Other

February 2013
General Terms and Conditions of Business of TÜV Rheinland in Greater China
1. Scope
1.1 These General Terms and Conditions of Business of TUV
Rheinland in Greater China is made between the client and one
or more member entities of TUV Rheinland in Greater China as
applicable as the case may be (“TÜV Rheinland”).
1.2 The following terms and conditions apply to agreed services
including consultancy services, information, deliveries and
similar services as well as ancillary services and other
secondary obligations provided within the scope of contract
performance.
1.3 Any standard terms and conditions of the client of any nature
shall not apply and shall hereby be expressly excluded. No
standard contractual terms and conditions of the client shall
form part of the contract even if TÜV Rheinland does not
explicitly object to them.
2. Quotations
Unless otherwise agreed, all quotations submitted by TÜV
Rheinland can be changed by TÜV Rheinland without notice
prior to its acceptance and confirmation by the other party.
3. Coming into effect and duration of contracts
3.1 The contract shall come into effect for the agreed terms upon
the quotation letter of TÜV Rheinland or a separate contractual
document being signed by both contracting parties, or upon the
works requested by the client being carried out by TÜV
Rheinland. If the client instructs TÜV Rheinland without
receiving a quotation from TÜV Rheinland (quotation), TÜV
Rheinland is, in its sole discretion, entitled to accept the order
by giving written notice of such acceptance (including notice
sent via electronic means) or by performing the requested
services.
3.2 The contract term starts upon the coming into effect of the
contract in accordance with article 3.1 and shall continue for
the term agreed in the contract.
3.3 If the contract provides for an extension of the contract term, the
contract term will be extended by the term provided for in the
contract unless terminated in writing by either party with a six-
week notice prior to the end of the contractual term.
4. Scope of services
4.1 The scope of the services shall be decided solely by a
unanimous declaration issued by both parties. If no such
declaration exists, then the written confirmation of order by
TÜV Rheinland shall be decisive.
4.2 The agreed services shall be performed in compliance with the
regulations in force at the time the contract is entered into.
4.3 TÜV Rheinland is entitled to determine, in its sole discretion, the
method and nature of the assessment unless otherwise agreed
in writing or if mandatory provisions require a specific
procedure to be followed.
4.4 On execution of the work there shall be no simultaneous
assumption of any guarantee of the correctness (proper quality)
and working order of either tested or examined parts nor of the
installation as a whole and its upstream and/or downstream
processes, organisations, use and application in accordance
with regulations, nor of the systems on which the installation is
based. In particular, TÜV Rheinland shall assume no
responsibility for the construction, selection of materials and
assembly of installations examined, nor for their use and
application in accordance with regulations unless these
questions are expressly covered by the contract.
4.5 In the case of inspection work, TÜV Rheinland shall not be
responsible for the accuracy or checking of the safety
programmes or safety regulations on which the inspections are
based, unless otherwise expressly agreed in writing.
5. Performance periods/dates
5.1 The contractually agreed periods/dates of performance are
based on estimates of the work involved which are prepared in
line with the details provided by the client. They shall only be
binding if being confirmed as binding by TÜV Rheinland in
writing.
5.2 If binding periods of performance have been agreed, these
periods shall not commence until the client has submitted all
required documents to TÜV Rheinland.
5.3 Articles 5.1 and 5.2 also apply, even without express approval
by the client, to all extensions of agreed periods/dates of
performance not caused by TÜV Rheinland.
6. The client’s obligation to cooperate
6.1 The client shall guarantee that all cooperation required on its
part, its agents or third parties will be provided in good time and
at no cost to TÜV Rheinland.
6.2 Design documents, supplies, auxiliary staff, etc. necessary for
performance of the services shall be made available free of
charge by the client. Moreover, collaborative action of the client
must be undertaken in accordance with legal provisions,
standards, safety regulations and accident prevention
instructions.
6.3 The client shall bear any additional cost incurred on account of
work having to be redone or being delayed as a result of late,
incorrect or incomplete information provided by or lack of
proper cooperation from the client. Even where a fixed or
maximum price is agreed, TÜV Rheinland shall be entitled to
charge extra fees for such additional expense.
7. Invoicing of work
7.1 If the scope of performance is not laid down in writing when the
order is placed, invoicing shall be based on costs actually
incurred. If no price is agreed in writing, invoicing shall be made
in accordance with the price list of TÜV Rheinland valid at the
time of performance.
7.2 Unless otherwise agreed, work shall be invoiced according to
the progress of the work.
7.3 If the execution of an order extends over more than one month
and the value of the contract or the agreed fixed price exceeds
€2,500.00 or equivalent value in local currency, TÜV Rheinland
may demand payments on account or in instalments.
8. Payment terms
8.1 All invoice amounts shall be due for payment without deduction
on receipt of the invoice. No discounts shall be granted.
8.2 Payments shall be made to the bank account of TÜV Rheinland
as indicated on the invoice, stating the invoice and customer
numbers.
8.3 In cases of default of payment, TÜV Rheinland shall be entitled
to claim default interest at the applicable short term loan
interest rate publicly announced by a reputable commercial
bank in the country where TÜV Rheinland is located. At the
same time, TÜV Rheinland reserves the right to claim further
damages.
8.4 Should the client default in payment of the invoice despite being
granted a reasonable grace period, TÜV Rheinland shall be
entitled to cancel the contract, withdraw the certificate, claim
damages for non-performance and refuse to continue
performance of the contract.
8.5 The provisions set forth in article 8.4 shall also apply in cases
involving returned cheques, cessation of payment,
commencement of insolvency proceedings against the client’s
assets or cases in which the commencement of insolvency
proceedings has been dismissed due to lack of assets.
8.6 Objections to the invoices of TÜV Rheinland shall be submitted
in writing within two weeks of receipt of the invoice.
8.7 TÜV Rheinland shall be entitled to demand appropriate advance
payments.
8.8 TÜV Rheinland shall be entitled to raise its fees at the beginning
of a month if overheads and/or purchase costs have increased.
In this case, TÜV Rheinland shall notify the client in writing of
the rise in fees. This notification shall be issued one month
prior to the date on which the rise in fees shall come into effect
(period of notice of changes in fees). If the rise in fees remains
under 5% per contractual year, the client shall not have the
right to terminate the contract. If the rise in fees exceeds 5%
per contractual year, the client shall be entitled to terminate the
contract by the end of the period of notice of changes in fees. If
the contract is not terminated, the changed fees shall be
deemed to have been agreed upon by the time of the expiry of
the notice period.
8.9 Only legally established and undisputed claims may be offset
against claims by TÜV Rheinland.
9. Acceptance
9.1 Any part of the work ordered which is complete in itself may be
presented by TÜV Rheinland for acceptance as an instalment.
The client shall be obliged to accept it immediately.
9.2 If the client fails to fulfil its acceptance obligation immediately,
acceptance shall be deemed to have taken place 4 calendar
weeks after completion of the work provided that TÜV
Rheinland has specifically made the client aware of the
aforementioned deadline upon completion of the work.
10. Confidentiality
10.1 For the purpose of these terms and conditions, “confidential
information” means all information, documents, images,
drawings, know-how, data, samples and project documentation
which one party (the “disclosing party”) hands over, transfers or
otherwise discloses to the other party (the “receiving party”).
Confidential information also includes paper copies and
electronic copies of such information.
10.2 The disclosing party shall mark all confidential information
disclosed in written form as confidential before passing it onto
the receiving party. The same applies to confidential
information transmitted by e-mail. If confidential information is
disclosed orally, the receiving party shall be appropriately
informed in advance and the disclosing party shall cconfirm in
writing the confidentiality nature of the information within five
working days of oral disclosure. Where the disclosing party fails
to do so within the stipulated period, the receiving party shall
not take any confidentiality obligations hereunder towards such
information.
10.3 All confidential information which the disclosing party transmits
or otherwise discloses to the receiving party during
performance of work by TÜV Rheinland:
a) may only be used by the receiving party for the
purposes of performing the contract, unless expressly
otherwise agreed in writing by the disclosing party;
b) may not be copied, distributed, published or otherwise
disclosed by the receiving party, unless this is necessary for
fulfilling the purpose of the contract or TÜV Rheinland is
required to pass on confidential information, inspection reports
or documentation to the government authorities, judicial court,
accreditation bodies or third parties that are involved in the
performance of the contract;
c) must be treated by the receiving party with the same
level of confidentiality as the receiving party uses to protect its
own confidential information, but never with a lesser level of
confidentiality than that which is reasonably required.
10.4 The receiving party may disclose any confidential information
received from the disclosing party only to those of its
employees who need this information to perform the services
required for the contract. The receiving party undertakes to
oblige these employees to observe the same level of secrecy
as set forth in this confidentiality clause.
10.5 Information for which the receiving party can furnish proof that:
a) it was generally known at the time of disclosure or has
become general knowledge without violation of this
confidentiality clause by the receiving party; or
b) it was disclosed to the receiving party by a third party
entitled to disclose this information; or
c) the receiving party already possessed this information
prior to disclosure by the disclosing party; or
d) the receiving party developed it itself, irrespective of
disclosure by the disclosing party, shall not be deemed to
constitute “confidential information” as defined in this
confidentiality clause.
10.6 All confidential information shall remain the property of the
disclosing party. The receiving party hereby agrees to
immediately (i) return all confidential information, including all
copies, to the disclosing party, and/or (ii) on request by the
disclosing party, to destroy all confidential information,
including all copies, and confirm the destruction of this
confidential information to the disclosing party in writing, at any
time if so requested by the disclosing party but at the latest and
without special request after termination or expiry of the
contract. This does not extend to include reports and
certificates prepared for the client solely for the purpose of
fulfilling the obligations under the contract, which shall remain
with the client. However, TÜV Rheinland is entitled to make file
copies of such reports, certificates and confidential information
that forms the basis for preparing these reports and certificates
in order to evidence the correctness of its results and for
general documentation purposes required by laws, regulations
and the requirements of working procedures of TÜV Rheinland.
10.7 From the start of the contract and for a period of three years
after termination or expiry of the contract, the receiving party
shall maintain strict secrecy of all confidential information and
shall not disclose this information to any third parties or use it
for itself.
11. Copyrights
11.1 TÜV Rheinland shall retain all exclusive copyrights in the expert
reports, test results, calculations, presentations etc. prepared
by TÜV Rheinland.
11.2 The client may only use such expert reports, test results,
calculations, presentations etc. prepared within the scope of
the contract for the contractually agreed purpose.
11.3 The client may use test reports, test results, expert reports, etc.
only complete and unshortened. Any publication or duplication
for advertising purposes needs the prior written approval of
TÜV Rheinland.
12. Liability of TÜV Rheinland
12.1. Irrespective of the legal basis, in the event of a breach of
contractual obligations or tort, the liability of TÜV Rheinland for
all damages, losses and reimbursement of expenses caused
by TÜV Rheinland, its legal representatives and/or employees
shall be limited to: (i) in the case of a contract with a fixed
overall fee, three times the overall fee for the entire contract; (ii)
in the case of a contract for annually recurring services, the
agreed annual fee; (iii) in the case of a contract expressly
charged on a time and material basis, a maximum of 20,000
Euro or equivalent amount in local currency; and (iv) in the
case of a framework agreement that provides for the possibility
of placing individual orders, three times of the fee for the
individual order under which the damages or losses have
occurred. Notwithstanding the above, in the event that the total
and accumulated liability calculated according to the foregoing
provisions exceeds 2.5 Million Euro or equivalent amount in
local currency, the total and accumulated liability of TÜV
Rheinland shall be only limited to and shall not exceed the said
2.5 Million Euro or equivalent amount in local currency.
12.2 The limitation of liability according to article 12.1 above shall not
apply to damages and/or losses caused by malice, intent or
gross negligence on the part of TÜV Rheinland or its vicarious
agents. Such limitation shall not apply to damages for a
person’s death, physical injury or illness.
12.3 In cases involving a fundamental breach of contract, TÜV
Rheinland will be liable even where minor negligence is
involved. For this purpose, a “fundamental breach” is breach of
a material contractual obligation, the performance of which
permits the due performance of the contract. Any claim for
damages for a fundamental breach of contract shall be limited
to the amount of damages reasonably foreseen as a possible
consequence of such breach of contract at the time of the
breach (reasonably foreseeable damages), unless any of the
circumstances described in article 12.2 applies.
12.4 TÜV Rheinland shall not be liable for the acts of the personnel
made available by the client to support TÜV Rheinland in the
performance of its services under the contract, unless such
personnel made available is regarded as vicarious agent of
TÜV Rheinland. If TÜV Rheinland is not liable for the acts of
the personnel made available by the client under the foregoing
provision, the client shall indemnify TÜV Rheinland against any
claims made by third parties arising from or in connection with
such personnel’s acts.
12.5 The limitation periods for claims for damages shall be based on
statutory provisions.
12.6 None of the provisions of this article 12 changes the burden of
proof to the disadvantage of the client.
13. Partial invalidity, written form, place of jurisdiction and
dispute resolution
13.1 All amendments and supplements must be in writing in order to
be effective. This also applies to amendments and
supplements to this clause 13.1.
13.2 Should one or several of the provisions under the contract
and/or these terms and conditions be or become ineffective,
the contracting parties shall replace the invalid provision with a
legally valid provision that comes closest to the content of the
invalid provision in legal and commercial terms.
13.3 Unless otherwise stipulated in the contract, the governing law
of the contract and these terms and conditions shall be chosen
following the rules as below:
a) if TÜV Rheinland in question is legally registered and
existing in the People’s Republic of China, the contracting
parties hereby agree that the contract and these terms and
conditions shall be governed by the laws of the People’s
Republic of China.
b) if TÜV Rheinland in question is legally registered and
existing in Taiwan, the contracting parties hereby agree that the
contract and these terms and conditions shall be governed by
the laws of Taiwan.
c) if TÜV Rheinland in question is legally registered and
existing in Hong Kong, the contracting parties hereby agree
that the contract and these terms and conditions shall be
governed by the laws of Hong Kong.
13.4 Any dispute in connection with the contract and these terms and
conditions or the execution thereof shall be settled friendly
through negotiations.
Unless otherwise stipulated in the contract, if no settlement or
no agreement in respect of the extension of the negotiation
period can be reached within two months of the arising of the
dispute, the dispute shall be submitted:
a) in the case of TÜV Rheinland in question being legally
registered and existing in the People’s Republic of China, to
China International Economic and Trade Arbitration
Commission (CIETAC) to be settled by arbitration under the
Arbitration Rules of CIETAC in force when the arbitration is
submitted. The arbitration shall take place in Beijing, Shanghai,
Shenzhen or Chongqing as appropriately chosen by the
claiming party.
b) in the case of TÜV Rheinland in question being legally
registered and existing in Taiwan, to Chinese Arbitration
Association Taipei Branch to be arbitrated in accordance with
its then current Rules of Arbitration. The arbitration shall take
place in Taipei.
c) in the case of TÜV Rheinland being legally registered
and existing in Hong Kong, to Hong Kong International
Arbitration Centre (HKIAC) to be settled by arbitration under the
HKIAC Administered Arbitration Rules in force when the Notice
of Arbitration is submitted in accordance with these rules. The
arbitration shall take place in Hong Kong.
The decision of the relevant arbitration tribunal shall be final
and binding on both parties. The arbitration fee shall be borne
by the losing party.