Terms and conditions

§ 1 General provisions

The General Terms and Conditions (hereinafter referred to as GTC) below apply to all contracts concluded between Dermatest GmbH and companies (hereinafter referred to as client) concerning the implementation of dermatological investigations and testing. They do not apply to contracts with consumers.
Upon conclusion of a contract on the implementation of dermatological investigations and testing, the client acknowledges the validity of these GTC. Moreover, these GTC also apply to future contract conclusions between Dermatest GmbH and the client, even if their validity has not yet been expressly agreed upon. The client can access the GTC at any time on the website of Dermatest GmbH (https://www.dermatest.com).
The GTC of Dermatest GmbH apply exclusively. Conflicting or deviating GTC of the client are only recognised if their validity is agreed upon expressly and in writing. The GTC of Dermatest GmbH also apply if services are provided unconditionally to the client with knowledge of conflicting or deviating GTC of the client. Agreements which deviate from the provisions of these GTC are effective only if they are in writing.

§ 2 Conclusion of a contract

All offers of Dermatest GmbH as well as information on the website of Dermatest GmbH (https://www.dermatest.com) are subject to change and nonbinding unless they were expressly designated in writing as being binding.
All contracts must be in writing. The same applies to changes or amendments to contracts which have already been concluded. A contract is deemed to be effective when a representative of Dermatest GmbH and the client or a duly authorised representative of the client sign the contract form. Only the managing directors and sales directors of Dermatest GmbH are authorised to make binding declarations with regard to the modification of or amendment to contracts which have already been concluded. Verbal collateral agreements to a contract are invalid. If agreements made verbally or statements issued verbally concern a contract which has already been concluded, these become effective only if they are confirmed in writing by the managing director or the head of testing of Dermatest GmbH.
Moreover, only those agreements between Dermatest GmbH and the client which are stipulated in the testing contract, the order confirmation, and in this GTC become a part of the contract.

§ 3 Terms of payment

If the client has outstanding debts to Dermatest GmbH from previous business, Dermatest GmbH can make the start of the contractually agreed services dependent on the client initially paying part of the outstanding debt. If there is a significant outstanding debt, the start of the services can be made dependent on the full payment of debt from previous business.
For orders with agreed total payment of more than €5000, an advance payment of 50% of the payment agreed on is to be paid prior to the start of testing, unless otherwise agreed expressly and in writing.
The payment agreed on is due on the day on which the investigation or test result owed by Dermatest GmbH is received by the client. The client is in default of payment 15 days after the due date if no payment has been made by this date, without further explanations or reminders on the part of Dermatest GmbH. The decisive factor for the timeliness of the payment is the time at which the money is received at the bank account of Dermatest GmbH if payment by bank transfer is agreed on.

§ 4 Rights of retention and refusal of performance

The client is in any event entitled to assert the right of retention from § 273 BGB (German Civil Code) as well as to plead non-fulfilment of the contract from § 320 BGB.

§ 5 Offsets

The client is not authorised to claim an offset in general, not even if the client’s counterclaim is based on the same contractual relationship. The client is entitled to an offset only if the client’s counterclaim has become undisputed or final or has been recognised by Dermatest GmbH in writing.

§ 6 Performance period

All information provided by Dermatest GmbH with regard to the duration of the examination and/or testing procedures as well as other specifications regarding time or deadlines which concern the performance of services owed by Dermatest GmbH are non-binding, unless they have been expressly designated in writing as binding.
As a general rule, Dermatest GmbH is entitled to provide partial services or make partial deliveries, provided these are reasonable for the client. If the client refuses to accept a partial service or partial delivery which is reasonable for the client, the client is in default of acceptance as a result.

§ 7 Warranty

In the event of a deficiency in the service provided by Dermatest GmbH, the client is entitled to the legal warranty claims, unless deviating claims are indicated below.
In the event of an apparent deficiency in the service provided, the client is obligated to report this to Dermatest GmbH within a period of two weeks. If the client fails to do so, all warranty rights with regard to this deficiency become invalid. An apparent deficiency is considered to be a deficiency which can be readily noticed even by a non-technical person. If there are multiple apparent deficiencies, each deficiency must be pointed out separately.
In the event of a non-apparent deficiency, Dermatest GmbH initially has the right of remedial action. Dermatest GmbH is entitled to the right to choose between the permissible types of remedial action, correction of the deficiency, and new production in any case and independent of the nature of the deficiency. The client is to give Dermatest GmbH a sufficient amount of time to undertake remedial action. If multiple deficiencies are claimed, an appropriate amount of time in each case must be granted for each individual deficiency.
The client is entitled to additional warranty rights only if the remedial action by Dermatest GmbH has failed. The remedial action is considered to have failed after the second unsuccessful attempt to perform the contractually owed service. The client is entitled in this case to reduce the compensation it is to provide. Alternatively the client may declare withdrawal from the contract. In addition, the client can claim damages under only the preconditions listed under § 8.

§ 8 Compensation

The client can request compensation due to deficient service provision only according to the following regulations and only after failure of remedial action. The remedial action is considered to have failed after the second unsuccessful attempt to perform the contractually owed service. However, Dermatest GmbH is liable only in cases of intentional or grossly negligent actions by Dermatest GmbH, its legal representative bodies, employees, or other vicarious agents. If damage was caused by ordinary, non-managerial vicarious agents, the amount is limited to typical contractual foreseeable damage.
Dermatest GmbH is also liable for violation of duties essential to the contract, however, if this violation is based only on minor negligence. The duties essential to the contract include those duties which enable proper contract processing and which the client relies on Dermatest GmbH to perform. However, in the event of a violation of duties essential to the contract, damage is limited to the amount of typical contractual foreseeable damage.
If the client suffers damage due to the delayed performance by Dermatest GmbH, the client may claim this only in cases of intentional or grossly negligent actions by Dermatest GmbH, its legal representative bodies, employees, or other vicarious agents. If damage was caused by ordinary, non-managerial vicarious agents, the amount is limited to typical contractual foreseeable damage.
If Dermatest GmbH is no longer obliged to provide the contractually owed service because of impossibility according to section 275 I BGB or if Dermatest GmbH permissibly exercises the rights to refuse performance of section 275 II, III BGB and if this results in damage to the client, this may be claimed only in cases of intentional or grossly negligent actions by Dermatest GmbH, its legal representative bodies, employees, or other vicarious agents. If damage was caused by ordinary, non-managerial vicarious agents, the amount is limited to typical contractual foreseeable damage.
Provided that the liability of Dermatest GmbH is limited by these GTC to the typical contractual foreseeable damage, damage which is unforeseeable and completely atypical with regard to the purpose of the contract is excluded.
The above-mentioned limitations of liability of Dermatest GmbH are not applicable in cases of damage from a loss of life, bodily injury or injury to health which is based on the intentional or grossly negligent breach of duty by Dermatest GmbH, its legal representative bodies, employees, or other vicarious agents. Dermatest GmbH is liable for the full amount of this damage in accordance with legal regulations.
The above-mentioned regulations additionally do not lead to a deviation from the legal regulations on the burden of proof to the detriment of the client.
The liability of Dermatest GmbH for claims for compensation of the client based on the product liability law is not affected by this GTC.

§ 9 Utilisation of test results

The test certificates prepared by Dermatest GmbH represent a technical assessment, corresponding to the current state-of-the-art of science and technology, of the products to be tested. However they do not make any statements on whether the marketing of the product is otherwise legally permissible, particularly in terms of admissibility regarding competition laws of the advertising of the product, or whether the product or its composition violates patent, trademark, or other property rights of third parties.

§ 10 Intellectual property

The name “Dermatest” as well as the test seal used by Dermatest GmbH are word and figurative marks registered in the trademark register at the German Patent and Trademark Office. Their use requires the prior written agreement of Dermatest GmbH. If the Dermatest seal, the 3-star seal and/or the 5-star seal are assigned to a tested product, the corresponding client is authorised to use this seal on its products and the product-related advertisement.
Texts, graphics and images which are used by Dermatest GmbH in its test certificates are protected by copyright. The copyright-related acts of exploitation of duplication, distribution, issuance and public reproduction require prior written permission of Dermatest GmbH. As an exception to this, the complete test certificates may be reproduced by the client for internal use. The reproduction of essential results of the testing within the scope of advertising activities is also permissible.

§ 11 Final provisions, applicable law

The contractual relationship of Dermatest GmbH and the client is subject exclusively to German law, under exclusion of the UN sales law (CISG).
If the client is a merchant as defined in the HGB, a legal public law entity, or a special fund under public law, the exclusive place of jurisdiction for all legal disputes arising from the contractual relationship between Dermatest GmbH and the client is the competent court at the registered office of Dermatest GmbH. This is presently in Münster. Dermatest GmbH is also entitled to file a suit against the client at its place of general jurisdiction.
The client is not entitled to assign claims against Dermatest GmbH from the contractual relationship to third parties without the prior written approval of Dermatest GmbH.
If individual regulations of these General Terms and Conditions violate mandatory law, in whole or in part, or become invalid or ineffective for other reasons, the validity of the remaining regulations remains unaffected.

§ 12 Place of jurisdiction

1.
If the client is a merchant as defined in the HGB, a legal public law entity, or a special fund under public law, the exclusive place of jurisdiction for all legal disputes arising from the contractual relationship between Dermatest GmbH and the customer is agreed to be Münster. Dermatest GmbH is also entitled to file a suit against the customer at its place of general jurisdiction.

2.
The European Commission provides a platform for the out-of-court online settlement (OS platform) which can be accessed at www.ec.europa.eu/consumers/odr. Our email address can be found in our legal notice. We are neither obligated nor willing to participate in the dispute settlement procedure.

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