General terms and conditions for services of Clariant produkte (Deutschland) GmbH
1.1. The following General Terms and Conditions for Services shall become an integral part of the contract between Clariant Produkte (Deutschland) GmbH (hereinafter "Clariant") as Contractor and an external client. Conflicting or deviating General Terms and Conditions or other restrictions of the Client shall not be recognized unless the Contractor has expressly agreed to them in writing in the individual case.
2. Conclusion of contract
Upon completion of the registration of a valid voucher on the part of the Client via the Contractor's Antifrogen Sample Submission Wizard, a contract shall be concluded.
3. Scope of services
3.1. The Contractor shall provide services (hereinafter referred to as "Services"). This includes the following types of services: Analytical services, in particular technical tests, measurements and examinations as well as specifications The Contractor shall perform the type of contractual service defined in the offer. In the performance of the contract, the Contractor shall apply recognised rules of technology as well as its own knowledge and experience, taking into account the applicable standards and due care customary in the industry. The Contractor shall prepare a document on the results or services rendered in accordance with the recognized rules and customary in the industry. If necessary, the Contractor is entitled to subcontract parts of an order to third parties.
4. Acts of cooperation of the purchaser
4.1. The Client shall ensure, without special request, that the Contractor receives all materials, samples, auxiliary samples, analytical procedures and specifications as well as documents and information required for the execution of the order in due time at the agreed delivery date. When executing the order, the Contractor is entitled to take as a basis the materials, documents and information handed over by the contractual partner as well as the stated facts as correct and complete. Incorrect materials will be disposed of by the Contractor.
4.2. The client has to prepare the materials, documents and information according to the technical specifications of the Contractor so that a smooth test procedure is guaranteed.
4.3. The Client warrants that material handed over is declared and packaged in accordance with the statutory provisions and that it provides all necessary and legally required information about special hazards of the material and informs the Contractor about the appropriate handling method. The Client is obliged to provide the Contractor with all information required for a safety analysis of handed-over materials. In particular, he shall point out the safety risks of the materials handed over or other equipment provided by him and hand over to the Contractor - if available - technical data sheets or safety data sheets. The Customer undertakes to fulfil its duty to provide information in good time; in any case, however, all necessary information must be available at the latest when the material is handed over.
5. Delivery dates and delay
5.1. Delivery dates and deadlines are non-binding unless otherwise agreed in writing by both parties. Compliance with the delivery dates and deadlines by the Contractor presupposes the receipt by the Contractor of all documents, information and materials as well as the performance of the other acts of cooperation incumbent upon the Client at the agreed time of performance (delivery address: see address of order confirmation).
5.2. Force majeure of any kind, unforeseeable operational, traffic or shipping disruptions, fire damage, floods, unforeseeable shortages of labor, energy, raw materials or auxiliary materials, strikes, lockouts, official decrees or other hindrances for which the party obliged to perform is not responsible and which delay, prevent or render unreasonable the performance of the service, the shipment or the acceptance shall release the party from the obligation to perform or accept the service for the duration and scope of the disruption. If, as a result of the disruption, binding deadlines are exceeded by more than eight weeks, either party shall be entitled to withdraw from the contract.
6.1. The service is provided free of charge for the client.
7. Liability and compensation
7.1. The Contractor shall be liable for ensuring that all agreed services are performed with due skill and care. No warranty is given for the correctness or suitability of the research and development results communicated within the scope of this offer for a specific purpose, nor for the actual achievement of the research and development objective pursued. The Contractor assumes no liability for the success intended by the provision of the services.
7.2. The results determined or services rendered by the Contractor relate exclusively to the nature of the materials or information subjected to a type of service by the Contractor. The Contractor assumes no liability that the individual performance results apply to the total quantity of the material provided by the Client.
7.3. Determined results are for information purposes only. A possible evaluation of the determined results by the Contractor is in any case only a non-binding recommendation. Legal claims against the Contractor do not arise from this for the client.
7.4. Claims for damages of any kind against the Contractor, its legal representatives, employees and its vicarious agents, in particular also those based on tortious liability, breach of duty and from the breach of the obligations listed in § 311 BGB, shall be limited to grossly negligent or intentional conduct. In the event of intent and gross negligence on the part of its vicarious agents who are not senior executives, the Contractor shall only be liable to the extent of typically foreseeable damage.
7.5. The Contractor shall only be liable for indirect damage and for damage that was not foreseeable at the time the contract was concluded if the Contractor is guilty of gross negligence.
7.6. The limitations of liability according to clauses 7.4 and 7.5 do not apply in the case of damage to life, body or health, in the case of breach of cardinal obligations or if liability is mandatory on the basis of the Product Liability Act.
7.7. Claims for damages against the other contracting party shall become statute-barred in accordance with the statutory provisions, unless liability is based on intent, but no later than three years after the breach of duty or the tortious act.
8. Notification of defects and defect inspection
8.1. If the services are not provided in accordance with the contract or are provided incorrectly through the fault of the Contractor, the Contractor shall provide the services in accordance with the contract within a reasonable period of time without additional costs for the Client. The prerequisite is a complaint by the client, which must be made immediately, at the latest within two weeks after knowledge.
8.2. The Contractor reserves the right to remedy defects in services by way of subsequent improvement. The Client shall support the Contractor in the rectification to a reasonable extent. In the event of a final failure of the rectification of defects, the Client shall be entitled to terminate the contract without notice.
9. Confidentiality; secrecy; publication
9.1. The Contractor shall treat the test results and all information received in connection with the performance of the test as confidential. In particular, the Contractor shall not use the information received or the test results for its own purposes or make them available to third parties without the express consent of the Client. The Client's consent is not required if the Contractor has concluded a non-disclosure agreement with the third party. The Contractor and the Client agree that the test results may be shared with the distributor which the Client has indicated in the registration process. The Contractor shall ensure that the distributor treats the test results as confidential to the same extent as the Contracting Parties.
9.2. The Contractor's secret technical know-how as well as all other business and trade secrets of the Contractor, including the content of the contractual relationship with the Client (hereinafter: information subject to secrecy) shall be treated confidentially by the Client. Confidential technical know-how of Contractor is contained in particular in the work results and the work, services and material provided to Customer within the scope of the performance of the contract. The Principal shall take all reasonable precautions to protect the information subject to secrecy from unauthorized access, unauthorized disclosure, duplication, disclosure and other unauthorized use. This obligation does not apply to information which was in the public domain or which the client can prove became in the public domain after it was handed over to him. Further legal provisions remain unaffected.
9.3. The Client is obliged to ensure that employees and third parties who are granted access to the information subject to secrecy assume the same duty of confidentiality towards the Contractor as the Client itself. At the request of the Contractor, the Client shall arrange for the employees and third parties to sign a separate confidentiality agreement with the Contractor before granting them access to the information requiring confidentiality.
9.4. Should a judicial, official or other official and binding request for disclosure of the information requiring secrecy be made to the Client, the Client shall inform the Contractor of this without delay.
9.5. The above obligations shall continue to apply beyond the end of the contract for as long as the information subject to secrecy remains secret.
9.6. For each case of breach of the confidentiality obligation, the Client shall pay the Contractor a contractual penalty in the amount of 50% of the order value, unless the Client proves a lower damage or the Contractor proves a higher damage. Further rights of Contractor shall remain unaffected.
9.7. Contractor shall be entitled to name Customer as a reference within the scope of customary self-promotion and in compliance with other business and trade secrets as well as other interests of Customer.
10. Property rights
The Customer shall be liable for ensuring that the delivery and use of material resources, e.g. recipes, samples or test items, do not infringe the industrial property rights of third parties and shall indemnify the Contractor against all such claims.
11. Applicable law, place of jurisdiction
The law of the Federal Republic of Germany shall apply exclusively, unless otherwise agreed. The place of jurisdiction is Frankfurt a. M. The Contractor is furthermore entitled to assert his claims at the general place of jurisdiction of the client.
12. Effectiveness clause
Should individual clauses of these General Terms and Conditions be invalid in whole or in part, this shall not affect the validity of the remaining clauses or the remaining parts of such clauses. The parties shall replace an invalid provision with a provision that comes as close as possible to the economic purpose of the invalid provision and is effective.