General Terms and Conditions of
PAConsult Swiss GmbH

1 Scope of application and general information

1.1 These General Terms and Conditions (GTC) shall apply to all inspection orders and other legal relationships offered, entered into or continued by PAConsult Swiss GmbH (PAConsult Swiss), Hamburg, and its branches in Berlin and Ochsenhausen. After their initial acceptance by the customer, they shall also apply to subsequent orders and future business relationships with the customer without the need for renewed acceptance. This shall not apply if the client objects to their inclusion in text form when placing a follow-up order.

1.2 PAConsult Swiss hereby objects to the inclusion of general terms and conditions submitted by the customer. These shall only become a legally effective component of the legal relationship established between PAConsult Swiss and the customer if and to the extent that PAConsult Swiss has recognized them in whole or in part in writing. The inclusion of deviating or supplementary general terms and conditions of the customer through implied action, such as the execution of an order without express objection to their inclusion in the contract, is excluded.

1.3 The contractual relationship between PAConsult Swiss and the customer shall be governed primarily by the terms and conditions individually agreed between PAConsult Swiss and the customer in text form. They shall be supplemented by these GTC insofar as the individual agreement does not contain a corresponding provision.

1.4 PAConsult Swiss is officially accredited as a testing laboratory by the Deutsche Akkreditierungsstelle GmbH (DAkkS) and is subject to the globally valid standard for laboratory accreditation in the field of testing and calibration in accordance with DIN EN ISO/IEC 17025. Its requirements for competence, impartiality and uniform working methods in the execution of test orders form an essential contractual component of all test orders agreed between PAConsult Swiss and the customer. The standards of DIN EN ISO/IEC 17025 are applied by PAConsult Swiss when carrying out the test order even if they are not expressly mentioned in the contract. The same applies to the application of other regulations relevant to the agreed test and its documentation (e.g. DIN or EN standards), insofar as these are the subject of the test order or result from its content.

1.5 The test procedures agreed between PAConsult Swiss and the client are decisive for the subject and scope of the test. The customer is responsible for selecting the commissioned test methods and standards. PAConsult Swiss is responsible for the contractual and standard-compliant execution of the commissioned test, the correct determination of the test results and their documentation, but assumes no liability for the suitability of the commissioned test method, the determined results and their documentation for the purpose intended by the customer. The use of the test results is the responsibility of the customer.

2 Offers, documents

2.1 The offers of PAConsult Swiss are always subject to change. The fee amounts stated in offers from PAConsult Swiss are initially only non-binding calculations based on the information received from the client regarding the content and scope of the requested inspection, which may change in the course of further negotiations.

2.2 Should PAConsult Swiss provide the client with illustrations, drawings, calculations or similar with the offer or during the contract negotiations, the information contained therein is given by way of example and is only approximate, unless it is expressly designated as binding. In particular, such information does not constitute a guarantee.

2.3 PAConsult Swiss reserves its property rights and copyrights to cost estimates, drawings, drafts, models and other documents such as illustrations, drawings, calculations; they may not be made accessible to third parties, unless otherwise expressly agreed. In particular, the customer is obliged to make documents designated as confidential accessible to third parties only with the prior consent of PAConsult Swiss.

2.4 All proposals, drafts and ideas submitted to the client by PAConsult Swiss during the offer and negotiation phase may only be used by the client for its own purposes or for the purposes of third parties if a contract is concluded with PAConsult Swiss on the basis of the offer in question and the contract provides for or implies use by the client or third parties. Clause 10.2 remains unaffected.

3 Conclusion of the contract

3.1 The contract for the performance of an audit shall be concluded if the client accepts the offer submitted by PAConsult Swiss without reservation. If the customer declares that the offer is to be amended or supplemented, the contract shall be concluded in accordance with the offer submitted by PAConsult Swiss, including the customer's requests for amendments and/or supplements, provided that PAConsult Swiss declares acceptance of the amendments and/or supplements requested by the customer. If PAConsult Swiss rejects the customer's requests for changes or additions in whole or in part, the contract shall not be concluded and the commitment to the offer initially made shall lapse. Irrespective of this, further negotiations can be conducted without restriction.

3.2 PAConsult Swiss is generally prepared to agree to changes to the agreed scope of services requested by the customer, even after a binding order has been placed; PAConsult Swiss is under no legal obligation to do so. A legally binding amendment to the original order requires an amendment or supplementary agreement in text form, in which the amended scope of services is specified. PAConsult Swiss may make its consent dependent on the charging of an additional fee and a change to the schedule envisaged for the audit. Requests for additions by the client that are suitable for unilaterally changing or calling into question audit results cannot be agreed.

4 Remuneration, ancillary costs and terms of payment

4.1 The remuneration to be paid by the client for the order placed shall result from the offer submitted by PAConsult Swiss to the client on which the agreement is based, in the version accepted by the client and finally agreed with PAConsult Swiss.

4.2 Ancillary costs incurred as a result of the order shall be remunerated separately, even if they are not initially expressly mentioned in the order, but are necessarily incurred in the course of order processing or in accordance with the agreement. The following regulations apply in detail.

4.2.1 Travel expenses and costs for accommodation and meals shall be reimbursed to the extent that they are actually incurred. PAConsult Swiss is free to choose the means of transportation, but will choose time-saving means and routes. Rail travel shall be in 1st class (ICE/IC). For travel by car, € 0.65/km will be charged.

4.2.2 Consumables shall be charged separately unless they are provided by the client.

4.2.3 Test materials, test samples (test specimens) and remnants shall be returned to the client at the latter's expense. PAConsult Swiss shall commission the transportation company with the return transport on behalf of and for the account of the client. If the customer requests a specific type of transportation or a specific client, PAConsult Swiss must be informed in text form in good time. If, in exceptional cases, return transportation is not desired, disposal shall be carried out at the expense of the customer, who shall be charged for the actual costs incurred.

4.2.4 Equipment costs are generally included in the agreed remuneration.

4.2.5 The costs for the first and second copies of a test report, expert opinion or similar are not incurred separately as ancillary costs and are included in the agreed remuneration. Additional copies shall be remunerated separately and shall be charged on a time and material basis.

4.3 PAConsult Swiss shall pass on the costs of order-related external services to the client plus an appropriate administrative cost surcharge.

4.4 In the case of test orders lasting more than 6 weeks, PAConsult Swiss shall be entitled to issue monthly interim invoices. If, by way of exception, a contract for work and services (§§ 631 BGB) has been agreed between the customer and PAConsult Swiss, PAConsult Swiss shall be entitled to charge appropriate advance payments at the end of each month in accordance with the progress of performance.

4.5 Unless otherwise agreed, all invoices are to be paid in euros within 30 days of receipt of the invoice by the customer without deduction to the account designated by PAConsult Swiss in the invoice. PAConsult Swiss shall be entitled to interest on arrears in accordance with § 353 HGB (German Commercial Code) and, if the customer is in default of payment, the statutory default interest.

4.6 The customer shall only be entitled to offset against claims of PAConsult Swiss if the counterclaims asserted by him are legally established, undisputed or recognized by PAConsult Swiss. The assertion of rights of retention by the customer is excluded unless they are based on the same contractual relationship. In the event of a defect in the service for which PAConsult Swiss is responsible, the customer's legally mandatory counter-rights shall remain unaffected. Further details are regulated in clause 12.

5 Performance time

5.1 Delivery or performance times stated by PAConsult Swiss are estimated and non-binding. If the customer requires a fixed delivery date, this shall only be binding if it has been agreed in text form. The start of a performance time specified by PAConsult Swiss presupposes the clarification of all necessary questions regarding the order and compliance with the customer's contributions to the fulfillment of the contract (e.g. delivery of the test specimens, definition of the scope of the test, payment of any agreed advance payments, etc., see also section 7). A firmly agreed deadline for the execution of the order shall be tacitly extended by the period of time during which the customer is in default with his obligations to cooperate or pay. Other rights of PAConsult Swiss arising from the customer's default shall remain unaffected.

5.2 Delays in performance due to force majeure or due to unforeseeable circumstances for which PAConsult Swiss is not responsible, such as operational disruptions, strikes, lockouts, official orders, late delivery by subcontractors, shall not lead to a delay on the part of PAConsult Swiss. An agreed performance period shall be extended by the duration of the delay. If the delay lasts longer than two months, each party shall be entitled to terminate or withdraw from the contract with regard to the part not yet fulfilled after the expiry of a reasonable grace period. Claims for damages are excluded in this case.

5.3 PAConsult Swiss shall be entitled to render partial services, provided that this does not conflict with any recognizable interest of the customer.

6 Performance of the services

6.1 PAConsult Swiss shall carry out the commissioned service in a professional and compliant manner and shall be responsible for the test setup, its execution in accordance with the agreement and the determination, documentation and evaluation of the test results, unless a test setup or procedure specified by the customer has been agreed with the customer. The test results obtained by PAConsult Swiss relate solely to the test specimens or other samples supplied by the customer and whose testing has been documented.

6.2 PAConsult Swiss may copy and store all documents and information that are important for the fulfillment of the services of PAConsult Swiss within the scope of the fulfillment of the services. Further details may result from any confidentiality agreement concluded with the client.

6.3 As an accredited testing laboratory, PAConsult Swiss is not subject to any instructions from the client in the case of conformity tests that go beyond the agreed contractual relationship. This applies in particular if instructions are likely to influence the results of the tests to be carried out and documented objectively in the public interest.

6.4 The client shall be responsible for selecting the test method to be used and shall specify the standards/test regulations etc. to be used for testing. When fulfilling the commissioned services, PAConsult Swiss shall observe the test specifications specified therein, the relevant statutory regulations and the recognized rules of technology.

6.5 Insofar as it is necessary to process or damage the test specimens or other samples in order to carry out the agreed test, PAConsult may do so without the consent of the client. The client shall have no claim to restoration or compensation.

6.6 PAConsult Swiss is obliged to inform the client about the assignment of tests to subcontractors or other third parties. By placing the order, the client gives his consent to this. Should the need to involve a third party for the execution of the test order only arise after the order has been placed, PAConsult Swiss shall obtain the customer's consent in advance.

7 Obligations of the customer to cooperate

7.1 The customer is obliged to support the services of PAConsult Swiss in an appropriate manner; this applies in particular to the obligation to provide the information necessary for the provision of services and the provision of additional information requested by PAConsult during the contractual relationship.

7.2 Unless otherwise agreed, the customer shall deliver the test samples (test specimens) and other samples required for testing in the agreed number to the PAConsult Swiss branch that prepared the offer on which the order is based. Delivery shall be at the customer's own expense and risk. Any specifications from PAConsult Swiss regarding the packaging of the test samples must be observed to ensure that the test is carried out properly.

7.3 The customer is responsible for selecting the test samples and their number. The client is responsible for ensuring that the test specimens and other samples are suitable to enable the commissioned testing services and that the delivered test specimens and other samples are suitable as samples (“pars pro toto”) of their product series for conformity tests. PAConsult Swiss assumes no responsibility for the selection of the test specimens and the professional collection of the other samples supplied, nor any liability for their usability for the purpose intended by the client. Irrespective of this, PAConsult Swiss will support the customer in the selection of its test specimens and, if necessary, also make suggestions for an alternative test method if it becomes apparent that the test specimens or other samples supplied are unsuitable for the intended test purpose. The support is non-binding and does not justify any claims for compensation even if recommendations prove to be unsuitable. PAConsult Swiss is entitled to invoice the client for any additional expenses resulting from subsequently changed test requirements.

7.4 The customer shall instruct PAConsult Swiss in the handling of the test specimens or other samples delivered by him and inform PAConsult Swiss of any special features to be observed. PAConsult Swiss must be informed in good time of any risks posed by the test items and other samples so that special precautionary measures can be taken into account both when calculating the remuneration and when preparing the test. This applies in particular if the test specimens or other samples pose health or safety risks, such as contamination with toxic substances, radioactive material or pathogens. PAConsult Swiss is entitled to refuse to accept risky test specimens and other samples and to withdraw from the contract, unless it is clear from the contractual relationship with the customer that PAConsult Swiss was aware of and accepted the risk when accepting the order.

8 Documentation of the audit results

8.1 PAConsult Swiss shall document the performance of the test and the test results obtained in a test report in accordance with the relevant standards for the type of test. The documentation must meet scientific and technical requirements. It must be truthful and objective.

8.2 Tests that are intended to prove that a product represented by the test specimen meets the requirements that must be fulfilled in order to place it on the market (conformity tests) must also comply with the test and documentation specifications to which accredited test laboratories are subject in accordance with DIN EN ISO/IEC 17025. PAConsult Swiss is entitled to reject any deviating requirements of the client.

8.3 The test report and other test-related documents, e.g. test plan, certificates of the devices and systems used for the test together with the associated calibration certificates and the documents submitted by the client, etc. shall be prepared in accordance with the relevant regulations and general statutory provisions. If necessary, these are supplemented by a confidentiality agreement concluded between PAConsult Swiss and the customer.

8.4 According to DIN EN ISO/IEC 17025:2018, there is a requirement to document decision rules that are applied to a statement of conformity. Decision rules describe how the measurement uncertainty (MU) is taken into account when statements on conformity with a specified requirement are made.

If no decision rule has been agreed in the contractual relationship between PAConsult Swiss and the customer and if such a decision rule is not specified in standards and/or specifications that are to be applied to the commissioned test, the MU is not taken into account in the conformity statement for variable data. If a decision rule is defined by the customer before the start of the test, it will be applied as far as practicable. Any additional work resulting from a decision rule is charged separately for each test.

For tests in which no variable data is collected for the conformity statement or no conformity statement is made, the definition of a decision rule is not required.

9. whereabouts of the test specimens and other samples after completion of the test

9.1 After the test has been carried out as agreed, test samples (test specimens) and specimens that are no longer required shall be returned to the client. PAConsult Swiss shall arrange for the return or return shipment to the customer at the customer's expense and risk. PAConsult Swiss accepts no liability for any damage or loss during shipment and/or return, nor does it assess the impact of damage or loss on the study results. Parcel shipments and pallet shipments are insured as standard; the transportation and liability conditions of the commissioned transport company apply. If the customer requests a different type of transportation or a higher sum insured than the standard insurance offered by the transport company, the return shipment must be made or commissioned by the customer.

9.2 If the storage or disposal of the test specimens or other samples is agreed with the customer as an exception, the customer shall be charged the costs incurred by PAConsult Swiss plus administrative expenses. This shall also apply in particular if additional costs are incurred because the storage or disposal is subject to special requirements (e.g. in the case of hazardous waste or dangerous goods).

9.3 The statutory retention obligations shall apply to the retention of test reports and other test-relevant documents.

10 Industrial property rights and copyrights

10.1 PAConsult Swiss reserves all industrial property rights and copyrights to the services and reports it provides. The customer is entitled to use the services of PAConsult Swiss for the purpose that was communicated to PAConsult Swiss prior to the provision of services or that was obviously recognizable to PAConsult Swiss. In this respect, the customer is granted a license to use the property rights and copyrights to which PAConsult Swiss is entitled in accordance with sentence 1. Any further use by the customer requires a special agreement with PAConsult Swiss.

10.2 Unless PAConsult Swiss has been expressly informed by the customer that the test results may be passed on to third parties prior to or upon conclusion of the contract or their disclosure corresponds to the meaning and purpose of the order placement, they may not be passed on to third parties by the customer. All documents created by PAConsult Swiss concerning test results, product descriptions and evaluations may only be passed on to third parties, either in full or in part, once they have been approved by PAConsult Swiss. This restriction applies in particular to documents that can be regarded by third parties as a promise of quality for a product or a product series, relying on the accuracy of the test results documented by PAConsult Swiss. If the third party asserts claims for damages against PAConsult due to non-approved test results, the customer shall indemnify PAConsult Swiss against such claims.

10.3 PAConsult Swiss shall observe the customer's industrial property rights and copyrights to the resources provided to it in accordance with section 7 above. PAConsult Swiss is entitled to retain the corresponding documents until the limitation period for any warranty and in particular liability claims of the customer against PAConsult Swiss has expired.

10.4 Unless otherwise expressly agreed, PAConsult Swiss provides its services free of third-party rights in Germany. If PAConsult Swiss services are to be used outside of Germany, the customer must check the PAConsult Swiss services themselves for freedom from third-party rights before using them or inform PAConsult Swiss of the existence of corresponding third-party intellectual property rights without being asked to do so in good time before PAConsult Swiss carries out the services so that PAConsult Swiss can take these into account. The customer will indemnify PAConsult Swiss against claims by third parties that arise from a breach of this obligation by the customer.

10.5 In the event of a breach of third-party intellectual property rights for which PAConsult Swiss is responsible, PAConsult Swiss can, at its own discretion, either obtain and grant a right of use sufficient for the agreed or assumed use at its own expense, change the service so that the intellectual property right is not violated, or replace the service, provided that this does not affect the agreed or assumed use of the service object by the customer. If this is not possible or unreasonable for PAConsult Swiss, the customer is entitled to the statutory claims and rights. Clause 12 applies to claims for damages.

11. Warranty

11.1 PAConsult Swiss provides the commissioned services professionally, regularly and with the care of a prudent businessman. Only the provision of the test service as such is owed, but under no circumstances a specific test result. This results exclusively from the findings of fact that PAConsult Swiss determined and evaluated scientifically and technically, including any statement of conformity, after the test was carried out in accordance with the order and in compliance with the generally accepted rules of technology. The test report and the test results determined do not represent a product within the meaning of the Product Liability Act, because PAConsult Swiss is not the manufacturer of the test results, but only determines them.

11.2 Based on the above service description, the customer's warranty claims can only be based on the fact that PAConsult Swiss used an unsuitable test standard when carrying out the test contrary to the order or incorrectly implemented or documented the procedure described in a suitable test standard. In other cases, a warranty claim is excluded unless PAConsult Swiss acted intentionally or with gross negligence. Claims for defects do not exist if there are only insignificant deviations from the agreed quality or only an insignificant impairment of the usability of the service result.

11.3 In order to assert warranty claims, the customer must first grant PAConsult Swiss a reasonable period of time to remedy the defects (at PAConsult Swiss's discretion, either repair or renewed performance). If this fails, PAConsult Swiss refuses to do so or if subsequent performance is unreasonable for the customer, the customer is entitled to the statutory claims. Clause 12 of these General Terms and Conditions applies to claims for damages.

11.4 The customer's claims for defects expire 12 months after the documentation of the test results is handed over. Claims for material defects, for which the regular statutory limitation period of three years applies, expire in two years. The statutory limitation periods apply in the event of intentional or grossly negligent defect causing and in the event of fraudulent concealment of a defect, as well as for all other statutory limitation periods for claims for defects that are longer than two years. The limitation periods mentioned also apply to consequential damages due to defects for which PAConsult Swiss is responsible under these General Terms and Conditions. If subsequent performance is required due to a defect, the limitation period is only suspended until subsequent performance and is not restarted.

11.5 Clause 12.1 of these General Terms and Conditions applies to the assertion of claims for damages due to claims for defects, e.g. consequential damages.

12. Claims for damages and liability for other reasons

12.1 The assertion of damages due to defects and claims for damages due to defective services is excluded unless PAConsult Swiss was responsible for the defects intentionally, through gross negligence or through negligent violation of essential contractual obligations (obligations on whose compliance the customer could rely). The assertion of consequential damages due to defects, in particular lost profits due to such defects, is excluded unless PAConsult Swiss caused the defect intentionally or through gross negligence through no fault of its own. This also applies to claims for reimbursement of expenses by the customer due to defects. PAConsult Swiss's liability in the event of negligence is limited to the foreseeable damage typical for the contract.

12.2 All other claims for damages and claims for reimbursement of expenses by the customer are excluded regardless of the legal basis. This also applies to claims asserted due to the violation of obligations arising from the contractual relationship and tort.

12.3 The above limitations of liability do not apply to claims under the Product Liability Act, in cases of intent or gross negligence, for injury to life, limb or health damage, due to the assumption of a guarantee for the existence of a property.

12.4 Insofar as the liability of PAConsult Swiss is excluded or limited, this also applies to the personal liability of the members of the management, employees, representatives and vicarious agents of PAConsult Swiss.

12.5 PAConsult Swiss holds liability insurance for third-party damage. Information on the insured amount will be provided on request. PAConsult Swiss is entitled to leave the processing of claims for damages to its liability insurer.

12.5 Clause 11.4 of these General Terms and Conditions applies accordingly to the limitation period for claims for damages, unless claims under the Product Liability Act are affected.

13. Early termination of the order by the customer

If the customer seriously declares in writing that PAConsult Swiss should not carry out the commissioned test or should not continue to carry it out, PAConsult Swiss nevertheless retains its claim to the agreed remuneration, taking into account the saved expenses. In the event of cancellation of the order placed, a flat rate of 50% of the agreed remuneration is bindingly agreed as a minimum amount. The termination of a test that has already begun must be documented in accordance with DIN EN ISO/IEC 17025.

14. Place of jurisdiction, place of performance and applicable law

14.1 The exclusive place of jurisdiction for all claims arising from and in connection with this contract is Hamburg. However, PAConsult Swiss is entitled to sue the customer at the court of its registered office.

14.2 Unless the contract expressly states otherwise, the place of performance is the registered office of the PAConsult Swiss branch that concluded this contract with the customer (Hamburg, Berlin or Ochsenhausen).

14.3 The legal relationships between the parties are governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods. These General Terms and Conditions only apply to entrepreneurs within the meaning of Section 14 Paragraph 1 of the German Civil Code (BGB), legal entities under public law and special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code (BGB).

15. Severability clause

If individual provisions of this contract or these terms and conditions are or become invalid, the validity of the remaining provisions of this contract and these general terms and conditions shall remain unaffected. Instead, the valid provision that comes closest in content to the invalid provision from an economic point of view shall be deemed to have been agreed.

16. Text form requirement

All further agreements and arrangements between the contracting parties that are made for the execution of the contract must be in text form, unless an oral agreement or arrangement has already been implemented without objection. Changes, ancillary agreements, additions and cancellation of the contract must be in text or written form.

Neuhausen,01.01.2024