General terms and conditions
1. Scope of application
(1) These General Terms and Conditions of Business apply to all contracts between the Contractor and its clients (AG) for services, unless otherwise expressly agreed in writing.
(2) These General Terms and Conditions shall only apply to companies (§ 14 BGB) as well as to legal entities under public law and special funds under public law within the meaning of § 310 para. 1 sentence 1 BGB.
(3) The General Terms and Conditions of the Contractor shall apply exclusively. Conflicting or deviating terms and conditions of the Client shall only be binding if and insofar as the Contractor expressly agrees to their validity in writing. The Contractor’s General Terms and Conditions of Business shall also apply if the Contractor executes the order without reservation in the knowledge of conflicting or deviating conditions of the Client. Deviating agreements shall apply in each case only to a specific contract and not to future contracts, unless otherwise expressly agreed in writing.
(4) The General Terms and Conditions of Business shall also apply to all future contracts between the Contractor and its Client for services.
Scope of orders
(1) The services of the Contractor shall be provided to the extent specified in each case by an offer without engagement up to the conclusion of the contract as services and/or work services in accordance with the applicable statutory provisions, unless otherwise stipulated in these General Terms and Conditions of Business. The Contractor provides services on its own responsibility. The Client shall remain responsible for the results desired and achieved by him. In the case of work services, the Contractor shall be responsible for the results achieved as well as for the management, control and monitoring of the provision of services.
(2) The Contractor and the Client are each entitled to request in writing changes to the agreed scope of services. The Contractor or the Client, as the case may be, shall examine the feasibility of such changes after receipt of a request for change. The result of this examination shall be communicated to the other contractual partner in writing without delay. The Contractor shall be entitled to charge the Client for the expenses incurred by it, insofar as the Client’s request for modification requires a comprehensive and costly review. The contractual adjustments required for such a review or the contractual adjustments required for a change in the agreed scope of services shall be laid down in an additional agreement.
Execution of orders
(1) Orders shall be executed in accordance with the current state of science and technology.
(2) Only the Contractor is authorised to issue instructions to its employees.
(3) The Contractor is entitled to use the services of third parties for the execution of orders. However, the Contractor shall always remain directly liable to the Client.
(4) In the case of work performance, delivery periods shall commence on the date of the order confirmation by the Contractor, but not before complete clarification of all details of the order; the same shall apply accordingly to delivery dates. All delivery periods and dates are subject to the proviso of deliverability and timely delivery to us.
(5) Unless otherwise agreed, the time of provision of the work performance at the Contractor’s registered office shall be decisive for compliance with the delivery periods and dates.
(6) In cases of force majeure, the contractual obligations of both parties to the contract shall be suspended and the dates and deadlines for the fulfilment of contractual obligations shall be postponed accordingly; cases of force majeure shall also include labour disputes in our own and other companies, transport delays, machine breakdowns, sovereign measures and other circumstances for which neither party to the contract is responsible. The event of force majeure shall be notified to the other contracting party without delay. At the earliest three months after receipt of this notification, both contracting parties shall be entitled to withdraw from the contract.
(7) In the event of non-compliance with the delivery periods and dates for work services, the Client shall only be entitled to claim damages instead of performance due to performance not rendered or not rendered as owed (§ 281 BGB) and the defence of non-performance of the contract (§ 323 BGB) if he has set the Contractor a reasonable deadline for delivery, which – in this respect in deviation from §§ 281, 323 BGB – is connected with the declaration that he will refuse acceptance of the performance after expiry of the deadline; after unsuccessful expiry of the deadline the claim for performance shall be excluded.
Duties of the OP to cooperate
(1) The Client shall provide the Contractor with all information, materials, equipment, documents, procedures, etc. necessary for the execution of the order in good time and free of charge and shall deliver them to the Contractor at its own expense if necessary.
(2) If the Contractor works for the Client, the Client shall provide the employees of the Contractor or third parties commissioned by the Contractor with access to all premises, installations (hardware, software, networks, etc.) and other work equipment required for the proper performance of the services by the Contractor free of charge within the framework of normal operating hours and within the company access regulations. If required, the Client shall also ensure the provision of functional workstations free of charge for the Contractor’s employees or for third parties commissioned by the Contractor.
(3) The Client shall otherwise cooperate in the necessary manner in the execution of the order.
(4) If the Client does not fulfil the obligations incumbent on him under Paras. 1 – 3 or does not fulfil them in good time and if this leads to delays and/or additional expenditure, the agreed time frame shall be extended or the agreed remuneration shall be increased accordingly.
Remuneration and terms of payment
(1) The services and work performances are invoiced at the fixed price stated in the offer or on the basis of the agreed time and material basis after completion of the service or acceptance of the work performance, unless a different invoicing and payment method is agreed in the offer. In the case of services and work on a time and material basis, the hours worked and travel time incurred shall be invoiced at the hourly rates applicable at the time and the materials used shall be invoiced at the prices applicable at the time of performance. Other expenses, in particular travel, accommodation and overnight expenses, shall be charged additionally. Estimated prices for services and work on a time and material basis stated in the offer are not binding.
(2) The value added tax is shown separately in the invoice at the currently applicable rate.
(3) Invoices are payable on receipt without deduction. The Client shall be in default with this obligation to pay invoices – unless otherwise agreed – at the latest 14 days after the invoice is issued.
(4) Interest on arrears shall be charged at nine percentage points above the base interest rate p.a. The assertion of further damages is not excluded.
(5) Several clients are jointly and severally liable.
(6) The client may only offset if his counterclaims have been legally established, are undisputed or have been recognised by the contractor.
Acceptance
(1) Work services shall be accepted by the Client as soon as the Contractor has demonstrated that they comply with the agreed performance specification. Insignificant deviations do not entitle the Client to refuse acceptance. The obligation to remedy defects within the scope of liability for defects of title and material defects shall remain unaffected.
(2) Upon acceptance, a protocol to be signed by both contracting parties shall be drawn up confirming that the goods and services are in accordance with the agreed performance specification.
(3) Commissioning or productive use of the plant or parts of the plant shall be deemed acceptance.
Material defects and defects of title for work performances
(1) The Contractor shall provide the Client with the work free of material defects and defects of title. In particular, the work performance shall comply with the agreed performance description and the agreed scope of performance.
(2) If the work is defective, the Contractor shall be liable as follows:
a) At the discretion of the Contractor, the defect shall be remedied or a new work shall be produced.
b) If the supplementary performance fails within a reasonable period of time, the Client may, at his discretion, reduce the remuneration or, if the value or suitability of the work is not insignificantly reduced, withdraw from the contract, notwithstanding any damage and claims for reimbursement of expenses.
c) The Client shall notify the Contractor immediately in writing of any material defects and defects of title.
(3) Claims for material defects and defects of title shall become time-barred 12 months after the provision of the respective service or acceptance of the work. This does not apply if the law according to § 438 para. 1 No. 2, § 479 para. 1 or § 634 a para. 1 No. 2 BGB prescribes longer periods.
(4) Information in documentation, brochures, project descriptions, etc. are no guarantee promises. Guarantee promises require the express written confirmation by the contractor in any case.
(5) Obvious inaccuracies, such as typing errors, calculation errors, formal defects, etc., contained in a report, expert opinion or other professional statement by employees of the Contractor may be corrected by the Contractor at any time.
Liability
(1) Claims for damages and reimbursement of expenses by the Client of any kind, including claims for indirect damages, such as loss of profit and other financial losses (hereinafter referred to as claims for damages), are excluded. This applies in particular to breach of duties arising from the contractual obligation and from tort.
(2) Notwithstanding Section 8 (1), the Contractor shall be liable, regardless of the legal grounds, if:
a) the Contractor is guilty of gross negligence or intent
b) the Contractor has maliciously concealed a defect or has assumed a guarantee for the quality of the object of performance,
c) the AN has culpably caused damage to life, health or body,
d) the Contractor has violated essential contractual obligations. Material contractual obligations are obligations whose fulfilment by the Contractor makes the proper execution of this contract possible in the first place and on whose compliance the Client regularly relies and may rely.
(3) In the event of a breach of essential contractual obligations pursuant to No. 8 para. 2 d), the liability of the Contractor shall, however, be limited in the event of only slight negligence to the compensation of the foreseeable, typically occurring damage. This claim for damages shall become statute-barred at the end of the limitation period applicable to material defects and defects of title pursuant to No. 7 para. 3 sentence 1.
(4) The exclusion of liability shall not apply with regard to claims arising from the Product Liability Act.
(5) A change in the burden of proof to the disadvantage of the AG is not associated with the above provisions.
(6) If the Contractor defaults on work performance, the Client may – if he can prove damage – demand compensation in the amount of 0.5 per cent for each completed week of the delay, but not more than 5 per cent of the total remuneration for the part of the work not completed in time. The provision of paragraph 2 of this section 8 remains unaffected. At the request of the Contractor, the Client shall be obliged to declare within a reasonable period of time whether he is withdrawing from the contract due to the delay in performance of the work and/or demanding compensation in lieu of performance or insisting on performance; after the unsuccessful expiry of the period of time, the claim for performance shall be excluded.
(7) Insofar as the Contractor’s liability is limited, this shall also apply to the Contractor’s employees and to third parties commissioned by the Contractor.
(8) The Client is obliged to notify the Contractor immediately in writing of any damage for which the Contractor is liable and to give the Contractor the opportunity to investigate the damage and its causes.
Secrecy
(1) During the preparation and execution of orders, the contracting parties shall be obliged not to exploit, use or make available to third parties any economic, technical or other information and knowledge made accessible by the other contracting party during the preparation and execution of orders, or otherwise become known, beyond the purpose of the order without the prior written consent of the other contracting party.
(2) The obligation under paragraph 1 shall not apply to information and knowledge which were already known to the recipient before the order was placed, the recipient lawfully receives from third parties, were generally known when the order was placed, subsequently become generally known without breach of the obligation under paragraph 1.
(3) The obligation pursuant to para. 1 shall apply to both contracting parties for a further two years after termination of the contract.
(4) The client acknowledges the necessity of scientific lectures and publications by the contractor and will not unreasonably refuse any consent required for this purpose according to Paragraph 1.
Data protection
The contracting parties will process or use personal data of the other contracting party only for contractually agreed purposes in compliance with the statutory provisions.
Inventions
(1) Inventions which are made jointly by employees of the Contractor and the Client during the execution of an order, as well as industrial property rights granted for this purpose, are jointly entitled to both contractual partners.
(2) Inventions which are made by employees of the Contractor during the execution of an order, as well as industrial property rights granted for this purpose, belong to the Contractor. Inventions made by employees of the Client during the execution of an order, as well as industrial property rights granted for this purpose, belong to the Client.
(3) The granting of licenses for inventions within the meaning of paragraphs 1 and 2 and for property rights granted for them shall require a special written agreement.
Work results
(1) The transfer of ownership and rights of use of the work results of any kind (such as documentation, reports, planning documents, evaluations, drawings, program material, etc.) produced within the framework of the execution of the contract and the scope of services agreed therein, which have been made known to the Client by the Contractor, requires a special written agreement. However, the Contractor shall in any case retain a free and non-exclusive right of use of these work results for research and teaching purposes.
(2) The Contractor is not responsible for whether technical documents supplied to it by the Client or on its behalf violate existing copyrights, industrial property rights or other rights of third parties. The Client shall be solely liable if the rights of third parties are infringed by the execution of his order. The Client shall indemnify the Contractor against all claims of third parties for such a violation of rights on first demand. Item 8 remains unaffected.
Termination
(1) Contracts can be terminated at any time with a notice period of 30 days to the end of the month. The Contractor is not entitled to the aforementioned right of termination if it provides work services.
(2) Contracts may be terminated for good cause at any time.
(3) In the cases of termination under paragraphs 1 and 2, the Client shall pay the agreed remuneration less the pro-rata remuneration for the agreed scope of services which was saved by the termination. In addition, the Contractor shall be entitled to remuneration for services and expenses incurred in connection with the termination – also in the Contractor’s relationship with third parties.
(4) If the termination has been made for reasons for which the Contractor is responsible, the Contractor shall only be entitled to remuneration for the services rendered up to that point in time to the extent that they can be used by the Client.
(5) Notices of termination must always be made in writing.
Surrender of documents and objects, right of retention
(1) After completion of an order, the Client may demand that the Contractor surrender the documents and objects provided to it. The Contractor may refuse to surrender the documents and objects until it has been satisfied with its claims under the contract, unless withholding individual documents and objects would be contrary to good faith under the circumstances, in particular due to the relatively small amounts owed.
(2) The Contractor may make and retain copies or duplicates of documents which it returns to the Client.
General Provisions
(1) Contracts shall be concluded in writing. Subsidiary agreements are only effective if they are confirmed in writing by the Contractor.
(2) The transfer of rights and obligations from the contracts by the Client to third parties requires the prior written consent of the Contractor.
(3) Place of jurisdiction is the registered office of the Contractor. However, the Contractor is also entitled to sue the Client at any other legal place of jurisdiction.
(4) Only the law of the Federal Republic of Germany shall apply to all contractual relationships.