights are expressly not granted here. In particular, AG shall not be entitled to change any documents produced following orders or use them outside of their business operations in any way, or to pass them on to third parties for use or make them available in any other way.
(3) Where necessary in accordance with the purpose laid down by contract, documents produced following orders and work results may be shared with authorities and public bodies. MFPA must give their express consent in writing before any documents produced following orders may be published — particularly over any kind of media — or passed on to third parties in any other way.
(4) Furthermore, MFPA and their staff members are authorised to use and publish test results obtained within the scope of the work performed for research purposes in accordance with laws on data protection, as well as to subject them to an independent scientific review.
Section 12 — Privacy
(1) When processing and using personal data, MFPA shall comply with the legal provisions contained in the EU General Data Protection Regulation and the German Federal Law on Data Protection.
(2) MFPA shall only use and process personal data for contractual purposes and their own purposes, providing that no legal requirements exist to the contrary.
Section 13 — Complaints
(1) Any and all complaints must be delivered to the Quality Management department (firstname.lastname@example.org), including a reference to the services provided (report number, person to contact, service provision period), where they will be centrally collected, documented and managed.
(2) The complainant shall be provided with written confirmation within 3 working days stating that the relevant complaint has been received (confirmation of receipt).
(3) This is followed by an internal assessment and evaluation of the matter by two employees who were not involved in the performance of the relevant original work. These employees shall then decide upon whether the complaint is accepted or rejected. If a complaint is accepted, these employees shall decide upon the measures to be taken to resolve the complaint.
(4) The complainant shall receive written information on the decision and on the measures taken to resolve the complaint in accordance with sec. 13, para. 3. within 21 working days from when receipt of the complaint was confirmed.
(5) The complainant shall be provided with written information on the subsequent steps, the results and the completion of the complaint process.
Section 14 — Termination
(1) Both parties may terminate the contract for good cause at any time. The contract must be terminated in writing. Good cause exists if the party wishing to terminate the contract cannot be reasonably expected to continue the contractual relationship until the work has been completed, in consideration of all the circumstances in the individual case and weighing up the interests of both parties.
(2) If the contract is terminated for a cause for which MFPA is responsible, MFPA shall only be entitled to remuneration for the part of the services performed up to contract termination. In all other instances, MFPA shall reserve the right to claim for the full amount of remuneration, taking into account the costs saved.
(3) Legal provisions shall also apply.
Section 15 — Place of Jurisdiction, Place of Fulfilment, Applicable Law
(1) Any claims made by either contractual party must be made in Leipzig, if the conditions laid out in section 38 of the ZPO (Zivilprozessordnung [Code of Civil Procedure]) are satisfied.
(2) The place where any obligations arising as a result of the contract should be fulfilled is Leipzig, the MFPA headquarters or Laue bei Delitzsch, the fire testing site.
(3) The contractual relationship and any legal relationships arising as a result are exclusively governed by the law in the Federal Republic of Germany.
Section 16 — Severability clause
(1) If any individual provisions in these Terms and Conditions are or become invalid or not possible to implement, this does not affect the validity of the remaining provisions.
(2) If a provision is invalid or not possible to implement, it should be replaced with a valid provision which is possible to implement, the consequences of which come as close as possible to the economic objective pursued by the contractual parties with the invalid provision, or the provision which cannot be implemented.
as of November 20, 2021