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TentacontrolGmbH

General Terms and Conditions (T&Cs)

 

 

1.     Scope

1.1   The following Terms and Conditions shall apply for the agreed services rendered by Tentacontrol GmbH and for any ancillary services and other ancillary obligations performed by Tentacontrol GmbH as part of the fulfilment of the respective order.

1.2   Any general terms and conditions of the Client, including any purchasing terms, shall not apply and are hereby precluded. Any contractual terms of the Client shall not become part of the contract even if Tentacontrol GmbH does not explicitly object to them.

1.3  If this contract is translated into any other language(s), only the German text shall be applicable.

 

2.     Offers

All offers made byTentacontrolGmbH shall be non-binding, provided that nothing to the contrary was agreed.

 

3.     Conclusion and duration of contracts 

3.1   The contract shall come into being when the written offer from Tentacontrol GmbH, or a separate contractual document, is signed by both contracting parties or when the work requested by the Client is carried out by Tentacontrol GmbH. If the Client engagesTentacontrol GmbH (offer) without any prior offer from Tentacontrol GmbH, Tentacontrol GmbH shall be entitled at its own sole discretion to accept the order by way of a written declaration of acceptance (also transmitted by electronic means) or by rendering the services for which it was engaged.

3.2   The contractual term shall commence when the contract comes into being, in accordance with Item 3.1, and shall continue for the term specified in the contract or, if not described more specifically there, in the certification terms for the performance that was ordered.

3.3   If the contract provides for a prolongation of the term, the contractual term shall be prolonged in each case by the term provided for in the contract, insofar as it is not terminated in writing by one of the contracting parties six weeks before its expiration.

 

4.     Scope of performance

4.1   The scope of the performances shall be governed solely by a concordant declaration submitted by both sides. If there is no such declaration, the written order confirmation from Tentacontrol GmbH shall be authoritative.

4.2   The agreed performances shall be carried out with due regard to the regulations applicable at the time when the contract was concluded.

4.3   Furthermore,TentacontrolGmbH shall be entitled to determine the method and type of examination itself at its own proper discretion, provided that no written agreements to the contrary were made or that mandatory provisions require a particular approach.

4.4   The carrying out of the activities in question shall not imply the assumption of any guarantee of correctness (faultless condition) and operational readiness for either examined or tested parts or for the entire facility and its upstream or downstream processes, organisations, application and use as per the terms of the contract, or the facilities’ underlying systems; in particular, no responsibility shall be assumed for the structuring, materials selection and construction of any facilities examined and their application and use as per the terms of the contract, unless these issues are explicitly specified in the order.

4.5   In the case of testing assignments, TentacontrolGmbH shall not be responsible for the correctness or the examination of the safety programmes or safety instructions on which the tests are based, provided that nothing to the contrary has been agreed.

 

5.     Performance periods/dates

5.1   The contractually agreed performance periods and dates are derived from estimations of the volume of work based on the information given by the Client. They shall be binding only if TentacontrolGmbH confirms in writing that they are binding.

5.2   If any periods were agreed with binding force, these shall not commence until the Client has put all of the required documents at the disposal of TentacontrolGmbH. This shall also apply analogously, even without the explicit consent of the Client, for agreed dates and times which are delayed by a period for which TentacontrolGmbH was not responsible.

  

6.     Duties of the Client to cooperate

6.1   The Client shall guarantee that all necessary cooperative actions on his part or on the part of his assistants or third parties can be rendered promptly and free of charge for TentacontrolGmbH.

6.2   Any construction documents, auxiliary supplies, supporting staff, etc. which are required to render the performances must be provided free of charge. In other respects, the cooperative actions of the Client must be in accordance with the prevailing statutory provisions, standards, safety regulations and accident prevention regulations.

6.3   The Client shall bear all additional costs incurred as a result of work having to be replaced or being delayed as a consequence of belated, incorrect or incomplete information or improperly executed cooperative actions. Also when agreeing on a fixed and maximum price, TentacontrolGmbH shall be entitled to charge this added expense additionally.

 

7. Scope of the right of use for certificates and certification marks

7.1     If the agreed certification procedure was completed with a positive result, the Client shall receive the appropriate certificate from Tentacontrol GmbH. The certificate shall have the term specified in the contract or in Tentacontrol GmbH’s special conditions of certification.

7.2     When the certificate is granted in accordance with Item 7.1, the Client shall receive the basic, non-transferable and non-exclusive right to use the certification mark in accordance with the terms specified in Items 7.3 to 7.15 during the specified term of the certificate. This shall apply also when he refers to his certification in communication media such as documents, brochures and advertising materials.

7.3     The approval for using the certificate drawn up by Tentacontrol GmbH and a certification mark shall apply solely for those corporate divisions of the Client which are specified in the scope of the certificate. Using the certificate in divisions not specified is expressly forbidden.

7.4     The certification mark for the management system’s certification may be used only by the Client and only in direct connection with the Client’s company name or company logo. It may not be positioned on or in reference to a product of the Client. This shall apply also to the packaging of products, laboratory test reports, calibration certificates and/or inspection reports.

7.5     The Client undertakes to use the certificate and the certification mark only in such a way that a statement in compliance with the certification about the company or the Client’s corporate division is being made. The Client must, furthermore, ensure that no impression is given that the certification resulted from an official check or, in the case of system certification, from a product check.

7.6     The Client shall not be authorised to make any alterations to the certificate or the certification mark.

7.7     The Client shall be obliged to make it clear through the corporate presentation in his promotional activities and suchlike that the certification is voluntary and based on an arrangement under private law.

7.8     The right of use shall lapse if there is no valid certificate, in particular upon expiry of the certificate term or in the event of non-performance of required monitoring audits.

  • The Client’s right to use the certificate or the certification mark shall be terminated with immediate effect with no requirement of notice if the Client uses the certificate and/or the certification mark in a manner that infringes the provisions of Item 7.1 to 7.8 or violates the contract in some other way.
  • The Client’s right to use the certificate and/or the certification mark shall be terminated with immediate effect in the event of termination pursuant to Item 10.
  • The right of use, furthermore, shall lapse automatically if the maintenance of the certificate is prohibited by official regulations or a court.
  • In the event of the right of use coming to an end, the Client shall be obliged to hand over the certificate to Tentacontrol GmbH.
  • If contractual provisions are infringed, Tentacontrol GmbH shall reserve the right to assert any compensation claims that may be applicable.
  • The certification may not be used in any form that brings Tentacontrol GmbH into disrepute.
  • The Client shall not be entitled to submit declarations about his product certification which can be regarded as misleading and/or unauthorised.
  • If it can be foreseen that the Client’s certification requirements can only temporarily not be fulfilled, the certification can be suspended. During this period the Client may not advertise using the certification.
  • If the reason for the suspension is not rectified during the agreed period, the certification shall be withdrawn.

 

8. Secrecy and confidential information

8.1   Tentacontrol GmbH undertakes to put at the Client’s disposal all results which were developed in connection with the order and not to publish them or disclose them to third parties without the Client’s consent, unless Tentacontrol GmbH is obliged by law or by instructions from the accreditation agency to forward gathered data on request.

8.2     „Confidential information” shall comprise all information, documents, images, drawings, practical expertise, data, models, samples and project documents which are handed over, transmitted or otherwise disclosed by one party (“disclosing party) to the other party (“receiving party) during the term of the contract. This shall also include copies of such information in paper and electronic form.

8.3     All confidential information which is transmitted in written form must be denoted as confidential by the disclosing party before it is forwarded to the receiving party; this shall also apply for confidential information which is sent by e-mail. In the case of confidential information which is forwarded orally, appropriate prior information must be given.

8.4     All confidential information which is transmitted or otherwise made accessible by the disclosing party to the receiving party within the scope of the contract

  1. a) may be used by the receiving party only for the fulfilment of the respective contractual purpose, provided that there is no divergent explicit written agreement with the disclosing party;
  2. b) may not be reproduced, distributed, published or forwarded in any other form by the receiving party, unless this is necessary to fulfil the contractual purpose or Tentacontrol GmbH is obliged by legal or official stipulations or by requirements of the accreditation agency to forward confidential information, test reports and documentation to public authorities, courts, accreditation agencies or, within the scope of contract fulfilment, involved third parties;
  3. c) must be treated as confidential by the receiving party in the same way as the receiving party treats its own confidential information, but on no account with less care and attention than that which is objectively necessary.

8.5     The receiving party shall make the confidential information received from the disclosing party accessible only to those employees who need it in order to render performances within the purposes of this contract. The receiving party shall oblige these employees to the same extent as has been established in this confidentiality agreement.

8.6     Confidential information shall not comprise the information from which the receiving party can prove that

  1. a) the information was already generally known at the time of its publication or was known to the general public without this agreement being infringed in any way, or
  2. b) the receiving party has received the information from a third party who was legitimately entitled to give the receiving party the information, or
  3. c) the information was already in the possession of the receiving party before its transmission by the disclosing party, or
  4. d) the receiving party developed the information independently of any transmission by the disclosing party.

8.7     Confidential information shall remain the property of the respective disclosing party. The receiving party hereby gives its consent that it shall immediately (i) return all confidential information, including all copies of such information, to the disclosing party and/or, when requested by that party, (ii) destroy the confidential information, including all copies of it, to the extent which is normal and from a technical point of view justifiable, and to confirm to the disclosing party in writing the fact of said destruction at any time when requested by the disclosing party, but at the very latest upon termination or expiration of this contract with no specific request from the disclosing party being required. Exceptions from this rule shall be the reports and certificates prepared for the Client solely for the purpose of fulfilling the contractual obligations under this contract that remain with the Client. In relation to these and to the confidential information on which the preparation of these reports and certificates is based, Tentacontrol GmbH shall, however, be entitled to add copies to his files as proof of the correctness of his results and for general documentation purposes.

8.8     As from the commencement of the contract, the receiving party shall maintain the utmost secrecy regarding the confidential information until three years after the contract comes to an end, not make it accessible to any third party, and not use the confidential information itself.

 

9. Storage periods

  • If nothing to the contrary is agreed in writing, the samples provided for examination purposes shall be stored on Tentacontrol GmbH’s premises for at least three months. After this period the samples shall be disposed of, if appropriate at the Client’s expense.
  • Analysis results and the associated documents and data carriers shall be stored for three years.
  • Tentacontrol GmbH shall store all the relevant documents relating to certification in accordance with the standards of the respective system provider and the prevailing statutory provisions.
  • Tentacontrol GmbH shall archive any and all records prepared in the sector classification and weighing for a minimum period of one year.

 

10. Termination

  • Tentacontrol GmbH and the Client shall be entitled to terminate agreements for good cause.
  • Good cause in the above sense shall apply for Tentacontrol GmbH in particular when:
  1. the Client fails to give Tentacontrol GmbH prompt notification of changes in the circumstances in the company that are authoritative for certification and classification, or indications of such changes,
  2. the Client uses the certificate or the certification mark falsely or in violation of the contract,
  3. insolvency proceedings have been instituted against the Client’s assets or an application to institute insolvency proceedings against him is rejected for lack of assets.

 

11. Prices

  • Performances shall be charged in accordance with Tentacontrol GmbH’s scale of fees prevailing at the time when the contract is concluded.
  • Performances for which no fixed rates are stipulated shall be charged on a time basis in accordance with the staff and material rates listed in the scale of fees.

 

12. Terms of payment

12.1  All invoice amounts shall be due immediately with no deductions upon receipt of the invoice. No cash discounts shall be granted.

12.2  The payments shall be made, with the invoice number and customer number being indicated, to the Tentacontrol GmbH bank account that is indicated on the invoice.

12.3  In the event of default, Tentacontrol GmbH shall be entitled to demand an interest rate 8 % above the German Bundesbank’s base rate. At the same time, it reserves the right to assert any further damages claims.

12.4  If the Client defaults on the settlement of the invoice despite having been granted a reasonable grace period, Tentacontrol GmbH may rescind the contract, withdraw the certificate, demand compensation on grounds of nonperformance and refuse to continue with the execution of the contractual performances.

12.5  The rule in Item 12.4 shall apply in like manner when cheques are not honoured, payments are discontinued, insolvency proceedings are instituted against the Client or the institution of such insolvency proceedings is rejected for lack of assets.

12.6  Any objections to Tentacontrol GmbH’s invoices must be asserted in writing within two weeks of the respective invoice being received.

12.7  Tentacontrol GmbH shall be entitled to demand an appropriate advance on costs.

12.8  In the event of increased overheads or procurement costs, TentacontrolGmbH shall be entitled to increase the prices at the beginning of a month. This shall be done by means of a written notice which must be sent one month (alteration period) before the increase is scheduled to take effect. If the price increase does not exceed 5 % per contractual year, the Client shall have no special right of termination on grounds of such a price increase. In the event of a price increase of more than 5 % per contractual year, the Client shall be entitled to terminate the contractual relationship to the end of the alteration period. Otherwise the altered prices shall be deemed to be agreed upon expiration of the alteration period.

12.9  Only claims which are determined without further legal recourse or which are undisputed may be offset against claims asserted by TentacontrolGmbH.

 

13. Liability

13.1  Tentacontrol GmbH’s liability for damages and expenses caused by management bodies and/or employees of Tentacontrol GmbH shall be limited, irrespective of the legal basis, and especially in the case of breaches of obligations arising from the debt obligation and from tortious acts, to three times the remuneration for the order as a whole if the contracts in question have fixed overall remuneration; to the agreed annual remuneration in the case of annually recurring performances; to a maximum of 20,000 euros in the case of contracts which are explicitly to be settled at cost; and to three times the remuneration specified for the respective individual order in connection with which the damages or expenses arose under a framework contract which allows for individual orders. In each case of loss or damage, Tentacontrol GmbH’s liability shall be limited to a maximum of 2.5 million euros.

13.2  This aforementioned limitation of liability in accordance with Item 13.1 shall not apply if a case of loss or damage results from deceitfulness or intentional or grossly negligent behaviour by the legal representatives of Tentacontrol GmbH or its assistants, or for loss or damage that results from a breach of obligations for whose fulfilment Tentacontrol GmbH has assumed a guarantee, or for loss or damage arising from loss of life, bodily injury or damage to health, or for loss or damage for which liability is governed by the German Product Liability Act (ProdHaftG).

13.3 In the event of a cardinal duty being breached, Tentacontrol GmbH shall be liable even in cases of slight negligence. Cardinal duties in this context shall be significant contractual obligations whose fulfilment makes the proper implementation of the contract possible in the first place and whose observance the Client is entitled to rely on. Any claim to damages in the event of a cardinal duty being breached shall be limited to the amount of loss or damage which was typical and foreseeable (typically foreseeable damage) as a possible consequence of the breach of contract at the time when the breach of duty took place, provided that none of the cases specified in Item 13.2 applies.

13.4 Tentacontrol GmbH shall not be held liable for any employees provided for support purposes by the Client within the course of the performances to be rendered by Tentacontrol GmbH under this contract, unless the employees provided are to be regarded as assistants of Tentacontrol GmbH. Insofar as Tentacontrol GmbH is not liable under the foregoing sentence for any employees provided, the Client must keep Tentacontrol GmbH indemnified against any claims asserted by third parties.

13.5  Damages claims shall become statute-barred in accordance with the statutory provisions.

13.6  The foregoing provisions in Item13 shall not involve any change in the burden of proof to the detriment of the Client.

14. Subcontractors

Tentacontrol GmbH reserves the right to engage other companies and accredited or equivalent laboratories as subcontractors.

 

15. Copyright

15.1 All copyrights and joint copyrights to the work results generated by Tentacontrol GmbH, including test results, calculations, illustrations, etc. shall remain with Tentacontrol GmbH.

15.2 The Client may use work results, test results, calculations, illustrations, etc. produced within the scope of the respective order only for the purpose for which they are designated under the contract. If such work results are certificates, the provisions in Item 7 must also be observed and shall take precedence.

15.3 The Client may forward work results, test reports and suchlike only in complete form. Any publication or reproduction for promotional purposes shall require the prior written consent of Tentacontrol GmbH in each individual case. If such work results are certificates, the provisions of Item 7 shall take precedence.

 

16. Applicable law, place of performance and place of jurisdiction

16.1 Substantive German law shall be applicable.

16.2 Place of performance for services and payments shall be Hamburg.

16.3 Place of jurisdiction for the contracting parties shall be Hamburg.

 

 

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