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1. Scope
The following General Terms and Conditions for Testing Services shall form the content of the Agreement between Bayer MaterialScience AG/Thermoplastics Testing Center (BMS-PCS-GIPM-TTC) as the Contractor and an external Customer. Conflicting or derogating general terms and conditions or other constraints imposed by the Customer shall not be recognized unless the Contractor has expressly consented thereto in writing in each individual case.
2. Conclusion of Agreement
2.1. Offers made by the Contractor shall be non-binding.
2.2. Written orders placed by the customer shall be binding on the latter. A contract shall not be deemed to be formed until the contractor acknowledges the order in writing.
2.3. The terms of the Contract may be subsequently modified only by mutual written agreement between the two parties.
3. Scope of services
3.1. The Contractor shall perform works-based and other services, in particular, technical testing, measurements, investigations and specifications in accordance with recognized procedures and current technical standards. The Contractor undertakes to perform the work or services defined in the written specification of the offer. In executing the order the Contractor shall apply generally accepted engineering standards and his own know-how and experience. The Contractor shall compile a test report containing the outcomes of the tests.
3.2. The Contractor shall notify the Customer immediately if it should emerge during the handling of the order that the work or service in question cannot be carried out or that the technological and/or manpower requirements for execution differ considerably from those originally allowed for. The contracting parties shall then decide whether to continue execution of the order and, if so, on what scale and at what cost. In the event that no agreement is reached, each contractual party shall enjoy the right to terminate the Agreement by means of a written declaration. In this event, the Contractor shall be entitled to compensation in respect of all work undertaken up to that point in time, in addition to payment of an amount that reflects the extent of any work actually undertaken.
4. Involvement of the Customer
4.1. The Customer shall ensure that the Contractor receives, in an unsolicited manner and in good time, all samples, test specimens or formulations, including the material required for the production of samples or test specimens and any documentation or information. In the event that the Customer requires the Contractor to perform a service for which the Contractor does not possess the necessary equipment, the Customer shall make these available in good time. In executing the order, the Contractor shall be entitled to assume that the samples, test specimens, formulations and materials, including any data provided by the Customer, are accurate and complete; this shall not apply if it is expressly agreed in writing that said items are to be checked.
4.2. The Customer shall prepare the test specimens and samples in accordance with the technical instructions given by the Contractor, in order to ensure that the tests can be configured and carried out in a problem-free manner.
4.3. The Customer shall be obliged to provide the Contractor with any information he may require in order to carry out a safety analysis of the test specimens. The Customer shall in particular draw attention to the safety risks associated with the test specimens and samples or with any other of the items provided and shall provide the Contractor with the relevant technical or safety datasheets, if available.
5. Completion deadlines and default
5.1. Completion dates and deadlines shall be contractually binding once agreed in writing between the Parties. Compliance on the part of the Contractor with completion dates and deadlines shall be dependent upon receipt by the Contractor on the agreed service date of all samples, test specimens, formulations and materials and upon completion of any other actions that may be required of the Customer. (Address for deliveries: Bayer MaterialScience AG, BMS-PCS-GIPM-TTC, Rheinuferstr. 7-9, Gebaeude R 33, 47829 Krefeld, Germany). Following notification of the outcome, the Contractor shall dispose of the test specimens and samples, unless requested by the Customer the return of test specimens and samples when this agreement was concluded. The return of the test specimens and samples shall take place at the expense of the Customer and its own risk.
5.2. Force majeure of any kind, unforeseeable disruption to production, transport or shipping, fire, floods, unforeseeable shortage of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government and any other hindrances which delay, prevent or may reasonably be deemed to frustrate the performance of work or services, shipment or taking of delivery and which are beyond the control of the party obligated to perform, shall release the latter from its obligation to perform the work or services or take delivery for the duration and to the extent that the hindrance prevails. If binding deadlines are exceeded by more than eight weeks due to the hindrance, either party shall have the right to cancel the Agreement.
6. Remuneration and payment
6.1. The remuneration shall be determined by the offer that was made.
6.2. All amounts for payment are due immediately upon receipt of the invoice. The Customer shall be deemed to be in arrears if payment has not been effected within a period of 30 days at the latest following receipt of the invoice. The Customer shall not be entitled to withhold payment. The Customer may only set off undisputed or legally enforceable claims.
7. Liability and payment of compensation
7.1. The Contractor shall assume liability for the fact that all tests are carried out with the appropriate degree of specialist knowledge and care.
7.2. The test results produced shall solely relate to the properties of the samples actually tested by the Contractor. The Contractor shall assume no liability with regard to the applicability of the analytical data to the total quantity of the particular material tested by the Contractor.
7.3. No claims for compensation may be lodged by the Customer – including those of a non-contractual nature – for any minor negligent breach of duty on the part of the Contractor, its executive staff or other agents, unless such breach relates to a duty that is crucial for the object of the Contract.
7.4. The contractor shall only be liable for indirect damage or damage that could not be foreseen at the time of conclusion of the Contract if such damage is due to a gross error on the part of the Contractor.
7.5. The above limitations shall not apply in respect of damage resulting from death, physical injury or damage to health. None of the above shall affect any statutory liability rights.
8. Notification and verification of defects
8.1. In the absence of formal acceptance on the part of the Customer, any defects shall be notified in writing, without delay and within a period of 10 working days following receipt by the Customer of the test results, and the exact defect specified.
8.2. Hidden defects must be notified to the Contractor immediately upon discovery, but no later than five months after receipt of the service. This shall not affect the periods of limitation. The burden of proving that a defect is a hidden defect shall rest with the Customer.
8.3. In the event that the Customer registers objections to the test outcomes notified to it by the Contractor and requires review, the Contractor shall then verify the outcomes, the test equipment used and if necessary the testing process itself. In the event that the test results obtained are confirmed, costs shall be incurred in respect of repeat testing. The disputed test results will otherwise be corrected without charge.
9. Periods of limitation
In cases that fall under Section 634 a no. 1 of the Federal Civil Code (BGB), warranty claims shall expire with effect from one year from the beginning of the statutory period of limitation. In cases that fall under Section 634 a no. 2 of the Federal Civil Code (BGB), warranty claims shall expire with effect from two years from the beginning of the statutory period of limitation. In all other cases, claims relating to defects shall expire within a period of one year following receipt of the work. Compelling statutory periods of limitation and liability regulations such as liability for willful intent and gross negligence, for death, physical injury or damage to health or for the violation of essential contractual obligations shall remain unaffected by the above.
10. Confidentiality
10.1. The Contractor shall handle the test results, and any information he receives for the purposes of carrying out the tests, in a confidential manner. The Contractor shall refrain in particular from using either any information received or the test results themselves for his own purposes and shall not afford access to the same to any third party without the express permission of the Customer.
10.2.
The Customer shall regard the Contractor's offer as a business secret and keep it secret.
11. Proprietary rights
11.1. The Customer shall be liable for any infringement of third-party proprietary rights resulting from the provision and use of materials, e.g. formulations, samples, test specimens etc., and shall indemnify the Contractor against any such claims.
11.2. Any industrial rights relating to the test results shall be assigned to the Customer.
12. Choice of Law, Venue
German law shall apply.
The place of jurisdiction is Leverkusen, Germany. The Contractor shall be entitled, moreover, to assert his claims at the court having general jurisdiction over the customer.
13. Severability clause
If any clauses of these General Terms and Conditions should be wholly or partially void, the validity of the remaining clauses and the other parts of such clauses shall not be thereby affected. The parties shall replace any invalid arrangement by an effective one that conforms as far as possible to the economic purpose of the invalid clause.
Compiled: Leverkusen, August 2004, BAYER MATERIALSCIENCE AG
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