Terms of Service
General Terms and Conditions for Purchase, Works or
Contractual Services of Spectral Service AG
1. Scope
1.1 The following General Terms and Conditions (GTC) apply to all orders for analytical and advisory services that Spectral Service AG (hereinafter referred to as the “Contractor”) processes for its clients (hereinafter referred to as the “Client”). A contract under the validity of these Terms and Conditions comes about through acceptance of an order by the Contractor.
As far as individual contractual regulations exist which deviate from or contradict the provisions of these GTC, the individual contractual provisions shall apply.
1.2 Conflicting or divergent Terms and Conditions of the Client are not recognized, even if the Contractor performs an order without contradicting such deviating Conditions – unless the Contractor has agreed to them in writing in individual cases. Furthermore, any prior acceptance of specific Terms and Conditions for a previous order (including special price rules) does not mean that they will continue to apply to subsequent orders. Each contract accepted by the Contractor is considered as a separate contract between the Contractor and the Client.
2. Offers, placing of order, cancellation
2.1 All offers of the Contractor are subject to confirmation and non-binding, unless they are marked as binding or include an acceptance period. Technical specifications (for example, number and type of analyses) and deadlines for the performance of the contract are always approximate, unless marked as binding.
2.2 Commissions and orders must be in writing to be effective (also by e-mail), stating all contact and required business data of the client. The use of the order form provided by the Contractor (“Order Form”) or the online order registration portal is desired. The Contractor is not obliged to start the analysis until there is clarity about the contract and all necessary information has been provided to him. Telephone or oral changes and additions to a contract as well as ancillary agreements to this effect also require the written confirmation of the Contractor to be effective. In the case of an exclusively oral order, transmission errors as well as any misunderstandings shall be borne by the Client.
2.3 An order placed with the Contractor is accepted either by the Contractor (a) performing the contract (in which case written confirmation from the Contractor is not required) or (b) the Contractor accepts the contract in writing. The Contractor is entitled to charge a management and administration fee of up to € 50.00 in the event that the Client subsequently requests additional services for a contract that has already been completed or invoiced.
2.4 If the Client cancels for a reason for which the Contractor is not responsible, the Client shall reimburse the Contractor for all services provided up to that time in accordance with the respectively valid price list. The right to extraordinary termination for good cause in accordance with the statutory provisions remains unaffected for both parties.
3. Scope of services, limited warranty of the Contractor
3.1 The services to be performed by the Contractor usually include the listed tasks according to the written assignment given by the Contractor. The Contractor will provide its services in accordance with the current state of science and technology at the time of commissioning or based on existing quality agreements and based on industry-standard care. However, the Contractor does not assume any guarantee for the achievement of the aim of placing the order.
3.2 Deadlines for the performance of analytical or advisory services are non-binding unless agreed in writing as binding. If the Contractor is unable to perform an order for reasons for which the Contractor is not responsible, or only with materially changed technical, personnel and / or other expenses, the Contractor shall notify the Client without delay. The contract parties decide whether, to what extent and at what cost the contract will be carried out. If no agreement is reached, each contracting party has the right to terminate the contract by written declaration.
3.3 Analysis results and data are always given to the e-mail addresses informed by the Client when placing the order after completing the analysis in the form of a written report or certificate by e-mail and / or by post (surcharges apply), or otherwise by electronic means.
3.4 The Contractor has established an integrated quality management system for the performance of the analytical services, which meets the requirements for quality assurance systems, personnel, premises and equipment of the following regulations:
– EU Good Manufacturing Practices Guide (GMP) for medicinal products;
– DIN EN ISO / IEC 17025: 2005 – General requirements for the competence of testing and calibration laboratories (not accredited);
– Good Laboratory Practice (GLP), Chemicals Act.
– USP <761>: Nuclear Magnetic Resonance Spectroscopy
– USP <1761>: Applications of Nuclear Magnetic Resonance Spectroscopy
– cGMP for analytical testing facilities and pharmaceuticals (21 CFR Part 211)
– DIN EN ISO / IEC 17025: 2005 – General requirements for the competence of testing and calibration laboratories (not accredited);
– Good Laboratory Practice (GLP), Chemicals Act.
– USP <761>: Nuclear Magnetic Resonance Spectroscopy
– USP <1761>: Applications of Nuclear Magnetic Resonance Spectroscopy
– cGMP for analytical testing facilities and pharmaceuticals (21 CFR Part 211)
Special requirements of these regulations for quality control documentation, archiving of raw data and return samples, etc. can only be fulfilled by the Contractor if the Client specifies the required regulations when placing the order.
3.5 Unless otherwise agreed in writing, the samples submitted for examination shall, as far as the condition permits, be kept up to a maximum of 8 weeks with the Contractor. After this time, the samples are destroyed.
4. Obligations of the Client
4.1 The Client is obliged to provide the Contractor in due time with all test items, materials, data and other information required for the execution of the order, as well as to provide him with information or experience to ensure smooth and efficient processing of the order.
4.2 The delivery of the examination materials shall be at the expense and risk of the Client, in a mode of dispatch and in appropriate packaging, for the properties of the material. This also includes any applicable processing fees for customs clearance of examination materials – regardless of the scope and value of the commissioned analyses.
4.3 The Client is obliged to inform the Contractor in writing about any known dangers that may arise from the examination material and to inform the Contractor accordingly. In case of culpable breach of this duty, the Client is liable for all costs, damages and other disadvantages incurred by the Contractor or his staff.
4.4 The Client is obliged to specify the legal requirements for the quality assurance and documentation of the commissioned analyses (GMP, GLP, REACH or non-GxP) when placing the order, so that the Contractor can follow the special requirements in advance and during the entire processing of the order. Subsequent supplementation of the documentation is not possible. In the case of a contracted subcontract under GMP (release analysis), it is the responsibility of the Client to fix the requirements for quality control and documentation in a separate agreement (framework contract and quality agreement).
4.5 The Client is obliged to check the validity of the results, interpretations, estimates and conclusions submitted by the Contractor with due care on receipt and to notify recognizable faults or defects in writing immediately, at the latest however, within ten days. After expiry of this period, any claims for defects shall be excluded.
This limitation period reflects the fact that samples are retained by the Contractor for a limited period.
In the event of a justified complaint, the Contractor shall be entitled, at its sole discretion, to perform a re-analysis.
If the re-analysis confirms the original result, the Client shall bear the costs of the re-analysis.
This limitation period reflects the fact that samples are retained by the Contractor for a limited period.
In the event of a justified complaint, the Contractor shall be entitled, at its sole discretion, to perform a re-analysis.
If the re-analysis confirms the original result, the Client shall bear the costs of the re-analysis.
5. Liability
5.1 The Contractor shall be liable for damages in accordance with statutory provisions in cases of willful misconduct and gross negligence.
5.2 In cases of slight negligence, the Contractor shall only be liable:
– for damages resulting from injury to life, body or health; and
– for damages resulting from the breach of essential contractual obligations (cardinal obligations).
In the latter case, liability shall be limited to the foreseeable damage typical of the contract.
– for damages resulting from injury to life, body or health; and
– for damages resulting from the breach of essential contractual obligations (cardinal obligations).
In the latter case, liability shall be limited to the foreseeable damage typical of the contract.
5.3 The total aggregate liability of the Contractor under or in connection with any individual order shall be limited to the net order value (i.e. the analytical costs charged by the Contractor for the respective order).
5.4 The Contractor shall not be liable for any indirect, incidental or consequential damages, including but not limited to loss of profit, loss of business, loss of data or loss of production, regardless of the legal basis of such claim.
5.5 The above limitations of liability shall also apply to the personal liability of the Contractor’s employees, representatives and vicarious agents.
6. Prices and terms of payment
6.1 The basis for the settlement of all service transactions is the offer of the Contractor on which the order is based or – if no offer exists – the respectively valid price list of the Contractor.
6.2 If, in the case of orders for which a fixed price has been agreed, it turns out during processing that expenses beyond the agreed fixed price are required for unforeseeable reasons, the Contractor will inform the Client immediately and name the anticipated additional expenses. If the Client does not agree to the payment of the additional expenses, both parties are entitled to withdraw from the contract. In this case, the Contractor is entitled to settle all services provided up to that time in accordance with the respectively valid price list, up to a maximum of the agreed fixed price.
6.3 The Contractor reserves the right to carry out the order processing against COD, partial advance payment or advance payment. The Contractor reserves the right to bill partial performances, the conclusion of which the Contractor has previously demonstrated to the Client.
6.4 Invoices are payable after 30 days without deduction. If the invoice recipient is in arrears with the payment, the Contractor is entitled to claim an increasing service fee per reminder and default interest. The default interest amounts to 5% p.a. above the base rate applicable at the time of calculation.
6.5 The Contractor has the right to withdraw from or to interrupt processing of already accepted orders and to withhold analytical data if the client is in default with the payment of partial services or previous services rendered in full.
7. Protection of work results, confidentiality
7.1 The Contractor retains all intellectual property rights in the services provided as well as in any analytical methods developed or applied.
The Client is entitled to use the reports, certificates and other results generated under the order solely for its internal business purposes.
The Client may disclose the complete and unmodified reports to:
– competent authorities, and
– affiliated companies within the meaning of Sections 15 et seq. German Stock Corporation Act (AktG),
provided that such disclosure is made only in full and without any modification, alteration or excerpt.
Any partial use, modification, or use in extracts, as well as any misleading use of the reports, is prohibited.
The Client is entitled to use the reports, certificates and other results generated under the order solely for its internal business purposes.
The Client may disclose the complete and unmodified reports to:
– competent authorities, and
– affiliated companies within the meaning of Sections 15 et seq. German Stock Corporation Act (AktG),
provided that such disclosure is made only in full and without any modification, alteration or excerpt.
Any partial use, modification, or use in extracts, as well as any misleading use of the reports, is prohibited.
7.2 The Contractor undertakes to make available to the Client all partial and final results that are drawn up in the context of the order and neither to publish nor to disclose this to third parties without his consent. Excluded is the transfer according to 7.1. The Contractor further undertakes to keep secret all information of the Client received in connection with the order.
8. Jurisdiction
Neither party shall be liable for any failure or delay in the performance of its obligations under these Terms and Conditions if such failure or delay is caused by events beyond its reasonable control, including but not limited to acts of God, natural disasters, fire, strikes, labor disputes, epidemics, pandemics, governmental actions, or disruptions in supply chains (“Force Majeure Event”).
If the client has no general place of jurisdiction in Germany or in another EU member state, the exclusive place of jurisdiction for all disputes arising from this contract is the registered office of Spectral Service AG.
9. Force Majeure
Neither party shall be liable for any failure or delay in the performance of its obligations under these Terms and Conditions if such failure or delay is caused by events beyond its reasonable control, including but not limited to acts of God, natural disasters, fire, strikes, labor disputes, epidemics, pandemics, governmental actions, or disruptions in supply chains (“Force Majeure Event”).
The affected party shall promptly notify the other party of the Force Majeure Event and its expected duration.
If the Force Majeure Event continues for more than thirty (30) days, either party shall be entitled to terminate the affected order by written notice.
The affected party shall promptly notify the other party of the Force Majeure Event and its expected duration.
If the Force Majeure Event continues for more than thirty (30) days, either party shall be entitled to terminate the affected order by written notice.
10. Subcontracting
The Contractor shall be entitled to engage subcontractors for the performance of its services.
However, subcontracting is excluded for the following analytical methods:
– Nuclear Magnetic Resonance (NMR),
– Infrared Spectroscopy (IR),
– Electrospray Ionization (ESI),
– Water determination.
For NMR services, subcontracting shall only be permitted to affiliated companies of the Contractor.
The Contractor shall remain fully responsible for the performance of all subcontracted services.
However, subcontracting is excluded for the following analytical methods:
– Nuclear Magnetic Resonance (NMR),
– Infrared Spectroscopy (IR),
– Electrospray Ionization (ESI),
– Water determination.
For NMR services, subcontracting shall only be permitted to affiliated companies of the Contractor.
The Contractor shall remain fully responsible for the performance of all subcontracted services.
11. Export Control and Sanctions Compliance
The Client shall ensure that any samples or materials submitted to the Contractor are not shipped from, or otherwise subject to, any country, entity or person that is subject to applicable sanctions or export control restrictions of the destination country.
The Client shall be solely responsible for compliance with all applicable export control and sanctions laws and regulations.
The Client shall be solely responsible for compliance with all applicable export control and sanctions laws and regulations.
12. Miscellaneous
12.1 Entire Agreement
These General Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, understandings and representations.
These General Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, understandings and representations.
12.2 Amendments
Any amendments or supplements to these Terms and Conditions must be made in writing to be effective.
Any amendments or supplements to these Terms and Conditions must be made in writing to be effective.
12.3 Severability
Should any provision of these Terms and Conditions be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid provision that most closely reflects the economic purpose of the original provision.
Should any provision of these Terms and Conditions be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a valid provision that most closely reflects the economic purpose of the original provision.
13. Data Protection
Each party shall comply with all applicable data protection laws and regulations in connection with the performance of the services under these Terms and Conditions.
To the extent that the Contractor processes personal data on behalf of the Client, such processing shall be limited to what is necessary for the performance of the respective order.
To the extent that the Contractor processes personal data on behalf of the Client, such processing shall be limited to what is necessary for the performance of the respective order.