General terms and conditions
of Business for products, services and deliveries of DEKRA Visatec GmbH
(DEKRA Visatec GmbH – Gewerbepark 7 – 87477 Sulzberg)
- Stand August 2021 –
1. GENERAL PROVISIONS
1.1 Diese These Standard Terms and Conditions of Business apply to deliveries and/or services (hereinafter referred to as “Deliv-eries”) of DEKRA Visatec GmbH (“DEKRA VISATEC”). Any conflicting or deviated standard terms and conditions of business of the customer shall not be included in the contract, unless DEKRA VISATEC has given its express written confirmation that they will apply.
1.2 DEKRA VISATEC reserves the unrestricted IP rights and right of use and exploitation on property rights and copyrights to proposals, service descriptions, offers, drawings and other documents of DEKRA VISATEC relating to the Deliveries (hereinafter referred to as “Documents”). The documents are confidential and may only be made available to third parties subject to the prior consent of DEKRA VISATEC. The documents shall be returned immediately upon request of DEKRA VISATEC.
1.3 Unless agreed otherwise in the order, the place of performance shall be the domicile of DEKRA VISATEC. DEKRA VISATEC shall be entitled to use third parties as subcontractors for the purpose of providing the services.
1.4 DEKRA VISATEC shall provide the services solely for the customer in accordance with the standards and generally recognized rules of technology applicable in Germany. Third parties shall be included in the scope of protection/services provided by DEKRA VISATEC only if this has expressly been agreed in contract.
1.5 The customer shall provide DEKRA VISATEC with all the information and documents required to execute the order, in full, on time and free of charge. The customer shall provide the object/area to be tested or examined in such a way that it is ready to be tested, can be accessed without aids, has the necessary media connections and is operable and shall, if applicable, ensure that the employees of DEKRA VISATEC have the necessary protective clothing.
1.6 Without being requested to do so, the customer shall point out any previous damage, modifications, faults and other features of the contractual object of relevance to provision of the service and of which it is aware before the contractual service is performed.
1.7 The customer shall carry out all the necessary preparatory activities under its own responsibility and free of charge; necessary information can be provided upon request. If auxiliary person or equipment are required to carry out contractual services (such as for the operation of machines, vehicles, lifting platforms, media etc.), they shall be provided and operated by the customer free of charge.
1.8 If the contractual services are not to be provided at the domicile of DEKRA VISATEC, the customer shall ensure that all private and official approvals/permits required to provide the services at the place of performance have been obtained (e.g. access to the place of performance, use of equipment, stay on the company premises).
1.9 If, at the request of the ordering party, shipment or delivery of the Delivery is delayed by more than one month after notification that it is ready for shipment, DEKRA VISATEC can charge storage costs in the amount of 0.5% of the agreed net remuneration for each month commenced. The contractual parties are free to prove that the storage costs are higher or lower.Versand oder Zustellung der Lieferung auf Wunsch des Bestellers um mehr als einen Monat nach Anzeige der Versandbereitschaft verzögert, kann DEKRA VISATEC für jeden angefangenen Monat Lagergeld in Höhe von 0,5% der vereinbarten Nettovergütung berechnet werden. Der Nachweis höherer oder niedrigerer Lagerkosten bleibt den Vertragsparteien unbenommen.
2. Remuneration and Payment
2.1 The prices shall be ex works, in net without deduction, and excluding packaging and shipping; statutory value-added tax at the applicable rate shall be payable on top of them.
2.2 DEKRA VISATEC has undertaken to install or assemble the Deliveries at a different location to the place of performance, the ordering party shall not only pay the agreed remuneration, but all necessary ancillary costs such as travel/accommodation expenses for personnel, as well as the costs of transporting the Delivery, tools and the personal luggage of employees of DEKRA VISATEC.
2.3 In the event of changes to technical and/or statutory regulations/standards which are relevant to the scope of the services after the conclusion of a contract, the agreed remuneration based on that quoted by DEKRA VISATEC in its offer shall be adjusted taking into account the increased/decresed costs resulting from the change.
2.4 Offsetting with non-synallagmatic (mutual) counterclaims shall not be permissible unless they are not in dispute or have been legally finally established. The same shall apply to any right of the customer to retain the remuneration to be paid.
2.5 DEKRA VISATEC shall be entitled to demand advance payments in exchange for provision of security to a corresponding amount. DEKRA VISATEC may demand payments for the partial services it has provided.
2.6 In the case of cross-border payments, the customer shall bear all fees/ contributions/ expenses as a result of the payment transaction.
3. Reservation of Ownership
3.1 The physical object of the Deliveries (objects) and, if applicable, any rights to be contractually transferred (retained goods) shall
remain the property of DEKRA VISATEC until the agreed remuneration has been paid in full. This shall not apply if the ordering
party provides DEKRA VISATEC with security in the form of a directly enforceable guarantee from a qualified credit institute in
Germany to the amount of the outstanding remuneration.
3.2 The ordering party shall immediately notify DEKRA VISATEC of any seizure, attachment, or other disposition or intervention of
Deliveries by a third party.
3.3 Unless otherwise agreed in a contract, the Deliveries shall not be used until the agreed remuneration has been paid in full.
3.4 The ordering party shall safeguard the Deliveries against access by an unauthorised third party until the agreed remuneration
has been paid in full. The Deliveries shall be marked as not belonging to the ordering party in this respect.
4. Transfer of Risk
4.1 The risk of accidental damage or loss of the delivery or impossibility of delivery shall pass to the ordering party as follows:
a) In the case of Deliveries without installation or assembly: as soon as the delivery has been shipped off or has been
provided for collection at the agreed place and at the agreed time.
b) In the case of Deliveries with installation or assembly: risk for the parts to be installed/assembled shall pass to the
ordering party when they have been handed over to the ordering party or delivered to the agreed place of installation/
assembly, whichever is earlier.
4.2 If the ordering party is in delay in taking Delivery, the risk of accidental damage or loss of the delivery or impossibility of delivery
shall pass to the ordering party.
5. Rights of the Ordering Party in the event of Defects and Liability
5.1 The warranty period shall be one year after the start of the statutory period of limitation, unless DEKRA VISATEC has fraudulently
concealed the defect.
5.2 A service of DEKRA VISATEC that can be accepted shall be deemed to have been accepted no later than upon instruction of
unconditional payment on the final invoice, unless the ordering party objects to acceptance by then. Partial acceptance can be
demanded for partial services completed. Such acceptance shall be regarded as having been performed upon payment of the
invoices on account for such partial services. Section 646 of the German Civil Code (BGB) shall remain unaffected.
5.3 The place of performance for warranty claims shall be the domicile of DEKRA VISATEC in the case of defects in the (partial)
services that are covered by a warranty and are provided at DEKRA VISATEC’s domicile. Otherwise, it shall be the place where
the defective service was provided.
5.4 DEKRA VISATEC’s liability for any damage to property and economic loss shall be limited to an amount of € 500,000.00 for
each breach of duty. This limitation shall not apply to injury to persons and damage for which DEKRA VISATEC is responsible
and has been caused by wilful intent or gross negligence. Liability on the part of DEKRA VISATEC’s employees shall be limited
to the same extent.
5.5 If third parties are included by the ordering party in the scope of protection of the services/Deliveries provided by DEKRA
VISATEC, the ordering party shall inform them of the extent of DEKRA VISATEC’s limitation to liability and agree a limitation of
liability with them to at least the same extent.
6. Industrial property rights and copyrights
6.1 If results/products that are subject to copyright (e.g. expert reports, test results, calculations) exist or are created when the order is carried out, DEKRA VISATEC shall grant the customer a simple, non-exclusive, non-assignable and non-sublicensable right to use them, if this is required for the purpose of the contract.
6.2 If a third party asserts justified claims against the ordering party due to infringement of an industrial property right or copyright (hereinafter referred to as “Proprietary Rights”) by products that are supplied by DEKRA VISATEC and are used in compliance with the contract, DEKRA VISATEC shall be liable to the ordering party as follows:
a) DEKRA VISATEC shall – at its choice and at its expense – either obtain a right to use the product, modify the product so that the proprietary right is not infringed, or replace the product with an adequate one. If DEKRA VISATEC is not able to do so at reasonable terms and conditions, it shall take back the product and refund the purchase price.
b) The above obligations on the part of DEKRA VISATEC shall apply only if the ordering party has given DEKRA VISATEC immediate written notification of the claims asserted by the third party, does not acknowledge an infringe-ment and DEKRA VISATEC is enabled to take all measures to defend against the claims and negotiate a settlement. If the ordering party stops using the product so as to reduce damages or for other important reasons, it shall be obliged to point out to the third party that the fact that it has stopped using the product does not constitute acknowledgement that a proprietary right has been infringed.
6.3 Claims of the ordering party shall be excluded if and insofar as it is responsible for the infringement of the proprietary right. Claims of the ordering party shall also be excluded if the infringement of the proprietary right is caused by special stipulations by the ordering party, a use that could not be foreseen by DEKRA VISATEC or by the Delivery being modified by the ordering party or being used together with products/processes not supplied by DEKRA VISATEC.
6.4 Further claims against DEKRA VISATEC shall be excluded.
7. Export Regulations
7.1 In the case of cross-border resale and/or any type of transfer of Deliveries from DEKRA VISATEC to third parties, the customer shall be obliged to inform itself of any relevant import and export restrictions, to comply with them and, if necessary, to obtain an export permit from the Federal Office for Economic Affairs and Export Control (BAFA) at its own expense and risk prior to export. In addition, the customer must comply with the (re-)export regulations of the United States of America.
7.2 Goods that require an export licence are subject to the current version of the EC Dual-Use Regulation; the customer must ensure compliance with it.
7.3 DEKRA VISATEC shall not warrant that an export permit is granted or that DEKRA VISATEC products are allowed to be ex-ported and/or imported.
7.4 DEKRA VISATEC’s Deliveries may contain U.S. components and/or parts made in other countries. This may make it necessary to comply with U.S. import/export regulations or those of other counties; the customer must ensure compliance with them.
7.5 If necessary as part of export control checks, the customer shall provide DEKRA VISATEC – immediately upon request– with all necessary information, in particular regarding intermediaries, the final recipient, the final destination and the intended use of the Delivery.
8. Operation of laser equipment
The German “Occupational Safety Regulations on Artificial Optical Radiation” – OstrV – should be consulted for DEKRA VISATEC laser equipment. The following is set out in Section 5 OStrV:
§ Section 5 skilled persons, laser safety officer
(1) The employer must ensure that the hazard assessment, the measurements and the calculations are only carried out by skilled persons. If the employer does not have the corresponding expertise itself, it must obtain expert advice
(2) If the employer does not have the corresponding expertise itself, the employer must appoint a laser safety officer in writing before starting to operate Class 3R, 3B and 4 lasers. The expert knowledge must be verified by successfully attending a corresponding course. The laser safety officer supports the employer:
1. in carrying out the risk assessment in accordance with § 3,
2. in the implementation of the necessary protective measures according to § 7 and
3. in monitoring the safe operation of lasers according to sentence 1.
In the performance of his duties, the laser safety officer works together with the occupational safety specialist and the company physician.
9. Final Provisions
9.1 The contents of DEKRA VISATEC’s offers/cost estimates and of the contract between the customer and DEKRA VISATEC are strictly confidential and shall not be disclosed by the customer to third parties without a written consent of DEKRA VISATEC. The same shall apply to all other technical information provided by DEKRA VISATEC to the customer in the course of the execution of the contract. This shall not apply to information that is in the public domain when communicated to the customer or that was already known to the customer when it received it and the customer was not obligated to maintain confidentiality on it, or that is thereafter communicated by a third party authorised to disclose it, or that is developed by the customer without utilising confidential information of the other party.
9.2 Any disputes arising from or in connection with the concluded contract shall be settled solely before a competent court of law in Stuttgart (Germany) if the ordering party is a registered merchant. DEKRA VISATEC can also take legal action against the ordering party at the court with jurisdiction and venue over ordering party’s domicile.
9.3 The law of the Federal Republic of Germany, with exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international conflict of laws rules, shall apply solely to the contractual relationships.
9.4 If one or more provisions of these Standard Terms and Conditions of Business are or become invalid, this shall not affect the validity of the other provisions.
9.5 The contract and any amendments or modifications and collateral agreements shall only be valid when given at least in written form, unless a stricter form is required by law. The requirement for written form shall also apply to any modification or rescission of this clause of form.