General Terms and Conditions - GTC - for the laboratories of the Sächsischer Landeskontrollverband e.V. and LKS-Landwirtschaftliche Kommunikations- und Servicegesellschaft mbH
May 2020

1.    Scope of application

1.1 The following General Terms and Conditions (GTC) in the version current at the time of conclusion of the contract shall apply to all orders accepted by the Sächsischer Landeskontrollverband e.V. and LKS-Landwirtschaftliche Kommunikations- und Servicegesellschaft mbH, hereinafter referred to as “Contractor”. This shall also apply to orders placed by telephone and not confirmed in writing and such orders that arise through the transmission of samples. A contract subject to these GTC shall be concluded by acceptance of an order by the Contractor. This happens either by the Contractor (a) carrying out the order (in this case, a written confirmation from the Client is not required) or (b) the Contractor accepting the order in writing.

1.2 With the exception of the Managing Director, the Chairperson of the Board and the Deputy Chairperson of the Board of the Contractor, no employee, agent or subcontractor of the Contractor shall have the authority to deviate from or waive the applicability of any provisions of the GTC, or to bind the Contractor in a manner that results in the applicability of deviating provisions that conflict with or take precedence over those of the GTC in terms of content. Any such amendment or waiver of the applicability of the GTC shall only be binding for the Contractor if this is done in writing and is signed by the Managing Director of the Contractor or the Chairperson of the Board or Deputy Chairperson of the Board.

2.    Order placement; no validity of deviating contractual conditions; no order for collection

2.1 An effective placement of an order by the Client shall require in principle that it is done by post, fax or electronic message using the letterhead of the Client or by using an order form or electronic order form accepted by the Contractor. It is further required that at the time of placing the order, there is agreement on all necessary commercial aspects not governed in these GTC (including price, estimated implementation time and delivery date). The Client must confirm orders placed by telephone in writing immediately upon request. In the case that it submits samples to the Contractor, this shall also be considered a placement of on order and shall be valid without a signature. If the Client places the order for analysis with an outdated sample submission form, the General Terms and Conditions and the analysis methods and packages of the currently valid sample submission form shall be binding. The Contractor is not obliged to begin the analysis until there is clarity about the order and it has been provided with all required information. Notwithstanding the above, the Client shall be liable for all information provided in advance regarding the desired analyses, their content, nature and scope. 

2.2 Unless expressly agreed otherwise in writing and with the signature of the Managing Director or Chairperson of the Board or Deputy Chairperson of the Board of the Contractor, the General Terms and Conditions of the Client shall have no effect, even if the Client refers or has referred to them at any time. Furthermore, any previous acceptance of special conditions for a previous order (including special price regulations) does not mean that these will also be accepted for subsequent orders in the future. Every order accepted by the Contractor shall in this respect be considered a separate contract between the Contractor and the Client.

2.3 If the Client subsequently demands supplementary services for an already existing order, the Contractor shall be entitled to charge an administrative fee in a reasonable amount. If the Client requests additional services in respect of samples that have already arrived at the laboratory, the order shall be supplemented if possible, or if the analysis has already been completed, this shall be considered a new order and may lead to the previously estimated analysis time being correspondingly postponed.

2.4 The collection and delivery of the sample or any other logistical measures shall be carried out by the Client at its own risk and shall be carried out or organized by the Client at its own expense.

2.5 An exception to this is the collection of samples by the company's own courier service. The Client shall be responsible for the provision and registration for collection of the samples; the Contractor shall be responsible for the transport. The Contractor shall be liable in the event of incorrect information on sample provision and sample collection.

2.6 Separate regulations apply to the submission of QC samples:

·         There is no query for third-party laboratories

·         Basic evaluation of the analysis results

3.     Prices and terms of payment

3.1 Prices are set based on the version of the scale of charges applicable at the time of conclusion of the contract. Any deviations from the applicable version of the scale of charges shall only be valid and binding for the Contractor if this is confirmed in writing and signed by the Managing Director of the Contractor or the Chairperson of the Board or Deputy Chairperson of the Board.

3.2 Any additional costs or expenses (e.g. those incurred by the Contractor in connection with the order) shall be borne by the Client.

3.3 Prices are exclusive of applicable taxes (including VAT) at the rate in force on the date of invoice.

3.4 Any complaint relating to an invoice must be made within 14 days of receipt of the invoice. If the Client doubts the accuracy of an analysis result, this does not entitle it to withhold payment unless the inaccuracy of the analysis result and also any counterclaims of the Client resulting therefrom are undisputed, have been accepted in writing by the Contractor or have been legally established. If the Client is in default with a claim of the Contractor, all claims against the Client - including those from other contracts - shall become due immediately. The Contractor is entitled to demand default interest in the amount of 0.5833% per month in the event of default.

3.5 If an invoice has to be reissued at the request of the Client, the Contractor shall be due an administrative fee in accordance with the Contractor's scale of charges.

3.6 Payment is made by bank transfer or direct debit. Other payment methods require the prior agreement of the Contractor. The Client is obliged to provide the Contractor with the required SEPA direct debit mandate when paying by direct debit.

3.7 The Contractor is entitled at its sole discretion to make the fulfillment of the order dependent on up to 100% of the estimated fee to be paid being provided by the Client as advance payment. The statutes of the LKV specify in paragraph 10 that ear tags can also only be handed out against advance payment or cash on delivery if this is required.

4.   Obligations of the Client when sampling and delivering or transporting samples or materials

4.1 Samples or materials must be in a condition that easily enables the preparation of reports / analyses or the production of products commissioned. The Client shall, upon request, provide so many samples or so much sample material that no further expenses or additional costs are incurred by the Contractor in the event of loss of or damage to the sample. The Client shall guarantee that, unless the Contractor has explicitly assumed an obligation in this respect, it has ensured, when commissioning or carrying out the sampling and sample transport, that sampling and sample transport have been carried out in such a way with regard to the test order that the analysis results are correct and meaningful for the order. The Contractor is entitled to carry out an initial examination of the sample or materials in order to determine their condition before processing the sample or producing a report.

4.2 The Client shall guarantee and is obliged vis-a-vis the Contractor to ensure that all samples sent to the Contractor for the purpose of analysis are in a stable condition. The Client must ensure and hereby warrants that the samples do not pose any risk to the property and other legal interests of the Contractor or its employees and other representatives or third parties - either on the premises of the Client or during transportation, in the laboratory or in other premises belonging to the Contractor.

These obligations relate to information, labelling of the packaging, transportation and disposal. In particular, the employees or other representatives of the Contractor shall be informed of health or safety concerns arising from the samples. This includes in particular concerns in terms of known or suspected toxic substances or other contamination of a sample and the suspected degree of contamination as well as the risks to property and other legal interests of the Contractor and its employees and other representatives or third parties in connection with the contamination. In the event of a breach of these obligations, the Client shall be liable for all costs, damages and other disadvantages that have been caused as a result to the Contractor or its staff or its other representatives, irrespective of whether these disadvantages occur on the premises of the Client (such as during sample taking), during transportation, in the laboratory or in other premises belonging to the Contractor. The liability also includes a corresponding obligation to hold the Contractor harmless in the event of a claim by a third party. The Client shall not be liable under the above provisions if it is not responsible for the breach of contract.

5.    Ownership rights to the samples; storage of samples

5.1 All samples shall become property of the Contractor insofar as, and to the extent necessary to fulfill the order. Unless storage (to be paid for separately) has been agreed, the Contractor is not obliged to store and/or cool the sample. Excluded from this are all samples for which something else results from the QM manual, or samples for which there is a legal obligation to keep them. If storage (to be paid for separately) has been agreed, the Contractor shall take commercially reasonable measures within the framework of customary professional practice to store the sample.

5.2 The Contractor shall be entitled to dispose of or destroy the sample material for the preparation and performance of the analysis and to dispose of and destroy the actual samples immediately after completion of the performance of the analysis unless storage has been agreed in writing between the parties or there is a legal storage obligation. If a specified storage period has been agreed, the Contractor shall be entitled to dispose of or destroy the sample once this period has elapsed without prior notice. If there are specific legal requirements for disposal or destruction (e.g. in the case of hazardous waste or substances), the Client shall bear the costs incurred as a result. If the Client requests the return of the sample material that is not needed, the Contractor shall send this back at the expense and risk of the Client. 

6.    Delivery dates, implementation time

6.1 Delivery dates and implementation times are estimates and shall not constitute an obligation on the part of the Contractor. Nevertheless, the Contractor shall make commercially reasonable efforts in order to meet the estimated deadlines.

6.2 Results shall in theory be provided after completion of the analysis by email, fax and / or by post or otherwise electronically to the persons specified by the Client when placing the order.

7.    Transfer of ownership and other rights; remaining rights to analytical results

7.1 Ownership and other rights to the analysis results, products, equipment software or similar services provided by the Contractor to the Client shall remain with the Contractor until all invoices related thereto have been fully settled by the Client. Until the moment of full payment, the Client shall not be entitled to any ownership rights or other rights to use the services rendered. If the Client defaults on the payment of due claims of the Contractor, the Contractor is entitled to interrupt the performance of the order and any other work for the Client. This shall also apply if the claim in respect of which there is default arises from another order.

7.2 Even after full payment by the Client, the Contractor shall retain the right to keep the analysis results and to use and publish them in an anonymized form that excludes identification of the Client if and to the extent that no legitimate interests of the Client known to the Contractor are impaired.

7.3 If the legal maximum values are exceeded, the decision rule from the company's quality management manual shall apply.

8.   Limited warranties and responsibilities; liability and indemnity obligations of the Client

8.1 Unless otherwise agreed, the task of the Contractor is limited to carrying out analyses and preparing a test report. Advice or the recording or presentation of the analysis results in addition to that in the test report (in electronic or paper form) or comparable services are not required unless expressly agreed otherwise in writing in individual cases. When placing the order, the Client must take into account all circumstances (for example, suitability of the sample material, etc.) or inform the Contractor of all circumstances that are relevant for its use of the test result. Orders shall be fulfilled under the conditions available to the Contractor according to the current state of the art. Compliance with specific DIN/EN regulations is not required. The Contractor shall select the method suitable to fulfill the order and may also deviate again therefrom and select another suitable method. Results may not always be 100% accurate and / or relevant in terms of the order. The analysis result provided to the Client corresponds, according to the selected method of analysis, to a value on a range of values that may result from different state-of-the-art analytical methods. Analyses, interpretations, estimates, advisory services and conclusions are carried out using a commercially reasonable degree of care. Nevertheless, the Contractor cannot guarantee that these are always correct or completely applicable. Only the test report and the results contained therein are decisive for the Client. The Contractor does not vouch for the information and formats supplied outside the test report. The Client undertakes to check whether the information supplied by the Contractor in addition to the test report (e.g. when recording results in the Client’s systems, data transmission via interfaces) corresponds to the results of the test report. The statutory limitation periods for claims for damages, including those due to the breach of a duty of subsequent performance, shall remain unaffected. The parties agree that services etc. shall in any case be deemed to have been accepted if the Client does not declare in writing to the Contractor within one week after complete completion of the service etc. that it does not accept the service. In any case, the Client is obliged to verify the validity of the results, interpretations, estimates and conclusions provided by the Contractor with reasonable care at its own risk if the Client wishes to rely on them in matters of importance. If the analysis result causes the Client to take costly or otherwise wide-ranging measures, the Client shall contact the Contractor before the measure is taken in order to give the Contractor the opportunity, if necessary, to verify the analysis result or at least to discuss it. If the results are recognizably wrong, the Client is obliged to immediately contact the Contractor and inform them of this.

8.2 Every analytical report refers exclusively to the sample analyzed by the Contractor. If the Contractor has not been expressly tasked with preparing a sample plan (including determining which samples of which raw materials and finished products are to be analyzed at what frequency) specifying a precise scope of the analyses to be carried out, it is outside of the responsibility of the Contractor if it transpires that the sample plan and / or the establishment of the scope of analysis are insufficient or inappropriate. The same shall apply if and to the extent that the Client does not follow corresponding recommendations of the Contractor.

8.3 Unless otherwise agreed in writing between the parties, the contractual relationship shall exist exclusively between the Client and the Contractor. No contract shall be concluded in favor of third parties or with protective effect for third parties by which the Contractor can be obligated vis-a-vis such third parties, if and to the extent that nothing to the contrary follows from the contract and / or these GTC.

8.4 The Client is obliged to indemnify the Contractor and its staff or other representatives against all third-party claims based on a breach of duty on the part of the Client unless the Client is not responsible for this. This shall also apply in particular to third-party claims asserted because a sample is dangerous or unstable.

8.5 Insofar as storage of samples is agreed in writing contrary to the provisions set out in clause 5, the Client shall provide information in advance of any special features of the storage and shall ensure that these are accepted in writing by the Contractor as part of the agreement.

8.6 In the event that the Contractor supplies the Client with software, the Client shall use this software in compliance with the relevant license conditions, instructions and manuals.

9.   Limitation of liability

9.1 Claims for damages and reimbursement of expenses against the Contractor and its staff, employees, representatives, members of the management and advisors (hereinafter referred to as “persons with liability privileges”) are excluded unless there is a case of intent or gross negligence or a breach of a material contractual obligation. A material contractual obligation in this sense means any contractual obligation, the fulfillment of which enables the proper performance of the contract in the first place and on the fulfillment of which the Client may rely.

9.2 If there is no intent, the liability of persons with liability privileges shall in theory be limited to foreseeable, contract-typical damages. It is the Client's responsibility to insure itself properly against other damages.

9.3 The liability of persons with liability privileges according to the regulations of the Product Liability Act, in the event of breach of guarantees and for claims for damages due to injury to life, body or health of a person shall not be limited by these GTC.

9.4 In order for the Contractor to accept an order, it is a condition that the Client indemnifies and holds harmless the persons with liability privileges for all losses, injuries, claims and expenses suffered by them through the fault of the Client. By placing an order, the Client undertakes such indemnification.

9.5 The statutory burden of proof shall not be changed by the provisions of this clause 9.

10.  Repeated analyses

Complaints with regard to test results can only be made in compliance with the regulations laid down in clause 8.1. In any case, the Client shall bear the costs of a repeated test it has initiated or a verification, unless the initial analysis results are found to be incorrect. 

11.  Force majeure

For delays, errors, damages or other problems caused by events or circumstances unforeseeable by or beyond the control of the Contractor or arising from compliance with governmental orders, laws or regulations, the time limits shall be extended for the duration of the hindrance. If the delayed execution of the order is or becomes unreasonable for the Client, the Client shall be entitled to withdraw from the contract.

12.   Confidentiality and processing of client data

12.1 The Contractor is entitled within the framework of the data protection regulations to be complied with to store and process personal or business data that it has received from the Client in any way, regardless of whether such data came directly from the Client or from a third party. The Contractor is obliged to make commercially reasonable efforts to handle such data confidentially in compliance with the law.

12.2 Personal data is processed and used for the purpose of executing the order. The Client shall be aware that in order to ensure the best possible service incl. the use of existing capacity and know-how, personal data, but also order-related information such as analytical issues and their results can be exchanged between the parent company and subsidiary of the Contractor. The parts of the company are bound by a corresponding confidentiality agreement, which will be made available on request. Moreover, the Contractor shall process and use the data for the purpose of obtaining further orders. The Client may object to this with the Contractor. Further information on data protection and the processing of your data can be found at: https://www.lkvsachsen.de/footernavi/datenschutzerklaerung/

12.3 The Contractor is obliged to make commercially reasonable efforts to keep all analysis results and service reports confidential. This obligation shall not apply in terms of the rights granted to the Contractor under clause 7.2 and any requirement to prove a claim for payment for services rendered.

12.4 Analysis results shall be prepared and sent exclusively for the Client’s use and should not be passed on to third parties for any purpose without the prior written agreement of the Contractor. Furthermore, the Client is obliged to maintain confidentiality regarding all services rendered by the Contractor. Furthermore, its results as well as the composition of products and software supplied by the Contractor and analysis results shall not be published, shared or used other than for internal purposes without the prior written permission of the Contractor.  Even in the event that such written permission is given, the Client (a) shall remain responsible for any consequences arising from the disclosure of such results to third parties and the reliance of such a third party on these results and (b) hereby undertakes to indemnify the persons with liability privileges (see clause 9.1) against any claim by a third party arising from the disclosure of such results and/or reliance on the same and any damage - actual or alleged - resulting therefrom.

13.  Economic sanctions 

13.1 The Client shall guarantee in relation to the economic sanctions imposed by the United Nations, the European Union, the United States of America or another country within the meaning of clause 13.4:

a) that it is not subject to any economic sanctions;

b) that, to the best of its knowledge, it is neither owned nor controlled by any such natural or legal persons subject to economic sanctions;

c) to comply with applicable laws and provisions in connection with economic sanctions. Without limiting the generality of the foregoing, the Client must not place orders or directly or indirectly export, re-export or tranship samples or items in connection with the order in contravention of legal provisions relating to economic sanctions (within the meaning of clause 13.4).

d) that it is not involved in proceedings and is not the subject of investigations by the authorities owing to alleged breaches of legal provisions of economic sanctions.

13.2 The Client shall indemnify the Contractor against all losses, liabilities, damages, penalties and costs (including but not limited to legal costs, such as courts costs and litigation costs) and expenses incurred by the Contractor as a result of a breach of paragraph 13.1 by the Client unless the Client is not responsible for the breach.

13.3 Without prejudice to other claims and remedies, the Contractor may terminate the contract extraordinarily with immediate effect by written notice to the Client if the Client breaches the provisions of paragraph 13.1. If, depending on the type of contract, termination is not possible, rescission shall take the place of termination. The Client shall not be entitled to compensation for any damage caused by the termination or rescission.

13.4 a) Economic sanctions include all economic sanctions, restrictive measures or trade embargos adopted by the UN Security Council, the European Union, the United States of America or another sovereign government provided that their observance is legally permissible.

b) Legal provisions on economic sanctions include all laws, regulations and provisions in connection with economic sanctions.

14. Applicable law / dispute resolution

14.1 German law shall apply to all contracts subject to these GTC. The provisions of the CISG (UN Convention on Contracts for the International Sale of Goods) shall not apply.

14.2 If the Client is based in the EU or European Economic Area, the following shall apply: The exclusive place of jurisdiction shall be at the Contractor's registered office if the Customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany. However, if the Client is based outside the EU and European Economic Area, the arbitration court of the German Arbitration Institute (DIS) shall have exclusive jurisdiction over all disputes arising from and in connection with the contracts concluded under these General Terms and Conditions and shall have the final decision without recourse to the ordinary courts of law. The Respondent is entitled to counterclaim before the arbitration court. The place of arbitration shall be Freiberg (for Niederwiesa), the language of the proceedings shall be German.  The proceedings and in particular the taking of evidence shall be conducted in accordance with the rules of the DIS and the rules of the 10th Book of the Code of Civil Procedure. Procedural principles of common law, such as in particular the production of documents (so-called discovery / document production) and the examination of witnesses, shall not apply directly or mutatis mutandis. If one party has to potentially reimburse the other party for legal fees in relation to the arbitration, these shall be limited to the costs billable under the Lawyers’ Remuneration ACT (RVG).