DEKRA Services Inc. - Process Safety Terms and Conditions
Last updated 13 July 2022
Upon Client’s written acceptance of the attached proposal (“Proposal”), DEKRA Services, Inc. (“DEKRA”) agrees to perform the services (“Services”) or deliver safety testing instruments (“Instrumentation”) in accordance with such Proposal and these Terms and Conditions (collectively, the “Agreement”). “Client” or “you” shall mean the client set forth in the Proposal. DEKRA and Client are individually referred to herein as a “party” and collectively the “parties.”
- General Provisions. The provisions in this section 1 shall apply to all performance rendered under this Agreement.
- All performance will be on a schedule mutually agreed between the parties and invoiced in accordance with the terms set forth in the Proposal. Travel expenses (including transportation, lodging, and meals) are invoiced as incurred at cost plus five percent (5%). When making air travel arrangements, DEKRA shall purchase non-refundable tickets unless otherwise requested by Client. Client shall be responsible for any fees associated with Client-requested changes to travel dates. Taxes due are in addition to the fees set forth in the Proposal and shall be itemized separately. Client shall promptly notify DEKRA of any taxes that Client is required to withhold, including but not limited to business taxes, education taxes, or any other tax levied or assessed against DEKRA. The rates for delivery may be adjusted on the basis of such requirement. Unless otherwise agreed, payment is due thirty (30) days from Client’s receipt of invoice.
- The parties, their officers, agents, employees and those of its affiliates (“Resources”), agree to hold observations, data and other proprietary information of the other party that is not generally known or accessible to the public (“Confidential Information”) in strictest confidence and not to disclose such Confidential Information to any third party without written authorization of the disclosing party. Either party may disclose Confidential Information as required by a court of competent jurisdiction or a governmental agency, provided it gives prompt notice to the other party of such requirement.
- Each party retains all right, title and interest in samples, proprietary information, know-how, ideas, inventions, discoveries, methods, designs, concepts, processes, trade secrets, copyrighted materials, analyses and reports that are owned or licensed by that party, including all derivatives thereof (“Intellectual Property”) and neither party shall have any right, title or interest in the other party’s Intellectual Property except to use it in conformance with this Agreement. DEKRA shall have the continuing right to use any data resulting from the performance of the Services for the purposes of (1) DEKRA’s own internal research and improvements to DEKRA systems, processes and offerings supporting its business and (2) data analytics that relate to process hazard analysis, provided DEKRA and its Representatives shall maintain the confidentiality and anonymity of the source of any such data.
- Client agrees to indemnify, defend and hold DEKRA and its Resources (collectively an “Indemnified Party”) harmless from any and all claims, costs, demands, liabilities, losses, damages or expenses (including attorneys’ fees) and settlement amounts (collectively “Claims”) arising out of the Indemnified Party’s performance hereunder, except to the extent caused by the Indemnified Party’s negligence, gross negligence or willful misconduct. Further, each party (an “Indemnitor) agrees to indemnify, defend and hold the other party harmless from Claims that the Indemnitor’s Intellectual Property constitutes an infringement of a duly issued patent, copyright, trade secret or other intellectual property right of a third party in the jurisdiction where such Indemnitor’s Intellectual Property is used.
- To the extent permitted by law, DEKRA’s liability to Client shall be limited to the total amount paid for Services and Instrumentation under this Agreement. IN NO EVENT SHALL EITHER PARTY BE LIABLE IN CONTRACT, TORT, STRICT LIABILITY, WARRANTY OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DELAY, DISRUPTION, LOSS OF PROFIT OR REVENUE ARISING FROM CLAIMS UNDER THIS AGREEMENT.
- During performance of the Agreement and for a period of one (1) year following completion of such performance, neither party shall directly or indirectly solicit, attempt to solicit, divert, hire away or induce any Resource that was involved with the Services or Instrumentation to terminate their employment relationship with the other party, regardless of whether such action is taken on behalf of itself or others. This does not prohibit a party from making a general solicitation not specifically directed to a Resource of the other party or from responding to an inquiry resulting from the same. In the event of a breach of this provision, the breaching party shall pay the non-breaching party the equivalent of the annual compensation for the Resource that was hired away. This amount is a reasonable estimate of the anticipated or actual harm that might arise from recruiting, hiring and training replacement personnel as a result of the loss of such Resource, and is not a penalty for hiring the Resource.
- The failure or delay of either party in exercising any right, power or privilege hereunder shall not be deemed to be a waiver thereof. If any provision is declared or found to be illegal or unenforceable by a court of competent jurisdiction, the remaining provisions shall not be affected by such declaration or finding. The parties intend any provision that is found to be illegal or unenforceable as drafted shall be construed in a manner so as to effectuate the purpose of that provision to the greatest extent possible under applicable law.
- The rights and obligations related to clauses 1.2, 1.3, 1.4, 1.5, 1.6, 2.5 and 3.3 herein shall survive completion of performance or termination of this Agreement.
- This Agreement shall be governed by the laws of the State of Georgia without regard for that state’s principles of conflicts of law. The parties further agree that all disputes shall be resolved exclusively in state or federal court in Fulton County, Georgia. This Agreement contains the entire agreement between the parties regarding the delivery hereunder. Client’s submission of a signed acceptance of the Proposal and/or issuance of a purchase order or similar order-type document (collectively “PO”) is express authorization for DEKRA to proceed in accordance with this Agreement. Terms and conditions included with any such PO shall not be used as a basis for any contract between the parties. This Agreement may only be modified by mutual written consent of both parties. Any material change to the scope is subject to equitable adjustment as mutually agreed between us in a written change order or amendment hereto prior to DEKRA initiating performance of such change in scope.
- Testing or Consulting Services. To the extent Services include the provision of testing Services (“Testing Services”) or consulting Services (“Consulting Services”), the following provisions apply, in addition to those set forth in section 1:
- Reports issued by DEKRA in connection with the performance of Testing Services (“Testing Reports”) constitute Client Intellectual Property. DEKRA is not liable for use or application of Testing Reports to scenarios or situations not described in the Testing Report. Client shall defend, indemnify and hold DEKRA Indemnified Parties harmless from all Claims to the extent resulting from a third party’s reliance on Testing Reports.
- Reports issued by DEKRA in connection with the performance of Consulting Services (“Consulting Reports”) constitute DEKRA Intellectual Property; provided, however that DEKRA shall treat such reports as it would otherwise treat Client’s Confidential Information. DEKRA grants Client a perpetual, irrevocable, worldwide license to use Consulting Reports for Client’s internal non-commercial purposes. For the avoidance of doubt, data contained within a Consulting Report that was provided by the Client or derived from Client materials remains Client Intellectual Property.
- Testing Reports and Consulting Reports are referred to collectively as “Reports.” DEKRA shall retain Reports for a minimum of five (5) years and shall thereafter securely destroy such Reports in accordance with its standard document retention and destruction policies. Client must advise DEKRA upon commencement of Services if Reports must be maintained for longer than five (5) years in accordance with applicable law. DEKRA is reliant upon information provided by Client, and Reports assume the accuracy of such information.
- Materials provided by Client to DEKRA for Testing Services remain property of Client. No later than the commencement of Services, Client may request that unconsumed materials be returned to Client upon completion of Testing Services at cost to Client. Absent any such request, DEKRA may at DEKRA’s option and Client’s cost (i) return materials to Client or (ii) dispose of materials with an appropriate third party waste disposal company, provided such company is contractually obligated to treat such materials as Client Confidential Information Client shall (i) provide safety data sheets, safe handling procedures and other information known to Client to be required for the safe handling of materials sent to DEKRA; and (ii) abide by applicable regulations when shipping materials to DEKRA.
- DEKRA warrants Services shall be performed by personnel qualified to perform such Services pursuant to reliable and generally recognized and accepted codes, standards and procedures and in a professional and workmanlike manner. DEKRA warrants that Reports shall be accurate for so long as the materials and conditions applicable to such Reports remain identical to those which existed at the time of performance of the Services. DEKRA’s sole liability and Client’s sole remedy for a breach of the foregoing warranty shall be limited to re-performance of the non-conforming Services or a refund of fees paid for such Services if DEKRA, in its sole discretion determines it cannot re-perform such Services. DEKRA MAKES NO OTHER WARRANTY EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, INTERPRETATION OR APPLICATION OF TEST RESULTS OR REPORTS AND DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY AND/OR FITNESS FOR USE AND/OR A PARTICULAR PURPOSE.
- Client shall notify DEKRA prior to providing DEKRA with materials or technical data that are subject to export control laws, including but not limited to the US International Traffic in Arms Regulations or the US Export Administration Regulations.
- Instrumentation. To the extent the Proposal includes the delivery of Instrumentation, the following provisions apply, in addition to those set forth in clause 1:
- Title in Instrumentation, risk of loss, and damage for any shipment of the Instrumentation, passes to Client immediately upon the earlier of: (i) delivery of such shipment to Client or Client’s designated agent; or (ii) deposit of the Instrumentation with a common carrier in accordance with Client’s instructions. All freight, transportation, customs, duties and tariffs applicable to Instrumentation are Client’s responsibility. Until DEKRA receives payment in full, Client is obligated to protect the Instrumentation and such costs, including insurance, shall be Client’s sole responsibility.
- DEKRA shall retain a priority security interest in any Instrumentation shipped to Client until the entire balance of the fees for such Instrumentation is paid in full. DEKRA shall have the right to file financing statements if it, in its sole discretion, deems it necessary or desirable to perfect its security interest in any Instrumentation for which payment in full has not been received.
- DEKRA warrants that the Instrumentation manufactured or assembled by DEKRA or its affiliates and supplied hereunder shall conform to the written specifications applicable to such Instrumentation (the “Instrumentation Warranty”) for a period of ninety (90) days from its date of delivery (the “Warranty Period”). The foregoing Warranty shall not apply to any Instrumentation which is: (i) altered, modified, damaged or repaired by a third party, (ii) manufactured and/or assembled by a third party, or (iii) abused or misused, whether intentionally or accidentally. Upon Client’s written notice of breach of the foregoing Warranty, DEKRA shall, at its sole discretion, repair or replace Instrumentation that fails to conform to the Instrumentation Warranty during the Warranty Period, provided that Client may not return Instrumentation without first obtaining DEKRA’s written consent along with the return packing and shipping instructions. THIS PARAGRAPH SET FORTH DEKRA’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION 3.3. EXCEPT AS STATED HEREIN DEKRA MAKES NO OTHER WARRANTY WITH REGARD TO THE INSTRUMENTATION AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY AND/OR FITNESS FOR USE AND/OR A PARTICULAR PURPOSE.
- To the extent Instrumentation has been manufactured and/or assembled by a third party at DEKRA’s direction, DEKRA will use reasonable efforts to procure warranties and/or guarantees, if any, given by such third party relating to the Instrumentation for Client’s benefit.