Terms and conditions
§ 1 General provisions
(1) These General Terms and Conditions (hereinafter “GTC”) apply to all business relations between Dermatest GmbH (hereinafter “Dermatest”) and its customers (hereinafter “Client”), in particular to contracts for the performance of dermatological examinations and testings. The GTC apply only if the Client is an entrepreneur (§ 14 of the German Civil Code [BGB]), a legal entity under public law, or a special fund under public law. The GTC do not apply to contracts with consumers.
(2) Unless otherwise agreed, the GTC in the version valid at the time of the Client’s commissioning or, in any case, in the version last communicated to the Client in text form shall also apply as a framework agreement for similar future contracts, without Dermatest having to refer to them again in each individual case. The GTC can be accessed by the Client at any time on the website of Dermatest GmbH (https://www.dermatest.com).
(3) The GTC of Dermatest shall apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the Client shall only become a part of the contract if and to the extent that Dermatest expressly consents to their validity. This requirement of consent applies in any case, for example, even if the Client refers to their own GTC within the scope of the commissioning and Dermatest does not expressly object to them.
(4) Individual written agreements (e.g., framework agreements, quality assurance agreements) and specifications in our order confirmation shall take precedence over the GTC.
(5) Legally relevant declarations and notifications by the Client in relation to the contract (e.g., setting of deadlines, notice of defects, withdrawal, termination, or reduction) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g., letter, email, fax). Statutory formal requirements and further evidence, particularly in case of doubts regarding the legitimacy of the declarant, remain unaffected.
§ 2 Conclusion of a contract
(1) All offers by Dermatest are subject to change and non-binding, unless they have been expressly designated as binding in written form (pursuant to § 1 (5)). This also applies if Dermatest has provided the Client with catalogs, technical documentation (e.g., drawings, plans, calculations, costings, references to DIN standards), or other product descriptions or documents – also in electronic form – to which Dermatest reserves property rights and copyrights.
(2) The commissioning by the Client is deemed a binding contractual offer. Unless otherwise stated in the commissioning, Dermatest is entitled to accept this contractual offer within 5 days after its receipt by Dermatest.
(3) Acceptance may be effected either in writing (e.g., by order confirmation) or by Dermatest commencing the provision of services after the commissioning.
§ 3 Services of Dermatest
(1) Dermatest provides, in particular, dermatological testing services, including ingredient analyses, skin compatibility, and efficacy tests (e.g., patch test, application test, in-vitro analysis). The services may encompass the planning, implementation, and evaluation of studies. These services are generally subject to the law on contracts for services (Dienstvertragsrecht). If, by way of exception, an agreed service is predominantly subject to the law on contracts for work (Werkvertragsrecht) by operation of law, the provisions in § 8 of these GTC shall apply complementarily only in respect of these services.
(2) Dermatest provides its services in accordance with the current state of the art applicable at the time of the conclusion of this contract, unless deviating requirements have been agreed upon within the scope of the service description.
(3) Dermatest shall inform the Client without delay if it recognizes or should have recognized obstacles or impairments that may have an impact on its provision of services.
(4) Dermatest is free to choose the persons it deploys to provide the services. It shall ensure that the persons deployed by it are sufficiently qualified to provide the services. The persons deployed by Dermatest for the provision of services are not subject to the Client’s authority to issue instructions. This applies in particular to the extent that persons deployed by Dermatest provide the services on the Client’s premises.
(5) Dermatest is entitled, subject to the prior consent of the Client, to engage subcontractors for the provision of services. The Client shall withhold consent only for good cause.
§ 4 Cooperation obligations of the client
(1) The Client undertakes to provide all necessary cooperation fully and in due time upon first demand, which is required and generally customary for the contractual performance of services by Dermatest, and in particular to provide Dermatest with all necessary information.
(2) To the extent that cooperation is owed and the necessary specification has not already been made contractually, Dermatest shall request these services from the Client with a reasonable lead time, specifying the relevant framework conditions.
(3) Unless a deviating agreement has been made in the individual case, all cooperation shall be provided by the Client for Dermatest free of charge.
(4) The services to be provided by the Client constitute real obligations (echte Verpflichtungen) and not merely incidental duties (bloße Obliegenheiten). If and to the extent that the Client does not provide the cooperation/services owed by it, does not do so in due time, or does not do so as agreed, and this has an impact on the provision of services by Dermatest, Dermatest is exempted from providing the affected services. Any proven additional expenses incurred by Dermatest will be remunerated separately on the basis of the agreed conditions, without prejudice to further rights of the Client.
(5) If the Client makes changes to the services of Dermatest without the prior consent and/or knowledge of Dermatest, Dermatest shall not be liable for these changes.
§ 5 Remuneration, Terms of Payment
(1) The remuneration and payment modalities shall be agreed upon individually.
(2) In the absence of an individual agreement pursuant to paragraph (1), the remuneration of Dermatest shall be due for payment as follows:
- a) For all domestic Clients within 14 days after invoicing without deduction;
- b) For all international Clients by advance payment within 14 days after invoicing without deduction;
- c) For all Clients by advance payment in the amount of 50% of the order value for an order value of at least EUR 8,000.00 within 14 days after invoicing without deduction.
(3) Notwithstanding § 5 (2) and provided that no individual agreement pursuant to § 5 (1) exists, the following shall apply to so-called study cancellations and their costs:
- a) If the order (the commissioned “study”) is terminated by the Client before the start of the study and the reasons for the termination are not the responsibility of Dermatest, Dermatest has the right to invoice 50% of the total order value, unless material costs already incurred exceed this value – in which case the resulting material costs will be calculated additionally by Dermatest.
- b) If the order (the commissioned “study”) is terminated by the Client after the start of the study and reasons for the termination are not the responsibility of Dermatest, Dermatest has the right to invoice 100% of the total order value. The Client reserves the right to prove that these costs were not incurred by Dermatest.
- c) If the study is aborted before the start of the study or after the start of the study for reasons for which Dermatest is responsible, Dermatest shall refund to the Client any payments already made for services not rendered on a pro-rata basis.
§ 6 Prohibition of set-off and assignment, financial capability of the Client
(1) The Client may only offset claims within the contractual relationship that are undisputed by Dermatest or have been legally established; the Client is also entitled to offset against the claims of Dermatest if the Client asserts notices of defects or counterclaims arising from the same contract. A right of retention or the defense of non-performance of the contract is available to the Client only within this contractual relationship.
(2) If it becomes apparent after the conclusion of the contract (e.g., by filing an application for the opening of insolvency proceedings) that Dermatest’s claim to remuneration is jeopardized by a lack of financial capability on the part of the Client, Dermatest is entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to terminate or withdraw from the contract (§ 321 BGB).
§ 7 Time of performance
(1) The agreed deadlines may be extended appropriately in the event of unforeseen circumstances for which Dermatest is not responsible. Dermatest shall inform the Client thereof without delay.
(2) Dermatest is generally entitled to partial performance or partial deliveries, provided that these are reasonable for the Client. If the Client refuses to accept a partial performance or partial delivery that is reasonable for them, the Client shall thereby be in default of acceptance.
§ 8 Warranty
(1) If the services of Dermatest are to be classified under the law on contracts for work (cf. § 3 (1)), the following provisions shall apply.
(2) Regarding acceptance: After completion of the work, the Client must accept the work produced, unless acceptance is excluded by the nature of the work; acceptance cannot be refused due to insignificant defects. The parties shall coordinate the procedure for acceptance separately. § 640 para. 2 BGB shall apply mutatis mutandis. The Client has the right to refuse acceptance due to material defects. The Client must notify Dermatest in text form of the material defects present along with the declaration of refusal.
(3) The statutory provisions on warranty shall apply, unless otherwise regulated below:
- a) In the event of a defect, Dermatest is initially entitled to subsequent performance (Nacherfüllung). The right of choice between the permissible types of subsequent performance, rectification of defects (Mängelbeseitigung) and new creation (Neuerstellung), lies in any case and regardless of the type of defect with Dermatest. The Client must set a reasonable deadline for Dermatest to carry out the subsequent performance. If several defects are complained of, a separate, reasonable deadline must be set for each individual defect.
- b) Further warranty rights are only available to the Client if the subsequent performance by Dermatest has failed. The subsequent performance shall be deemed to have failed after the second unsuccessful attempt to provide the contractually owed service. In this case, the Client is entitled to reduce the counterperformance to be provided by them. Alternatively, the Client may declare withdrawal from the contract. Furthermore, the Client may only assert a claim for damages under the prerequisites specified in § 9.
§ 9 Liability
(1) Unless otherwise resulting from these GTC including the following provisions, Dermatest shall be liable for a breach of contractual and non-contractual duties in accordance with the statutory provisions.
(2) Dermatest shall be liable for damages – on whatever legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, Dermatest shall be liable, subject to statutory limitations of liability (e.g., care in one’s own affairs; insignificant breach of duty), only:
- a) for damages resulting from injury to life, body, or health,
- b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, the liability of Dermatest is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply towards third parties as well as in the event of breaches of duty by persons (also in their favor) whose fault Dermatest is responsible for according to statutory provisions. They do not apply if a defect was fraudulently concealed and for claims of the Client under the Product Liability Act (Produkthaftungsgesetz).
(4) Due to a breach of duty that does not consist of a defect, the Client may only withdraw or terminate if Dermatest is responsible for the breach of duty. In all other respects, the statutory prerequisites and legal consequences shall apply.
(5) Dermatest is not responsible for content provided by the Client. Dermatest is not obliged to check the content for possible legal violations.
§ 10 Termination
If the law on contracts for work applies, a free right of termination of the Client pursuant to § 648 sentence 1 BGB is excluded.
§ 11 Utilization of test results
The test reports prepared by Dermatest represent a professional assessment of the products to be tested in accordance with the current state of science and technology. However, they do not contain any statement as to whether the marketing of the product is otherwise legally permissible, in particular with regard to the admissibility of the advertising of the product under competition law, or whether the product or its composition infringes patent, trademark, or other intellectual property rights of third parties.
§ 12 Limitation of actions
(1) If the law on contracts for work applies, deviating from § 634a para. 1 no. 1 BGB, the general limitation period for claims arising from defects shall be one year from acceptance.
(2) The aforementioned limitation period shall also apply to contractual and non-contractual claims for damages of the Client based on a defect, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the Client pursuant to § 9 para. 2 sentence 1 and sentence 2(a) as well as under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 13 Intellectual property, transfer of rights and use of the report
(1) Upon full payment of the agreed remuneration, the Client shall receive the exclusive right, unrestricted in terms of time, space, and content, to use the test report prepared for them, including all texts, graphics, and images contained therein. This includes, in particular, the right to reproduction, editing, publication, exhibition, and disclosure to third parties.
(2) If the test report contains illustrations of test subjects or other content that affects the rights of third parties (e.g., copyrights, personal rights, or other intellectual property rights), Dermatest can only procure the consents or utilization rights of these rights holders required for a granting of rights upon express commissioning to this effect by the Client. If a commissioning takes place, the acquired rights shall be transferred to the Client to the extent necessary for the unrestricted use of the test report in accordance with paragraph 2. Without such a commissioning, the Client is only entitled to internal use of the test report as well as to the reproduction of essential test results within the scope of advertising measures.
(3) Dermatest reserves the right to keep an archival copy of the test report for internal documentation purposes or to fulfill statutory or contractual proof obligations.
§ 14 Applicable law, place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) If the Client is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of Dermatest. However, Dermatest is in all cases also entitled to bring an action at the general place of jurisdiction of the Client.
§ 15 Final provisions
(1) Amendments and supplements to the contract require the written form to be effective. The written form requirement can only be waived in writing. To satisfy the written form requirement, transmission in text form, in particular by email, is also sufficient, cf. § 1 (5).
(2) The Client is not entitled to assign claims against Dermatest arising from the contractual relationship to third parties without its prior written consent.
(3) Should individual provisions of these General Terms and Conditions be wholly or partially contrary to mandatory law or be void or ineffective for other reasons, the validity of the remaining provisions shall remain unaffected.