These General Terms and Conditions (GT&C) shall be considered part of the contract. Terms and conditions of our Customer conflicting with or deviating from these GT&C will not be recognized. Also in case of unconditional execution of an order, conflicting or deviating conditions of our Customer will not be recognized even if we are aware of these conditions. If the contract constitutes a commercial transaction on both sides, these GT&C shall apply for all future business transactions with the Customer in the version valid at the time of contract conclusion. Verbal agreements with the Customer shall not be valid. Written agreements with the Customer shall prevail over these GT&C.
Our offers shall be non-binding. The Customer shall be committed to any verbal orders placed with us. The Customer is obliged to confirm verbal orders in writing immediately. Once the Customer is informed about our commencing the execution of the order, the order shall be deemed placed unless the Customer expressly objects thereto. We are not obliged to accomplish a specific economic success the Customer desires to achieve by means of this order.
The Customer is obliged to provide all documents, data and other information to be taken into account in the provision of service prior to order confirmation. This shall also include the indication of all laws, standards, technical specifications, and other provisions and regulations the services rendered have to comply with. The customer shall bear any additional cost incurred due to the violation of this obligation to cooperate. We shall not be liable for any damages due to the violation of the obligation to cooperate or the provision of incorrect or incomplete information. Upon provision, the customer is obliged to check all services, also preliminary services, rendered by us for correctness and completeness.
Times of delivery and performance shall only be binding if contractually agreed upon.
We shall be entitled to employ third parties for the provision of the services or to have the order wholly or partially executed by third parties, provided that legitimate interests of the Customer are not adversely affected.
Agreed delivery and performance times shall apply subject to the timely provision of services rendered by sub-suppliers insofar as the provision of services by one or more sub-supplier(s) becomes necessary for us to render our services.
4. Prices/Terms of Payment
The prices are quoted as net prices and do not include the statutory value added tax at the rate then applicable. In case of changes in the value added tax rate, We shall have the right to adjust its prices accordingly without the Customer being entitled to terminate the contract.
For contracts entailing a continuing obligation, we shall be entitled to adjust prices from the first contract year on if any cost increases or decreases have occurred since the day of contract conclusion. The Customer shall be notified of any price changes within eight (8) weeks and is entitled to request proof thereof. In case of price changes of over five (5) per cent per calendar year, the Customer shall have the right to terminate the contract for convenience in writing with a notice period of two (2) months to the end of the month. This contract termination shall only take effect if our price adjustment is not withdrawn within ten (10) days after receipt of the notice of termination.
Any additional services provided will be invoiced separately. An adequate advance payment may be requested by us.
Any material costs incurred shall be invoiced separately. Travel and subsistence expenses shall be passed on to the Customer provided that this was contractually agreed upon.
The agreed payment shall be made in full within two (2) weeks after receipt of invoice. Invoices shall be deemed as accepted unless we receive a written complaint by the Customer concerning the invoice within two (2) weeks. By signing the Proof of Services Rendered, which lists the individual services rendered by time unit, the Customer acknowledges the services provided as being in accordance with the contract concerning both the content and the amount. We are under no obligation to accept cheques, bills of exchange, or the like. The Customer shall only be allowed to set off our claims against claims of his own right, which are uncontested or have been declared final and absolute by a court. Exempted herefrom shall be claims by the Customer arising from a mutuality of obligation. These may be set off in full. The Customer shall only be entitled to execute his retention rights insofar as his counterclaim is based on the same transaction with us.
5. Propery Rights
In terms of the results obtained in the course of the provision of services, we shall grant the Customer a non-exclusive, simple right of use of these results. The details thereof shall be stipulated in the specific contractual agreement. We are permitted to use ideas, concepts, know-how, etc. for other customers irrespective of the scope to which rights are transferred to the Customer.
6. Force Majeure, Withdrawal, Termination
Should we fail to perform a service due to force majeure, especially serious transport problems, operating disruptions that are unforeseeable or no fault of ours, industrial disputes, energy, labour or raw material shortages, government measures not attributable to us, pandemics or other events beyond our control, we are not obliged to perform the service for as long as the respective hindrance persists and provided we have informed the Customer of this hindrance in writing immediately. If such hindrances persist for a period of over four (4) months, we are entitled to withdraw from the contract provided that due to the hindrance we no longer have an interest in the performance of the service, and we have not assumed the procurement or production risk. At the Customers request we shall state once the period has expired whether we shall withdraw from the contract or fulfil our performance obligations within a reasonable period of time.
If facts or circumstances become known to us which justify doubts about the solvency of the Customer (e.g. long-term attachment of assets or other compulsory enforcement measures, the application of the initiation of insolvency proceedings, or complete or partial default of payment of an invoice or partial invoice), we have the right to demand full payment of the agreed remuneration or the provision of a security prior to any further execution of the order. In case of complete or partial default of payment of an invoice or partial invoice by the Customer, we have the right to suspend further order execution until payment of the remuneration has been made or a security provided. After fruitless lapse of a reasonable period of time we may terminate the contract without notice. Any other claims shall remain unaffected by the termination.
The Customer shall not have the statutory right of withdrawal on the grounds of a service not rendered in accordance with the contract if we are not responsible for the breach of duty. This shall not apply if the contractual agreements grant the Customer the right of withdrawal irrespective of fault.
Where legally permissible, the parties’ right to terminate for convenience shall be excluded. The right of extraordinary termination remains unaffected thereof.
If the contract is terminated by the Customer, any services rendered by us shall be calculated and invoiced pro rata temporis up to the effective date of the termination. Furthermore, any costs incurred under the terminated contract and for the direct purpose of its execution shall be on the account of the Customer insofar as they could not have been avoided in spite of the exercise of all due commercial diligence.
The Customer undertakes to identify data, plans and other documents as well as information, including verbally disclosed information, as confidential in written form. The obligation of confidentiality shall not apply if the information is generally known or has become generally known without any fault on our part, or if we gained the information subject to confidentiality through our own independent work efforts and without consulting the Customer’s information, or if the disclosure of the information is required by law. This obligation of confidentiality shall apply for a period of five (5) years following the disclosure of the information.
In the event of a breach of material contractual obligations through simple negligence, our liability shall be limited to the compensation of the typical damage foreseeable on conclusion of the contract. Material contractual obligations are such obligations that protect the legal positions of the customer which are material to the contract and which have to be granted to the customer under the contract in terms of subject matter and purpose; material contractual obligations are also obligations whose fulfilment makes the due performance of the contract possible in the first place, and the compliance of which the Customer regularly may rely on. Irrespective of the legal ground, we shall have unlimited liability in amount in case of intentional and grossly negligent behaviour, intentional injury of life, body and health, violations of the German Product Liability Act, or a breach of obligation in connection with warranted properties. All other liability shall be excluded regardless of its legal grounds. This limitation of liability shall also apply to the benefit of all our employees, our employed or vicarious agents (Erfüllungs- und Verrichtungsgehilfen) as well as subcontractors. The above provisions shall not entail a reverse burden of proof.
In the event that the contract is executed by us in accordance with the specifications of the Customer, the Customer shall warrant that no rights of third parties are violated by us. Where a claim in such cases is made against us by a third party on account of a violation of its rights, the Customer shall indemnify us in full for and against all such claims. This indemnity obligation shall apply to all necessary expenses (e.g. legal costs) which were incurred in relation to the claims made by the third party.
9. Concluding Provisions
The place of performance is Chemnitz, Germany.
For all present and future claims arising from business relations with merchants, the exclusive place of jurisdiction shall be Chemnitz. The same place of jurisdiction shall apply if the customer does not have any general place of jurisdiction in the Federal Republic of Germany, or after the conclusion of the contract relocates his domicile or habitual residence from the Federal Republic of Germany, or his domicile or habitual residence is not known at the time when the action is filed. German law shall exclusively be applicable to all legal relationships. The application of other, including international, legal standards and norms shall be expressly excluded.
If any provision of these GT&C is or becomes invalid, the remaining provisions shall not be affected. The parties shall replace the invalid provisions with provisions that take due account of the economic purpose of these GT&C and the interests of both contractual parties. The same shall be applicable to any gaps in these GT&C.
In the event of disputes the Streitbeilegungsstelle Allgemeine Verbraucher Schlichtungsstelle des Zentrums für Schlichtung e.V., Straßburger Straße 8, D-77694 Kehl, www.verbraucher-schlichter.de is the competent body for alternative dispute resolution. However, we will not take part in any dispute resolution process before an alternative dispute resolution body.