1. Scope

1.1 The following General Terms and Conditions (GTAC) apply to the services provided by intellcert GmbH (hereinafter referred to as “intellcert”) to the client (both together hereinafter referred to as the “Parties”). These services include ancillary services and other additional obligations provided within the scope of the contract execution (referred to collectively as “Services”).

1.2 Both individuals and businesses may be considered clients according to these GTAC. An individual is defined as a natural person who engages in a legal transaction with intellcert primarily for non-commercial or non-self-employed professional purposes (§ 13 BGB). A business is defined as a natural or legal person or partnership with legal capacity that engages in a legal transaction with intellcert in the course of its commercial or self-employed professional activity (§ 14 BGB). Furthermore, public law entities and special funds under public law are also considered businesses under these conditions.

1.3 Any conflicting or deviating terms and conditions presented by the client are not applicable and are explicitly excluded. Even if intellcert does not expressly object to them, accepts payments from the client without reservation, or provides the Services without reservation, the client’s general terms and conditions will not become part of the contract.

1.4 These GTAC shall also apply to future contracts with the same clients in the context of an ongoing business relationship, without the need for intellcert to explicitly refer to them in each individual case.

1.5 When these GTAC refers to the term “accreditor,” it also includes authorization and recognition organizations. The terms “accreditation specifications,” “accreditation requirements,” and “accreditation procedures” shall be interpreted accordingly to the specifications and procedures of the authorization or recognition organizations.

1.6 When these GTAC mentions a written form requirement, the text form as defined in § 126b BGB is sufficient to meet the written form requirement.

1.7 Any individual agreements made between intellcert and the client in specific cases (including additional agreements, supplements, and amendments) shall prevail over these GTAC. Unless proven otherwise, the content of such agreements shall be determined by a written contract or written confirmation from intellcert.

1.8 Prior to entering the contract and commencing any service realization activities, intellcert has the right to conduct a credit check through a credit agency (such as Creditreform). The customer explicitly agrees to this procedure. Additionally, the customer consents to the transmission of the personal data (deviating from the provisions of Section 16 if necessary) to the credit agency, to the extent necessary for this purpose.

In the event of a negative credit check, the intellcert reserves the right to modify the payment terms and objectives, or to decline the order entirely. The customer will be promptly notified of this decision by the intellcert, and if required, a corresponding invoice will be issued. If the order is only fulfilled upon receipt of advance payment, the contract’s conclusion is contingent upon the fulfillment of a condition precedent (§ 158 Para. 1 BGB), namely the intellcert’s complete receipt of payment.”

2. Quotation and Conclusion of Contract; Contract Duration

2.1 The contract is established when both contracting parties sign the offer letter from intellcert or a separate contract document, or when intellcert provides the requested Services to the client. If the client engages intellcert without a prior offer from intellcert, intellcert reserves the right to accept the order at its sole discretion through a written declaration of acceptance or by delivering the ordered Services.

2.2 If a specific contract duration has been agreed upon, it will be based on the terms stated in the offer or contract provided by intellcert. If the contract is not terminated in writing by either party three (3) months prior to its expiration date, the agreed term will be extended for the duration specified in the offer or contract.

3. Service Provision and Scope of Services

3.1 The specific scope and nature of the services to be provided by intellcert are defined in the contractually agreed service description. If no separate service description is available, the most recent offer from intellcert determines the services to be provided. Changes to the service description must be agreed upon in writing. Services that are not within the scope of the service description are not included, unless expressly specified in the order.

3.2 Unless otherwise agreed in writing or required by mandatory regulations, intellcert has the authority to determine the method of service provision, including the discretion to conduct examinations or tests.

3.3 If there are changes in mandatory legal regulations, standards, or official requirements pertaining to the agreed services after the contract is concluded, intellcert is entitled to additional compensation to cover the resulting additional expenses.

3.4 Unless contractually agreed, intellcert does not guarantee the accuracy of safety programs or safety regulations provided by the client or third parties, upon which the tests are based.

3.5 The services provided under the contract are exclusively agreed upon with the client. Contacting intellcert’s services by third parties, as well as relying on and sharing the performance results with third parties, are not part of the agreed services. This also applies if the client shares performance results, in full or in part, with third parties in accordance with Clause 10.4.

3.6 Unless expressly agreed upon in writing, specifically naming the third party, the contract does not extend its protection to third parties.

4. Cooperation Obligations of the Client

4.1 The client is responsible for carrying out all necessary cooperation measures and providing the information required for the provision of contractual services in accordance with the agreement. It is the client’s responsibility to ensure that all necessary cooperation actions, provisions, and information from their side, their authorized representatives, or other third parties assigned by them are provided in a timely manner and at no cost to intellcert.

4.2 All cooperation, provisions, and information mentioned in Clause 4.1 must adhere to relevant legal regulations, standards, safety regulations, and accident prevention regulations.

4.3 The client shall bear any additional costs incurred due to the need for service repetition or delays caused by delayed, incorrect, or incomplete information or inadequate cooperation attributable to the client. Even if a lump sum or maximum price has been agreed upon, intellcert is entitled to invoice these additional costs.

5. Performance Periods/Dates

5.1 The performance periods and dates stated in the contract are generally non-binding, unless explicitly designated as binding in the contract.

5.2 If there is a delay in performance, the client may only terminate the contract in accordance with applicable legal provisions if intellcert is responsible for the delay. Any statutory termination rights (e.g., as per §§ 648 f. BGB) remain unaffected. Intellcert shall not be held accountable for a delay in performance, particularly if the client has failed to fulfill its cooperation obligations outlined in Clause 4.1 or has not done so in a timely manner. This includes providing intellcert with all necessary documents and information required for the service as specified in the contract.

5.3 If the client is obligated to comply with legal, official, and/or accreditor-prescribed deadlines, it is the client’s responsibility to coordinate performance dates with intellcert in a manner that allows the client to meet the required deadlines. Intellcert assumes no responsibility in this regard, unless there is a written agreement explicitly stating that ensuring compliance with the deadlines is intellcert’s contractual obligation.

6. Prices; Invoicing of Services

6.1 If a fixed lump sum price has been agreed upon in the contract between intellcert and the client, it will be invoiced accordingly. In cases where the full scope of services is not explicitly defined in writing at the time of contract conclusion, the services provided by intellcert will be invoiced based on the time expended and the agreed fee stated in the contract. If the fee amount is not specified in writing within the contract, invoicing will be based on the intellcert price list applicable at the time of service provision, which can be provided to the client upon request.

6.2 Unless otherwise stated in written form, the agreed price is subject to the applicable value-added tax. Partial acceptance of the services is possible, and in such cases, partial payment is due upon successful acceptance of the individual work components.

6.3 intellcert has the right to request down payments for services that have already been provided in accordance with the contract. The down payment amount will correspond to the value of the services provided and owed under the contract.

6.4 The provisions of § 632a para. 1 sentences 2 to 5 of the German Civil Code (BGB) shall be applicable in this regard.

7. Payment Terms and Costs

7.1 The client is obligated to make the payment within two weeks after receiving the respective invoice.

7.2 In the case of delayed payment, the customary bank interest rates may be charged for the period between the payment due date and receipt of funds. The same applies to costs incurred for issuing payment reminders or collection notices.

7.3 If the client fails to make the payment despite reminders and notices after the due date, intellcert has the right to terminate the contract immediately. Regardless of any potential contract termination by the intellcert, the client is still required to pay for services already rendered.

7.4 Any objections to the invoices must be communicated to intellcert in writing and with justification within a period of 10 days after receiving the invoice.

7.5 If the client cancels or reschedules a confirmed service appointment within 10 business days before the agreed date, intellcert reserves the right to immediately charge a lump-sum compensation of 15% of the contract amount as a reimbursement for expenses.

7.6 The provision in Section 7.5 shall apply mutatis mutandis if the scheduled dates for auditing/service provision within the framework of a certification process cannot be utilized by the client, leading to the revocation of the certificate (for example, in the case of planned surveillance audits).

8. Acceptance

8.1 When contractual services are agreed upon or when acceptance of the work is contractually specified, the client is obligated to promptly accept the completed work upon notification, even in the case of partial performance or completion of distinct parts. The client is responsible for the costs associated with the acceptance process.

8.2 If the client fails to fulfill their acceptance obligation without delay, acceptance shall be deemed to have occurred five (5) calendar weeks after the service was performed, provided that intellcert explicitly informs the client of this timeframe upon completion of the service.

8.3 The client is not permitted to refuse acceptance based on insignificant defects.

9. Confidentiality

9.1 “Confidential Information” refers to all information, documents, pictures, drawings, know-how, data, samples, and project documents provided by one party (referred to as the “Disclosing Party”) to the other party (referred to as the “Receiving Party”) from the start of the contract. This also includes copies of such information in both physical and electronic form. When communicated in writing or any other physical form, Confidential Information must be clearly labeled as “confidential” or with a similar indication of its confidential nature. For orally conveyed Confidential Information, appropriate prior notification must be given. It is important to note that Confidential Information does not encompass data and know-how collected, compiled, or obtained by intellcert (non-personal) within the scope of providing services. intellcert has the right to store, utilize, further develop, and disclose the data obtained in connection with the provision of services for the purposes of developing new services, improving services, and analyzing service provision.

9.2 Regarding Confidential Information:

1. a) The Receiving Party may only use it to fulfill the contractual purpose, unless otherwise expressly agreed in writing with the Disclosing Party.
2. b) The Receiving Party must not duplicate, distribute, publish, or disclose the Confidential Information in any other form, except as necessary to fulfill the contractual purpose or as required by judicial instructions, legal regulations, or governmental authorities. This particularly applies to Confidential Information that needs to be disclosed to supervisory authorities, accreditors of intellcert in an accreditation procedure, affiliated companies of intellcert in accordance with §§ 15 et seqq. of the German Stock Corporations Act (AktG), subcontractors, or their respective employees.
3. c) The Receiving Party must treat the Confidential Information with the same level of confidentiality as its own information, exercising at least the same degree of care and attention.

9.3 The Receiving Party may provide the Confidential Information received from the Disclosing Party only to those individuals who require it to fulfill the services under the agreement. This includes advisors to the Receiving Party and its affiliated companies as defined in Section 15 et seq. of the German Stock Corporation Act (AktG).

9.4 The term “Confidential Information” does not include information that:

1. a) Was already publicly known at the time of disclosure or becomes publicly known without a breach of this agreement.
2. b) Was already known to the Receiving Party at the time of contract conclusion or subsequently disclosed by a third party in a lawful manner.
3. c) Was already in the possession of the Receiving Party prior to its disclosure by the Disclosing Party.
4. d) The Receiving Party independently developed without reference to the disclosed Confidential Information.

9.5 Confidential Information remains the property of the Disclosing Party. The Receiving Party agrees to:

1. a) Promptly return all Confidential Information, including all copies, at the Disclosing Party’s request; or
2. b) Destroy all Confidential Information, including all copies, at the Disclosing Party’s request, and provide written confirmation of such destruction.

The obligation to return or destroy Confidential Information does not apply to:

1. i) Reports and certificates prepared solely for fulfilling contractual obligations, which remain with the client. However, intellcert is entitled to retain copies of these reports and the Confidential Information underlying their preparation as evidence of proper contract performance and for general documentation purposes in its files.
2. ii) Confidential Information stored on backup servers or analog backup systems as part of routine data backups and archiving processes.

iii) Cases where such return or destruction is contrary to laws, regulations, orders of a competent court, administrative or supervisory authority, or accreditation body.

9.6 This confidentiality obligation starts from the beginning of the contract and remains in effect for a period of five years after the termination of the contract.

10. Copyrights and Rights of Use, Publication

10.1 intellcert owns the copyrights to the reports, test reports, test results, expert opinions, calculations, representations, and other materials produced within the scope of the order (referred to as “Performance Results”). As the copyright owner, intellcert has the freedom to grant others the right to use the Performance Results for specific or general purposes (referred to as the “Right of Use”).

10.2 Unless otherwise agreed in specific cases, the client is granted a simple, unlimited, non-transferable, and non-sublicensable right of use to the contents of the service results generated within the scope of the order. The Right of Use is restricted to the contractual purpose, such as using test reports or audit reports as evidence of conducted audits or in the case of a contractually agreed review of a management system’s conformity to support the corresponding decision.

10.3 The transfer of Rights of Use for the generated Performance Results, as outlined in Clause 10.2 of these GTAC, is contingent upon the full payment of the agreed-upon remuneration to intellcert.

10.4 The client may only transfer the Performance Results in their entirety unless intellcert has provided prior written consent for partial transfer of the Performance Results.

10.5 Any publication or reproduction of the Performance Results for advertising purposes or any use of the Performance Results beyond the scope defined in Clause 10.2 requires the prior written consent of intellcert for each specific case. The client is responsible for any damages or complaints resulting from the publication or duplication of the service results for promotional purposes and shall indemnify intellcert accordingly.

10.6 intellcert reserves the right to revoke previously granted consent, as stated in Clause 10.5, at any time without providing reasons. In such a case, the client must immediately cease the transfer of the Performance Results at their own expense and, to the extent possible, withdraw any published materials.

10.7 The consent of intellcert for publication does not entitle the client to use intellcert’s corporate logo or the corporate design of intellcert for reference advertising purposes.

11. Defects

11.1 The customer must notify intellcert in writing of any defects related to our service immediately, but no later than one year after the service has been provided. The deadline starts on the last day the service was provided or should have been provided.

11.2 intellcert reserves the right to determine the method of defect rectification at its discretion. intellcert may choose to carry out repair, replacement, price reduction, or contract termination as we see fit. intellcert bear the costs of defect rectification if it is responsible for the defects.

11.3 The customer is required to provide intellcert with reasonable assistance in the defect rectification process and provide all necessary information and documentation. In particular, they must grant to intellcert access to the affected premises and equipment.

11.4 intellcert is not liable for defects resulting from improper handling, alteration, or damage to the service by the customer or third parties. Likewise, intellcert is not liable for defects caused by force majeure or other circumstances beyond intellcert’s control.

12. Liability and Limitation of Liability

12.1 intellcert is only liable for damages resulted from intentional acts and gross negligence. This also applies to its agents or subcontractors. intellcert undertakes to provide proof of liability insurance upon request for the services to be performed under the contract.

12.2 If liability of intellcert is applicable, it is limited to a maximum of €250,000 for financial damages and €1,500,000 per insurance event for property damages. This limitation of liability does not apply to damages to life, body, or health.

13. FORCE MAJEURE

13.1 “Force Majeure” refers to an event or circumstance that prevents or hinders a Party from fulfilling one or more of its contractual obligations under the contract. For such an event to be considered Force Majeure, the Party invoking it must prove:

1. a) that the impediment is beyond its reasonable control;
2. b) that it could not have reasonably foreseen the event at the time of contract conclusion; and
3. c) that the effects of the impediment could not have been reasonably avoided or overcome by the affected Party.

13.2 In the absence of contrary evidence, the following events affecting a Party shall be presumed to fulfill conditions (a) and (b) as mentioned in paragraph 1 of this Clause:

1. i) war (whether declared or not), hostilities, invasion, acts of foreign enemies, extensive military mobilization;
2. ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, acts of terrorism, sabotage, or piracy;

iii) currency and trade restrictions, embargo, sanctions;

1. iv) acts of authority, whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization;
2. v) plague, epidemic, natural disaster, or extreme natural events;
3. vi) explosion, fire, destruction of equipment, prolonged breakdown of transport, telecommunication, information systems, or energy;

vii) general labor disturbances such as boycott, strike and lock-out, go-slow, occupation of factories and premises.

13.3 The Party successfully invoking this Clause is relieved from its duty to perform contractual obligations and is not liable for damages or any other contractual remedy for breach of contract, starting from the time the impediment causes the inability to perform, provided that prompt notice is given. If notice is not given promptly, the relief is effective from the time the notice reaches the other Party. If the effect of the invoked impediment or event is temporary, the aforementioned consequences apply only as long as the impediment hinders the affected Party’s performance. If the duration of the invoked impediment substantially deprives the contracting Parties of what they reasonably expected under the contract, either Party has the right to terminate the contract by notifying the other Party within a reasonable period. Unless otherwise agreed, the Parties expressly acknowledge that the contract may be terminated by either Party if the duration of the impediment exceeds 120 days.

14. HARDSHIP

14.1 The Parties are obligated to fulfill their contractual duties even if events have made performance more burdensome than could reasonably have been anticipated at the time of contract conclusion.

14.2 However, notwithstanding paragraph 1 of this Clause, if a Party can prove that:

(a) the continued performance of its contractual duties has become excessively burdensome due to an event beyond its reasonable control, which it could not reasonably have anticipated at the time of contract conclusion; and

(b) it could not reasonably have avoided or overcome the event or its consequences, the Parties are obligated, within a reasonable time of invoking this Clause, to negotiate alternative contractual terms that reasonably allow for overcoming the consequences of the event.

14.3 If Clause 14.2 applies but the Parties have been unable to agree on alternative contractual terms as provided in that paragraph, the Party invoking this Clause has the right to terminate the contract. However, it cannot request adaptation by a judge or arbitrator without the agreement of the other Party.

15. Export control

15.1 When transferring the Services provided by intellcert or parts thereof to third parties in Germany or abroad, the client must comply with the applicable regulations of national and international export control laws.

15.2 The performance of a contract with the client is subject to the condition that there are no obstacles to performance due to national or international foreign trade legislations, embargoes, and/or sanctions.

16. Data protection notice

16.1 intellcert processes personal data of the client to fulfill the obligations under this contract. Additionally, intellcert may process the data for other lawful purposes based on applicable legal grounds (e.g., legitimate interests/consent).

16.2 The client’s personal data will only be disclosed to other natural or legal persons if the legal requirements are met, including transfers to third countries.

16.3 The personal data will be promptly deleted once the purpose of processing ceases to exist. However, legal retention periods, such as those stipulated in the German Commercial Code (HGB) or the Tax Code (AO), will be observed. Data subjects have the right to exercise the following rights: the right to access, rectification, erasure, restriction of processing, objection, and data portability. Furthermore, individuals affected by the data processing have the right to withdraw their consent at any time with effect for the future, as well as the right to lodge a complaint with the competent data protection supervisory authority. For further information on the processing of personal data by intellcert, please contact the respective data processor or our sales staff.

17. Partial invalidity, place of performance, jurisdiction

17.1 If any provision of these GTAC is found to be invalid, the remaining provisions of these terms and conditions shall remain in full force and effect.

17.2 The place of performance for all obligations under these GTAC or the contract, including supplementary performance, shall be the registered office of the intellcert entity responsible for providing the service as stipulated in the contract.

17.3 The place of jurisdiction for all disputes arising from and in connection with the contractual relationship is Berlin-Chrlottenburg, Germany, if the client is a merchant, a legal entity under public law, or a special fund under public law. However, intellcert retains the right to sue the client at its general place of jurisdiction or any other competent court. These provisions do not apply if the law mandates an exclusive place of jurisdiction. If the client is a non-merchant, Berlin-Charlottenburg shall be the place of jurisdiction if the client relocates its domicile or usual place of residence to another country after the contract’s conclusion, or if its domicile or usual place of residence is unknown to intellcert at the time the claims are filed in court.

17.4 The legal and business relations between intellcert and the client shall be governed exclusively by German substantive law, excluding international private law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980.

18. Termination of the contract

18.1 The contract can be terminated by either party at any time for just cause.

18.2 intellcert may consider giving notice of termination for just cause, particularly if:

1. a) the client repeatedly (at least three times) fails to fulfill their cooperation obligations, persistently refuses to fulfill them, or if the execution is disrupted for a total of more than three months due to reasons beyond intellcert’s control;
2. b) the client attempts to manipulate the measurement or test results of intellcert;
3. c) there is a significant deterioration in the client’s financial circumstances, endangering intellcert’s payment claims under the contract to a considerable extent, and intellcert cannot reasonably be expected to continue the contractual relationship.

18.3 Termination must be provided in writing.

19. Certification conditions

19.1 In the case of certification services, the contract is concluded upon written confirmation by the certification body. After confirmation of the order (contract formation), intellcert undertakes to evaluate the item to be certified in accordance with the provisions of the certification process, as laid down in the certification regulations, and to issue the certificate if the relevant requirements are met. The valid certification regulations at the time of the order placement are decisive.

19.2 If changes to the certification regulations or their appendices occur during the contract period, the certification body is authorized to apply the applicable certification regulations, including appendices, at the time of service provision, provided that the client has been notified in advance and has not raised any objections.

19.3 In addition, the customer (in addition to placing an order for the offered service) must sign the “Certification Agreement” for the respective service, which includes the certification-specific terms and conditions and applies for the entire certification cycle.