The Institute for Forensic Genetics (IFG) carries out genetic analysis. Among other things, this includes the completion of parentage assessments, forensic analysis, saliva testing, etc. The work of the IFG is carried out on a contractual basis. However, in carrying out the work agreed, the IFG is not required to produce a specific result. The IFG is required to carry out the work contractually agreed to in an orderly and competent manner. The IFG observes generally accepted technical and scientific standards, and works on the basis of all applicable regulations and laws.
The following general terms and conditions of the IFG are considered a part of every contract concluded by the IFG for the carrying out of assessments. Contrary or diverging terms and conditions on the part of the client are not recognised, unless such recognition is made explicit in writing by the IFG. These terms and conditions apply even if the IFG provides services when it has knowledge of contrary or diverging terms and conditions. These conditions also apply to all future business.
Further agreements between the IFG and its contractual partners regarding the execution of contracts must be made in writing. Verbal agreements have no validity.
A contract for the execution of services by IFG only exists if IFG has confirmed an order in writing. The prices agreed at the conclusion of the contract, based on the respectively applicable price list of IFG, are valid. If there is a delay of over six months between the conclusion of the contract and the execution of services, or if the services can only be carried out after this period for reasons that are the responsibility of the client, the prices applicable at the time of execution will apply. IFG also reserves the right to pass on increased costs to the client. If such increased costs lead to an increase in the price of over 5 percent of the original net price, the client may withdraw from the contract. If IFG’s services are delayed for reasons beyond IFG’s control (e.g. strikes, supply problems, acts of god), then IFG is freed from its obligation to provide the services, and any responsibility for any consequences of the delay, for the duration of the disturbance. If the duration of the disturbance is not foreseeable, IFG is entitled to cancel the contract.
The client must make an advance payment in the amount of the expected fees when the contract is agreed. A final invoice will be calculated once IFG has completed its services. The cost of third party services necessary to the execution of IFG’s services, e.g. the taking of samples and their transportation, among other things, are to be paid to the doctor concerned by the client, and are not included in the price of IFG’s services. This is the case, in particular, if intermediate results during the process of the assessment call for further samples. There is no allowance for such costs. If no other date is noted on the order confirmation the net purchase price is to be paid within 14 working days of the date of the invoice. If the client does not make payment within this period, IFG is entitled to charge interest on arrears at the statutory rate. The right to furnish proof of elevated damages caused by late payment is reserved. If payment in instalments is agreed with the client, the individual payments are to be made monthly, and in advance by the 5th of each calendar month. The date on which payment is received by IFG, not the date on which the payment was ordered, is decisive. In cases of payment by instalments in which the client falls into arrears for a period of over ten days, the full invoice will become due and payable, without restriction. The client will have offset rights only in cases in which their claim has been legally confirmed or is not disputed. The right of retention is also limited to such circumstances.
IFG’s liability for delivery of a service by a specific date assumes that all technical questions have been settled, that all samples have been delivered on time by the client, and that all of the clients other responsibilities have been met in an orderly fashion. The agreement of delivery dates and deadlines for services is only binding if agreed in writing. Other information regarding the expected date of delivery for an assessment is always approximate and is not binding.
In cases of delay, IFG is liable under statutory provisions insofar as the delay results from a deliberate or grossly negligent breach of contract for which IFG is responsible. IFG is also liable under statutory provisions insofar as the delay arises from the failure to carry out a duty that is essential to the contract. In such cases, the liability for damages is, however, limited to foreseeable, typically occurring damage. IFG does not accept liability for slightly negligent breaches of duty, insofar as they do not affect duties that are essential to the contract or cause injuries to life, body or health, or affect guarantees or claims based on the Product Liability Act. Insofar as such liability is excluded, the personal liability of employees, representatives and other agents is also excluded. The IFG does not accept liability for incorrect assessments, insofar as these are based on incorrect sample taking or the failure to transport samples in an appropriate manner. In such cases, the IFG also cannot be held liable for material damage or pecuniary losses on the part of the client or third parties. The client is liable for any damages on the part of the IFG arising from incorrect information, or incorrect sample taking, or the failure to transport samples for which they are responsible in an appropriate manner.
The IFG will only carry out genetic assessments or analyses, and obtain the necessary samples, if the person for whom the assessment is to be carried out, and from whom the sample is taken, has given their consent expressly and in writing to the doctor responsible. In cases for which a DNA parentage assessment is to be carried out, the agreement of the mother is only required if she is the legal guardian and the child to be tested is younger than the age of consent. The DNA assessment allows certain parentage to be confirmed or excluded. In general, proof can be said to exist when none of the DNA systems tested produces a negative result. In such cases a further bio-statistical assessment will be carried out, which generally leads to a statistical probability of 99.9 percent. An exclusion is confirmed by a second round of testing, and will be confirmed by the IFG if present in at least three DNA systems. The execution of the service requires a saliva sample. If this sample is not taken by the IFG it should be taken by a doctor. When the sample is taken, a report should be made by the doctor taking the sample. A copy of the report should be submitted to the IFG together with the sample. The IFG is not required to assess samples taken or documented in any other way. The IFG may direct and provide instructions for different processes than those described here in individual cases. Samples taken in foreign countries must be taken by doctors known to, and trusted by, the German embassy and consulate. Appropriate identification measures should be carried out in such cases. The cost of taking the sample and the identification measures are to be paid by the client directly. The IFG takes no responsibility for inappropriate packaging or any damage that occurs during the transportation of samples, insofar as they are not caused by negligence on the part of an IFG employee or its agents. As regards the transportation of samples, the IFG can be said to have fulfilled its responsibilities by giving the material to be transported to a suitable courier.
It is the client’s duty to provide the IFG with all the information required for the execution of the assessment. In particular, it is their duty to inform the IFG if they have received foreign blood or constituents of blood in the last six months, or if they have received bone marrow or other blood stem cell transplants at any point in the past. The client guarantees that they have come into possession of the samples submitted for assessment by legal means. They guarantee, in particular that the submission of the samples and any tests carried out on them in no way infringe on the rights of third parties. The client agrees to indemnify the IFG from any claims made by third parties due to the infringement of their rights.
The samples received by the IFG for the purposes of parentage assessment will be destroyed as soon as the samples have been used in the process of the assessment. The results of genetic tests carried out by the IFG for the purposes of parentage assessment will be retained for a period of 30 years, or for the statutory period of 10 years in the case of assessments relating to foreign clients, before being destroyed. Prior destruction may be carried out at the request of the person affected. Such requests must be made in writing.
All rights and claims arising from this contract are governed exclusively by the laws of the Federal Republic of Germany. The place of jurisdiction for all legal disputes is the domicile of the IFG.
Should any of the individual provisions of these terms and conditions not be included in a contract in whole or in part, or if they are or become invalid, ineffective or contestable, this will not affect the validity of the remaining provisions or the contract itself. The ineffective provision must be replaced by another which comes as close as possible to the desired commercial aims of the invalid, ineffective or contestable provision, subject to the mandatory statutory provisions. The same applies to possible loopholes.
As at 01/2013