As per: 11 January 2016
1. Binding force of the terms and conditions
1.1. These General Terms and Conditions (AGB) shall exclusively apply as amended from time to time to every kind of delivery or other services rendered by the numares AG (hereinafter referred to as numares). They shall apply to entrepreneurs and also include all future business relations, even if such are not expressly agreed again.
1.2. Conflicting or adverse terms or conditions of the customer shall not become part of the contract, even if numares does not expressly object to such terms again despite their knowledge of them, neither will they be tacitly approved.
2. Offers, contract conclusion
2.1. Until a contract is finally concluded, the terms offered by numares, in particular with regard to execution, prices, and periods, shall remain subject to change and non-binding, unless expressly referred to as binding. Incoming orders shall become binding for numares only by written confirmation. The same shall apply to verbal agreements and declarations of any kind.
2.2. The content and scope of the order shall arise out of the order confirmation issued by numares. Any specified economic success shall not be owed. Unless otherwise agreed in writing, numares shall be entitled to define the method and the type of service provision themselves to their proper discretion.
2.3. numares shall be entitled to employ one or more subcontractors or third parties who otherwise seem appropriate to fulfill the contractual obligations.
3. Delivery of sample materials
3.1. The client shall bear the cost and the risk of delivery to our operational facility, unless it is agreed in writing that the sample material is collected by us for the client's account.
3.2. The client shall properly pack and declare the sample material for the delivery in accordance with the legal requirements, taking instructions possibly given by us into consideration.
3.3. The delivery of hazardous (such as toxic, corrosive, explosive, highly inflammable, radioactive) sample material as well as samples containing harmful and undesired components (such as chlorine, bromine, mercury, fluorine, arsenic, etc.) shall be permitted only as agreed with numares. Known infectious sample material is excluded from delivery.
3.4. The client shall be bound to provide numares with all hazard statements and handling instructions for the sample material in good time and to inform us about the composition of the sample material, where known.
4. Liability for sampling, sample material and disposal
4.1. The client shall be liable for all damages resulting from the condition of the sample material. The client shall assume the civil and penal liability for damages caused by the sample material, in particular during transport or waste disposal. The receipt of sample materials for testing purposes shall not constitute any passage of title. The client shall remain the owner of the sample materials, even after the assigned tests are completed, and thus is the original waste producer as defined in the German waste legislation. Any kid of transfer of liability to numares shall be excluded.
4.2. Unless otherwise agreed in writing, numares shall not be bound to store samples at all or for a longer period of time than stipulated by the law. Unused or unprocessed sample material will be stored or disposed of for the client's account at numares' discretion.
4.3. Should the client require a longer storage (fee according to our applicable price list), this shall be instructed in writing. It is at any time possible to return the samples at the client's request and expense.
4.4. The correct disposal of the sample materials will be arranged by us on behalf of the client after the period of retention has expired. The waste will be declared according to the substances of content that are known through the previous analysis and, as the case may be, through the client.
4.5. If special disposal methods become required, e.g. for samples containing dioxin, numares shall be entitled to return the samples to the client. As the owner and the original waste producer, the client shall be liable for miss-declarations of the waste due to properties or ingredients unknown to numares.
5. Performance periods / deadlines, force majeure
5.1. The contractually agreed performance periods and deadlines are based on an estimated scope of work on the basis of information by the co-contractor of numares. They shall be approximate only, unless they were priorly agreed as binding in writing, and shall start only after the client has made all the contributions required.
5.2. Force majeure, industrial actions, riots, official actions and any other unpredictable, inevitable and serious event shall exempt the client and numares from their obligations to perform for the duration of the event and to the extent of its effects. The same shall apply, if the events occur at a time the concerned contractual party is in default with the performance. The client and numares shall promptly forward the necessary information to each other within the reasonable bounds and adapt their obligations to the changed circumstances in good faith.
6.1. The client shall notify numares in writing of manufacturing defects promptly after having detected such defects. If the contractual partner is a consumer (§ 13 BGB - German Civil Code), this shall apply to apparent defects only, i.e. such defects to be noted by an average consumer without particular examination. In such a case, it shall be sufficient to send the notification within two weeks after the acceptance.
6.2. Within the scope of warranty, the contractual partner may initially claim the remedy of the defective work performance at no charge (removal of defects). If the defect is not remedied within a reasonable period of time or the remedy fails, the contractual partner may withdraw from the contract or reduce payment at his own choice.
6.3. The limitation period for warranty claims shall be one year, starting with the acceptance of the work performance.
6.4. numares shall furnish a guarantee only if such was expressly given in writing.
7.1. numares shall be liable without restriction in accordance with the legal requirements with regard to injuries to life, body, or health as well as for damages caused by wilful or grossly negligent breaches of duty or by fraudulent intent of numares, their legal representatives, or subcontractors.
7.2. numares shall be furthermore liable for damages caused by negligent breach of a fundamental contractual obligation (cardinal obligation) by numares, their legal representatives, or their subcontractors. Such fundamental contractual obligations are obligations the compliance with which is of special importance to achieve the purpose of the contract, such as e.g. proper analysis and documentation of results. The liability for damages in such a case shall be restricted to the predictable and typically occurring damage. If numares has covered this typical risk by means of a third-party liability insurance, numares's amount of liability shall be limited to the amount covered by the liability insurance. If the insurer is free of benefit payment obligations, it shall incumbent upon numares to pay compensation on their own account up to amount of the insurance sum if the respective requirements are met.
7.3. Further liability claims against numares shall not exist, and that means irrespective of the legal nature of such raised claims. This shall not affect the liability regardless of fault from the acceptance of a guarantee and pursuant to the German Product Liability Act. numares shall not be liable, without prejudice to the above clauses, in particular for incorrect diagnostic results, in so far as the analysis was executed according to the state-of-the-art scientific standards and the mistake was not identifiable according to the state-of-the-art of science at the time the analysis was made.
7.4. If the assignment is afflicted with special risks with regard to the protection of life, body, and health or the risk of particularly high financial losses, the client shall warn numares against such upon order placement.
7.5. As regards the amount of compensation to be possibly paid by numares or the client, the respective economic conditions as well as the nature, scope, and duration of the business connection and, if applicable, the value of the work to be performed shall be adequately taken into account in good faith in favor of the respectively liable party.
7.6. numares' limitations of liability shall similarly take effect in case of possible direct claims against their employees, executive staff and organs as well as subcontractors and performing agents.
7.7. In general, only signed analytical results shall be legally valid. Forwarding of data by telephone shall be generally excluded. Forwarding by e-mail to the client shall be possible if expressly requested by the client in writing. E-mails shall have no legal validity and are deemed to be non-confidential.
8. Terms of payment
8.1. In addition to all fees and prices, the value-added tax relevant at the time of invoicing will be imposed in case the legal requirements are met.
8.2. The invoiced amounts become due in full for payment 21 days after the invoice date, unless otherwise agreed in writing (e.g. extended payment periods, discounts).
8.3. Accounts receivable by numares may only be offset against with finally established or undisputed claims. This shall accordingly apply to any assertion of rights of retention.
8.4. In case the client should be default of payment, numares reserves the right to charge default interest at the statutory rate. The assertion of a higher damage caused by default shall remain reserved.
9. Copyright and confidentiality
9.1. numares shall expressly reserve the copyrights and co-copyrights to provided expert opinions, test reports, analyses, and similar deliverables and outcomes, to which such rights could originate.
9.2. numares shall assign the rights of use required for the respective purpose to the user. Rights of use shall be transferred to the client only to the extent, as regards content, time, and space, indicated in the contract.
9.3. numares shall provide access to analytical result and other findings gathered in connection with an assignment to the client only, unless otherwise agreed in individual cases. numares shall treat information as confidential which is not yet known or available in public. numares shall be permitted though, to use the results for in-house analyses and to file copies of submitted documents in their records.
10.1. The contractual parties may partially or wholly assign rights and duties from the contract, subject to the prior written approval of the other party.
11. Applicable law, jurisdiction
11.1. German law shall be applicable. The application of the United Nations Convention on Contracts for the International Sale of Goods - CISG - shall be excluded.
11.2. Regensburg shall be the place of jurisdiction for merchants and the place of performance. numares shall be entitled though, to raise their claims alternatively at the client's general place of jurisdiction.
12.1. Verbal agreements must be confirmed in writing to take effect. Contract amendments and supplements, including the amendment of this clause, must be made in writing to take effect.
12.2. If a provision or part of a provision of these Terms and Conditions is invalid, this shall not affect the validity of any other provision these Terms and Conditions. The invalid (partial) provision must be replaced with another (partial) provision which comes next to the intended economic purpose.