General Provisions
The Institute of Forensic Molecular Genetics (IFMG GmbH/Münster) performs genetic examinations. These include, among other things, preparing parentage reports, conducting forensic trace examinations and examining saliva samples. The work of IFMG GmbH is performed on the basis of a service contract. IFG owes the performance of the agreed activities, but not a particular result. IFMG GmbH undertakes to perform the contractually agreed activities properly and professionally. IFMG operates in accordance with the generally accepted state of science and technology and on the basis of the applicable statutory provisions.
The following General Terms and Conditions (GTC) of IFMG form part of every contract concluded by IFMG for the preparation of reports. Conflicting or deviating terms and conditions or other restrictions of the customer shall not be recognised unless IFMG has expressly agreed to their validity in writing. These GTC shall also apply if IFMG performs services with knowledge of terms that conflict with or deviate from these GTC. In relation to businesses, these terms shall also apply to all future transactions.
Any further agreements made between IFMG and the contracting party for the performance of the contract must be recorded in writing. Verbal side agreements shall have no validity.
Conclusion and Performance of the Contract
A contract for the performance of IFMG services shall only come into effect when IFMG confirms the corresponding order in writing. The prices agreed when the contract is concluded shall apply on the basis of the IFMG price list valid at that time. If more than six months elapse between conclusion of the contract and performance of the service, or if the service can only be performed after this period for reasons attributable to the client, the prices valid at the time the service is performed shall apply. In the absence of such prices, IFMG reserves the right to pass on price increases resulting from cost increases to the client. If this results in a price increase of more than 5% of the original net price, the client shall have the right to withdraw from the contract.
If circumstances beyond IFMG's control (e.g. strikes, supply difficulties or events of force majeure) delay IFMG's performance, IFMG shall be released from its obligation to perform and from responsibility for the resulting consequences for the duration of the disruption. If the duration of the disruption cannot be foreseen, IFMG shall be entitled to terminate the contract.
Costs & Fees
The client shall pay an advance in the amount of the fees expected to be incurred when placing the order. Final settlement shall take place once IFMG has completed its services.
Costs for third-party activities required to perform IFMG's services, such as the collection or shipment of samples, shall be reimbursed by the client to the respective physician performing the work and are not included in the prices for IFMG's services. This shall also apply in particular if further samples are required during the assessment due to interim results.
No cash discount has been agreed. Unless otherwise stated in the order confirmation, the purchase price shall be due for payment net, without deduction, within 14 working days of the invoice date.
If the client defaults on payment after expiry of this period, IFMG shall be entitled to charge statutory default interest. Proof of greater damage caused by the default shall remain unaffected. If instalment payments are agreed with the client, the individual instalments shall be paid monthly in advance by the fifth day of each calendar month. The decisive date is not the date on which payment is instructed, but the date on which IFMG receives the funds. The total settlement amount shall become due and payable immediately and without restriction if the client is culpably more than ten days in arrears with an instalment.
The client shall only have rights of set-off if the counterclaims have been legally established or are undisputed. Rights of retention may only be asserted on the basis of the same contractual relationship.
Delivery and/or Performance Periods
The binding nature of a delivery time stated by IFMG is conditional upon clarification of all technical questions, timely receipt of all samples and materials to be supplied by the client, and timely and proper fulfilment of the client's other obligations. Delivery dates and performance periods shall only be binding if recorded in writing. Information regarding the expected completion of an assessment shall always be approximate and non-binding.
Liability
In the event of delay, IFMG shall be liable in accordance with statutory provisions if the delay is due to an intentional or grossly negligent breach of contract attributable to IFMG. IFMG shall also be liable in accordance with statutory provisions where the delay attributable to it is based on the culpable breach of a material contractual obligation. In this case, however, liability for damages shall be limited to the foreseeable damage that typically occurs.
IFMG excludes liability for slightly negligent breaches of duty unless these concern material contractual obligations or cardinal obligations, damage resulting from injury to life, limb or health, guarantees, or claims under the German Product Liability Act. Insofar as liability is excluded or limited in this respect, this shall also apply to personal liability and breaches of duty by employees, representatives and other vicarious agents.
IFMG shall not be liable for incorrect expert report results insofar as these are based on incorrect sample collection or improper transport of the samples. In such a case, any further liability on the part of IFMG for material or financial damage suffered by the client or third parties shall also be excluded.
The client shall be liable to IFMG for any damage resulting from incorrect information, incorrect sample collection attributable to the client, or incorrect transport of the samples.
Performance of the Service
IFMG shall only carry out genetic examinations or analyses and collect any genetic sample required for this purpose if the person concerned has expressly consented in writing to the examination and the collection of the required genetic sample vis-à-vis the responsible physician. When a DNA parentage report is prepared, the consent of the child's mother is only required if she has parental responsibility and the child concerned is a minor.
As part of a DNA report, a particular relationship is proven or excluded. Proof generally exists if none of the DNA systems examined produces an exclusion. A biostatistical evaluation is then performed. As a rule, this results in a probability of more than 99.9%. An exclusion is verified by duplicate examinations. It is confirmed by IFMG if it is present in at least three systems.
Performance of the service requires a buccal swab to be taken. Unless the sample is collected at IFMG, it must be collected by a physician. The physician collecting the sample must prepare a record of the sample collection. A written copy of the record must be submitted together with the sample. IFMG is under no obligation to assess samples collected or documented in any other manner. IFMG shall be entitled to order deviations from the procedure described here in individual cases and to issue instructions for this purpose.
Samples collected abroad shall be collected by trusted physicians of embassies and consulates. Identity verification measures must be carried out in this context. The costs of sample collection and identity verification shall be borne by the client and paid directly by the client.
With regard to the shipment and transport of samples, IFMG assumes no liability for improper packaging or damage occurring during transport unless this is attributable to culpable conduct by an IFMG employee or vicarious agent. IFMG shall fulfil its obligations regarding the transport and shipment of sample material when it hands the material to be shipped over to a suitable carrier.
Obligations of the Client
The client is obliged to provide IFMG with all information required to carry out the assessment. In particular, the client shall disclose whether they received blood or blood components in the six months before samples were collected, or whether they previously received a bone marrow or other blood stem cell transplant.
The client warrants that the samples provided for assessment were obtained lawfully. In particular, the client warrants that the submission of the samples or the performance of an assessment relating to them does not infringe the rights of third parties. If third parties allege an infringement of rights and assert claims against IFMG on this basis, the client undertakes to indemnify IFMG against such claims.
Handling of Sample Material
Sample material collected for genetic examinations to determine parentage shall be destroyed by IFMG without delay once the samples have been used for the assessment. IFMG shall retain the results of genetic examinations to determine parentage for 30 years, or for ten years in the legally regulated exceptional cases involving foreign countries, and shall destroy them thereafter. Earlier destruction may only take place upon written request by the person concerned.
Applicable Law
All claims and rights arising from this contract shall be governed exclusively by the law of the Federal Republic of Germany. The place of jurisdiction for disputes shall be the registered office of IFMG.
Severability Clause
Should individual provisions of these General Terms and Conditions fail to become part of the contract, or be or become wholly or partially invalid, void or contestable, this shall not affect the validity of the remaining clauses or of the contract itself. Taking mandatory statutory provisions into account, the provision concerned shall be replaced by a valid provision that comes as close as possible to the intended economic meaning and purpose of the invalid, void or contestable provision. The same shall apply to any unintended omission.