General terms and conditions regarding purchase of services for provativ GmbH
General terms and conditions regarding purchase of services for
64293 Darmstadt (25.10.2019)
§ 1 Scope of application, form
(1) These general terms and conditions apply to all business relations with our business partners, insofar as these are entrepreneurs (§ 14 under the German Civil Code), a legal entity under public law or a special fund under public law.
(2) In particular, these general terms and conditions apply to the purchase of services by the client (provativ GmbH) from contractors. The concrete parameters of the relevant agreement, such as the time scope, place and type of execution as well as the remuneration shall be agreed by means of an order placed by the client and confirmed by the contractor. Our order shall be deemed binding at the earliest upon written submission or confirmation. The contractor shall notify us of obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents for the purpose of correction or completion prior to acceptance. In any other case, the contract shall be deemed null and void.
(3) These general terms and conditions apply in their entirety. Deviating, conflicting or supplementary general terms and conditions of the contractor shall only become part of the contract if and to the extent that their validity have been expressly agreed upon in writing. This requirement of consent shall apply in any case, even if we accept the contractor's deliveries unconditionally in full knowledge of the contractor's general terms and conditions.
§ 2 Provision of services and documentation
(1) The contractor undertakes to execute the assignment under their own responsibility, completely and with due diligence. The technical knowledge and professional experience required for each assignment must first be demonstrated by the contractor in an appropriate form. This also applies to the contractor's own deployed staff.
(2) If the contractor cannot adhere to an agreed deadline or if other problems occur, they must immediately inform the client about this.
(3) All investments needed to execute an assignment (staff, hardware, software, etc.) are to be made by the contractor independently on their own account, so that their own employees and equipment are always used for realizing the duties here.
(4) The contractor is basically free to observe their own schedules, especially as regards organization of working times. However, they must attach due priority to the task’s incumbent on them as part of an assignment, and take the client's needs as well as the circumstances of the client's customer into account as far as possible.
(5) The contractor shall prepare status reports on request by the client.
(6) The contractor documents their project activities in accordance with their project assignment and leaves this documentation in written and electronic form with the client or their customer after finishing their activities. The documentation must comply with the general guidelines and requirements of the client or their customer. General policies and guidelines are to be made known in time to the contractor by the client / customer.
(7) If requested by the client's customer, the contractor shall provide them with a current certificate of good conduct (not older than 3 months) no later than on the day of commencing activities.
(8) Before deploying own staff from non-EU countries for the purpose of fulfilling an order, the contractor undertakes to provide the client with copies of the staff's work and residence permits for the country of planned deployment. The contractor ensures that the concerned staff apply for renewal/extension of permits in time before their expiry, and undertakes to submit copies to the client.
§ 3 Remuneration and billing of services
(1) For their activities, the contractor receives remuneration from the client as agreed upon in the framework of the respective order.
(2) A prerequisite for payment of remuneration is submission of evidence, prepared and signed by the contractor, as concerns activities and times spent; if necessary, this is to be created via a form or system of the customer's, and authorized online or signed by them.
(3) The remuneration laid down in the order covers all the contractor's expenses, regardless of their predictability. In particular, the contractor receives no daily allowances or compensation for travelling costs, unless agreed otherwise in the respective order.
(4) The payment period agreed in the context of the order can be
a) 30 days without discount
b) 14 days with 2% discount
c) 7 days with 3% discount.
(5) The contractor bills their services for each month by no later than the third working day of the month following the billing period. The payment period selected in Item (4) starts once all the documents mentioned in Item (2) have been submitted.
If work performance pursuant to §§ 631 cont. of the German Civil Code is to be rendered, then different accounting rules can be agreed.
§ 4 Delivery and acceptance of work performance, secondary claims
(1) Exclusively for cases in which the contractor is to provide work performance pursuant to §§ 631 cont. of the German Civil Code, they will report work progress to the client at regular intervals. Furthermore, the contractor will immediately inform the client in each case about completion of agreed partial performances as well as the total performance.
(2) The client or their customer will immediately examine the performance. It is considered accepted if the client does not inform the contractor in writing within thirty days of announcement of completion about any defects established by them. In this case, the client shall set a grace period for the contractor for the purpose of remedying the defects. On fruitless expiry of this grace period, the client is entitled to refuse remedy by the contractor, and have alternative measures implemented at the contractor's expense.
(3) At the request of both parties, partial acceptances to be agreed in writing can also take place. The same applies to agreements of different delivery and acceptance provisions for individual services. Reservations based on known defects during acceptance must also be made in writing.
(4) If the contractor does not render the owed service or does not render it within the agreed delivery period or if the contractor is in default, our rights - in particular to rescission and damages - shall be determined in accordance with the statutory provisions.
§ 5 Confidentiality
(1) The contractor undertakes to treat all information, such as business addresses, participant details etc. obtained or otherwise exchanged as part of the professional activities described here as business secrets, and to neither utilize such information themselves for their own business purposes nor to make it accessible to third parties, unless there is a duty to disclose this information due to legal or fiscal provisions. This also applies to the period after termination of the contractual relationship. The contractor is furthermore obliged to fully return all documents, files and other records which they or their employees produced as part of their activities for the client and their customer, or which were submitted by the client or their customer to the contractor as support for fulfilling their project assignment, upon request at any time, but unsolicited at end of the assignment or on termination of the contract, to the client and their customer.
(2) The contractor confirms that they are obliged to comply with data protection regulations pursuant to the federal data protection act (BDSG).
(3) The contractor will commit their staff and other third parties employed by them to also observe paragraphs 1 and 2 mentioned above.
(4) The above-mentioned obligations continue to exist also after termination of the contractual relationship.
(5) For breaches of this duty of confidentiality, the contractor shall pay a contractual penalty of up to 25,000.00 EUR, without proof of damage incurred by the client. Assertion of further damage claims is not excluded. The client will call on the contractor to compensate any damage caused intentionally or through gross negligence by the contractor.
(2) The Client's privacy statement will be communicated to the Contractor in a separate document and can be accessed at http://provativ.de/de/datenschutz.
(3) The Contractor and Client will also undertake to oblige all their employees, in writing, to keep data confidential.
§ 7 Industrial property rights
(1) Work results are to be available exclusively to the client. Where copyrights exist, the client receives an exclusive and unlimited right to utilize the work results for all commercial purposes or otherwise, also outside their business establishment. The client is entitled to process and modify the work results. They are furthermore directly entitled to grant third-parties, in the course of exploiting rights of use, such rights to utilize the work results in exchange for payment or free of charge, on a non-exclusive or exclusive basis, without the contractor benefitting from associated compensation.
(2) The agreed remuneration also covers claims based on utilization of the work results after the end of cooperation.
§ 8 Liability
(1) The contractor is fully liable, for themselves and their employees, in the event of any damage as well as consequential damage incurred by the client or their customer as a result of intentional or grossly negligent behaviour.
(2) The contractor is responsible for ensuring that the results of their work are exempt from the rights of third parties who could restrict their use, and shall indemnify the client from third-party claims based on copyright infringement. Excluded here expressly are work results from the client or their customer intended for use within the framework of the project. If claims of violations of rights are asserted by third parties against the client, they shall immediately notify the contractor.
(3) The contractor is committed vis-à-vis the client to cover general liability risk by way of appropriate insurance.
§ 9 Period of validity, cancellation and termination
(1) This agreement shall be effective upon written signature by both parties.
(2) The client is entitled to cancel an order at any time if the basis for order is eliminated, this being especially the case on cancellation by the client's customer, regardless of the reason. The same applies if the project is cancelled, or the client's customer demands justified replacement of the contractor. Upon request, the client shall inform the contractor of the reasons for replacement.
(3) The client furthermore has the right to cancel at any time if no effective contract concerning the project underlying the order arises between the client and their customer.
(4) In case of cancellation, the contractor is obliged to execute their services properly, and to related submission and documentation by a specific deadline before the cancellation becomes effective.
§ 10 Miscellaneous
(1) These general terms and conditions as well as the individual orders are subject exclusively to the law of the Federal Republic of Germany.
(2) Should one or more agreement in this contract be or become invalid or void in whole or in part, or should this agreement contain a loophole, the validity of the remaining agreements of this contract shall remain unaffected.
(3) The place of jurisdiction, as far as legally permissible, is Darmstadt.