1. Scope of application
1.1 These Terms and Conditions of PAConsult Swiss GmbH (PAConsult) apply exclusively; conflicting or deviating terms and conditions shall not be accepted unless otherwise agreed in writing. These terms and conditions apply only to companies within the meaning of § 14 (1) BGB, legal entities under public law and special funds under public law within the meaning of § 310 (1) BGB.
1.2 All agreements made to execute a contract must be made in writing. Changes, ancillary agreements, additions and cancellations of the contract must be made in writing.
1.3 These Terms and Conditions of Service shall also apply to all future transactions with the Customer in an ongoing business relationship.
2.1 PAConsult is liable exclusively for the provision of the test services and the assessment of the test result based on the presented test samples.
2.2 PAConsult is entitled to outsource services incumbent on it in whole or in part to third-party companies if this is not contrary to apparent interests of the Customer or obligations arising from accreditation or certification programs or legal status.
3. Offers, documents
3.1 The offers of PAConsult are generally non-binding. A contract is only concluded when PAConsult confirms orders in writing or provides the service. In principle, the fee sums stated in offers and order confirmations of PAConsult are only non-binding estimates based on the information received from the Customer.
3.2 Should PAConsult provide the Customer with illustrations, drawings, calculations or the like with the offer or during the contract negotiations, the information provided here is only approximate and exemplary unless it is expressly designated as binding. In particular, such information is not a guarantee.
3.3 PAConsult generally reserves its property rights and copyrights to cost estimates, drawings, drafts, models and other documents such as e.B illustrations, drawings, calculations; they may not be made accessible to third parties unless otherwise expressly stipulated. In particular, the Customer is obliged to make documents designated as confidential by PAConsult accessible to third parties only with their consent.
3.4 All proposals, drafts and ideas submitted to the Customer by PAConsult during the offer phase may not be used by the Customer for its own purposes or for the purposes of third parties without the conclusion of a contract with PAConsult.
4. Remuneration and terms of payment
4.1 Unless otherwise expressly agreed, PAConsult shall invoice fees following the respectively valid price list, plus costs and expenses.
4.2 The costs include, in particular the costs of consumables, travel and accommodation costs.
4.3 In the case of damage assessments, the method of calculation to which PAConsult is entitled depends on the respective offer. Travel expenses and expenses will also be charged separately in this case.
4.4 Unless otherwise agreed, the fees quoted by PAConsult are in euros and without VAT; this is to be paid in addition, insofar as such a charge is incurred, following the statutory VAT rate applicable at the time of billing.
4.5 Order-related third-party services will be charged further. However, PAConsult is entitled to charge the Customer an administrative surcharge of up to 15% per invoice amount of the third-party service.
4.6 PAConsult is entitled to invoice the Customer immediately for costs and expenses incurred; unless otherwise agreed, PAConsult may invoice the remuneration for consulting services on a pro-rata basis at the end of each month. If, as an exception, a contract for work and services (§§ 631 BGB) has been agreed upon between the Customer and PAConsult, PAConsult is entitled to charge reasonable advance payments at the end of each month in accordance with the progress of performance.
4.7 Unless otherwise agreed, all invoices must be paid in euros within ten days of receipt of the invoice without deduction to the paying agent specified by PAConsult. In the event of default on the part of the Customer, PAConsult shall be entitled to the statutory default interest. Point. 4.8 remains unaffected.
4.8 The Customer is only entitled to set-off rights if his counterclaims have been legally established, undisputed, or acknowledged by PAConsult. The exercise of a right of retention or refusal of performance by the Customer is only entitled if the Customer’s counterclaim is also based on the same contractual relationship.
4.9 Unless otherwise agreed, the Customer may only use the performance results of PAConsult after full payment.
4.10 If PAConsult is obliged to make an advance payment and PAConsult becomes aware of circumstances after the conclusion of the contract according to which the payment claim is endangered by the Customer’s inability to pay, PAConsult may, at its discretion, demand either security within a reasonable period of time or step-by-step payment against the provision of the service. If the Customer does not comply with this, PAConsult is entitled to terminate the contract subject to further legal rights.
5. Performance time
5.1 The beginning of a performance period specified by PAConsult presupposes the clarification of all necessary questions and compliance with the Customer’s obligations. Unless otherwise agreed or results from the contractual relationship, the delivery or service time specified by PAConsult is always non-binding.
5.2 Delays in performance due to force majeure or due to unforeseeable circumstances for which PAConsult is not responsible, such as operational disruptions, strikes, lockouts, official orders, late delivery by subcontractors, do not lead to a delay on the part of PAConsult. The agreed performance period is extended by the duration of the disability. If the hindrance lasts longer than two months, each party is entitled to terminate the contract or to withdraw from the contract after expiry of a reasonable grace period with regard to the part not yet fulfilled. Claims for damages are excluded in this case.
5.3 PAConsult is entitled to partial services if this does not conflict with any recognizable interest of the Customer.
6. Order fulfilment
6.1 When fulfilling the services of PAConsult, in the absence of special agreements, the recognized rules of technology and the applicable legal regulations and standards in Germany shall be observed.
6.2 If foreign regulations and standards are to be observed by PAConsult, the Customer must inform PAConsult of these regulations and standards in detail and, if necessary, explain them on request. PAConsult will not conduct its own research on rules and standards applicable abroad.
6.3 The Customer is obliged to support the services of PAConsult in an appropriate manner; this applies in particular to the obligation to provide the necessary information and to provide input during the contractual relationship.
6.4 Written documents that are important for the fulfilment of PAConsult’s services may be copied and stored by PAConsult as part of the fulfilment of the services.
7. Industrial property rights/copyrights
7.1 PAConsult reserves all industrial property rights and copyrights to all services of PAConsult. The Customer may only use the services of PAConsult for the intended purpose that were communicated to PAConsult before the service was provided or were recognizable to PAConsult. Any further use by the Customer requires a special agreement with PAConsult.
7.2 Insofar as PAConsult has not been expressly informed of the transfer of its service results to third parties by the Customer before or at the time of conclusion of the contract, the transfer of the service results to third parties without the express consent of PAConsult is not permitted.
7.3 PAConsult shall observe the Customer’s industrial property rights and copyrights to means provided by him. However, PAConsult is entitled to store the corresponding documents until the statute of limitations of any warranty and in particular liability claims of the Customer against PAConsult.
8.1 In the case of service contracts (in particular consulting services), the Customer must first grant PAConsult a reasonable period of time to remedy the defects (at PAConsult’s discretion rectification or renewed performance) in the event of defects for which PAConsult is responsible. If this fails, PAConsult refuses this, or if the subsequent performance is unreasonable for the Customer, the Customer is entitled to the statutory claims. For claims for damages, para. 9.
8.2 If, exceptionally, a contract for work and services (§§ 631 ff. BGB) has been concluded, the following shall apply:
8.2.1 The claims for defects of the commercial Customer require that he examines them immediately after receipt of the service and that any recognizable defects immediately after the inspection as well as hidden defects immediately after their discovery with a specified indication of the defects in writing to PAConsult (§ 377 HGB). If the Customer is not a merchant, he must report obvious defects in writing within two weeks of receipt of the service; otherwise, the Customer’s claims for defects shall lapse for such defects.
8.2.2 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.
8.2.3 In the event of defects for which PAConsult is responsible, PAConsult shall first be given the opportunity to remedy the defect within a reasonable period of time, at PAConsult’s discretion by repair or replacement.
8.2.4 Claims for defects by the Customer shall become statute-barred 12 months after the transfer of risk (delivery, or – if prescribed or agreed – acceptance). Claims for material defects for which the regular limitation period of three years applies by law shall become statute-barred after two years. However, the statutory limitation periods shall apply in the event of intentional or grossly negligent causation of defects and fraudulent concealment of a defect as well as in all other statutory limitation periods for claims for defects that are longer than two years. The aforementioned limitation periods also apply to consequential damage caused by defects. If subsequent performance is required due to a defect, the limitation period until subsequent performance is only suspended and not set in motion again.
8.2.5 For the assertion of claims for damages based on claims for defects, para. 9 of these Terms.
8.3 Property rights of third parties, defects of title
8.3.1 Unless otherwise expressly agreed, PAConsult shall only provide its services free of third-party rights in Germany.
8.3.2 If PAConsult’s services are to be used outside of Germany, the Customer himself must check the services of PAConsult for the freedom from third-party rights before using them or notify PAConsult of the existence of corresponding third-party property rights unsolicited in good time before the performance of the services by PAConsult so that they can be taken into account by PAConsult. PAConsult does not carry out any research regarding any existing property rights outside Germany.
8.3.3 In the event of an infringement of third-party property rights for which PAConsult is responsible, PAConsult may, at its discretion, either obtain and grant a right of use sufficient for the agreed or assumed use at its own expense or change the service so that the property right is not infringed, or replace the service, provided that this does not impair the agreed or assumed use of the object of performance by the Customer. If this is not possible or unreasonable for PAConsult, the Customer is entitled to statutory claims and rights. For claims for damages, para. 10. In all other respects, para. 8.2 for defects of title accordingly.
9. Claims for damages and liability for other reasons
9.1 The assertion of damage caused by defects or claims for damages due to defective services is excluded unless PAConsult would have caused the defects intentionally, through gross negligence or through negligent breach of essential contractual obligations (obligations on the observance of which the Customer could rely on). The assertion of consequential damages, in particular loss of profit due to such defects, is excluded if PAConsult has caused the defect only slightly negligently or through no fault of its own. This also applies to claims for reimbursement of expenses by the Customer due to defects. However, PAConsult’s liability in the event of negligence is limited to the contractually typical, foreseeable damage.
9.2 Otherwise, claims for damages and claims for reimbursement of expenses by the Customer are excluded for whatever legal reasons due to breach of obligations arising from the contractual relationship and from tort.
9.3 The above limitations of liability do not apply to claims arising from the Product Liability Act, in cases of intent or gross negligence, for injury to life, bodily injury and damage to health due to the assumption of a guarantee for the existence of a property.
9.4 Insofar as the liability of PAConsult is excluded or limited, this also applies to the personal liability of the employees, employees, employees, representatives and vicarious agents of PAConsult.
9.5 The statute of limitations of these claims between the Customer and PAConsult is governed by para. 8.2.4 of these terms and conditions, insofar as claims under the Product Liability Act are not affected.
9.6 PAConsult is not itself the manufacturer of a product or its components.
9.7 Subject to PAConsult’s express consent, or unless otherwise expressly agreed, PAConsult’s performance results, in particular consulting services, expert opinions, may not be disclosed to third parties. In particular, they may not serve to induce third parties to trust in the correctness of PAConsult’s performance results. If the third-party nevertheless asserts claims for damages against PAConsult based on the performance results of PAConsult, the Customer must indemnify PAConsult against such claims.
10. Retention of title
PAConsult retains title to any items delivered to the Customer until the Customer has made all payments from the business relationship with PAConsult.
11. Place of jurisdiction – a place of performance
11.1 If the Customer is a merchant, the exclusive place of jurisdiction for all claims arising from and in connection with this contract is Hamburg. However, PAConsult is also entitled to sue the Customer at the court of its registered office.
11.2 Unless otherwise expressly stated in the contract, the place of performance is Hamburg.
12. Applicable law, severability clause
12.1 The legal relations between the parties shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
12.2 Should individual regulations of the contract or these terms and conditions be invalid, this shall not affect the validity of the other regulations.