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Terms of contract - Material Analytischer Service (M.A.S...)

1. Applied investigation methods

M.A.S shall perform all microscopy, analysis and development services for the analySIS program of Olympus Soft Imaging Solutions (OSIS) exclusively on the basis of these terms of business.

Diverging terms of business of the client shall only be valid if M.A.S has expressly agreed to their validity in writing. The terms of business of M.A.S shall remain valid for all future business between M.A.S and the client, even if they are not expressly agreed to again.

2. Remuneration, payment, default

The remuneration of M.A.S shall comply with each current quotation. The quotation shall be available to the client when signing the contract and shall become the subject matter of the contract.

50% of the remuneration shall be due for payment immediately upon conclusion of the contract and following a request for payment; the remaining 50% shall be due following delivery of the analysis or report. Invoices from M.A.S are to be paid in full within 10 days. Other terms of payment require written agreement. We shall be entitled to firstly credit each payment against costs incurred and then later against prior debt.

M.A.S may charge default interest at a rate equal to that of the conventional rate of interest for open credit on current accounts, but, as a minimum, shall charge 8 % over the base rate plus the appropriate sales tax.

The client may only offset claims for payment from M.A.S against undisputed or declaratory judgment counterclaims. The client may only enforce a lien should the claim concerned be from the same contractual relationship.

3. Delivery term

M.A.S shall endeavor to make the analysis or report available to the client within a maximum of one month following signing of the contract and after handover of the sample.

A delay may occur at the earliest six weeks after conclusion of the contract and handover of the sample.

Should interruption of operations or delays in the supply of essential materials, for example, occur, the term of delivery shall be extended, provided that these impediments caused considerable disruption to the services to be provided by M.A.S.... The client is to be informed of possible delays immediately.

M.A.S shall be entitled to reject the analysis free of charge and without stating reasons within 10 days of conclusion of the contract or of handover of the sample.

4. Guarantee

M.A.S shall carry out the investigations according to the agreed methods and to the best of their knowledge. A possible guarantee shall be restricted to the sample provided by the client. The client is to give notice of defects in the analysis within 8 days after delivery of the analysis, otherwise the analysis shall be deemed to have been correctly performed.

Should the findings of the investigation be demonstrably deficient, M.A.S shall be entitled to attempt to remedy the defects (by repeating the investigation) within a reasonable time period. M.A.S shall again be provided with a sample of the same material free of charge for this purpose. A further guarantee is excluded.

5. Liability

Provided that nothing different is shown in these terms of contract, including their subsequent provisions, M.A.S shall be liable in the case of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

M.A.S shall be liable for damages - irrespective of the legal justification in the case of intent or gross negligence. In the case of slight negligence, M.A.S shall only be liable:

  • or damages arising from injury to life, limb or health
  • for damages arising from the infringement of an essential contractual obligation (obligation whose fulfillment first enables the proper execution of the contract and the adherence to which the contracting party always relies upon and may rely upon); in this case the liability of M.A.S shall however be limited to compensation for foreseeable, typically occurring damages.

Those limitations on liability which are shown in the foregoing provisions shall not be valid should M.A.S have fraudulently concealed a defect or provided a quality guarantee. The same applies for claims from the client in accordance with the German Product Liability Act.

The client may only withdraw from or terminate the contract owing to a breach of duty which does not consist of a defect should M.A.S be responsible for the breach of duty. A free right of termination on the part of the client (in particular pursuant to Sections 651 and 649 of the German Civil Code (BGB)) is excluded. The statutory requirements and legal consequences apply in all other respects.

6. Copyright/ownership of material samples

The reports prepared by M.A.S are solely intended for the client and may not be passed on to third parties without the consent of M.A.S Each report enjoys copyright protection and is prepared exclusively for the client and for use as stated in each individual case. Any other use of the report requires the written permission of the author.

Material samples handed over to M.A.S by the client for analysis purposes are passed into the ownership of M.A.S. Samples shall not be returned to the client. Should a material sample be misplaced before completion of the analysis work, the client shall provide a replacement sample immediately and without cost to M.A.S.

7. Module development for the analySIS image analysis program from Olympus Soft lmaging Solutions (Mnster)

Add-Ins development shall take place according to the client requirements based on a detailed specification sheet.

The customer/purchaser shall examine and test the delivery immediately following installation. Complaints owing to defects, incorrect deliveries, lack of guaranteed characteristics etc. are to be made within 8 days and in detailed, written form. Following several unsuccessful attempts to remedy the problem(s), the customer shall be entitled to a reduction of the purchase price or cancellation of the sale contract. With regard to the delivered software, M.A.S guarantees that the program functions within the scope of the appended description. Further claims against M.A.S, in particular claims for consequential damages, are excluded, provided that liability is not mandatory owing to intent or gross negligence or as a result of a defect of a guaranteed attribute. The target program shall be delivered on a data carrier. Supply of a source program or program description which goes beyond the usual documentation is excluded. The copyrights always remain the property of the producer.

8. Place of jurisdiction and applicable law

These general terms of contract and all legal relations between M.A.S and the client are subject to the law of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal orders, in particular the United Nations Convention on Contracts for the International Sale of Goods.

Should the client be a businessman as defined by the German Commercial Code, a public law legal entity or a special fund under public law, the exclusive and international place of jurisdiction for all direct or indirect disputes arising from the contractual relationship shall be the place of business of M.A.S in Freiburg im Breisgau, Germany. M.A.S shall, however, also be entitled to institute proceedings at the general place of jurisdiction of the client.