General Terms of Sale of CleanControlling GmbH for the Preparation of Expertises on Technical Cleanliness
Sec. 1 Scope of Application and Deviating General Terms of Sale
(1) The General Terms of Sale (hereafter GTS) of CleanControlling GmbH (hereafter us/we) apply exclusively; contrary terms of the Client or which deviate from our GTS are not recognized except when explicitly accepted by us in writing. Our GTS also apply when we execute an order without reservation in the knowledge of contrary terms or conditions of the Client that deviate from our GTS.
(2) All agreements concluded between us and the Client for the purpose of contract performance must be laid down in the form of a written record (order/order form and order confirmation).
(3) The present GTS apply only to merchants in the sense of Sec. 310 Subsec. 1 BGB.
(4) The present GTS also apply to all future transactions with the Client.
Sec. 2 Order
(1) Through the acceptance of the order, CleanControlling GmbH undertakes to prepare an expertise on particle pollution of sample components supplied by the Client. The scope of the service and the test standard according to which the analyses will be performed are quoted in the offer, order and order confirmation. In the case of doubt, the test standard of the previous order applies. If none of the foregoing standards is applicable, Standard VDA 19 shall be used.
(2) Delivery dates quoted for the execution of orders are not binding except when explicitly agreed to be binding in writing. If agreed delivery dates are not observed, the Client shall allow CleanControlling GmbH an adequate grace period. On the fruitless expiry of the grace period, the Client is entitled to withdraw from the contract.
Sec. 3 Performance and Sample Deliveries
(1) Except when agreed otherwise, all samples shall be delivered by forwarder. The Client bears the shipping costs and risk. Sampling and packaging by the Client must be in line with the standard of the examination to be performed to avoid distortion of analysis results. Possible instructions from us must be observed.
(2) The Client is liable for any damage resulting from a possibly hazardous nature of the samples. The Client must quote any hazards and notes on handling known to him.
(3) On completion of the expertise, samples will be returned to the Client.
Sec. 4 Confidentiality
We undertake to keep confidential all records and plans supplied to us for analysis as well as any information designated as confidential and not to pass these on without the consent of the Client except when so required by law.
Sec. 5 Third-Party Use
If the expertise is passed to a third party, the Client agrees to incorporate the present GTS analogously into his own or treat us as though they had been so incorporated. If there is no such incorporation, we are entitled to a claim vis-à-vis the Client to be released from any claims originating in the non-incorporation.
Sec. 6 Shipping, Return and Subsequent Use of Samples
(1) The delivery of the expertise and the return of the samples will be made uninsured and for account and risk of the Client. The choice of shipping method is at our discretion.
(2) The attention of the Client is drawn to the fact that due to chemical incompatibilities, rinsed samples may no longer be used for their original purpose. If their subsequent use should become necessary, compatibility must first be confirmed by the Client.
Sec. 7 Payment Terms
The agreed fee is due 14 days from presentation of invoice without deduction.
Sec. 8 Supplementary Performance and Defects
(1) We supply our services at the state-of-the art generally acknowledged at the time of our commission and with the degree of diligence customary in the industry. If our services should exceptionally be defective, the Client must provide an opportunity for supplementary performance. If necessary, the Client shall supply a new sample to our seat of business. Further claims available under law may be invoked only if supplementary performance has failed.
(2) If supplementary performance fails, the Client may at his choice demand either the withdrawal from the contract or a reduction in the price.
(3) We are liable under the statutory provisions for claims for compensation asserted by the Client that are based on premeditation or gross negligence, including premeditation or gross negligence by our representatives or vicarious agents. When no breach of contract is imputed to us, liability for compensation shall be limited to the foreseeable typical damage.
(4) We are liable under the statutory provisions if found to be in culpable breach of a major contract obligation; however, in this case, liability for compensation shall be limited to the foreseeable typical damage.
(5) When the Client asserts a claim for compensation of damage in lieu of performance, our liability shall be limited also for purposes of Subsection (2) to the replacement of foreseeable, typical damage.
(6) Liability on account of culpable injury to life and limb remains unaffected; this also applies to compulsory liability under the Product Liability Act.
(7) If not stipulated otherwise above, any further liability shall be excluded.
Sec. 9 Aggregate Liability
(1) Extended liability for damages as covered in Sec. 8 shall be excluded irrespective of the legal nature of the claim asserted. This applies in particular to compensation claims for culpable fault at contract conclusion, on account of other breaches of contractual obligations or to tort claims for compensation of property damage pursuant to Sec. 823 BGB.
(2) The limitation in Subsection (1) also applies if the Client demands the reimbursement of futile expenses in lieu of compensation.
(3) When liability for damages is excluded or limited in our regard, this shall also apply with regard to the personal liability for damages of our employees, workers, collaborators, representatives and vicarious agents.
Sec. 10 Legal Venue
The contract is subject to the laws of the Federal Republic of Germany at the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG)
Sec. 11 Place of Performance and Jurisdiction
(1) Place of performance is the seat of CleanControlling GmbH, Emmingen – Liptingen.
(2) The jurisdiction for merchants, legal entities of public law and special funds under public law for the assertion of claims shall for both contract parties be that of our seat of business. We may, however, institute proceedings also in the general jurisdiction of the Client.
Sec. 12 Salvatory Clause
If an individual provision of these GTS should be invalid in whole or in part, the remainder of the Terms shall not be affected.
Version 31.12.2006 CleanControlling GmbH
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