General Terms and Conditions of the MFPA Leipzig GmbH
§ 1 – General Provisions – Scope
(1) The MFPA Leipzig GmbH (in the following: MFPA) provides technical services in the form of expert’s reports, inspections, measurements, laboratory services, research, development and advisory services.
(2) The following terms and conditions shall apply exclusively for all services of the MFPA. The Client accepts the General Terms and Conditions valid at the time of the Client’s order.
(3) All agreements concluded among the MFPA and the Client are recorded in writing within the contract, these terms and conditions as well as within the order acknowledgement of the MFPA.
(4) These general terms and conditions shall apply vis-à-vis entrepreneurs as well as all legal entities and special estates both under public law within the meaning of § 310 of the German Civil Code, unless otherwise expressly specified.
§ 2 – Processing the Order
(1) When placing the order, the extent of the order is defined in writing. Modifications or extensions of the defined extent of the order during the proper processing of the order have to be agreed upon in writing. For this purpose, the Client has to pay the agreed amount of payment or in the absence of an agreement an adequate payment.
(2) The MFPA shall process the order impartially and according to the Acknowledged Standard of Technology.
(3) The MFPA may appoint a third-party expert in order to provide its contractual services. In case of an order of an expert’s report, the third-party expert may use the help of the expert personnel of the MFPA during the preparation and processing of the report where required or appropriate and where the personal accountability of the third-party expert is maintained.
(4) In order to properly process the order at the Client’s expense, the MFPA is entitled to conduct or have conducted the necessary and usual analyses and tests according to its best judgement, to make enquiries, to carry out investigations, to undertake travelling and inspections without the need for the Client’s particular consent. In case of unforeseen or in proportion to the purpose of the (technical) services time-consuming or cost-intensive, but necessary analyses, the Client’s prior consent shall be obtained.
(5) The MFPA is authorised by the Client to obtain that information and to carry out those statistical investigations that are necessary in order to produce the documents needed to process the order, from and with participants, public authorities and third parties.If required, the Client shall give particular authority for this purpose to the MFPA.
§ 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 § 3 para. 5 shall be applicable to evaluations of conformity.
The conformity assessment is carried out within the scope of the accredited body (DAkkS). If conformity assessments in the flexible scope are necessary, the Client has to be informed about the limits of this flexible assessment and the conformity assessment must be contractually agreed with the Client.
If the conditions for the conformity assessment change during processing/analysis (e.g. during a validation process), the Client will be informed that reports/certificates may not be issued if necessary.
(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) Should the Client give any instructions with regard to decision rules to be used, they shall be applicable. All other cases shall be subject to § 3 para. 4 or § 3 para. 5.
(4) In cases where technical specifications or standards contain instructions on the decision rule to be applied, MFPA will apply the relevant rules, unless the Client gives any other instructions with regard to the decision rule to be applied. All other cases shall be subject to § 3 para. 5.
(5) MFPA applies the decision rule shown below, unless technical specifications or standards include instructions in relation to the decision rule to be applied and unless the Client indicates to MFPA instructions with regard to the decision rule to be applied. 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 “non-conformity” range.
§ 4 – Client’s Obligations to Co-operate
The Client has to make sure that all information and documents necessary to process the order are available to the MFPA free of charge and in sufficient time. The Client shall provide the MFPA with all specifications of building materials, components and drawings necessary to create the documents. As a rule, the delivery of the test specimen to the MFPA shall be carried out by the Client. The installation in the test rigs shall normally be carried out by the MFPA, unless otherwise explicitly (in writing) agreed upon.
§ 5 – Time Limits
(1) The time limits of the order given by the MFPA are non-binding, unless their binding force is expressly assured or agreed upon.
(2) In case of an agreement of a term concerning the provision of the contractual service, this term shall commence when the contract is concluded. If the MFPA depends on documents of the Client in order to provide the service or if a payment in advance has been agreed upon, the term shall only commence when the MFPA receives all documents respectively the payment in advance.
§ 6 – Defects Liability
(1) The defects liability of the MFPA shall only cover those services expressly ordered according to § 2. The MFPA does not assume responsibility for the correctness and functioning of the entire system inquestion to which the examined or tested components belong. In particular, the MFPA does not bear responsibility for the design, selection of materials and construction of inspected systems, unless these issues are an explicit matter of the order itself.
(2) The liability of the MFPA shall, at first, be limited to subsequent performance free of harge within an adequate time limit. If subsequent performance fails, that is if it becomes impossible or unacceptable to the Client or unjustifiably denied or improperly delayed by the MFPA, the Client shall be entitled to demand for either the reduction of the payment or the cancellation of the contract.
(3) The Client must give notice of evident defects to the MFPA in writing after their discovery without delay. In case of non-compliance with this obligation, the defects liability shall not apply.
§ 7 – Further Liability
(1) Any claims for damages regardless of the nature of the breach of duty including tort are excluded, except in case of wilful intent or gross negligence.
(2) In case of breach of principal contractual obligations, the MFPA shall be liable for any negligence, however only up to the amount of the foreseeable damage. Indirect damages and consequential damages, which are a consequence of defects of the product provided by the MFPA, shall only be eligible for compensation as far as such damages are typically to be anticipated when sing the product as defined.
(3) The limitations and exclusions of liability set out in sections 1 and 2 shall neither apply to claims that result from fraudulent behaviour of the MFPA, nor in case of liability for guaranteed characteristics, nor to claims under the Product Liability Act, nor to damages resulting from harming life, body or health.
(4) Where liability of the MFPA is excluded or limited, the same shall apply to organs, legal representatives, employees and other assistants in performance of the MFPA.
§ 8 – Payment
(1) The MFPA is entitled to a payment in the contractually agreed amount. Prices do not include the statutory VAT (value added tax) valid at the time of billing.
(2) Adequate payments in advance may be requested. The agreed payment is due and payable at the time of receipt of the contractual performance that is the receipt of those documents produced as a result of the processed order. It is admissible to transmit the documents produced as a result of the processed order by postal service using the cash-on-deliverymethod that covers the payment due and payable by the Client. Payment authorizations, cheques and bills of exchange shall only be accepted according to specific agreement and by charging any expenses for collection and discount as well as only as an undertaking to pay.
(3) In the event of the Client’s delay of payment or payment in advance, the MFPA may withdraw from the contract after granting an appropriate additional time limit. During the Client’s delay, the MFPA shall be entitled to a payment of interest by the Client as to the outstanding invoice total amounting to 8 percentage points p.a. above the respective base interest rate.
(4) All rights of the MFPA to claim further damages for delay upon accordant proof are reserved.
(5) In the event of breach of terms of payment, the MFPA is entitled to invoice any accumulated claims and to demand immediate payment. This also applies to dishonoured bills of exchange and cheques.
§ 9 – Set-off/Right of Retention
The Client may offset counterclaims against the MFPA only if such are undisputed or have been established as final and absolute in a legally binding manner. The Client shall be entitled to exercise the right of retention insofar as the Client’s counterclaim is based on the same contractual relationship.
§ 10 – Confidentiality
(1) The MFPA shall not disclose, forward, exploit or otherwise utilise without authority those company or business secrets that the MFPA is entrusted with or that become otherwise known to the MFPA within its service, unless this is required for the performance of the contractual obligations. This obligation of confidentiality applies beyond the length of the contractual relations.
(2) The MFPA is authorised to disclose, forward or otherwise use this data if the MFPA is obligated to do so under statutory provisions or if the Client releases the MFPA from discretion expressly and in writing.
§ 11 – Copyright
(1) As far as documents covered by copyright protection laws are produced in the course of processing the order, the MFPA shall entitle the Client to a basic, non-transferable right of use regarding the same if this is required according to the contractually defined purpose.
(2) Further rights shall explicitly not be granted; particularly, the Client shall neither be entitled to anyhow modify those documents produced as a result of the processed order, nor to use them outside of the Client’s business operations in any way.
(3) If required according to the contractually defined purpose, it shall be permissible to forward documents produced as a result of the processed order to public authorities or governmental agencies. Any publication of documents produced as a result of the processed order – particularly by means of any kind of media – and any other forwarding to third parties requires prior explicit consent in writing by the MFPA.
(4) Apart from that, the MFPA and its personnel are entitled to use, to publish and to conduct an independent scientific evaluation of the test results within the framework of provided services for scientific purposes in compliance with data protection.
(1) MFPA complies with the statutory provisions of the EU General Data Protection Regulation and the German Federal Data Protection Act when processing and using personal data.
(2) MFPA uses and processes personal data exclusively for contractual purposes and for its own purposes, unless otherwise required by law.
§ 13 – Termination
(1) The MFPA and the Client may terminate the contract for good cause at any time. The termination must be declared in writing.
(2) In the event of terminating the contract for good cause which the MFPA is responsible for, the MFPA is entitled to a payment for partial performance rendered by the time of termination only insofar as such can objectively be utilised by the Client. In all other cases, the MFPA maintains the right to payment taking saved expenses into account. Unless the Client provides evidence of a greater proportion of saved expenses in the individual case, this proportion shall be agreed upon 40% of the payment for those services not yet performed by the MFPA.
§ 14 – Legal Venue, Place of Performance, Applicable Law
(1) In order to lodge claims, the legal venue for both parties to the contract shall be Leipzig provided that the conditions of § 38 of the German Code of Civil Procedure are met.
(2) Place of performance for all obligations arisin out of the contract shall be Leipzig, the MFPA’s place of business.
(3) The contractual relationship and all resultant legal relations shall be governed exclusively by the laws of the Federal Republic of Germany.
§ 15 – Severability Clause
(1) In the event that single provisions of these General Terms and Conditions are or become invalid or impracticable, the validity of the remaining provisions shall not be affected.
(2) The invalid or impracticable provision shall be replaced by that valid and practicable provision whose effects match the economic objective pursued by the contracting parties using the invalid or impracticable provision as closely as possible.
§ 16 – Applicable Version
The German version of these General Terms and Conditions shall apply.
as of May 29, 2019