§ 1 Area of Application
1. The following General Terms and Conditions apply to all bids, quotations, proposals, reports, supplies, services and advisory services and other transactions of Dorfner Analysenzentrum und Anlagenplanungsgesellschaft mbH (hereinafter referred to as “ANZAPLAN”) specifically in the areas of research, process development, engineering and analyses.
2. Our General Terms and Conditions only apply to entrepreneurs and not to consumers.
§ 2 Applicability of the Terms and Conditions
1. The legal relationship between ANZAPLAN and the contractual partner is governed exclusively by the written contract including these General Terms and Conditions. This fully reflects all agreements between ANZAPLAN and the contractual partner on the object of contract.
Oral statements made by ANZAPLAN before the conclusion of this contract are not legally binding and oral agreements between ANZAPLAN and the contractual partner are replaced by the written contract, unless the written contract confirms the oral agreement.
2. Amendments and modifications to the agreements, including these Terms and Conditions, must be in writing in order to be effective. Employees of ANZAPLAN, except of managing directors or authorized signatories (“Prokuristen”), are not authorized to make oral agreements differing from the written agreement including these Terms and Conditions.
3. Legally relevant declarations and notifications submitted to ANZAPLAN by the contractual partner after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of revocation) must be in writing in order to be effective.
To comply with the written form, it is sufficient to transmit the signed declaration by telecommunication, in particular by fax or e-mail, provided that the transmitted declaration represents a copy of the original signed document.
4. References to the applicability of statutory provisions are solely for the purpose of clarification. Therefore, the statutory provisions apply even without any such clarification unless they have been directly amended or expressly excluded under these Terms and Conditions.
§ 3 Offers and Conlusion of Contract
1. Offers issued by ANZAPLAN are not binding. Declarations of acceptance and all orders become legally binding only after confirmation in writing by ANZAPLAN.
2. ANZAPLAN can accept an offer within a period of 2 weeks after it receives the offer.
3. Statements and performance specifications are only binding insofar as this is expressly agreed in writing by the parties. Statements in catalogues, leaf-lets, white papers, circular letters, advertising, illustrations and price lists, in particular those regarding weight, dimensions, volumetric capacity, quality, yield, process parameters and chemical and physical attributes are not binding between the parties unless they are subject to an explicit contractual agreement between the parties.
§ 4 Subject Matter of the contract
1. If a development order which the contractual partner issues to ANZAPLAN does not include an obligation on the part of ANZAPLAN to bring about a certain contracted result, ANZAPLAN does not owe any specific success. Development orders in this context are in particular orders whereby the contractual partner specifies to ANZAPLAN a required product standard or product parameter which he requests and for which ANZAPLAN is to develop a technical operation or process, in order to achieve the desired product standard or product parameter (e.g. processing of a partly finished product).
2. As a result of the fact that ANZAPLAN’s contractual partner only provides raw materials or natural products with a particular intended end result, ANZAPLAN can neither be held liable for a particular outcome with regard to the product standards, specifications or product parameters mentioned under section 1. and desired by the other party nor guarantee a particular result.
3. Insofar as ANZAPLAN undertakes project management at the contractual partner’s premises or on its behalf, the activities of ANZAPLAN will be of an advisory nature only. ANZAPLAN can neither be held liable for a particular outcome in this regard nor guarantee a certain result.
4. For the Analysis sector, ANZAPLAN shall - under the contract with the contractual partner - provide a statement of expertise. ANZAPLAN will carry out activities in the fields of analysis of solids (examination of mineral raw materials, of paper, glass and ceramics as well as all other types of raw materials, products and basic materials), analysis of water (examination of municipal and industrial waste water, surface, ground and seewage water as well as drinking, mineral and bathing water) and environmental analysis (examination of soil and waste products of one type).
§ 5 Methodology
1. ANZAPLAN carry out the analyses in accordance with recognized technological principles. The contractual partner has no claim on the analysis specifications or test procedures developed by ANZAPLAN. This does not apply if ANZAPLAN is liable for the instructions or processes as a performance item. In this case the contractual partner’s claims are governed by the contractual agreement.
2. The analysis results and the corresponding test report do not take into account any measurement uncertainties and therefore do not include any statement with respect to conformance, unless the contractual partner expressly requests their inclusion and identification in the test report when placing the order and this is confirmed in writing.
§ 6 Dangerous Samples
If the samples or materials provided to ANZAPLAN contain special risks or dangers (e.g. explosive, radioactive, carcinogenic or other) the contractual partner must draw attention to the risks and dangers by means of appropriate labelling of the samples and materials and, in addition, is obliged to give a written notice in the order, at best in advance by email.
§ 7 Dates and Terms
1. The dates and terms stated by ANZAPLAN GmbH are not binding and are deemed to have been agreed as being approximate insofar as they are not expressly agreed.
2. Dates for completion of the transaction start from the conclusion of the contract, not, however, before receipt and clarification of all necessary materials, samples and documentation or granting of any official licenses.
2.a. Should the contractual partner be in acceptance default or culpably infringe other participatory rights, then ANZAPLAN is entitled to demand compensation for the damage that arises inclusive of any additional expenditure. The right to further-reaching claims remains unimpaired.
2.b. Given that the contractual partner is in acceptance default, the risk of accidental loss or accidental deterioration of the performance passes over to the contractual partner at the time when he is in default in acceptance.
2.c. Shortages of raw materials or energy, strikes, traffic disruptions, pandemics, official decrees, and exceeding delivery dates of sub-suppliers, operational disturbances, cases of force majeure, as well as all other circumstances for which ANZAPLAN is not responsible exempt ANZAPLAN for the duration and to the extent the impairment of performance from the service/delivery obligation. In these cases ANZAPLAN shall be entitled to withdraw from the contract if performance has become impossible or unreasonable for ANZAPLAN or an end to the impediment to performance is not foreseeable.
§ 8 Pricing
1. The prices stated in ANZAPLAN’s quotations are only binding for the period during which the quotation retains validity.
2. Any prices quoted by ANZAPLAN do not include applicable sales, use, excise and similar taxes, if any, and are exclusive of freight, carriage and packaging, insurance and other ancillary costs, unless specifically mentioned otherwise.
§ 9 Payment
1. Unless otherwise agreed, sales invoices shall be due immediately and payable net (i.e. without discount) within 14 days from the date of invoice. The statutory provisions on consequences of a default in payment apply. Written agreement must be on hand for discounts to be deducted.
2. Payment is deemed to have been made only when ANZAPLAN has full access to the funds. Money orders, cheques and promissory notes shall only be accepted subject to payment by the contractual partner of all processing and discounting fees.
3. The contractual partner is only entitled to offset or withhold payment in cases where the counter-claim is not disputed or has been finally assessed by a court. Moreover, he is only entitled to exercise a right of retention given that his counter claim is based on the same contractual relationship. The contractual partner agrees that ANZAPLAN may offset accounts receivable against accounts payable.
4.a. If the contractual partner is in default with an instalment, then ANZAPLAN is entitled to declare the entire account receivables as being immediately due and payable.
4.b. Should the contractual partner make false statements about his financial situation or should his financial circumstances deteriorate following conclusion of contract to the extent that his credit standing - on the basis of objective, bank-like aspects – has substantially worsened and realization of ANZAPLAN account receivables is very much at risk, then ANZAPLAN has the right to declare the rest of the outstanding payment obligations as being immediately due and payable. This also applies to the acceptance of bills of exchange and cheques.
4.c. Given the actual deterioration in the credit standing of the contractual partner, ANZAPLAN has the right to withdraw from the contract.
§ 10 White Paper Download
§ 11 Warranty
1. The warranty period shall be one year from delivery of the goods or services to the contractual partner, or, if acceptance is required, from acceptance. This period shall however not apply to claims for damages by the contractual partner arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by ANZAPLAN or its vicarious agents, which shall in any case become time-barred in accordance with the statutory provisions.
2. The contractual partner or a third party commissioned by the contractual partner shall be obliged to thoroughly examine all goods and services immediately upon delivery. They shall be deemed approved by the contractual partner with regard to obvious defects or other defects which would have been recognizable in an immediate, careful examination if ANZAPLAN does not receive a written notice of defect within ten working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the contractual partner if the notice of a defect is not received by ANZAPLAN within seven working days after the date on which the defect became apparent. If the defect was already apparent at an earlier point in time under normal use, this earlier point in time shall, however, be decisive for the commencement of the notice period. At ANZAPLAN’s request, a delivery item which is the subject of a complaint shall be returned to ANZAPLAN carriage paid. This shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
3. In the case of material defects of the delivered items, ANZAPLAN is initially obliged and entitled to remedy the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, the contractual partner may withdraw from the contract or reduce the purchase price accordingly. In the case of a slight breach of contract, in particular slight defects, the contractual partner shall not have the right to with- draw from the contract.
4. If a defect is based on the fault of ANZAPLAN, the contractual partner can claim damages under the conditions specified in § 11.5. The warranty does not apply if the contractual partner changes the delivery item or has it changed by a third party without the consent of ANZAPLAN and the removal of the defect is made impossible or unreasonably difficult as a result. In any case, the contractual partner shall bear the additional costs of the removal of the defect incurred as a result of the change.
§ 11 Industrial Property Rights
1. ANZAPLAN retains all rights, specifically the title or copyright and other industrial rights to all bids, quotations, proposals, reports, cost estimates and studies which it has submitted as well as all drawings, drafts, plans, processes, designs, flow sheets, process parameters, reports, calculations, brochures, catalogues, models, tools, machine designs and other documents and aids as well as information placed at the disposal of the contracting party. The contracting party may not make these documents and information, either as such or in regard to its content, industrially or commercially accessible to third parties, disclose them, use them themselves or through third parties or reproduce them without the express consent of ANZAPLAN. At the request of ANZAPLAN they must return these documents and information in full to ANZAPLAN and destroy any copies they may have made or specifically, in the case of electronic storage, destroy these irreparably if no longer required by them in the course of normal business, or if negotiations do not result in the conclusion of a contract.
2. The transmission of the documents and information mentioned in section 1. shall not be considered as an offer or a granting of licences or other beneficial rights in relation to the contracting party. The contracting party is not permitted to market, sell, further develop or change the processes based on the documents and information for its own or third-party purposes without the prior written consent of ANZAPLAN. The contracting party is prohibited from using the documents and information or parts thereof for the application of intellectual property protection of any kind, either in Germany or abroad.
3. The contracting party undertakes not to copy, reproduce, republish, make available or transmit the documents and information mentioned in section 1. for their own or third-party commercial purposes or to use them for the creation of derivative works or in any other form whatsoever for industrial or commercial purposes without the prior written consent of ANZAPLAN.
4. The contracting party is only permitted to use the trademarks, brands and other logo or other patent rights with the prior written consent of ANZAPLAN and only in the interests of ANZAPLAN.
5. The contracting party shall procure that third-party industrial property rights are not infringed by their supply of materials or instructions in relation to form, measurements, color, weight, quality or comparable parameters. The contracting party shall indemnify ANZAPLAN against all claims by third parties, including all court costs and other costs which result from an infringement of the aforementioned rights.
§ 12 Liability and limitation of Liability
1. Any liability of ANZAPLAN for damages, for whatever legal reason, in particular because of impossibility, delay, defected or incorrect delivery, breach of contract, infringement of obligations during contract negotiations and wrongful acts shall be limited subject to this § 12 to the extent that this depends on fault.
2. ANZAPLAN shall not be liable in the event of simple negligence to the extent that ANZAPLAN does not infringe essential contractual obligations. Essential contractual obligations shall be obligations that must be fulfilled to enable the correct execution of the agreement and which the customer may usually trust and may trust that it will be fulfilled.
3. To the extent ANZAPLAN GmbH is liable for damages according to § 12 section 2, the liability shall be limited to damages which ANZAPLAN GmbH foresaw as possible consequences of an infringement of contract during conclusion of the contract or should have foreseen taking into consideration the circumstances known to it or which it should have known, applying due diligence. Furthermore, indirect or consequential damages resulting from the defects of the delivery item shall only be eligible for compensation if such damages are typically to be expected when the delivery item is used for its intended purpose.
4. In cases of liability for simple negligence, the liability to pay damages for property damages and further financial losses resulting therefrom shall be limited to the contract value per event of damage or loss.
5. To the extent that ANZAPLAN GmbH provides technical information or advice, and if such information or such advice is not part of its contractually stipulated scope of services, such information and such advice is provided free of charge and with the exclusion of any legal liability.
6. The limitations of this § 12 shall, however, not apply to ANZAPLAN’s liability for injury to life, limb, or health, other compensatory damage claims based on intent or gross negligence as well as claims under the German Product Liablity Act.
§ 13 Data Protection
1. The parties mutually undertake to treat in confidence information and data which they have received in the context of the implementation of the joint project from the respective other party and to only make these available to such persons who are practically involved in the implementation of the joint project. The parties specifically undertake to use the information only for the contemplated purpose and not to disclose or make available the information to any third party without prior written consent of the other party.
2. Any passing on of information to third parties is only admissible if a non- disclosure agreement has been concluded with these persons through which the adherence to the non-disclosure obligations is guaranteed under § 13, to the extent that they are not already sworn to secrecy on the basis of legal covenants.
3. Upon the written request of the disclosing party, the recipient shall promptly destroy or return all Confidential Information to the disclosing party, including copies thereof. Notwithstanding the foregoing, nothing herein shall require the recipient to return or destroy any copies of the disclosing party’s confidential Information that (i) are retained by recipient’s legal counsel in order to comply with any law, regulation or court order, or for archival purposes as a means of determining any continuing obligation under this Agreement, or (ii) are stored on electronic back-up media made in the ordinary course of business; provided, however, any such retained copies shall remain subject to the terms of this Agreement for as long as they are retained, notwithstanding termination or expiration of this Agreement.
4. The aforementioned agreements relate to all information which is ex- changed between the parties during, or prior to the formation of the business relationships in any form whatsoever or which becomes known to the respective other party in any other way.
5. The parties undertake to mutually protect the received information from access by unauthorized third parties with the care with which they protect their own business and industrial secrets.
6. The transmission of the information shall not be considered as an offer or a granting of licences or other beneficial rights to the information in relation to the other party. ANZAPLAN GmbH reserves the right to register propriety rights to its information. The contracting party may not use information or parts thereof for the registration of patent rights on intangible assets.
7. The aforementioned obligations in sections 1. to 6. are not applicable to information
7.a. which was already generally accessible and evident at the time of its notification,
7.b. which becomes generally accessible and evident after its notification through publications by third parties or elsewhere by other means than by infringement of this agreement,
7.c. which the respective party already legitimately possessed at the time of its notification,
7.d. which one party is required to disclose under applicable laws or a legally effective ruling. Also in this case it shall be procured that strictest confidentiality is maintained as circumstances require.
7.e. The above-mentioned exceptions in lit. a) and lit. b) shall not apply if the individual pieces of information are known on their own, but not a combination of both. The same applies if the information is known, but not its transferability to other areas of application.
7.f. The burden of proof shall be borne by such party that invokes the exceptions as mentioned hereinbefore. Each of the Parties is required to inform the other Party without delay in writing, should it believe it is able to utilize or is forced to utilize one of the exceptions.
8. ANZAPLAN shall not accept any guarantee in relation to the disclosed information, especially not in relation to its freedom from errors, completeness or usability. ANZAPLAN will likewise not guarantee that the use of the confidential information does not infringe third- party patent rights or copyrights, or does not cause any damage to the respective other party or third parties.
9. The parties are each aware that this information was previously neither known in its entirety nor in its details or readily accessible, and is therefore of economic value, protected by appropriate secrecy measures on the part of the respective holder of the information and in which there is a legitimate interest in its secrecy.
§ 14 Governing Law, Place of Jurisdiction, Severability Clause
1. Contradicting general terms and conditions of the contracting party shall not apply.
2. The business relationship including any questions of establishment and effectiveness of agreements shall be governed by the laws of the Federal Republic of Germany without regard to conflict of law principles or the UN Convention on the International Sale of Goods (CISG).
3. Any controversy, claim or dispute arising out of or related to the business relationship, or breach of any contractual obligations, shall be resolved by arbitration to take place in Munich, Germany, Arbitration shall be conducted under the Rules of Arbitration of the International Chamber of Commerce, Paris, as amended from time to time, by one or three arbitrators appointed in accordance with the said rules. The arbitration proceedings shall be held in the English language.
4. If any term of these Terms and Conditions or a term of any other agreement should be invalid or become so, this shall not affect the validity of the remaining terms or agreements. In this case, ANZAPLAN and the contractual partner shall replace the invalid term with a legally valid term whose contents come as close as possible to the economic purpose of the invalid term.