General Terms and Conditions of the European Test Center for Residential Ventilation Units (TZWL) e. V. as of 22.08.2021
General Terms and Conditions
I. Definition
The following terms are used in these General Terms and Conditions with the following meaning:
“Contractor” is the European Test Center for Residential Ventilation Equipment e. V., in whose name the contract is signed.
“Client” is the customer commissioning the Contractor. The customer may be any natural or legal person, a public law institution or any other person or company.
“In writing” means by letter, email or fax, unless otherwise expressly stipulated in these General Terms and Conditions.
“Entrepreneur” is any contractual partner who is acting in the exercise of his commercial or independent professional activity when concluding the contract.
“Consumer” is any contractual partner who concludes the contract for a purpose that cannot be attributed to their commercial or independent professional activity.
“Contract” or “order” are free in their form, but should be in writing (see above). A “contract” or “order” can also be based on a written offer and a confirmation.
II Validity of these terms and conditions
1. subject to deviating agreements in individual cases, contracts with the client shall be concluded exclusively in accordance with the following provisions. Conflicting or deviating terms and conditions of the Client shall not be recognized by the Contractor unless the Contractor has expressly agreed to their validity in writing. The following terms and conditions of the Contractor shall also apply if the Contractor performs its services without reservation in the knowledge of conflicting or deviating terms and conditions of the Client.
2 These General Terms and Conditions shall apply to all services, activities and work performed by the Contractor (including, but not limited to, expert opinions, testing and consulting services) and to all obligations resulting from the contractual relationship with the Client. These terms and conditions shall also apply to all future business relationships with companies and legal entities under public law.
III Conclusion of contract
1. a contract with the Contractor shall only be deemed to have been concluded when the Client accepts an offer from the Contractor without reservation or receives a written order confirmation from the Contractor or the Contractor begins to perform the service. If the Contractor issues a written order confirmation, this shall be decisive for the content and scope of the contract, unless expressly agreed otherwise.
2. all agreements made between the Client and the Contractor for the execution of the contract are set out in full in writing in the contract, including these General Terms and Conditions. Verbal collateral agreements shall not exist or shall only become valid if they have been set down in writing.
3. if an order is placed verbally, this order must be confirmed in writing by the contractor. The verbal order must also be documented internally for verification purposes. If the written order confirmation contains the name of the client or its agent or vicarious agent and the order date as well as a reference to the verbal order, the order confirmation shall suffice as internal documentation.
IV. Execution of the order and the client's duty to cooperate
1. if the contractual performance of the service owed by the Contractor involves interference with the Client’s property, the Contractor shall not provide compensation for any damage to or destruction of this property resulting from the contractual performance.
2. if the Contractor’s own equipment is damaged or destroyed or lost as a result of or on the occasion of the proper performance of the Contractor’s service through no fault of the Contractor, the Contractor shall be entitled to demand compensation from the Client.
3. the transportation and, if applicable, return transportation of the Client’s items shall be at the Client’s expense and risk; however, return transportation shall only be carried out at the express request of the Client. In the case of storage, the Contractor’s liability shall be limited to its own customary care.
4. the Client shall provide the Contractor with all information relevant to the performance of its services in full. The Contractor is generally not obliged to check the completeness and correctness of data, information or other services provided by the Client, unless there is no reason to do so, taking into account the circumstances of the individual case, unless this is expressly included in the order. The contractor assumes no liability for the correctness of the safety rules, regulations and programs on which his tests and expert opinions are based, unless these rules, regulations or programs originate from him or are themselves the subject of the test order.
5. to the extent that cooperation on the part of the Client is required for the performance of the Contractor’s service, the Client shall provide this in good time and at its own expense; expenses shall only be reimbursed if this has been expressly agreed in writing. If he does not fulfill his obligations to cooperate, does not do so in good time or does not do so properly and is thus in default of acceptance, the Contractor shall be entitled to charge him for the additional expenses incurred as a result. The Contractor expressly reserves the right to assert further statutory claims.
6. the Contractor shall have the right to have the services incumbent upon it performed by a subcontractor it has carefully selected and deems suitable.
7. if the Contractor works outside the company premises, the Client shall be responsible for all measures necessary for the fulfillment of traffic safety obligations, unless the nature of the matter or an agreement with the Client provides otherwise. The Contractor shall be entitled to refuse to perform the service as long as the necessary measures have not been taken. The Client shall inform the Contractor in writing in good time of all safety and accident prevention regulations applicable on site.
8. if the contract includes services related to the client’s IT system, the client shall be obliged to back up data and programs in machine-readable form at regular intervals appropriate to the application, at least once a day, and thus ensure that they can be restored with reasonable effort. The Contractor shall only be liable for the recovery of data if and to the extent that the Client has ensured that this data can be reconstructed from other data material with reasonable effort.
V. Deadlines and dates
1. if no time of performance has been agreed, the Contractor shall only be in default if it has previously been set a reasonable deadline in writing to perform the service owed without result. Performance periods shall only begin to run from the complete performance of all acts of cooperation owed by the Client and – if an advance payment has been agreed – from its receipt. Subsequent requests for changes or delayed cooperation on the part of the client shall extend the performance periods accordingly.
2. if the performance owed by the Contractor is delayed due to unforeseeable circumstances for which the Contractor is not responsible (e.g. strikes, lawful lockouts, operational disruptions, transport obstacles, raw material shortages, official measures – in each case also at the Contractor’s upstream supplier), the Contractor shall be entitled to postpone the performance for the duration of the hindrance. In the event that the hindrance lasts for more than six weeks, the Contractor shall be entitled to withdraw from the contract. The Contractor shall immediately inform the Client of the non-availability of the service or partial service and, in the event of withdrawal from the contract, shall immediately reimburse the Client for any payments already made in return. Claims for damages are excluded.
3. if the Contractor is in default of acceptance or violates other obligations to cooperate, the Contractor shall be entitled to demand compensation for any additional expenses incurred as a result. Further statutory claims for damages shall remain unaffected.
4. if the Contractor is in default of performance due to slight negligence, its liability for damages caused by delay (damages in addition to performance) shall be limited to 5 percent of the contract price. Claims for damages in lieu of performance shall be determined in accordance with Section X.
VI Acceptance
1. the Client is obliged to accept the Contractor’s services. Insignificant defects which do not seriously impair the suitability of the service for the contractually agreed purpose shall not entitle the Client to refuse acceptance, without prejudice to its right to assert statutory claims for defects. In the case of self-contained partial services, the Contractor may also demand partial acceptance.
2. if the client refuses delivery in violation of item 1 of this clause, acceptance shall nevertheless be deemed to have taken place.
3. the Client is obliged to accept the Contractor’s services within 14 days of receipt, unless they have significant defects that entitle the Client to refuse acceptance. If the Client does not accept the service within the set period, although it is obliged to do so, the service shall be deemed to have been accepted. If the Client is a consumer, the Contractor undertakes to expressly inform the Client of the consequences of the expiry of the deadline after completion of the service.
4 In the event of a reservation asserted by the Client due to defects, the Contractor shall review its services. If a reservation by the Client proves to be unjustified, the additional costs incurred shall be borne by the Client, unless the Client has not acted culpably or only slightly negligently.
VII Prices and payments
1. the price quoted by the Contractor shall be decisive, otherwise the price usually invoiced by the Contractor for the service in question, plus value added tax at the statutory rate – if applicable. In the case of cross-border services, any taxes, fees, customs duties and other charges (of whatever kind) incurred for the cross-border service shall be borne by the Client.
2. within the framework of continuing obligations and long-term contracts, the Contractor shall be entitled, in the event of an increase in its prime costs for which it is not responsible, to make reasonable price increases in accordance with the increase in costs; if the Client does not agree to such a price increase, it may terminate the contract within four weeks of receipt of such a request for an increase, otherwise the increase shall be deemed to have been agreed. The right to increase prices on the basis of this provision shall not apply if the client is a consumer.
3. the Client shall pay the remuneration owed without discount and free of charges within two weeks of receipt of the invoice to the bank account specified by the Contractor. The credit entry on the Contractor’s account shall be decisive for the timeliness of the receipt of payment. The Contractor reserves the right to demand reasonable payments on account and reasonable advances.
4. if the contract has been based on a cost estimate and it turns out that the costs will significantly exceed the amount estimated for the client, the contractor shall inform the client of this in writing. In this case, the client is entitled to terminate the contract in writing within two weeks of receipt of the notification. In the event of termination, the Contractor may demand a portion of the remuneration corresponding to the services already rendered.
5. if the client owes interest and costs in addition to an existing principal claim, any payment by the client that is insufficient to repay the total amount shall first be credited against the costs, then against the interest and finally against the principal claim.
6. the Client shall only be entitled to rights of set-off and retention if its counterclaims have been legally established, are undisputed or have been recognized in writing by the Contractor. This restriction shall not apply to claims of the Client for defects resulting from the same contractual relationship as the Contractor’s claim for payment. If the contractual partner is a consumer, he shall generally have unrestricted rights of retention due to claims arising from the same contractual relationship, notwithstanding sentence 1.
7. if it becomes apparent after conclusion of the contract that the Contractor’s claims against the Client are jeopardized by the Client’s inability to pay, the Contractor shall be entitled to perform outstanding services only against advance payment or provision of security and against settlement of any outstanding claims under the contract for partial services already rendered and to withdraw from the contract after the fruitless expiry of a deadline set for this purpose; clause 4, sentence 3 of this section shall apply accordingly.
8. in the event of default in payment, the client shall owe default interest in the amount of 8 percentage points above the base interest rate in the case of an entrepreneur and in the amount of 5 percentage points above the base interest rate in the case of a consumer. The Contractor shall be entitled to assert a further claim if it proves higher damages to the Client. In addition, the Contractor shall be entitled to charge a flat-rate fee of €5 per reminder, unless the Client can prove that the Contractor has incurred no loss or a significantly lower loss.
VIII. Claims for defects
(1) In the event of defective performance by the Contractor, the Client shall give the Contractor the opportunity to remedy the defect at least twice within a reasonable period of time, unless this is unreasonable in individual cases or there are special circumstances which, taking into account the interests of both parties, justify immediate withdrawal by the Client. The Contractor may, at its discretion, remedy the defect or provide the service again without defects. If the supplementary performance fails, the Client shall have the right to reduce the remuneration or withdraw from the contract; claims for damages shall only exist in accordance with Section X. However, there shall be no right to withdraw from the contract or claim damages if the deviation from the owed quality is only insignificant.
2. the client must notify the contractor in writing of obvious defects immediately, but at the latest within two weeks of acceptance, and of hidden defects within two weeks of discovery. Otherwise, the assertion of warranty claims is excluded. This does not apply if the client is a consumer.
IX. Resignation
The Client shall only be entitled to withdraw from the contract if the Contractor is responsible for the breach of duty on the basis of which withdrawal is to be declared. Withdrawal must be declared in writing by registered letter. If the client is a consumer, it is sufficient if the declaration is made in writing.
X. Liability
1. the Contractor shall be liable for damages in accordance with the statutory provisions if the Client asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of the Contractor’s representatives or vicarious agents, or if the Contractor culpably breaches a material contractual obligation. Material contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.
2 Insofar as the Contractor is not guilty of a willful breach of contract, liability for damages in the aforementioned cases shall be limited to the foreseeable damage typically occurring in such contracts. In such cases, the Contractor shall be liable for property damage and financial loss up to a maximum amount equal to its sum insured per loss event. The limitations of liability provided for in this paragraph shall not apply if the Client is a consumer, neither in the case of intentional breaches of contractual obligations nor in the case of gross negligence.
3. liability for culpable injury to life, limb or health remains unaffected by the above provisions.
4. unless otherwise stipulated in these terms and conditions, any further liability for damages other than that provided for in clauses 1 to 3 is excluded, irrespective of the legal nature of the claim asserted.
5. insofar as the Contractor’s liability for damages is excluded or limited in accordance with the above provisions, this shall also apply with regard to the personal liability for damages of the Contractor’s employees, workers, staff, representatives and vicarious agents.
6. the limitations according to clauses 1 and 2 shall also apply if the client demands compensation for useless expenses instead of a claim for damages in lieu of performance.
XI. Statute of limitations
1. contractual claims for breach of duty shall become time-barred one year after the statutory limitation period begins. Excluded from this are claims due to defective planning services for a building. In this case, the statutory limitation period shall apply from acceptance.
2. the statutory limitation periods shall remain unaffected by the above provisions in the following cases: (i) for damages resulting from injury to life, body or health; (ii) for other damages based on an intentional or grossly negligent breach of duty by the Contractor, its legal representatives or vicarious agents; (iii) for claims due to fraudulent concealment of a defect or from a guarantee of quality.
XII. Rights of use and indemnification
1. the services provided by the Contractor in the performance of the contract (e.g. expert opinions, testing and consulting services) may only be used within the scope of the contractually agreed purpose. Unless otherwise agreed in individual cases, the Contractor shall therefore grant the Client a simple, non-transferable right of use to its copyrightable services, limited in time and space to the purpose of the contract. No further rights are expressly granted; in particular, the Client is not entitled to edit, modify or use only excerpts of the Contractor’s services.
2. insofar as the Contractor grants the Client a right under the contract to use the Contractor’s test mark to the agreed extent, this may only be used for the contractually intended purpose and only in the unaltered form provided by the Contractor.
3. any further use of the Contractor’s trademarks and other marks, such as the word/figurative marks “Europäisches Testzentrum für Wohnungslüftungsgeräte e. V.” and “TZWL”, shall require the Contractor’s prior express written consent.
4 In the event of a breach of the above conditions by the Client, the Contractor shall be entitled at any time to prohibit the Client from further use of the Contractor’s services, test marks and/or labels. The Client is obliged to indemnify the Contractor against all third-party claims, irrespective of their legal basis (e.g. competition law), which are based on its use of the Contractor’s services, test marks and/or labels, and all of its own expenses incurred in connection therewith, upon first request.
XIII Data protection
The contractor processes and uses personal data exclusively within the scope of the purpose of the contract, unless the client has consented to further use. Once the contract has been completed, the client’s personal data shall be blocked for further use and deleted after the statutory retention periods have expired, unless the client has given separate consent for further use. In addition, the client has a right to information, correction, blocking and deletion of his data stored by the contractor in accordance with the BDSG.
XIV Confidentiality and retention obligations
1 Both the Contractor and the Client are obliged to maintain confidentiality regarding confidential information of the other contractual partner. This obligation shall continue for a period of five years after termination of the contract. Such information is excluded from this obligation,
a) which were demonstrably known to the recipient when the contract was concluded or which subsequently become known to the recipient from a third party without violating a confidentiality agreement, statutory provisions or official orders;
b) which are publicly known at the time of conclusion of the contract or are made public thereafter, insofar as this is not based on a breach of this contract;
c) which must be disclosed due to legal obligations or by order of a court or an authority. As far as permissible and possible, the recipient obliged to disclose will inform the other contractual partner in advance and give him the opportunity to take action against the disclosure;
d) which the recipient has independently developed or had developed independently of knowledge of the confidential information;
e) which must be disclosed to third parties conditionally and on the basis of the contract or the relationship between the contractor and the client in order to fulfill the contract.
In the aforementioned cases, no explicit notification by the contractor to the client is necessary. There is no documentation obligation. 2. the Contractor shall retain contract-related documents if there is a statutory or official obligation to retain them. In addition, the Contractor shall be entitled to retain such documents for documentation purposes; any statutory or contractual claims for surrender on the part of the Client shall remain unaffected.
XV Place of performance and prohibition of assignment
1. the place of performance for all services shall be the Contractor’s registered office.
2. the assignment or pledging of claims to which the client is entitled from the business relationship with the contractor is excluded.
XVI Place of jurisdiction and applicable law
1. the place of jurisdiction for all claims arising from the business relationship with merchants, legal entities under public law or special funds under public law shall be the Contractor’s registered office. However, the Contractor shall also be entitled to sue the Client at its general place of jurisdiction.
2. the law of the Federal Republic of Germany shall apply exclusively to all business and legal relationships between the Client and the Contractor. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.