As per: 15 August 2014
1. Binding force of the terms and conditions
1.1. These General Terms and Conditions (AGB) shall
exclusively apply as amended from time to time to
every kind of delivery or other services rendered by
the Kalbitzer Innovations UG /haftungsbeschränkt)
(hereinafter referred to as Kalbitzer Innovations).
They shall apply to entrepreneurs and also include
all future business relations, even if such are not
expressly agreed again.
1.2. Conflicting or adverse terms or conditions of
the customer shall not become part of the contract,
even if Kalbitzer Innovations does not expressly
object to such terms again despite their knowledge
of them, neither will they be tacitly approved.
2. Offers, contract conclusion
2.1. Until a contract is finally concluded, the
terms offered by Kalbitzer Innovations, in particular
with regard to execution, prices, and periods, shall
remain subject to change and non-binding, unless
expressly referred to as binding. Incoming orders
shall become binding for Kalbitzer Innovations only
by written confirmation. The same shall apply to
verbal agreements and declarations of any kind.
2.2. The content and scope of the order shall arise
out of the order confirmation issued by Kalbitzer
Innovations. Any specified economic success shall not
be owed. Unless otherwise agreed in writing, Kalbitzer
Innovations shall be entitled to define the method and
the type of service provision themselves to their
2.3. Kalbitzer Innovations shall be entitled to employ
one or more subcontractors or third parties who
otherwise seem appropriate to fulfill the contractual
3. Delivery of sample materials
3.1. The client shall bear the cost and the risk of
delivery to our operational facility, unless it is
agreed in writing that the sample material is collected
by us for the client's account.
3.2. The client shall properly pack and declare the
sample material for the delivery in accordance with
the legal requirements, taking instructions possibly
given by us into consideration.
3.3. The delivery of hazardous (such as toxic, corrosive,
explosive, highly inflammable, radioactive) sample
material as well as samples containing harmful and
undesired components (such as chlorine, bromine, mercury,
fluorine, arsenic, etc.) shall be permitted only as agreed
with Kalbitzer Innovations. Known infectious sample
material is excluded from delivery.
3.4. The client shall be bound to provide Kalbitzer
Innovations with all hazard statements and handling
instructions for the sample material in good time and
to inform us about the composition of the sample material,
4. Liability for sampling, sample material and disposal
4.1. The client shall be liable for all damages resulting
from the condition of the sample material. The client shall
assume the civil and penal liability for damages caused by
the sample material, in particular during transport or waste
disposal. The receipt of sample materials for testing
purposes shall not constitute any passage of title. The
client shall remain the owner of the sample materials, even
after the assigned tests are completed, and thus is the
original waste producer as defined in the German waste
legislation. Any kid of transfer of liability to Kalbitzer
Innovations shall be excluded.
4.2. Unless otherwise agreed in writing, Kalbitzer Innovations
shall not be bound to store samples at all or for a longer
period of time than stipulated by the law. Unused or
unprocessed sample material will be stored or disposed of for
the client's account at Kalbitzer Innovations' discretion.
4.3. Should the client require a longer storage (fee according
to our applicable price list), this shall be instructed in
writing. It is at any time possible to return the samples at
the client's request and expense.
4.4. The correct disposal of the sample materials will be
arranged by us on behalf of the client after the period of
retention has expired. The waste will be declared according
to the substances of content that are known through the
previous analysis and, as the case may be, through the
4.5. If special disposal methods become required, e.g. for
samples containing dioxin, Kalbitzer Innovations shall be
entitled to return the samples to the client. As the owner
and the original waste producer, the client shall be liable
for miss-declarations of the waste due to properties or
ingredients unknown to Kalbitzer Innovations.
5. Performance periods / deadlines, force majeure
5.1. The contractually agreed performance periods and deadlines
are based on an estimated scope of work on the basis of
information by the co-contractor of Kalbitzer Innovations.
They shall be approximate only, unless they were priorly agreed
as binding in writing, and shall start only after the client
has made all the contributions required.
5.2. Force majeure, industrial actions, riots, official actions
and any other unpredictable, inevitable and serious event shall
exempt the client and Kalbitzer Innovations from their obligations
to perform for the duration of the event and to the extent of its
effects. The same shall apply, if the events occur at a time the
concerned contractual party is in default with the performance.
The client and Kalbitzer Innovations shall promptly forward the
necessary information to each other within the reasonable bounds
and adapt their obligations to the changed circumstances in good
6.1. The client shall notify Kalbitzer Innovations in writing
of manufacturing defects promptly after having detected such
defects. If the contractual partner is a consumer (§ 13 BGB -
German Civil Code), this shall apply to apparent defects only,
i.e. such defects to be noted by an average consumer without
particular examination. In such a case, it shall be sufficient
to send the notification within two weeks after the
6.2. Within the scope of warranty, the contractual partner may
initially claim the remedy of the defective work performance at
no charge (removal of defects). If the defect is not remedied
within a reasonable period of time or the remedy fails, the
contractual partner may withdraw from the contract or reduce
payment at his own choice.
6.3. The limitation period for warranty claims shall be one
year, starting with the acceptance of the work performance.
6.4. Kalbitzer Innovations shall furnish a guarantee only
if such was expressly given in writing.
7.1. Kalbitzer Innovations shall be liable without restriction
in accordance with the legal requirements with regard to
injuries to life, body, or health as well as for damages
caused by wilful or grossly negligent breaches of duty or
by fraudulent intent of Kalbitzer Innovations, their legal
representatives, or subcontractors.
7.2. Kalbitzer Innovations shall be furthermore liable for
damages caused by negligent breach of a fundamental contractual
obligation (cardinal obligation) by Kalbitzer Innovations, their
legal representatives, or their subcontractors. Such fundamental
contractual obligations are obligations the compliance with which
is of special importance to achieve the purpose of the contract,
such as e.g. proper analysis and documentation of results. The
liability for damages in such a case shall be restricted to the
predictable and typically occurring damage. If Kalbitzer
Innovations has covered this typical risk by means of a
third-party liability insurance, Kalbitzer Innovations's amount
of liability shall be limited to the amount covered by the
liability insurance. If the insurer is free of benefit payment
obligations, it shall incumbent upon Kalbitzer Innovations to pay
compensation on their own account up to amount of the insurance sum
if the respective requirements are met.
7.3. Further liability claims against Kalbitzer Innovations shall
not exist, and that means irrespective of the legal nature of such
raised claims. This shall not affect the liability regardless of
fault from the acceptance of a guarantee and pursuant to the German
Product Liability Act. Kalbitzer Innovations shall not be liable,
without prejudice to the above clauses, in particular for incorrect
diagnostic results, in so far as the analysis was executed according
to the state-of-the-art scientific standards and the mistake was not
identifiable according to the state-of-the-art of science at the time
the analysis was made.
7.4. If the assignment is afflicted with special risks with regard
to the protection of life, body, and health or the risk of particularly
high financial losses, the client shall warn Kalbitzer Innovations
against such upon order placement.
7.5. As regards the amount of compensation to be possibly paid by
Kalbitzer Innovations or the client, the respective economic
conditions as well as the nature, scope, and duration of the
business connection and, if applicable, the value of the work
to be performed shall be adequately taken into account in good
faith in favor of the respectively liable party.
7.6. Kalbitzer Innovations' limitations of liability shall similarly
take effect in case of possible direct claims against their employees,
executive staff and organs as well as subcontractors and performing
7.7. In general, only signed analytical results shall be legally
valid. Forwarding of data by telephone shall be generally excluded.
Forwarding by e-mail to the client shall be possible if expressly
requested by the client in writing. E-mails shall have no legal
validity and are deemed to be non-confidential.
8. Terms of payment
8.1. In addition to all fees and prices, the value-added tax
relevant at the time of invoicing will be imposed in case the
legal requirements are met.
8.2. The invoiced amounts become due in full for payment 21
days after the invoice date, unless otherwise agreed in writing
(e.g. extended payment periods, discounts).
8.3. Accounts receivable by Kalbitzer Innovations may only be
offset against with finally established or undisputed claims.
This shall accordingly apply to any assertion of rights of
8.4. In case the client should be default of payment, Kalbitzer
Innovations reserves the right to charge default interest at the
statutory rate. The assertion of a higher damage caused by default
shall remain reserved.
9. Copyright and confidentiality
9.1. Kalbitzer Innovations shall expressly reserve the copyrights
and co-copyrights to provided expert opinions, test reports,
analyses, and similar deliverables and outcomes, to which such
rights could originate.
9.2. Kalbitzer Innovations shall assign the rights of use required
for the respective purpose to the user. Rights of use shall be
transferred to the client only to the extent, as regards content,
time, and space, indicated in the contract.
9.3. Kalbitzer Innovations shall provide access to analytical
result and other findings gathered in connection with an assignment
to the client only, unless otherwise agreed in individual cases.
Kalbitzer Innovations shall treat information as confidential
which is not yet known or available in public. Kalbitzer Innovations
shall be permitted though, to use the results for in-house analyses
and to file copies of submitted documents in their records.
10.1. The contractual parties may partially or wholly assign
rights and duties from the contract, subject to the prior written
approval of the other party.
11. Applicable law, jurisdiction
11.1. German law shall be applicable. The application of the
United Nations Convention on Contracts for the International
Sale of Goods - CISG - shall be excluded.
11.2. Regensburg shall be the place of jurisdiction for merchants
and the place of performance. Kalbitzer Innovations shall be
entitled though, to raise their claims alternatively at the client's
general place of jurisdiction.
12.1. Verbal agreements must be confirmed in writing to take
effect. Contract amendments and supplements, including the
amendment of this clause, must be made in writing to take
12.2. If a provision or part of a provision of these Terms
and Conditions is invalid, this shall not affect the validity
of any other provision these Terms and Conditions. The invalid
(partial) provision must be replaced with another (partial)
provision which comes next to the intended economic purpose.
© 2014 Kalbitzer Innovations