Fri, 01/19/2018 - 15:07
General Business Terms of
NSF Erdmann Analytics GmbH
As of 1/20/2018
1. Scope of application
- The following General Terms and Conditions (“GTC”) have exclusive application in all contracts between NSF Erdmann Analytics GmbH (“NSF”) and the undertaking by which NSF is instructed (“Client”) irrespective of the legal categorisation of the contract, especially all testing assignments, and in all services by NSF and the Client irrespective of the type of service and even in respect of all future business with the Client, even if these GTC should no longer be expressly agreed.
- NSF does not acknowledge the Client’s deviating or supplementary terms and conditions even if NSF should not expressly object to them. Unconditional rendering of service by NSF or acceptance of services or payments by NSF does not constitute acknowledgement of the Client’s terms and conditions. The Client’s terms and conditions will not apply unless NSF expressly acknowledges them.
2. Offers, conclusion of contracts
- Quotations by NSF are normally not binding.
- The Client’s orders are binding and may be accepted by NSF within 3 weeks. The Client will be bound by its order for that length of time. The Client must inform NSF in writing of the objective of any order – unless this is obvious. Unless expressly accepted, orders will generally be accepted by NSF when they begin to be executed by NSF, e.g. on commencement of sample testing.
3. Execution of orders
- The actual extent of services to be rendered by NSF is determined by the particular contract concluded between the Client and NSF. It is for the Client to decide on its own responsibility whether and in what manner it acts based on NSF’s services. NSF does not give any guarantee that any particular Client objectives or wishes or requirements set by the Client will be met – whether expressly or impliedly expected by the Client.
- NSF is entitled to have services or elements thereof performed by undertakings associated with NSF and/or by other third-party undertakings. NSF is not obliged to disclose such third-party undertakings to the Client.
- NSF is generally free to determine the manner in which agreed services are to be performed unless expressly agreed to the contrary. However, NSF will observe the Client’s technical requirements where necessary for the proper implementation of performance.
- The Client does not have the right to give instructions to NSF staff operating on its sites. The Client must instead address any requirements and wishes to NSF’s competent contact person.
- The Client must pass on to NSF any information and documentation that it considers necessary for NSF’s services.
- NSF will normally treat in confidence any information received in the course of its activities. However, it will be permissible to pass on information to the authorities, for example, where necessary for a contractual purpose or in order to meet statutory requirements. The Client hereby states that it agrees to information being passed to third parties in such cases.
4. Sample testing
- Where the subject-matter of a contract is the testing of samples the order will relate exclusively to the samples provided to NSF. It will be for NSF to determine the testing method and/or the manner in which services are to be performed at its own due discretion unless mandatory rules should require a particular testing method and/or manner of performance of services. The contract concluded between NSF and the Client does not have any protective effect for the benefit of third parties. NSF is not obliged to report any circumstances that go beyond the scope of contracted services.
- The Client must send samples to be tested by NSF in proper packaging at its own expense to the address stipulated to it by NSF. Where the Client states in its order that samples are to be collected by NSF the Client must hold the samples in proper packaging ready for collection by NSF at the address notified by the Client in the order.
- Samples sent to NSF will be destroyed by NSF on conclusion of the testing procedure – in so far as they have not already disappeared in the course of the evaluation process. NSF is not obliged to store samples for the Client following the evaluation process beyond a certain period of time or to return them to the Client once the order has been concluded. This does not apply to circumstances in which NSF is legally required by mandatory law to keep individual samples for a certain period of time.
5. Period of performance, delay in performance
- The performance deadlines agreed are generally approximations only unless they should be expressly agreed in writing to be binding.
- The performance deadlines agreed will be no earlier than the date of receipt by NSF of the order confirmation, although not before the Client or a third party has created the agreed or essential framework conditions for performance of the contract and not before all details for performance of the contract have been clarified between NSF and the Client. This will also specifically include the provision of all information, data and samples necessary for the contract.
- Fixed performance deadlines agreed will be postponed accordingly.
- Modifications requested by the Client and accepted by NSF will extend agreed performance deadlines to a reasonable degree. Fixed performance deadlines agreed will be postponed accordingly even in such a case.
- In the event of delay in performance due to the fault of NSF liability in damages on the part of NSF will be exclusively governed by clause 9 of these GTC.
- The Client must inform NSF of any contract penalties applicable vis-à-vis its contracting parties by no later than the conclusion of the contract.
6. Testing/use of services rendered
- Any test reports compiled by NSF in the course of an order, plus any ancillary services (tables, calculations, diagrams and other details) (“Test Report”) may only be used by the Client for the purpose stipulated in the order.
- The Client will verify the content of the Test Report for validity and notify NSF of any reservations that it might have with regard to the audit or analysis result contained in it. If the audit or analysis result contained in the Test Report should lead on the Client’s part to costly and/or sweeping measures the Client must inform NSF accordingly in advance and give it an opportunity to verify the audit or analysis results and discuss them with the Client before measures are taken.
- The Test Report may be passed on, copied or published where this is covered by the scope of the order. It will generally not be permissible for the Test Report to be amended, shortened or published in excerpt form only.
- The Test Report does not constitute certification by NSF or an undertaking associated with NSF. The Client is not permitted to use the NSF trademark, i.e. the Client is specifically not permitted to advertise its products using the NSF symbol and/or allege certification by NSF.
- The agreed remuneration is quoted exclusive of VAT and is due and payable net within 14 days of receipt of the invoice. The date of receipt in NSF’s accounts is the decisive date for the purpose of compliance with payment deadlines.
- In the case of a new Client, significant deterioration in a Client’s financial circumstances or repeated arrears of payment by a Client NSF reserves the right to require the Client to make payment of the invoice sum in full before providing a service.
- The remuneration quoted by NSF comprises all services to be provided by NSF in the course of the testing procedure, including the necessary preparatory and ancillary work. It does not cover remuneration for any additional post-contractual requirements by the Client over and above the services agreed. The agreed remuneration does not cover costs incurred as a result of engaging external auxiliary personnel.
- When meeting a Client’s additional post-contractual requirements over and above services stipulated in NSF’s quotation and in the case of modifications requested by a Client or where a Client’s specifications prove erroneous or a Client’s requirements unexpectedly hamper execution of an order, or for supplying extra copies of analysis results or compiling preliminary or interim reports, NSF may charge an additional fee and for the corresponding extra costs based on the fee agreed where there is extra work involved even if the extra costs should be incurred for reasons that were unforeseeable.
8. Set-off, right of retention, assignment
- The Client may not offset counterclaims or exercise a right of retention unless its counterclaims / rights are finally established in law, are acknowledged by NSF or are not in dispute.
- The Client is also only authorised to exercise a right of retention provided that its counterclaim is based on the same contractual relationship with NSF.
- The Client may not and must not assign any claims to a third party.
- The Test Report compiled by NSF in the course of an order contains audit results and/or laboratory test and expert appraisal of the results and assessment in particular of the sample investigated. NSF is not responsible for supplying specific findings or analyses. Furthermore, the Client is itself responsible for deciding whether and in what manner it is to take action based on services provided by NSF. NSF does not give any warranty, in particular, for the achievement of specific Client targets, wishes or requirements set forth by the Client, whether expressly or impliedly expected by the Client.
- Defects are to be notified to NSF in text form (email or fax will suffice) immediately and in any event within 8 working days of receipt of a service or, in the case of hidden defects, within 3 working days of discovery. Otherwise the service provided by NSF will be deemed approved by the Client. The provision in § 377 HGB [German Commercial Code] also applies mutatis mutandis.
- Where a service provided by NSF is defective and the Client raises an objection thereto in accordance with sub-clause 8.1 of these GTC NSF may choose to either remedy the defect or provide a non-defective service. NSF must always be given an opportunity to do so within a reasonable period of time unless the setting of a deadline should be unnecessary. If subsequent performance should fail or prove superfluous the Client may rescind the contract, require the fee to be reduced or claim damages provided that the statutory conditions are fulfilled and, in the case of damages, the additional conditions in clause 9 of these GTC are satisfied.
- The length of the warranty period is 12 months from the date of delivery. If NSF should be liable in damages pursuant to clause 9 of these GTC the warranty period for such claim in damages will be governed by statute.
10. Liability on the part of NSF
- Where NSF, its statutory representatives, staff or agents commit a breach of duty with either intent or gross negligence, especially under the contractual relationship, or commit a tortious act with either intent or gross negligence NSF will be liable for the resultant loss or damage to the Client pursuant to statute.
- Where NSF, its statutory representatives, staff or agents commit a breach of duty due to mere carelessness all claims in damages on the Client’s part against NSF of any kind and on any grounds whatsoever, especially for breach of duty under the contractual relationship or in tort, will be excluded except in the case of a simply careless breach of a fundamental contractual obligation. In such an eventuality liability is limited to foreseeable loss or damage typical of that type of contract. A fundamental contractual obligation in this sense is one the fulfilment of which is essential to the proper execution of the contract and on which the Client can reasonable expect to be able to rely.
- The above exclusion from and/or limit on liability will not apply with regard to culpable fatalities, personal injury or damage to health, nor where there is liability under the Product Liability Act.
- The statutory rules on burden of proof are not affected by the above provisions.
11. Liability on the part of the Client
- The Client is generally liable to NSF pursuant to statute. This especially applies to loss or damage sustained by NSF as a result of using products provided by the Client.
- The Client accepts liability for products being suitable for the tests concerned and for products not inducing any personal injury or material damage. The Client bears responsibility for providing NSF with all necessary information laid down by law or rules and regulations and/or necessary for the use of products.
- The Client will indemnify NSF from all claims which third parties might assert against NSF for loss or damage caused as a result of the products provided unless NSF should have caused such loss or damage on its own responsibility.
12. Final provisions; place of performance; choice of law; forum; severability clause
- The Client agrees to the electronic storage of its data and documentation in NSF’s data processing systems.
- The place of performance for all services under the contractual relationship is the NSF registered office.
- German law has exclusive application with the exception of the UN Convention on the International Sale of Goods and conflict of law rules. The exclusive forum is the NSF registered office provided that the Client is a trader, legal person governed by public law or a special fund governed by public law. However, NSF has the right to sue the Client at any other court having jurisdiction under the provisions of the German Code of Civil Procedure.
- If a provision of these GTC should be or become invalid, incapable of implementation or incomplete the validity of the remaining provisions will not be prejudiced thereby. The provision that is invalid, incapable of implementation or incomplete will be replaced by such provision as the contracting parties would reasonably have agreed if they had been aware that the provision was invalid, incapable of implementation or incomplete.