General Terms and Conditions of Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH

§ 1 General provisions

All agreements, offers, deliveries and services are subject to the following Terms and Conditions.

Any conflicting provisions in the contracting party's general terms and conditions are hereby expressly rejected. They shall not become part of the contract even if Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH does not expressly object to them. In particular, they shall not be deemed to have been accepted by tacit agreement. If the contracting party does not agree with this approach, it must notify us immediately in a separate letter. In that event, Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH reserves the right to withdraw from the contract without giving rise to claims of any kind against Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH.

The terms “goods” and “product” also include procedures, services, reports of results and expert reports.

§ 2 Offers

Our offers remain subject to change and non-binding until the contract is finally concluded, unless they are expressly designated as binding.

§ 3 Orders

Orders and oral agreements shall become binding, in whole or in part, only if and to the extent that they have been confirmed in writing. All additional agreements require our written confirmation.

§ 4 Cost estimates, project drafts and drawings

We reserve without restriction our ownership rights and rights of exploitation under copyright law in cost estimates, project drafts, drawings and other documents. They must not be made accessible to third parties. Project descriptions, drawings and other documents accompanying our offers must be returned immediately if the order is not placed with us.

§ 5 Deliveries and services

Deliveries may be insured at the contracting party's request and expense. The scope of the services shall be determined solely by matching declarations made by both contracting parties. In the absence of such declarations, our written order confirmation shall be decisive unless the contracting party objects within 7 days of receipt. Where delivery is made directly by Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH, the risk of loss of or damage to the delivery shall pass to the contracting party once it has been handed over to the person responsible for transport. Sampling materials must be checked for suitability and integrity before sampling. Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH cannot subsequently provide any warranty for damage or failures caused by defective sampling materials.

§ 6 Performance periods and dates

The contractually agreed performance periods and dates are based on estimates of the anticipated scope of work, using the information supplied by the client. They shall be binding only if expressly agreed in writing as binding. Agreed periods shall not begin until the contracting party has completed all prior acts of cooperation required of it (see § 7).

§ 7 Cooperation

The contracting party shall ensure that all necessary acts of cooperation, whether performed by it or by persons engaged to perform its obligations, are completed in good time and at no cost to us. These include obtaining documents, placing orders by agreed dates, completing all necessary formalities and making agreed advance payments. Such acts of cooperation must comply with the applicable standards, safety requirements (VDI, DIN, etc.) and accident prevention regulations.

The contracting party shall bear any additional costs arising where work has to be repeated and/or is delayed because information is late, incorrect or incomplete and/or acts of cooperation are not properly performed. We shall be entitled to charge separately for such additional work even where a fixed or maximum price has been agreed.

§ 8 Exceeding delivery periods

Delivery and performance periods shall be extended by the duration of any impediment caused by force majeure, official measures, strikes, lockouts, wartime disruption, operational or transport disruptions, or unforeseen circumstances for which we are not responsible and which make delivery or performance substantially more difficult or impossible for us and our suppliers. If an impediment lasts longer than three months, the client shall be entitled, after granting a reasonable additional period, to withdraw from the contract by written notice. If performance becomes unreasonable or impossible for us for the reasons stated above, we shall be entitled to withdraw from the contract in whole or in part without the contracting party being entitled to claim damages from us as a result. The same shall apply if delivery becomes unreasonable for us because of one of the circumstances referred to in § 11.

§ 9 Withdrawal and remuneration

In the event of withdrawal for the reasons stated above, we shall be entitled to remuneration for partial services already performed.

§ 10 Damages

Claims for damages against us arising from any failure to meet delivery or performance periods shall be excluded unless we have acted intentionally or with gross negligence.

In commercial transactions, the party using these Terms and Conditions shall not be liable for damages to the extent that delayed performance or impossibility of performance results from a slightly negligent breach of non-essential contractual obligations.

§ 11 Warranty and liability

In non-commercial transactions, the purchaser must notify us in writing of obvious defects within 14 days of handover. Otherwise, it shall lose its warranty rights in respect of those defects. The purchaser must notify us in writing of non-obvious defects within 6 months of discovering them. Otherwise, it shall lose its warranty rights in respect of those defects. In commercial transactions, the purchaser must notify us in writing of obvious defects and defects identifiable upon proper inspection within 7 days of handover/delivery. Non-obvious defects that cannot be identified upon proper inspection must be notified in writing within 7 days of discovery, and in any event no later than 3 months after handover/delivery. Failure to meet the notification period shall exclude warranty rights for the defects concerned. As long as Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH fulfils its obligations to remedy defects, the customer shall not be entitled to demand a reduction in remuneration or rescission of the contract unless the attempt to remedy the defect has failed. In non-commercial transactions, claims for damages shall be excluded unless the damage was caused by intentional or grossly negligent conduct by the party using these Terms and Conditions, its legal representative or a person engaged to perform its obligations, or by a breach of an obligation essential to the performance of the contract.

In commercial transactions, the party using these Terms and Conditions shall not be liable for slightly negligent breaches of non-essential contractual obligations. Liability for slightly negligent breaches of material contractual obligations, and for intentional or grossly negligent breaches of contractual obligations by ordinary agents engaged to perform its obligations (einfache Erfüllungsgehilfen), shall be limited to €500,000.

At the contracting party's request, higher liability limits may be agreed and insured under a separate written contract with Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH. Recommendations based on our measurement results are non-binding and do not release the contracting party from carrying out its own checks and tests, unless such recommendations are expressly part of the contract. The client is responsible for compliance with statutory and official requirements when using our measurement results and goods. We give no warranty that the goods supplied by us are free from patents or other intellectual property rights. The contracting party shall remain obliged to fulfil the contract without delay even where it has warranty rights. This applies in particular to compliance with the agreed payment terms. Where Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH is jointly and severally liable with others, its liability shall in all cases be subsidiary and last in order.

§ 12 Partial services

We shall be entitled to perform self-contained parts of the order as partial services. The contracting party shall be obliged to accept such partial services.

§ 13 Completion of services and transfer of risk

Our services shall be deemed completed, and risk shall pass, upon dispatch of the test results, expert report or other written communications concerning the services performed to the address most recently supplied by the contracting party.

§ 14 Prices, payment terms and invoicing

The individual prices stated in our written offer shall apply. If a price has not been expressly stated in writing in our confirmation, the prices applicable on the date of delivery shall be charged.

All fees and prices shall be subject to VAT at the rate applicable at the time of invoicing. Prices exclude packaging, shipping and insurance costs. All remuneration shall be payable immediately when due, without deduction. No cash discounts shall be granted. Where a fixed price has been agreed in writing, we may invoice proportionate interim payments corresponding to the part of the overall service already performed. The contracting party shall be obliged to accept the services without delay. If the contracting party does not comply with this obligation without delay, acceptance shall be deemed to have taken place four calendar weeks after the services have been performed. Any objections to our invoices must be submitted to us in writing, with reasons, within a preclusive period of 21 calendar days from the invoice date.

If the contracting party defaults on payment, we shall be entitled to charge interest at 3 percentage points above the applicable discount rate of the Deutsche Bundesbank, subject to a minimum of 8% per annum, without prejudice to our right to claim further losses caused by the default. Invoices shall be sent by email and shall be provided in paper form only upon express request and for a fee. Subsequent changes to invoices requested by the client shall be charged according to the work involved (see also § 7).

§ 15 Set-off and withholding of payments

The client shall not be entitled to set off claims or withhold payments, in particular on the grounds of defects, unless the claims concerned have been acknowledged by us in writing or established by a final and binding court decision.

§ 16 Retention of title

Reports, expert reports, test results, calculations, planning documents, illustrations and other materials prepared by Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH must not be disclosed to third parties, published and/or reproduced in any form unless the contracting parties have agreed in writing on the disclosure, presentation or publication of extracts. In the event of payment default, we shall be entitled to take possession of the goods supplied on the basis of our retention of title. In that event, the contracting party shall be obliged to surrender the goods supplied without delay. The contracting party hereby expressly and irrevocably authorises us to enter the premises on which the goods supplied are located and to take possession of them. We shall be entitled to demand the return of goods subject to our retention of title to an extent corresponding to the outstanding debt in the following circumstances:

if an application has been made to open bankruptcy or composition proceedings (Konkurs- oder Vergleichsverfahren) in respect of the contracting party's assets; or

if the contracting party is summoned to make a declaration in lieu of an oath (eidesstattliche Versicherung), or is wholly or partly in arrears with its payment obligations.

Retention of title shall also extend to products resulting from processing. If our goods are processed, combined or mixed with other materials, we shall automatically acquire co-ownership of the resulting product in proportion to the value of our goods relative to the other materials. In that event, the contracting party shall be deemed to act as custodian.

§ 17 Data protection

The client's data shall be subject to data protection legislation and shall be available to Mikrobiologisches Labor Dr. Michael Lohmeyer GmbH for processing the order and for statistical purposes.

§ 18 Warranty for international transactions

For goods located abroad, our warranty shall be limited, at our discretion, to remedying the defect, providing a replacement or covering the costs of remedying the defect that would arise at the point of crossing the border of the Federal Republic of Germany. The warranty period shall be 6 months.

All transactions, including those with foreign business customers, shall be governed exclusively by German law.

§ 19 Jurisdiction

The place of jurisdiction shall be Münster if the contracting party is a merchant with full commercial status (Vollkaufmann), a legal entity under public law or a special fund under public law.

§ 20 Severability

If any provision of this agreement, or any provision included in it in the future, is or becomes wholly or partly legally invalid or unenforceable, or subsequently loses its legal validity or enforceability, this shall not affect the validity of the remaining provisions of this contract.

The same shall apply if the contract is found to contain a gap.

The invalid or unenforceable provision shall be replaced, or the gap filled, by an appropriate provision which, to the extent legally permissible, comes closest to what the contracting parties intended, or would have intended in accordance with the meaning and purpose of the contract, had they considered the point when concluding this contract or subsequently adopting a provision.