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DEKRA Services, Inc. General Terms & Conditions

1. General

1.1. These General Terms & Conditions, including any attachments, supplements, exhibits, amendments and appendices (the “General Terms & Conditions”) supplement the Contract by and between you (the “Client”) and DEKRA Services Inc. ("DEKRA"). Collectively, the Contract, these General Terms & Conditions, and any supplements or exhibits incorporated herein are collectively referred to as the "Agreement". In case of any differences between the Contract and these General Terms & Conditions, the provisions of the Contract shall prevail. For the purposes of this Agreement, “Contract” means the summary of services to be provided by DEKRA (“Services”) described in a proposal, a purchase order, statement of work, work order, or any other order type document as mutually agreed between the parties.
1.2. Any material change to the Services shall be mutually agreed between Client and DEKRA and set out in writing (each a “Change Order”). If a Change Order would result in additional time or expense for DEKRA, then an equitable adjustment will be mutually agreed between the parties and set out in the Change Order before DEKRA performs the Services set out in the Change Order.

2. Term

2.1. Unless otherwise stated in the Contract, the Agreement shall remain in effect for a period of three years from the start date stated in the Contract (“Effective Date”), unless extended by mutual agreement of the parties by amendment or terminated earlier (the “Term”).

3. DEKRA Obligations

3.1. DEKRA shall provide the Services in accordance with this Agreement, using personnel of industry standard skill, experience and qualifications, and in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
3.2. DEKRA shall designate a number of employees or contractors to perform the Services. DEKRA shall also designate a primary contact to act as its authorized representative for all matters under this Agreement (the “DEKRA Representative”).

4. Client Obligations

4.1. Client shall designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative (the “Client Representative”).
4.2. Client shall require the Client Representative to respond promptly to any reasonable requests from DEKRA, cooperate with DEKRA in its performance of the Services and provide access to Client’s premises, employees, contractors and equipment as required to enable DEKRA to provide the Services.

5. Fees, Payments and Expenses

5.1. Fees for the Services will be set out in the Contract. DEKRA shall invoice Client for Services on a monthly basis, unless otherwise agreed. Client shall pay DEKRA invoices no later than 30 days after the date of the invoice.
5.2. Fees are exclusive of Taxes. Client is responsible for payment of any applicable Taxes payable on the Services. “Taxes” means all compulsory charges imposed by any foreign, national, state or local taxing authority claiming jurisdiction over the Agreement, on the purchase price of Services, products and/or licenses provided under this Agreement, including but not limited to any gross receipts tax such as sales, use taxes, goods and services taxes (“GST”) and value added taxes (“VAT”).
5.3. Unless mutually agreed otherwise, DEKRA shall submit invoices to Client for expenses, including transportation, lodging, meals and shipping and handling costs for materials, at actual cost.
5.4. All amounts used in this Agreement are in US dollars.

6. Scheduling

6.1. Client may reschedule confirmed consulting visit dates at no additional charge provided Client notifies DEKRA at least 14 days before the consulting visit date. If Client gives less than 14 days notice, Client shall pay DEKRA a “Rescheduling Fee” of US$1,000 for each rescheduled visit. The Rescheduling Fee will be in addition to other agreed upon fees and will be included on the next invoice issued by DEKRA.

7. Technology

7.1. “Technology” means techniques and methods contained in manuals, systems, tools and other materials prepared or provided by DEKRA under this Agreement, including but not limited to the DO-ITT® tool. Technology is considered to be Intellectual Property of DEKRA.
7.2. DEKRA grants Client a non-exclusive, non-sublicenseable, non-transferable license to use the Technology solely within the unit of Client’s organization designated in the Contract, provided such use shall be limited to the authorized users in that unit and any other restrictions stated in the Contract (the “Technology License”). DEKRA shall provide Client with the necessary passwords and network links or connections required for Client to use the Technology. DEKRA reserves all rights not expressly granted to Client in this Agreement.
7.3. Client acknowledges that Technology may include Confidential Information, subject to the protections set forth in the Agreement. Client shall not copy, modify, disclose, disseminate, distribute, re-port, reverse engineer or attempt to gain access to the source code of any Technology, in whole or in part, except as permitted in this Agreement or with DEKRA’s prior written consent. Client shall not use the Technology in any manner that infringes, misappropriates or violates intellectual property rights of any person or violates any applicable law.
7.4. Upon dissolution of the organization segment where it is temporary in nature or upon cancelation or termination of any applicable Contract or the Agreement, Client shall return (or destroy, if approved by DEKRA) the Technology and all copies thereof (in whole or in part and regardless of media) and certify such action upon reasonable request of DEKRA.
7.5. The Technology License, including all obligations set forth herein, shall survive expiration or termination of the Agreement. The Technology License terminates automatically upon cancellation of the applicable Contract.
7.6. If a Contract permits Client’s use of Technology with third party contractors, or DEKRA grants such authorization, Client shall obtain a written agreement that binds such third party to comply with the Confidentiality (section 8) and Intellectual Property (section 10) terms as well as any licensing restrictions of this Agreement. At DEKRA’s request, Client shall provide a copy of the agreement binding third party contractor personnel as described in this section.
7.7. License fees are deemed fully earned upon delivery of the Technology.

8. Confidentiality

8.1. “Confidential Information” means information that is not generally known or accessible to the public which concerns the business, research, and operations of the disclosing party, including but not limited to materials, manuals, techniques, methodologies, technology, trade secrets, systems, tools, software, proposed products and services, as well as other information that is designated orally or in writing as “confidential” or reasonably ought to be known to be confidential. Confidential Information may be tangible or intangible, written or oral.
8.2. Each party acknowledges that, during performance of this Agreement, a party (the “Disclosing Party”) may disclose Confidential Information to the other party (the “Receiving Party”). Each party shall hold Confidential Information in strictest confidence and shall only use Confidential Information in performance of this Agreement.
8.3. Neither party shall disclose the other party’s Confidential Information except: (a) as authorized in writing by Disclosing Party; or (b) as required by a court of competent jurisdiction or similar body or agency. If disclosure is required by a court order or similar, Receiving Party shall give prompt notice to Disclosing Party of such requirement so as to allow Disclosing Party an opportunity to oppose such court order that would result in release of its Confidential Information. At Disclosing Party’s request, Receiving Party agrees to either return or destroy all copies of Confidential Information.
8.4. This Agreement does not grant either party any rights in or to the other party’s Confidential Information other than the limited rights contemplated in this Agreement unless expressly agreed to in writing by the parties.
8.5. Each party acknowledges that use or disclosure of Confidential Information in a manner that is inconsistent with this Agreement may cause the other party irreparable damage and such other party shall have the right to seek equitable and injunctive relief to prevent the unauthorized use or disclosure of Confidential Information in addition to any other remedies which may be available to it at law or in equity.
8.6. This clause shall survive termination of this Agreement.

9. Non-solicitation

9.1. Client understands and acknowledges that DEKRA has expended and continues to expend significant time and expense in recruiting and training its employees and that the loss of employees would cause significant and irreparable harm to DEKRA. Client agrees and covenants not to directly or indirectly solicit, hire, or recruit, or attempt to solicit, hire, or recruit, or induce the termination of employment of any DEKRA employee who has worked with Client on the performance of this Agreement without the prior written consent of DEKRA. If Client breaches this term, Client shall pay DEKRA an amount equivalent to 20% of the employee's gross annual salary and DEKRA will have the option to suspend its obligations under this Agreement for one month if loss of the employee has a material adverse effect on DEKRA’s ability to perform its obligations.

10. Intellectual Property

10.1. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of DEKRA in the course of performing the Services, including any items identified as such in the Contract (collectively, the "Deliverables"), except for any Confidential Information of Client, shall be owned by DEKRA. DEKRA hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
10.2. Client retains all rights, title and interest in Client intellectual property and Client data. DEKRA has no right, title or interest in Client's intellectual property of Client data except to use it as authorized in this Agreement. Client grants DEKRA a license to use Client's logo on materials that are provided to Client in connection with the delivery of Services and to use Client data in connection with the improvement of DEKRA services.
10.3. Each party acknowledges that any use or disclosure of the other party’s Intellectual property in a manner that is inconsistent with the terms set forth in this clause may cause such other party irreparable damage and that it shall have the right to seek equitable and injunctive relief to prevent any unauthorized use or disclosure of its Intellectual property in addition to any other remedies which may be available to it at law or in equity.

11. Indemnification

11.1. DEKRA and Client each agree to indemnify, defend and hold harmless the other and each of the other’s members, managers, shareholders, directors, officers, employees and agents (each individually, an “Indemnified Party”) from and against all liabilities, damages, losses, costs and expenses, including without limitation reasonable attorneys’ fees and expenses, arising out of any third party claims alleging: gross negligence or more culpable acts or omissions of the party in connection with the performance of this Agreement; or any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligence or more culpable acts or omissions of the party; or any material failure of the party to comply with applicable federal, state or local law. DEKRA and Client agree to give the other prompt notice of any claim. The terms in this provision are subject to any limitations of liability of this Agreement.
11.2. DEKRA agrees to indemnify and hold harmless Client from and against any claims, demands, loss, damages or expenses (including reasonable attorney’s fees and any settlement amounts) that are a direct result of a claim that DEKRA 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 items are used. Client shall promptly inform DEKRA in writing of any such claim and will cooperate with DEKRA in the defense and any related settlement negotiations. If DEKRA Intellectual Property is, or in DEKRA’s opinion, is likely to be, held to constitute an infringing item, DEKRA shall, at its own expense and option, either (a) procure the right for Client to continue using it; (b) replace it with a non-infringing functional equivalent, or (c) modify it to make it non-infringing without losing previous functions. If none of the foregoing options are reasonably available or practical, after DEKRA has exercised its best efforts to implement such options, DEKRA shall refund to Client amounts paid by Client to DEKRA for the DEKRA Intellectual Property that is the subject of such infringement claim. To the extent a license granted under this Agreement, is the subject of the infringement claim and DEKRA provides a refund in accordance with the preceding sentence, the license granted to Client shall be deemed terminated with respect to such DEKRA Intellectual Property. THIS PARAGRAPH STATES DEKRA’S SOLE LIABILITY AND CLIENT’S SOLE REMEDY WITH RESPECT TO INFRINGEMENT.

12. Limitation of Liability and Exclusion of Warranties

12.1. Except for DEKRA’s indemnification obligations set forth at section 11, to the extent permitted by law, DEKRA’s liability for breach of a Contract shall be limited to the total amount paid to DEKRA under that Contract.
12.2. DEKRA MAKES NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, UNLESS EXPRESSLY STATED IN THIS AGREEMENT.
12.3. IN NO EVENT SHALL DEKRA BE LIABLE TO CLIENT OR ANY THIRD PARTY 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.

13. Force Majeure

13.1. DEKRA will not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond DEKRA’s reasonable control including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Client will be entitled to give notice in writing to DEKRA to terminate this Agreement.
13.2. DEKRA and Client will make commercially reasonable efforts to mitigate the disruption of Services due to force majeure to the fullest extent that each is able to do so in the circumstances. In the event of travel disruption, the parties agree that the continuation of Services by telephone and/or video conferencing is a reasonable alternative to delivery of the Services in-person or at Client’s facility.

14. Termination

14.1. Either party may terminate this Agreement for convenience upon 90 days written notice to the other party, provided such termination shall not apply to any Contract that is pending completion of delivery. Any such Contract that is pending completion of delivery shall continue in effect and be governed by the terms of this Agreement until delivery under such Contract is completed or is cancelled in accordance with Section 14.2.
14.2. Client may cancel a Contract upon giving 90 days written notice to DEKRA and indicating the effective date of the cancellation (“Cancellation Date”). Client shall pay DEKRA for Services performed prior to the Cancellation Date plus a cancellation fee in recognition of DEKRA’s assignment of resources and initiation of effort on behalf of Client prior to the delivery of the Services. The cancellation fee shall equal 3% of the total fees for Services set out in the Contract, provided that the cancellation fee plus the fees due to be paid to DEKRA for Services prior to cancellation is limited to the total amount due for the Services.
14.3. Either party may terminate a Contract if (i) the other party commits a material breach of the Agreement and the defaulting party does not cure the breach within 30 days after written notice of the breach, or (ii) the other party becomes insolvent or is unable to pay its debts as they become due.

15. Insurance

15.1. During the Term, DEKRA shall, at its sole cost and expense, procure and maintain commercial general liability insurance with a limit of not less than $1,000,000.00 each occurrence and an aggregate limit of not less than $2,000,000.00; business automobile coverage insurance with a combined single limit of not less $1,000,000.00 for each accident; Workers Compensation and Employers Liability Insurance.
15.2. Upon written request, DEKRA shall provide Client with a certificate of insurance executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement and naming Client as additional insured on the above policies.
15.3. Upon written request, Client shall provide DEKRA with a certificate of insurance evidencing its insurance coverage executed by a duly authorized representative of its insurer.

16. General Clauses

16.1. Notices. Any notice under this Agreement must be in writing and sent to the party’s address set out below. Notices may be delivered in person, sent by email with confirmation of receipt, deposited in the mail with first class postage, or delivered by private prepaid courier. An address for notices may be changed by written notice to the other party. Notices to DEKRA shall also be sent to the attention of General Counsel, DEKRA North America, Inc., 1945 The Exchange SE, Suite 300, Atlanta, GA 30339.
16.2. Severability. If any provision of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement shall remain in effect. If any provision of this Agreement is unenforceable because it is too broad, then the provision will be deemed to be reduced in scope to the maximum duty permitted by law that is contained within such provision, and the parties will be bound thereby.
16.3. Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16.4. Third party beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16.5. Applicable Law. This Agreement shall be governed and enforced according to the laws of the State of New York, without regard for conflicts of law principles.
16.6. Dispute Resolution. If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavour first to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by binding arbitration administered by the AAA in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in New York, New York. If any state or federal court obtains jurisdiction despite this arbitration clause, the parties agree that the state and federal courts of the State of New York shall have exclusive and sole jurisdiction.
16.7. Entire Agreement. This Agreement is the entire understanding and agreement of the parties regarding its subject matter. This Agreement supersedes any preprinted terms and conditions included with any other document regardless of whether or not the other document references this Agreement and even if such preprinted terms and conditions conflict with this Agreement. This Agreement may be modified only by written agreement between the parties. This Agreement may be signed in counterparts, while each taken together will constitute an original.