for the Performance of Tests, Measurements, Analyses and the Process Investigations
§ 1 - 13
§ 1 Validity of contract, scope of service and documents
§ 2 Test material, sampling, discrepancies
- This applies for all orders for the performance of tests, measurements, analyses and the process investigations :
The contract shall come into force with the confirmation of the order by the Contractor, subject to any official authorizations that may be required. The price will be as stated in the order.
- Relevant for each order, it should be as specified by the Contractor's written order confirmation. Modifications to the design which take the form of technical improvements shall be permitted as long as they do not increase the price of the order.
- The quotation or tender contains some information documents. All the information provided in the documents submitted with the quotation or tender, e.g. drawings, data on weights and dimensions, is approximate unless expressly as binding. The Contractor reserves title and copyright to such documents, which must not be made available to third parties and may be used only for the purposes of the contract.
- Unless other specifications have been made in the quotation or tender as to the contents and form in which the results are to be communicated, the results of the tests will be summarized in a brief report. Should the Client require a detailed description of the procedure and results, this must be the subject of a separate agreement.
§ 3 Property and title to the test material, rights of third parties
- The Client shall vouch for the correctness of his specifications concerning the material / medium / process parameters which are to be investigated. If this is especially agreed in writing, the Contractor shall verify these specifications and data of test work / measurements and process parameters before ,carrying out the proposed tests.
- If agreed in writing, the material samples ( solids as well as liquid samples) shall be deposited with a third party to be designated jointly by the two contracting parties for the duration of the contract and for at least four weeks thereafter. The costs of depositing the samples shall be borne by the Client . The Contractor shall determine in writing the number of samples and the analysis of the sample contents.
- If the test material does not correspond to the description and/or the samples, the Contractor shall be entitled to demand that the contractual terms affected thereby be modified accordingly. If the two parties cannot reach the agreement on the proposed modifications, the Contractor shall be entitled to terminate the contract. In the case of such termination, the Contractor shall be entitled to a portion of the compensation commensurate with the work done as well as the reimbursement of all expenses arising from the premature termination of the contract.
§ 4 Participation in the tests / Measurements / Process Investigations
- If it is agreed that the test material be supplied by the Client, this is to be delivered free of any encumbrances or rights of third parties to the address specified by the Contractor.
The material shall be properly packed in accordance with legal requirements and, if applicable, in accordance with the Contractor's instructions. Any costs incurred by the Contractor due to the non-observance of the packing instructions shall be charged to the Client.
- If the substances are supplied to the Contractor as test material concerning which the Client has special knowledge or experience which is not readily available to the Contractor, the Client shall call the Contractor's attention to particular risk that may be associated with such substances and give instructions on how to handle them.
- If the Client wishes the product and/ or the remaining unused portion of the test material to be returned to the Client, his request in writing must be in the hands of the Contractor at the latest by the time the test commence. If the Client fails to do so or expressly renounces such return, the Contractor is entitled to destroy the material or to otherwise dispose it for other purposes.
- The Contractor reserves the right to return to the Client after termination of the tests the products and the unused remainder of the test material, including packaging, uninsured and unfranked or to dispose of it as waste and to charge the costs incurred to the Client.
A participation in the tests, during the measurements and process investigations by the representatives of the Client is possible, provided that :
§ 5 Secrecy
- the number of the participants and the date of their presence is agreed well in advance before the tests are started.
- the participants are pledged to keep secret and to restrict the use of of all information and knowledge gained in connection with the tests, the measurements and the process investigations.
- the Client agrees to assume all risks and costs in respect of the participants assigned by him and to make good any damage that may be caused by the participants.
- the participants comply with the Contractor's regulations and instructions
Unless otherwise provided in the Clause 8 , each party shall undertake to keep secret all knowledge and experience disclosed by the other party for the first time in connection with the tests, measurements and process investigations and utilize said knowledge and experience only for the purposes agreed upon, unless proof can be furnished that this knowledge and experience
§ 6 Deadlines
- had been published at any time before or after the signing of the test performance contract,.
- had been known to the receiving party before disclosure by the other party, having originated neither directly nor indirectly from the other party, or
- had, after disclosure by the other party, been made available to the receiving party through a third party which had no obligation to maintain secrecy.
Each party shall take all reasonable measures to ensure that those of its employees who have access to the knowledge and experience of the other party abide by the above undertaking.
§ 7 Warranty and disclaimers
- The specified deadlines shall be regarded as being approximate only. The Contractor shall only be turned out not to have met the delivery date if, having considerably overrun the deadline, a reasonable extension is granted and this extension expires without a positive result due to the Contractor's fault.
- In case of unforeseen events including force majeure which are not of the Contractor's intention and/or lie outside his control, such as war, civil disorder, plant breakdowns, strikes and lockouts, unexpected changes in the composition of the test material, the agreed deadlines shall be extended by a reasonable period provided such events affect the due completion of the whole contract or a part thereof. This shall also apply if such events affect a sub-supplier of the Contractor. In such cases the Contractor shall be entitled to terminate the contract, without prejudice to the rights listed in Clause 2, Paragraph 3.
§ 8 Rights and obligations on Knowledge ( regardless of whether patented or not )
- The Contractor Guarantees to perform the tests, measurements and process investigations in keeping with the conditions as laid down in writing in the order of confirmation. The Contractor shall hereby take notice of the norms and standards obtained at the time the order was awarded, as far as these are recorded in a written form in the order of confirmation.
- In connection with the performance of tests, measurements and process investigations as well as in respect of the analyses, drawings and documents that are to be handed over, the Contractor pledges that the services provided by him shall be correct and free from defects according to the established rules of technology.
- The Contractor shall not be liable for any defects arising in cases where the Client is at fault, where test conditions were not complied with by the Client or where the specifications of test material and its properties are not known or this test material was not available.
- All other claims on the part of the Client, in particular to compensation of damages also from unauthorized action, are excluded. This disclaimer does not apply in the case of intent or gross negligence.
However, the Contractor shall not be liable for intent or gross negligence on the part of his workforce or non-executive employees unless an essential contractual obligation is violated thereby. Neither does such disclaimer apply where expressly warranted specifications are not met if these had the explicit purpose of protecting the Client against damage arising from the test material, and where product liability law stipulates liability for personal injury or damage caused to privately used objects.
- If the Contractor is deemed to be liable for damage, his liability shall extend only to the extent of damage deemed to have been foreseeable in any particular case. Damage which amounts to more then 50% of the value of the test performed shall be deemed to be non-foreseeable. Should the Client anticipate the possibility of higher damage, a separate agreement must be reached to cause any liability on the Contractor's part.
- For material damage or personal injury imputable to the Contractor, the Contractor's liability shall be limited on the merits or in terms of amount to the existing liability insurance. The Client shall release the Contractor from all other claims, including claims in respect of third parties, which exceed the level of this insurance cover,
§ 9 Impossibility of performance
- The costs for the tests do not include any fee for the know-how supplied by the Contractor. The use of such know-how beyond the duration of the test, measurements and process investigations is therefore subject to prior written agreement with the Contractor.
- Each party has the right to use free of charge, within the scope of its usual activities, all knowledge jointly acquired in connection with the tests, measurements, and process investigations; any resulting patent application shall in each case be filed on behalf of the Client and of Frintec GmbH. If one party refuses to file a joint patent application or fails to give its assent to the proposal for a joint application within one month of receiving a written request to do so from the other party, this other party shall be entitled to apply for the corresponding patents in its own name.
- If the knowledge gained in connection with the tests, measurements, and process investigations are the merits of one party only and Paragraph 4 does not apply, this party will, however, offer the other party the opportunity to acquire under reasonable conditions the right to use said knowledge within the scope of its usual activity, provided that the former party is prepared in principle to grant exploitation rights to third parties.
- If the knowledge gained in connection with the tests, measurements, and process investigations are the merits of either party alone but are based on the know-how made available by the other party for the tests, this latter party has the right to use said knowledge free of charge within the scope of its usual activity.
§ 10 Terms of Payment
- If in consequence of unforeseen events as referred to Clause 6, Paragraph 3, the Contractor is finally prevented from performing the contract either wholly or in part, the Client may, in case of complete impossibility of performance, terminate the contract, and in case of partial impossibility demand a reasonable reduction in price.
Should the Client terminate the contract under this clause, the Contractor shall be entitled to compensation for all expenses incurred and services rendered by him up until such termination. If impossibility of performance arises through the Clients fault, the latter shall pay the full contract price less any expenses saved by the Contractor because of such impossibility of performance.
- The Contractor shall be entitled to terminate the contract if unforeseen events referred to in Clause 6, Paragraph 3 render the completion of the contract impossible either wholly or in part. In such cases the Contractor shall be entitled to compensation for expenses incurred and services rendered by him up until such termination. This shall not affect the Contractor's right to terminate in accordance with Clause 2, Paragraph 3.
§ 11 Applicable law and jurisdiction
- Payments shall be made net cash direct to the Contractor's bankers in accordance with the terms of payment.
- The retention of payments because of asserted counterclaims by the Client and setoff against them shall be admissible only where such claims have been recognized by the Contractor or by final decision of court. The retention of payments due to claims recognized by the Contractor because of defects shall be allowed only to such reasonable extent as recognized by the Contractor. Where there is a delay in the fulfillment of an obligation of the Contractor which is subject to a payment and where such delay is not imputable to the Contractor, payment shall nevertheless be effected on the relevant original date
- If the Client is in outstanding debts with his payments, Contractor may suspend fulfillment of his own obligations until such outstanding debts have been settled, or he may fix a time limit for such payments. In the event that the Client does not keep to this time limit, the Contractor may terminate the contract and shall be entitled to compensation for all expenses incurred and services rendered by him up until such termination
In such failure to pay the outstanding debts is imputable to the Client, the Contractor shall be entitled to payment of the total contract price less any expenses not incurred by him.
§ 12 Assignment of rights
- The legal relations between the contracting parties shall in all respects be governed by the law applicable in the Federal Republic of Germany to the exclusion of the rules on the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods ( C.I.S.G.).
- The courts of Frankfurt am Main shall have jurisdiction in the event of any disputes between the parties. The Contractor reserves the right to take legal proceedings against the Client also before any court in which the law has vested jurisdiction to entertain controversy with the Client.
The Client and the Contractor may assign their contractual rights by mutual consent.
§13 General conditions and further liability
- If, for reasons imputable to the Contractor , the order cannot be carried out in accordance with the contract on account of omitted or faulty implementation of advice given before and after the conclusion of the contract or of other ancillary contractual obligations, Clause 7 shall apply to the exclusion of all further rights and remedies of the Client.
- If peremptory law precludes the application of specific terms and conditions herein, such preclusion shall not affect the validity of the remaining terms and conditions.
- Additional agreements and terms and conditions of the Client being contrary to these terms and conditions and shall not be effective unless they have been explicitly confirmed by the Contractor.