1. Scope of application

1.1  The following General Terms of Trade (GTOT) apply to all orders for analyses and consultancy services, which Spectral Service AG (referred to below as the "Contractor) executes for the customer (referred to below as the "Client"). A contract, under application of these GTOT, enters force as soon as the Contractor accepts an order.

Insofar as there are separate contractual regulations that deviate from or contradict the provisions of these GTOT, such separate contractual regulations apply.

1.2  The Client's conditions that deviate from or contradict these GTOT are not recognised, even if the Contractor executes an order without expressly contradicting such deviating conditions, unless the Contractor has expressly approved these in a stand-alone case in writing. Moreover, any earlier acceptance of special conditions for a previous order (including special price regulations) does not mean that these apply in future for subsequent orders. Each order accepted by the Contractor is thus regarded as a separate contract between the Contractor and the Client.

2. Offers, issue of orders, cancellations 

2.1  All offers made by the Contractor are free of obligation and non-binding, unless they are expressly marked as binding or contain a deadline for acceptance. Technical details (e.g. the number and type of the analyses) and deadlines for executing the order are always just approximations, unless they are expressly stated as binding.

2.2  Orders require the written form to be effective (which includes fax or e-Mail). They must state all the Client's contact data and the business details required. Use of the order form provided by the Contractor is expressly preferred. The Contractor is not obliged to start the analysis until clarity has been established for an order and until it has received all the necessary information. Changes or supplements made to an order over the telephone or verbally likewise require written confirmation from the Contractor to be effective. The same applies to auxiliary accords to the same. If an order is only issued verbally, the consequences of any communication errors or misunderstandings are borne by the Client.

2.3  An order issued to the Contractor is accepted either in that the Contractor (a) executes the order (in which case written confirmation from the Contractor is not required) or (b) the Contractor accepts the order in writing. In case the Client subsequently requests extra services for an order already completed and invoiced, the Contractor is entitled to charge a management and administration fee of up to € 25.  

2.4  If the Client cancels an order for a reason that is not the fault of the Contractor, it must recompense the Contractor for all the work completed up to this point in time in accordance with the prevailing price list. Both parties retain the right of extraordinary termination for an important reason pursuant to legal provisions.

3. Scope of services, limitation of the Contractor's warranty

3.1  The services to be provided by the Contractor generally comprise the work detailed in the Client's written order. The Contractor provides it services in accordance with the state-of-the-art prevailing at the date the order is issued and/or on the basis of existing quality agreements and with the care expected in the trade. However, the Contractor does not warrant that the goals striven for in the order will be achieved.

3.2  Deadlines for executing an order for analyses or consultancy services are not binding unless such have been expressly agreed as binding in writing. If it is not possible for the Contractor to execute an order for reasons beyond the Contractor's control, or if it is only possible with a significantly greater outlay in technical terms, in personnel deployment and/or of other resources, it shall inform the Client of this without delay. The parties shall then decide whether, in what scope and at which costs the order is to be further processed. If an agreement is not reached, either party then has the right to terminate the contract by serving written notice.

3.3  In principle, the results and data of analyses, once completed, are presented in the form a written report or certificate by e-Mail and / or by post or by other electronic means to the people nominated by the Client in its order.

3.4  The Contractor has established an integrated quality system to perform its analysis services. This system conforms to the requirements placed on quality assurance systems, personnel, facilities and equipment by the following regulations:

-       EU Directive for Good Manufacturing Practice (GMP) for Medicaments

-       EN ISO / IEC 17025:2005 – General requirements for the competence of testing and calibration laboratories (not yet accredited!)

-       Good Laboratory Practice (GLP), Chemicals Act.

Specific requirements placed by these regulations on the documentation of quality controls, on archiving the raw data and on retaining samples etc. cannot be fulfilled by the Contractor unless the Client stipulates the regulations required in its order.

3.5  Unless agreed otherwise in writing, the samples submitted for examination are retained by the Contractor for a maximum of 6 weeks, insofar as this is allowed by their nature. Samples will be destroyed after this time. If samples are to be returned, this is done at the expense and risk of the Client.

4. Obligations on the part of the Client

4.1  The Client is obliged to provide all the test objects, materials, data and other information required to execute the order to the Contractor in good time. It shall furthermore support the Contractor with information or experience to ensure that the order can be processed smoothly and efficiently.

4.2  The materials to be examined are delivered at the expense and risk of the Client, in packaging suitable for the method of shipment and the properties of the materials. The same applies to any costs incurred for clearing test materials through customs – regardless of the scope and value of the analyses ordered.

4.3  The Client is obliged to notify the Contractor in writing of all the hazards known to it that emanate from the test materials and to instruct the Contractor in appropriate methods of handling. In case of a culpable violation of this duty, the Client is liable for all costs, damages and other losses incurred by the Contractor or its perso­nnel.

4.4  When issuing an order, the Client is obliged to precisely specify the legal requirements on quality assurance and the docu­men­tation of the analyses ordered (GMP, GLP or DIN ISO 17025). This is to ensure that the Contractor can properly comply with the specific requirements in its preparations and during the complete processing of the order. It is not possible to supplement the documentation at a later date. In case of testing under a subcontract in application of GMP (release analytics), it is the Client's responsibility to specify the requirements on quality controls and the documen­tation in a separate agreement (framework contract and quality agreement).

4.5  The Client is obliged to check the validity of the results, interpretations, estimates and conclusions presented by the Contractor upon receipt - thereby taking reasonable care - and to report recognisable errors or deficits in writing without delay, although at the latest within ten days.

5. Liability

5.1  In case of malice aforethought or gross negligence, the Contractor is liable in accordance with legal provisions. In case of slight negligence, the Contractor is liable solely pursuant to product liability laws, due to fatalities, physical injuries or harm to health or due to the infringement of cardinal contractual duties. The claim to damages for a slightly negligent infringement of cardinal contractual duties is nevertheless limited to the losses typically able to be foreseen for the type of contract, unless liability exists due to fatalities, physical injuries or harm to health. The Contractor is liable in the same scope for culpability on the part of its vicarious agents and representatives.

5.2  The regulation contained in the foregoing sub-section (5.1) extends to compensation in addition to performance, to compensation in lieu of performance and to the claim for reimbursement of futile expenditure, regardless of the legal reason, including liability due to defects, default or impossibility.

6. Prices and terms of payment

6.1  The Contractor's offer underlying the order forms the basis for invoicing all service transactions or – if an offer has not be submitted - the Contractor's prevailing price list.       

6.2  If it transpires when processing an order for which a fixed price has been agreed that work or expenditure beyond the fixed price is required for unforeseeable reasons, the Contractor shall inform the Client of this without delay and state the likely additional expense. If the Client does not agree to recompense the added expenditure, either party is then entitled to withdraw from contract. In such a case, the Contractor is entitled to invoice all the services provided up to this date in accordance with its prevailing price list, although at most up to the amount of the fixed price agreed.

6.3  The Contractor is entitled to demand cash on delivery, a down payment or payment in advance for processing orders. The Contractor reserves the right to invoice part services, the completion of which it has been demonstrated beforehand to the Client.

6.4  Invoices are payable within 30 days without deduction. The Contractor grants 2% discount for payment within 14 days. If the recipient of invoice is in default of payment, the Contractor is entitled to charge default interest. The rate of default interest is 5% p.a. above the base interest rate prevailing at the invoice date.

6.5  The Contractor has the right to withdraw from orders it has already accepted or to interrupt their processing and to withhold analysis data if the Client is in default of payment for part services or for previous services already provided in full.

7. Protection of the results of work, confidentiality

7.1  The Contractor owns the copyright to the services provided and to the methods of analysis developed and validated by Spectral Service AG. The Client may only use the reports and appraisals prepared within the framework of the order – including all tables, calculations and other details - for its own purposes and may not pass these on to third parties. Use of extracts or publication is not authorised by Spectral Service AG as a matter of principle. Such may not be associated with our name or with the signature of one of our staff. Misuse shall be pursued under criminal law.

7.2  The Contractor is obliged to provide all partial and final results worked out in the course of the order to the Client. The Contractor may not publish these or disclose such to third parties without the Client's approval. An exception to this is disclosure to official bodies. The Contractor is furthermore obliged to keep secret all information concerning the Client obtained in the context of the order.

8. Place of jurisdiction

German law alone shall prevail over the business relationship between the parties.

If the Client does not have a general place of jurisdiction in Germany or in another member state of the EU, the sole place of jurisdiction for all disputes arising from this contract is the registered office of Spectral Service AG.

9. Miscellaneous provisions