General terms and conditions concerning provision of services of provativ GmbH
General terms and conditions concerning provision of services of
64293 Darmstadt (30.07.2018)
§ 1 Fundamentals
(1) These general terms and conditions govern the framework for the provision of services by provativ GmbH, hereinafter termed contractor.
(2) The specific parameters of each assignment, such as temporal scope, location, type of execution and remuneration are agreed individually with the client.
§ 2 Angebote
(1) The contractor is bound to an offer 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 kilometre 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 periods
(1) An agreed service provision period begins after presentation 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) Agreed service provision deadlines are extended, also within a period of delay, by force majeure, labour disputes and operational disruptions outside the client's responsibility.
(4) 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.
§ 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.
§ 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 lapse according to § 479 of this code.
§ 8 Schutzrechte
(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 Damage compensation, withdrawal
(1) If the contractor breaches an obligation or fails to provide the required services, either at all or as due, the client can demand compensation of the resultant damage in accordance with statutory regulations.
(2) 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.
(3) The client may not withdraw from the contract if the breach of the contractor's obligation is insignificant.
(4) 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 Third-party rights
(1) If a third party asserts vis-à-vis the client that a service has violated their rights, the client will notify the contractor immediately in written detail, and give them an opportunity to ward off the asserted claims.
(2) If the client presents the contractor with drawings, models or samples for performing their contractual tasks, the client has a responsibility toward the contractor for ensuring that these are exempt from the industrial property rights of third parties. If third parties assert industrial property rights vis-à-vis the contractor, the client shall exempt the contractor on the first request. In this case, the contractor is furthermore entitled to discontinue their provision of services without examination of the legal situation.
§ 11 Liability
(1) The contractor is liable for all damages caused intentionally or by gross negligence.
(2) Excluded otherwise are all claims for damages, in particular, due to delay or breach of duty, as well as non-contractual claims, also due to lost profit, lost savings or lost utility benefits, failed expenditures, indirect damages and consequential damages.
(3) Any further damage compensation claims are restricted in amount to the damage foreseeable on contract conclusion. Claims arising as a result of realizing excess risks not foreseeable by the contractor cannot be asserted. This limitation does not apply insofar as damage resulting from injury to life, body or health through culpable breach of obligation by the contractor is involved.
§ 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) Recruitment or other engagement or hiring of staff, freelancers or subcontractors who assume activities related to implementation of this contract is allowed only with prior written consent of the respective contracting party. This also applies to activities for any affiliated companies. This provision shall apply for the entire duration of contractual cooperation between the parties, and a further six months after the end of cooperation.
(4) 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 authorisation.
(2) The Client's privacy statement will be communicated to the Contractor in a separate document and can be accessed at http://provativ.de/en/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 period of the contractor's activities for the client is not limited by agreement or by the nature of the activities, termination can be announced by either contracting party with a notice period of 14 days, unless agreed otherwise.
(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) The court of jurisdiction is Darmstadt.