General terms and conditions concerning provision of services of provativ GmbH
General terms and conditions concerning provision of services of
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 shall apply to the provision of services by the contractor (provativ GmbH) to clients.
(3) These general terms and conditions apply in their entirety. Deviating, conflicting or supplementary general terms and conditions of the client shall only become part of the contract if and to the extent that their validity have been expressly agreed upon in writing.
§ 2 Offers
(1) The contractor is bound to an offer made by him for a period of 14 days from the date of the offer.
(2) The contractor reserves ownership of, as well as copyright and other rights to, the documents pertaining to an offer.
§ 3 Remuneration and payment conditions
(1) Unless otherwise agreed, the contractor bills their services once a month according to actually incurred time expenditure based on submission of a corresponding time sheet. A surcharge of 50% of the agreed or customary remuneration is applied to services rendered on a Saturday. A surcharge of 100% of the agreed or customary remuneration is applied to services rendered on a Sunday or holiday.
(2) Expenses such those incurred by travelling, accommodation, meals and commuting are settled according to actual expenditure. 0.36 EUR are charged for every kilometer travelled by car.
(3) All quoted fees are plus statutory VAT.
(4) Invoices are to be paid within 14 days of receipt.
(5) The client is entitled to offset with counterclaims only if these are undisputed or legally ascertained.
§ 4 Service provision period and delay
(1) An agreed service provision period shall commence at the earliest and, unless otherwise agreed, not before the provision of any documents, permits and approvals to be organized by the client, and after receipt of an agreed down payment.
(2) If the client desires service provision within a specific period of time, an explicit agreement is required for this.
(3) The occurrence of any delay in delivery shall be determined in accordance with the statutory provisions. In any case, a reminder from the client is required.
(4) Agreed service provision deadlines are extended, also within a period of delay, by force majeure, labor disputes and operational disruptions outside the client's responsibility.
(5) In the event of changes to assignments which are agreed after contract conclusion and which influence service provision periods, any related, agreed deadlines are extended appropriately. In case of doubt, the delivery period is to be recorded by means of a separate agreement in a form in accordance with the relevant order.
§ 5 Client's obligations to cooperate
(1) The contracting parties agree that attainment of the contractually agreed objectives depends significantly on efficient and successful cooperation between the parties. Essential factors for achieving the contractual objectives lie within the client's staff-related, organizational and professional responsibility. Said client therefore undertakes to assist the contractor to the best of their ability, and to punctually ensure the conditions necessary for contractually compliant execution.
(2) The client undertakes to provide the contractor free of charge with the support necessary for fulfilling the assignment. This applies especially to use of the client's workplaces, including the required equipment, use of computer facilities including processor time, release of employees and use of the client's rooms.
(3) In time before commencement of cooperation, the client will notify the contractor of the responsible contact persons at their company and furnish these persons with the authority necessary for making the required decisions in due time and initiating measures at the contractor's end.
(4) Insofar as their data inventory is influenced by the contractor's installations, the client undertakes to back this inventory up appropriately and fully immediately before commencement of installation, and regularly during the installation phase, but at least once per day.
(5) If the client defaults in performing the activities in their sphere of responsibility, the contractor's obligation to service provision is suspended for the duration of the default, insofar as service provision is impossible or only possible with disproportionate overhead without action by the client. The additional expenditure incurred as a result is to be reimbursed to the contractor on the basis of the agreed or usual daily rates. This shall not affect the contractor's remaining compensation claims.
§ 6 Subcontractors
(1) The contractor is entitled to issue assignments wholly or partly to third parties such as freelance workers and subcontractors, unless otherwise agreed.
§ 7 Guarantee
(1) The client has to check each performed work or provided item immediately for contractual identity, flawlessness and completeness, and immediately report any established deviations or defects. In an absence of any such report by the client, the performed work is considered approved unless there is a defect which was not evident during the check. If such defects become evident later, the client must report them immediately on discovery; otherwise, the service provided by the contractor shall be considered approved also with regard to these defects. Once a service provided by the contractor is considered approved, the client's rights to recourse, also according to §§ 437 cont. and 478 of the German Civil Code, are excluded.
(2) The contractor may refuse the type of supplementary performance selected by the client, notwithstanding § 275 Paragraphs 2 and 3 of the German Civil Code, if the performance is only possible with disproportionate effort or cost. The client's claim to supplementary performance in this case is limited to the other type of supplementary performance; the right to refuse this too, if it is only possible with disproportionate effort or costs, remains unaffected.
(3) Insignificant defects do not under any circumstances entitle the client to withdraw from the contract.
(4) Warranty claims by the client lapse after one year. The limitation period begins on delivery of goods to the recipient, and on acceptance of work in the case of work performance. The client's right to recourse against the contractor according to §§ 437 cont. and 478 of the German Civil Code lapses according to § 479 of this code.
§ 8 Property rights
(1) The contractor grants the client a spatially and temporally unlimited, exclusive, transferable right to utilize, in any available manner, the work results provided in the framework of cooperation, such as operating procedures, organizational models and software. In particular, the client is entitled to modify, edit, copy and distribute software. Utilization rights are transferred to the client at the point in time during project implementation when work results which can be protected arise.
(2) The contractor waives personal copyright, especially as concerns naming of authors, access to works and rights against defacing.
(3) The contractor warrants that the services and work results provided by them do not affect or violate the industrial property rights of third parties, or restrict or preclude use and exploitation by the client. In the event that third parties nonetheless assert infringement of industrial property rights, the contractor shall indemnify the client from any related claims, and undertakes to compensate the client for all disadvantages and damages arising in this context. The contractor will furthermore, insofar as this is not impossible or unreasonable for them, at their own expense modify or replace the concerned work results in coordination with the client such that the industrial property rights of third parties are no longer violated, but the results nevertheless correspond to the contractual agreements.
§ 9 Secondary Claims
(1) If the contractor fails to provide a due service, either at all or according to the contract, the client can withdraw from the contract in accordance with statutory regulations. If the contractor has already delivered a partial performance, the client may withdraw from the entire contract if they are not interested in the partial performance.
(2) The client may not withdraw from the contract if the breach of the contractor's obligation is insignificant.
(3) Regardless of statutory regulations, the contractor is entitled to withdraw from the contract if
a) the client behaves contrary to the contract and the breach of duty is significant,
b) the client has made false statements made about their creditworthiness,
c) the performance due from the contractor is not available. In this case, the contractor undertakes to inform the client immediately about the unavailability, and reimburse the client's considerations immediately.
§ 10 Liability
(1) Unless otherwise stated in these general terms and conditions including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages - irrespective of the legal basis - within the framework of liability for culpability in cases of intent and gross negligence. In the event of ordinary negligence, we shall be liable, subject to statutory liability limitations (e.g. care in our own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on). In this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply in the event of breaches of duty by or in favor of persons whose fault we are responsible for in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the purchaser under the Product Liability Act (Germany).
§ 11 Third-party rights
(1) If third parties assert to the client that a service violates their rights, the client will notify the contractor immediately, comprehensively and in writing and grant the contractor the opportunity to ward off the asserted claims.
(2) If the client provides the contractor with drawings, models or samples in order to fulfil the contractual task, the Contractor shall be guaranteed that these are free of third party industrial property rights. If third parties assert claims against the contractor which are based on an aforementioned infringement, the client shall indemnify the contractor upon first request. In this case, the contractor is furthermore entitled to discontinue their provision of services without examination of the legal situation.
§ 12 Duties of loyalty
(1) The contracting parties commit themselves to mutual loyalty.
(2) To be refrained from, in particular, is direct or indirect headhunting of employees, freelancers or subcontractors from the other contracting party, or attempts at such headhunting.
(3) For each case of infringement of the aforementioned obligations, the contracting parties commit themselves mutually to pay the counterpart a contractual penalty of 40 daily wages based on an 8-hour day, at the rate last calculated for the concerned employees. Pleas of continuation of offense are excluded. The parties furthermore reserve the right to assert claims for any higher damages.
§ 13 Confidentiality
(1) The contracting parties mutually undertake to fully keep confidential all trade secrets obtained in the framework of the contractual relationship, and to refrain from disclosing them to third parties. Trade secrets include all details on the operating circumstances of the other contracting party in each case, insofar as the party does not publish them independently. These obligations remain effective beyond the duration of the contract. The contracting parties also undertake to impose the same secrecy on their employees, freelancers, subcontractors or other third parties which necessarily have access to the trade secrets.
(2) The contracting parties undertake to confidentially treat documents inadvertently received by them, and to return these immediately to the sender.
§ 14 Data privacy / Data Protection
(1) The Contractor and Client undertake to safeguard data secrecy in accordance with the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). You are aware that it is forbidden to process, disclose, access or otherwise use protected personal data for any purpose other than the lawful performance of the task without authorization.
(2) The contractor's data protection declaration shall be notified to the client in a separate document and can be retrieved 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.
§ 15 References
The contractor is entitled to name the client as a reference customer.
§ 16 Duration and termination
(1) All terminations must be announced in writing.
(2) If the delivery of the services owed by the contractor is not agreed for a specific period, the agreement may be terminated by either party with fourteen days' notice, unless otherwise agreed.
(3) This does not influence the right of both parties to extraordinary termination for important reasons.
§ 17 Court of jurisdiction and applicable law
(1) Exclusively German law applies to all legal relationships between the contracting parties. The United Nations convention on contracts for the international sale of goods (CISG) does not apply.
(2) Only these general terms and conditions are applicable. Conflicting or differing conditions of the client are not acceptable unless prior consent has been provided.
(3) The general terms and conditions also determine pre-contractual legal relationships established, for example, through introduction of staff members, issue of orders or submission of offers.
(4) 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.
(5) The court of jurisdiction is Darmstadt.