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Terms and Conditions of
PAConsult GmbH

1. Scope and General Provisions

1.1 These General Terms and Conditions (GTC) apply to all inspection orders and other legal relationships that are offered, entered into, or continued by PAConsult GmbH (PAConsult), Hamburg, as well as its branches in Berlin and Ochsenhausen. After their initial acceptance by the customer, they also apply to subsequent orders and future business relationships with said customer, without requiring renewed acceptance, unless the customer objects to their inclusion in text form when commissioning a subsequent order.

PAConsult hereby objects to the inclusion of General Terms and Conditions submitted by the customer. These shall only become a legally binding part of the legal relationship established between PAConsult and the customer, and only to the extent that PAConsult has acknowledged them in writing, in whole or in part. The inclusion of deviating or supplementary General Terms and Conditions of the customer through conduct, such as the execution of an order without explicit objection to their inclusion in the contract, is excluded.

1.3 The contractual relationship between PAConsult and the customer shall be governed primarily by the individually agreed-upon terms and conditions in text form between PAConsult and the customer. These terms and conditions shall be supplemented by these GTC to the extent that the individual agreement does not contain a corresponding provision.

1.4 PAConsult is state-accredited by the German Accreditation Body GmbH (DAkkS) as a testing laboratory and is subject to the internationally valid standard for laboratory accreditation in the field of testing and calibration according to DIN EN ISO/IEC 17025. The requirements of this standard regarding competence, impartiality, and consistent working methods in the execution of testing orders form an essential part of the contract for all testing orders agreed upon between PAConsult and the customer. PAConsult also applies the standards of DIN EN ISO/IEC 17025 when executing a testing order, even if they are not explicitly mentioned in the contract. The same applies to the application of other regulations relevant to the agreed-upon testing and its documentation (e.g., DIN or EN standards), provided they are the subject of the testing order or arise from its content.

1.5 The subject and scope of the inspection shall be determined by the inspection procedures agreed upon between PAConsult and the customer. The selection of the commissioned inspection methods and standards is the responsibility of the customer. PAConsult is responsible for the contractually compliant and standard-compliant execution of the commissioned inspection, the correct determination of the inspection results, and their documentation. However, PAConsult does not assume liability for the suitability of the commissioned inspection method, the determined results, and their documentation for the purpose intended by the customer. The use of the inspection results is the responsibility of the customer.

2. Offers, Documentation

2.1 PAConsult's offers are generally non-binding. The fee amounts stated in PAConsult's offers are initially only non-binding calculations based on the information provided by the client regarding the content and scope of the requested audit, and may change during further negotiations.

2.2 If PAConsult provides illustrations, drawings, calculations, or similar items to the customer with the offer or during contract negotiations, the information contained therein is given as exemplary and is only approximately binding, unless expressly designated as binding. Such information does not constitute warranties in particular.

2.3 PAConsult reserves all ownership and copyright rights to cost estimates, drawings, drafts, models, and other documents such as illustrations, drawings, and calculations; they may not be made accessible to third parties, unless otherwise expressly agreed. In particular, the customer is obligated to make documents designated as confidential accessible to third parties only with prior consent from PAConsult.

2.4 All proposals, drafts, and ideas submitted to the customer by PAConsult during the quotation and negotiation phase may only be used by the customer for their own purposes or for the purposes of third parties if a contract is concluded with PAConsult based on the relevant quotation and the contract provides for or implies own or third-party use. Section 10.2 remains unaffected.

3. Conclusion of the contract

3.1 The contract for the performance of an audit shall come into effect when the Customer unconditionally accepts the offer submitted by PAConsult. If the Customer declares that the offer is to be amended or supplemented, the contract shall come into effect according to the offer submitted by PAConsult, incorporating the Customer's wishes for amendment and/or supplement, provided that PAConsult declares its acceptance of the amendments and/or supplements requested by the Customer. If PAConsult rejects the Customer's wishes for amendment or supplement, in whole or in part, the contract shall not come into effect and the binding effect of the initially prepared offer shall expire. Irrespective of this, further negotiations may be conducted without restriction.

3.2 PAConsult is generally prepared to agree to changes requested by the customer to the agreed scope of services, even after a binding order has been placed; PAConsult has no legal obligation to do so. To legally change the original order, an amendment or supplementary agreement in writing is required, which defines the changed scope of services. PAConsult may make its consent conditional on the collection of additional remuneration and a change to the timeline set for the audit. Customer requests for supplements that would unilaterally alter or call into question audit results cannot be agreed upon.

4. Remuneration, Ancillary Costs, and Payment Terms

4.1 The remuneration to be paid by the customer to PAConsult for the order placed shall be determined by the offer submitted by PAConsult to the customer and forming the basis of the agreement, in the version accepted by the customer and finally agreed upon with PAConsult.

4.2 Incidental costs incurred due to the order shall be compensated separately, even if they were not expressly mentioned in the order initially, but arise necessarily or by agreement during the course of order processing. The following regulations apply in detail.

4.2.1 Travel expenses as well as costs for accommodation and meals are to be reimbursed to the extent they were actually incurred. PAConsult is free to choose the mode of transport but is to select time-saving means of transport and routes. Train journeys will be in 1st class (ICE/IC). For Pkw journeys, €0.65/km will be charged.

4.2.2 Consumables will be charged separately unless provided by the client.

4.2.3 Test materials, test specimens (test subjects), and residues will be returned to the customer at the customer's expense. PAConsult will commission a transport company to handle the return shipment in the name and at the expense of the customer. If the customer desires a specific mode of transport or a specific carrier, PAConsult must be informed in writing in a timely manner. If a return shipment is not desired exceptionally, disposal will be at the customer's expense, and the actual costs incurred will be invoiced to the customer.

4.2.4 Equipment costs are generally included in the agreed remuneration.

4.2.5 The costs for the first and second copy of an inspection report, expert opinion, or similar are not incurred separately as ancillary costs and are included in the agreed remuneration. Additional copies are to be remunerated separately and will be calculated according to expenditure.

4.3 Costs for order-related external services will be recharged to the client by PAConsult, plus a reasonable administrative surcharge.

4.4 For testing assignments lasting more than 6 weeks, PAConsult is entitled to issue interim invoices on a monthly basis. If, exceptionally, a contract for work relationship (§§ 631 BGB) is agreed upon between the customer and PAConsult, PAConsult is entitled to bill appropriate partial payments at the end of each month in accordance with the progress of the work.

4.5 Unless otherwise agreed, all invoices must be paid within 30 days of receipt by the customer, free of charge, to the account specified by PAConsult on the invoice, in Euros. PAConsult is entitled to interest on late payments pursuant to Section 353 of the German Commercial Code (HGB) and statutory default interest in the event of the customer's payment default.

4.6 The customer is only entitled to offset claims against PAConsult if the counterclaims asserted by the customer have been legally established, are undisputed, or have been acknowledged by PAConsult. The assertion of rights of retention by the customer is excluded unless they are based on the same contractual relationship. In the event of a defect in the performance owed by PAConsult, the customer's statutory mandatory rights of set-off shall remain unaffected. Section 12 contains further details.

5. Performance Period

5.1 Delivery or performance times specified by PAConsult are estimates and non-binding. If the customer requires a fixed delivery date, it shall only be binding if agreed upon in writing. The commencement of a performance period specified by PAConsult assumes the clarification of all necessary questions regarding the order and the fulfillment of the customer's contribution to contract performance (e.g., delivery of test subjects, definition of the scope of testing, payment of any agreed advances, etc., see also clause 7.). A firmly agreed deadline for the execution of the order shall be extended automatically by the period during which the customer is in default of their cooperation or payment obligations. PAConsult's other rights arising from the customer's default remain unaffected.

5.2 Performance delays due to force majeure or due to unforeseeable circumstances for which PAConsult is not responsible, such as operational disruptions, strikes, lockouts, official orders, or untimely delivery by subcontractors, do not constitute a delay on the part of PAConsult. An agreed performance time shall be extended by the duration of the delay. If the obstruction lasts longer than two months, each party shall be entitled to terminate the contract or withdraw from it with regard to the part not yet fulfilled, after setting a reasonable grace period. Claims for damages are excluded in this case.

5.3 PAConsult is entitled to perform partial services, provided that there is no discernible interest of the client to the contrary.

6. Performance of Services

PAConsult shall perform the commissioned service in a professional and compliant manner and shall be responsible for the setup of the test, its execution according to the agreement, as well as the determination, documentation, and evaluation of the test results, unless a test setup or procedure specified by the customer has been agreed upon. The test results obtained by PAConsult relate solely to the test specimens or other samples delivered by the customer and whose testing has been documented.

6.2 All documents and information relevant to the performance of PAConsult's services may be copied and stored by PAConsult within the scope of service provision. Further details may result from a confidentiality agreement possibly concluded with the client.

6.3 As an accredited testing laboratory, PAConsult is not subject to customer instructions that go beyond the agreed contractual relationship in conformity assessments. This applies particularly when instructions are liable to influence the results of tests that must be objectively carried out and documented in the public interest.

6.4 The customer is responsible for selecting the test method to be applied and determines which standards/test regulations, etc. are to be used for testing. When fulfilling the commissioned services, PAConsult will comply with the test specifications defined therein, the relevant statutory regulations, and the generally accepted technical rules.

6.5 To the extent that processing or damage to the test subjects or other samples is necessary for the performance of the agreed-upon test, PAConsult may carry out such processing or damage without the customer's consent. The customer shall have no claim to restoration or damages.

6.6 PAConsult is obligated to inform the customer about the awarding of inspections to subcontractors or other third parties. By placing an order, the customer grants their consent. Should the necessity of involving a third party for the execution of the inspection order only arise after the order has been placed, PAConsult will obtain the customer's prior consent.

7. Customer's Duty to Cooperate

7.1 The customer is obliged to support PAConsult's services in an appropriate manner; this particularly concerns the obligation to provide the information necessary for the performance of services and to provide supplementary information that PAConsult requests during the contract period.

7.2 Unless otherwise agreed, the customer shall deliver the test samples (test objects) and other samples required for testing in the agreed quantities to the branch of PAConsult that prepared the offer underlying the order. Delivery shall be at the customer's own expense and risk. Any specifications from PAConsult regarding the packaging of the test samples must be observed to ensure the proper execution of the test.

7.3 The customer is responsible for selecting the test samples and their number. The client shall be responsible for ensuring that test specimens and other samples are suitable to enable the commissioned testing services and that the delivered test specimens and other samples are suitable as samples („pars pro toto“) of their product series for conformity tests. PAConsult assumes no responsibility for the selection of the test specimens and the professional collection of the other samples supplied, nor any liability for their usability for the purpose intended by the client. Irrespective of this, PAConsult shall support the client in the selection of its test specimens and, if necessary, also make suggestions for an alternative test method if it becomes apparent that the test specimens or other samples supplied are unsuitable for the intended test purpose. The support is non-binding and does not justify any claims for compensation even if recommendations prove to be unsuitable. PAConsult shall be entitled to invoice the client for any additional expenditure resulting from subsequently changed test requirements.

7.4 PAConsult shall, to the extent technically feasible, instruct the Customer on the handling of the test specimens or other samples provided by the Customer and inform them about special features to be observed. Any hazards emanating from the test specimens and other samples must be communicated to PAConsult in due time so that special precautions can be taken into account both in the calculation of the remuneration and in the preparation of the test. This applies in particular if health or safety risks emanate from the test specimens or other samples, such as contamination with toxins, radioactive material, or pathogens. PAConsult is entitled to refuse acceptance of risky test specimens and other samples and to withdraw from the contract, unless it is evident from the contractual relationship with the Customer that PAConsult knew and accepted the risk upon acceptance of the order.

8. Documentation of Test Results

8.1 The performance of the inspection and the inspection results obtained will be documented by PAConsult in an inspection report in accordance with professional standards and regulations, as well as the relevant standards for the type of inspection. The documentation must meet scientific and technical requirements. It must be truthful and objective.

8.2 Tests intended to demonstrate that a product represented by the test subject complies with the requirements that must be met for its placement on the market (conformity tests) must also comply with the testing and documentation requirements to which accredited testing laboratories are subject according to DIN EN ISO/IEC 17025. PAConsult is entitled to reject any deviating demands from the customer.

8.3 The preparation of the test report and other test-related documents, such as the test plan, certificates of the equipment and systems used for testing, including their associated calibration certificates, and the documents submitted by the customer, etc., shall be carried out in accordance with the relevant regulations and general legal provisions. These shall be supplemented, if necessary, by a confidentiality agreement between PAConsult and the customer.

8.4 In accordance with DIN EN ISO/IEC 17025:2018, there is a requirement to document decision rules applied for a statement of conformity. Decision rules describe how measurement uncertainty (MU) is taken into account when making statements of conformity with a specified requirement.

If no decision rule was agreed upon in the contractual relationship between PAConsult and the client, and none is specified in standards and/or specifications applicable to the audit, the MU will not be considered in the conformity statement for variable data. If a decision rule is defined by the client before the start of the audit, it will be applied as far as practicable. Additional work resulting from a decision rule will be billed separately for each audit.

For audits where no variable data is collected for a statement of conformity, or where no statement of conformity is made, the establishment of a decision rule is waived.

9. Disposition of Test Subjects and Other Samples Upon Completion of Testing

9.1 After the examination has been carried out in accordance with the agreement, any test samples (test subjects) and specimens that are no longer required will be returned to the customer. PAConsult will arrange the return or reshipment to the customer at their expense and risk. PAConsult assumes no liability for any loading and/or return shipping damages or losses, nor any assessment of the impact of damage or loss on the study results. Parcel shipping and pallet shipping are insured by default; the terms and conditions of carriage and liability of the commissioned transport company apply. If the customer requests a different mode of transport or a higher insurance sum than is offered by default by the transport companies, the return shipment must be made or commissioned by them.

9.2 If the retention or disposal of test subjects or other samples is agreed upon with the customer on an exceptional basis, the customer will be charged the resulting costs incurred by PAConsult, plus administrative fees. This applies especially if additional costs arise because the retention or disposal is subject to special requirements (e.g., for hazardous waste or dangerous goods).

9.3 The statutory retention periods apply to the storage of audit reports and other audit-relevant documents.

10. Industrial Property Rights and Copyright

10.1 PAConsult reserves all industrial property rights and copyrights to the services and reports it provides. The customer is entitled to use PAConsult's services for the purpose that was communicated to PAConsult before the services were provided or that was obviously recognizable to PAConsult. Insofar, the customer is granted a usage license from the protection and copyright rights to which PAConsult is entitled according to sentence 1. Any further use by the customer requires a special agreement with PAConsult.

10.2 Unless PAConsult has been expressly informed by the customer prior to or upon conclusion of the contract of a disclosure of the inspection results to third parties, or if such disclosure is in accordance with the meaning and purpose of the order, these may not be disclosed by the customer to third parties. All documents created by PAConsult regarding inspection results, product descriptions, and evaluations may only be disclosed to third parties, in whole or in part, after they have been released by PAConsult. This restriction applies in particular to documents that third parties may consider as a quality promise for a product or product line based on the accuracy of the inspection results documented by PAConsult. If a third party asserts claims for damages against PAConsult based on non-released inspection results, the customer shall indemnify PAConsult against such claims.

10.3 PAConsult shall respect the customer's industrial property rights and copyrights to the assets provided by the customer in accordance with Section 7 above. PAConsult is entitled to retain the corresponding documents until the expiration of any warranty claims, and in particular, liability claims of the customer against PAConsult.

10.4 Unless otherwise expressly agreed, PAConsult shall provide its services free of third-party rights in Germany. If PAConsult's services are to be used outside of Germany, the customer shall independently verify the freedom of PAConsult's services from third-party rights before using them or notify PAConsult of the existence of relevant third-party property rights unsolicited and in sufficient time before the performance of the services by PAConsult, so that they can be taken into account by PAConsult. The customer shall indemnify PAConsult against third-party claims arising from a breach of this obligation by the customer.

10.5 In the event of an infringement of third-party property rights attributable to PAConsult, PAConsult may, at its own discretion, either obtain and grant a right of use sufficient for the agreed or presumed use at its own expense, modify the service so that the property right is not infringed, or replace the service, provided that the agreed or presumed use of the subject matter by the customer is not affected thereby. If this is not possible or unreasonable for PAConsult, the customer shall be entitled to the statutory claims and rights. Section 12 shall apply to claims for damages.

11. Warranty

11.1 PAConsult shall perform the contracted services professionally, in accordance with regulations, and with the diligence of a prudent businessman. Only the performance of the inspection service as such is owed, but in no case a specific inspection result. This result arises exclusively from the factual findings that PAConsult has determined and evaluated scientifically and technically, including any conformity statement, after the inspection carried out in accordance with the contract and the generally recognized rules of technology. The inspection report and the determined test results do not constitute a product within the meaning of the Product Liability Act, because PAConsult is not the manufacturer of the inspection results, but merely determines them.

11.2 Based on the foregoing description of services, the customer's warranty claims can only be based on PAConsult having used an inappropriate testing standard in carrying out the audit, or having incorrectly implemented or documented a procedure described in an appropriate testing standard. In other cases, a warranty claim is excluded, unless PAConsult acted intentionally or with gross negligence. Claims for defects do not exist if there are only minor deviations from the agreed quality or only a minor impairment of the usability of the service result.

11.3 To assert warranty claims, the customer must first grant PAConsult a reasonable period to rectify defects (at PAConsult's discretion, either by repair or re-performance). If this fails, or if PAConsult refuses it, or if the subsequent performance is unreasonable for the customer, the customer shall be entitled to the statutory claims. For claims for damages, refer to Section 12 of these Terms and Conditions.

11.4 The customer's claims for defects shall become time-barred 12 months after handover of the documentation of the test results. Claims for material defects, to which the regular statutory limitation period of three years applies, shall become time-barred in two years. The statutory limitation periods shall apply in cases of intentional or grossly negligent causation of defects, fraudulent concealment of a defect, and for all other statutory limitation periods for claims for defects that are longer than two years. The aforementioned limitation periods shall also apply to consequential damages due to defects for which PAConsult is responsible according to these GTC. If supplementary performance is required due to a defect, the limitation period shall only be suspended until supplementary performance is completed and shall not be restarted.

11.5 For asserting claims for damages due to warranty claims, e.g., consequential damages caused by defects, Section 12.1 of these Terms and Conditions shall apply.

12. Claims for damages and liability for other reasons

12.1 Claims for defects and damages due to defective performance are excluded, unless PAConsult intentionally, grossly negligently caused the defects or caused them through negligent breach of essential contractual obligations (obligations on which the customer could rely). Claims for consequential damages caused by defects, in particular lost profits due to such defects, are excluded insofar as PAConsult has not intentionally or grossly negligently caused the defect. This also applies to claims for reimbursement of expenses by the customer due to defects. PAConsult's liability in cases of negligence is limited to the contractually typical, foreseeable damage.

12.2 All other claims for damages and reimbursement of expenses by the customer are excluded, regardless of the legal basis. This also applies to claims based on breach of duties arising from the contractual relationship and on tort.

12.3 The aforementioned 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, limb, and health, or for the assumption of a guarantee for the presence of a characteristic.

12.4 To the extent the liability of PAConsult is excluded or limited, this also applies to the personal liability of the members of the management, employees, representatives, and vicarious agents of PAConsult.

12.5 PAConsult maintains liability insurance for third-party damages. The sum insured will be disclosed upon request. PAConsult is entitled to transfer the handling of damage claims to its liability insurer.

12.5 The statute of limitations for claims for damages shall apply mutatis mutandis in accordance with clause 11.4 of these General Terms and Conditions, unless claims arising from the Product Liability Act are affected.

13. Premature termination of the contract by the customer

If the client seriously states in writing that PAConsult is not to carry out the commissioned audit or is not to continue it, PAConsult shall nevertheless retain its claim to the agreed remuneration, taking into account any expenses saved. In the event of a cancellation of the order, a lump sum of 50% of the agreed remuneration shall be considered bindingly agreed as a minimum amount. The termination of an audit that has already begun must be documented in accordance with DIN EN ISO/IEC 17025.

14. Jurisdiction, Place of Performance, and Applicable Law

14.1 The exclusive place of jurisdiction for all claims arising out of or in connection with this agreement is Hamburg. However, PAConsult is entitled to sue the customer also at the court of its registered office.

14.2 Unless expressly agreed otherwise in the contract, the place of performance shall be the location of the PAConsult branch that concluded this contract with the customer (Hamburg, Berlin, or Ochsenhausen).

14.3 The legal relationship between the parties shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods. These GTC shall apply only to entrepreneurs within the meaning of Section 14 (1) of the German Civil Code (BGB), legal entities under public law, and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).

15. Severability Clause

Should individual provisions of this agreement or these terms and conditions be or become invalid, the validity of the remaining provisions of this agreement and these general terms and conditions shall remain unaffected. Instead, the effective provision that most closely approximates the invalid provision in content from an economic perspective shall be deemed agreed upon.

16. Text Requirement

All further agreements and understandings between the parties, which are made for the execution of the contract, require written form, unless an oral agreement or understanding has already been implemented without objection. Amendments, ancillary agreements, supplements, and termination of the contract require written form.

Hamburg, January 1, 2024 

Terms and Conditions as PDF

Terms and Conditions as PDF