adTerms & Conditions of Contract and Use (Terms & Conditions of Business) governing Analysis of Foaming Agent

Status 19 March 2018

1. General, scope, language

1. We, the Fabrik chemischer Präparate von Dr. Richard Sthamer GmbH & Co. KG, Liebigstrasse 5, 22113 Hamburg, Tel.: +49 (0)40 7361680, entered in the Commercial Register of Hamburg District Court under HRA 10945, VAT No. DE 118872866, represented by Sthamer Verwaltungsgesellschaft mbH, entered in the Commercial Register of Hamburg District Court under HRA 69047, offer our customers foaming-agent analyses of fire-extinguishing agents via our online platform. All offers and contracts pursuant to orders by our customers via our online platform www.sthamer-analysis.com (“online platform”) are subject to these Terms & Conditions of Contract and Use (“Terms & Conditions of Business”) in their version in force at the time of the order.

   Any terms and conditions of business to contrary effect issued by the customer shall not be recognised, even if we do not separately dissent in the individual case.

2. Our facilities on our online platform are intended solely for traders. A trader is a natural person or legal entity or legally competent partnership which, in conclusion of contract, acts in exercise of its commercial or independent professional activity (Section 14, Paragraph 1 of the German Civil Code (BGB)).
3. Contracts with the customer shall be concluded solely in the German or English language. The English version of these Terms & Conditions of Business shall be only a translation of the German version of the said Terms & Conditions of Business. In case of doubt the German version of the said Terms & Conditions of Business shall have priority.

2. Conclusion of contract

1. Our offers on the online platform shall be non-binding.

   By submitting an order in the online shop, the customer is making us a binding offer to analyse the sample which is still to be sent, using the analysis package selected.

2. The contract shall be created only upon dispatch by us via e-mail of the order confirmation, containing an overview of order and a QR code. We can accept the offer up to expiry of the fifth working day following the day of the offer. The QR code contained in the order confirmation must be affixed to the sample, so that the sample can be identified correctly on our part.
3. Sufficient marking with the QR code shall be a prior condition for processing the sample, in order to ensure proper allocation of the same.
4. Should no analysis be possible at the time when the customer submits the order, we shall not send a declaration of acceptance and shall notify the customer thereof. In this case no contract shall be created.

3. Subject of contract

1. The subject of the contract with the customer shall be the analysis of the sample of the fire-extinguishing agent which the customer has sent us, to be carried out in the way selected by the customer in the analysis package.
2. We can only analyse samples which are duly and properly taken and testable. Should a sample sent by the customer not be testable, we shall be entitled to dispose of the said sample as waste without referring the matter to the customer. We shall inform the customer thereof subsequently.
3. The basis for the analysis shall be solely the intended purpose stated by the customer in the order.
4. We shall test the sample of foaming agent sent to us by the customer solely in accordance with the analysis package selected by the customer. We shall have no duty to check the proper nature or condition of the sample nor its suitability for the intended purpose as stated.
5. Selection of the analysis package by the customer shall be on his own responsibility. It shall not be our task to check whether the analysis package selected by the customer meets the statutory requirements governing scrutiny of the sample sent to us by the customer or is adequate with regard to the intended use of the fire-extinguishing agent.

4. Rights and duties of customer

1. It shall be the customer’s obligation to take the sample on his own responsibility in a due and proper way, to mark it with the QR code, and to send it to us at his own cost and risk.
2. The customer must select the desired analysis package duly and properly and on his sole responsibility in accordance with the options for selection on the online platform and commission us to undertake the same.
3. The customer shall have a duty to supply us in good time and free of charge with all information and documentation which we need in order to carry out the foaming-agent analysis. The customer hereby further agrees to notify us immediately of any changes which are of relevance to the foaming-agent analysis.

5. Our rights and duties

1. We shall analyse the sample sent to us in accordance with the analysis package selected by the customer and stated on the online platform.
2. In carrying out the type of analysis under the terms of the analysis package, we shall not be bound by the customer’s instructions.
3. We shall inform the customer of the results of the analysis by e-mail. Within Germany we shall send the results of the analysis by post should the customer inform us of his wish upon issue of order prior to carrying out the analysis.
4. Any delivery dates which we have stated for the results of the analysis (“analysis time”) shall be non-binding guidelines, calculated from the time when the properly marked and testable sample has been received, assuming previous payment of the analysis charge (except in case of purchase on account). Should no analysis time, or no different analysis time, be stated for the analysis concerned via our online platform, the non-binding analysis time shall be 21 days. In determining whether the analysis time has been met, the day on which the e-mail was dispatched, or alternatively the day on which the written analysis results were handed over to the post, shall be decisive.
5. Periods and dates of delivery time for the analysis results shall always be approximate and may be exceeded by up to seven working days.
6. After the analysis has been carried out, we shall dispose of the sample as waste 14 days following dispatch of the analysis results.

6. Prices, shipment costs and payment

1. All prices stated on our online platform are exclusive of the statutory Value Added Tax (net) in force for the time being.
2. Should the customer have selected postal delivery as the delivery method for the analysis results within Germany, we shall pay the delivery costs for the same. The customer shall bear the risk of carriage.
3. Our invoices shall be due for payment within 10 working days following dispatch of the analysis results and receipt of the invoice by the customer (within Germany). Customers outside Germany shall be subject to any terms and conditions of payment to the contrary agreed with the customer in question.
4. The customer shall enjoy no right of offset or retention unless the counterclaim is undisputed or has been finally adjudicated at law.

7. Liability

1. We shall be liable without limitation for loss or damage due to a deliberately intentional or grossly negligent breach of duty. In case of a breach of duty resulting from minor negligence we shall be liable only for breach of a cardinal contractual duty, restricted to the foreseeable, contractually typical, direct average loss. This shall also apply to a breach of duty due to minor negligence by our legal representatives, employees or other vicarious agents. Cardinal duties shall be all contractual duties whose fulfilment is a sine qua non for the due and proper execution of this contract and compliance wherewith is a condition in which the contracting partner may normally trust.
2. The foregoing limitations of liability shall not apply to claims by the customer for fraudulent concealment of a defect, under a quality guarantee which has been taken over, under the German Product Liability Act, or to any injury to life, limb or health for which we, our legal representatives or vicarious agents are culpable.
3. Our analysis results are intended solely for the customer. Should the customer pass on the analysis results to third parties, it shall undertake liability for any loss sustained by third parties due to the analysis results. The customer shall release us accordingly from liability claims by third parties.
4. Insofar as liability for damages is excluded or restricted on our behalf, this shall also apply to the personal liability for damages of our employees, staff, workers, representatives and vicarious agents.

8. Data protection

1. We shall collect, process and use the personal data referring to each of the contracts with the customer insofar as this is necessary to execute and manage the contract concluded with the customer and as long as we have a duty to store these data pursuant to statutory regulations. To carry out precontractual actions and to perform the contract concluded with the customer, the collection, processing and use of the following information is necessary, pursuant to Article 6, Paragraph 1 (b) of the General Data Protection Regulation (GDPR): trading name, VAT number, name of personal contact, address of company, e-mail address and personal contact’s telephone number.
2. We shall be entitled, as far as the law allows, to transmit these personal data to third parties, providing and insofar as this is necessary to carry out precontractual actions and to perform the contract (such as couriers, invoice issue), based on Article 6, Paragraph 1 (b) of the GDPR, or to fulfil a legal duty under Article 6, Paragraph 1 (c) of the GDPR.
3. Any further processing or use of personal data other than that set out in Paragraphs (1) and (2) shall only be made insofar as a legal regulation so requires or allows, or the customer has given his express consent thereto.
4. The personal data shall be erased by us upon expiry of the statutory retention periods at latest, i.e. upon the expiry of 10 years, beginning from conclusion of contract.
5. Under legal regulations you have the right to require us to provide information and to undertake correction, blocking, restriction of processing and/or erasure or transmission to a third party with regard to such personal data as are stored referring to you. If you have issued us with a declaration of consent to use your personal data, you can rescind this consent at any time with effect for the future. You also have the right to complain to a supervisory authority.
6. You will find more detailed information about how your personal data are handled, and about the rights which you enjoy, in our Data Protection Notice.

9. Applicable law, place of jurisdiction, proviso

1. The contract subsisting between ourselves and the customer shall, subject always to compulsory international rules of private law, be governed solely by the law of the Federal Republic of Germany, to the exclusion of UN sale and purchase law.
2. Should the customer be a merchant, a legal entity under public law or a special public asset, the sole place of jurisdiction for all disputes arising from or in connection with the contractual relations in question shall be Hamburg.
3. Should any single provisions of these Terms & Conditions of Business be or become invalid, whether wholly or in part, the validity of all other provisions shall not be affected thereby. The wholly or partly invalid regulations shall be replaced by such a regulation as approaches most nearly to the commercial purpose of the contract, while maintaining the interests of both Parties.
4. Should the contract with the customer or these Terms & Conditions of Business contain regulatory lacunae, to fill these lacunae those legally effective regulations shall be deemed to be agreed which the contracting partners would have agreed, pursuant to the commercial objectives of the contract and the purpose of these Terms & Conditions of Business, if they had been cognizant of the said lacuna