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Terms and Conditions of VELA Performance GmbH

(As of November 2024)

§ 1 Applicability and General Provisions

  1. All deliveries, services, and offers from VELA Performance GmbH, Ostendstraße 25, 12459 Berlin, as well as from any affiliated company according to § 271 HGB (jointly referred to as "Contractor"), to an entrepreneur as defined in § 14 of the German Civil Code (BGB), a legal entity under public law, or a public-law special fund ("Client") are exclusively based on these General Terms and Conditions ("GTC") of the Contractor.
     

  2. Unless otherwise agreed, these GTC apply in the version valid at the time of the respective contract conclusion or, in any case, in the version last communicated to the Client in text form as a framework agreement for all future similar contracts between the Contractor and the Client, without the need for the Contractor to refer to or highlight them in individual cases.
     

  3. The Client’s conflicting, supplementary, or diverging general terms and conditions will only become part of the contract to the extent that the Contractor has expressly agreed to their applicability. This consent requirement applies in every case, for example, even if the Contractor performs deliveries and services without reservation, accepts payments without objection, or remains silent on a declaration of inclusion from the Client.
     

  4. Individual agreements made between the Client and Contractor (including side agreements, additions, and amendments) take precedence over these GTC in every case. For the content of such individual agreements, a written contract or written confirmation by the Contractor shall be decisive, subject to proof to the contrary.
     

  5. Legally relevant declarations and notices from the Client regarding the contract, especially setting deadlines, complaints about defects, withdrawal, and reduction, must be made in writing, i.e., in written or text form (e.g., letter, email, or fax). Legal formal requirements and other evidence, especially in case of doubts about the legitimacy of the declarant, remain unaffected.
     

  6. References to the applicability of statutory provisions serve only to clarify their meaning. Even without such clarification, the statutory provisions apply unless they are directly amended or explicitly excluded in these GTC.
     

  7. With regard to the Contractor’s information obligations under the GDPR, the privacy policy available at https://www.vela-performance.com/datenschutz is referenced.
     

  8. The Contractor reserves the right to amend these GTC if necessary for valid reasons, particularly due to a change in the legal situation or higher court rulings, technical changes or developments, new organizational requirements in mass transport, gaps in the GTC, changes in market conditions, or other equivalent reasons, provided that the Client is not unfairly disadvantaged by the amendment and no essential terms of the contractual relationship are affected. Essential terms include, in particular, those regarding the nature and scope of the agreed services as well as the provisions for termination. Amendments to the GTC will be communicated to the Client in writing or in text form at least six weeks before their planned entry into force. The amendments will become effective if the Client does not object to the change in writing or in text form within this six-week period (starting from the receipt of the amendment notice), and the Contractor has informed the Client of this legal consequence in the amendment notice. The Client’s consent to the amendment of the GTC will be deemed granted if no objection is raised. The Contractor is obliged to specifically draw the Client’s attention to the changes to the GTC and to inform them that their consent to the amendments will be deemed granted if no objection is made, e.g., by highlighting the notice linguistically or graphically. The consent fiction does not apply if the Client was prevented from submitting an objection in time for an important reason. With the amendment of the GTC, the Contractor will only respond to changed circumstances; it is excluded that GTC that are not affected by the changed circumstances will be amended as part of this process.

§ 2 Offer and Accompanying Documents

  1. Oral offers from the Contractor are always non-binding and subject to change; they only become binding upon confirmation in writing or text form. This requirement for written or text form also applies to any side agreements and amendments. A contract cannot be concluded by a unilateral written reference from the Client to previous contract negotiations. Silence on the part of the Contractor shall in no case be considered as consent.
     

  2. The binding period for (confirmed) offers in writing or text form, unless otherwise stated in the offer, is thirty (30) days from the creation date specified in the offer, regardless of the receipt of the offer.
     

  3. The information contained in the offer letter and in the documents referred to therein, which are attached for determining the contractual properties, functions, and/or quality characteristics of the service ("Offer Documents"), must be checked by the Client for their suitability both for the planned use and for regular use. In case of discrepancies, the Client must notify the Contractor within ten (10) days of receipt of the Offer Documents, otherwise, any resulting defects or deviations will be the responsibility of the Client.
     

  4. Any accompanying documents sent along with the Offer Documents, such as catalogs, technical documentation, calculations, estimates, DIN standards, or data sheets ("Accompanying Documents"), contain non-binding information, such as technical descriptions, drawings, illustrations, data, programs, and physical performance specifications, and do not constitute an agreement on the properties according to § 12, item 2 of these GTC.
     

  5. The Contractor retains all ownership, usage, and exploitation rights to the Offer and Accompanying Documents, as well as to the information contained therein. Additionally, the information contained therein constitutes business and/or trade secrets of the Contractor. The Client is prohibited from unauthorized use or unauthorized disclosure to third parties.

 

§ 3 Retention of Title

  1. The performance results owed by the Contractor, both tangible and intangible or intellectual ("Performance Items"), remain the property of the Contractor until the fulfillment of all current and future claims of the Contractor arising from an ongoing business relationship with the Client ("Secured Claims").
     

  2. The Performance Items subject to retention of title may not be pledged or transferred as security to third parties before the full payment of the Secured Claims. The Client must immediately notify the Contractor in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g., through garnishments) access the Performance Items owned by the Contractor.
     

  3. In the event of a breach of contract by the Client, particularly in case of payment default, the Contractor is entitled to withdraw from the contract and/or demand the return of the Performance Items based on the retention of title, in accordance with the statutory provisions. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, the Contractor is entitled only to demand the return of the Performance Items subject to retention of title and to reserve the right to withdraw. The Performance Items will then be subject to the Contractor's unrestricted disposal. In the case of software transfer, all usage and exploitation rights granted to the Client under the contract will expire. If the breach of contract by the Client is due to payment default, the Contractor may only enforce these rights if the Contractor has previously set a reasonable deadline for payment or if such a deadline is not required according to legal provisions.
     

  4. The Client is entitled, until further notice, to sell and/or process the Performance Items subject to retention of title within the scope of an orderly business operation.
     

  5. In the event of processing, mixing, or combining the Performance Items subject to retention of title with one or more other items, the Contractor’s retention of title extends to the entire new item; the Contractor is considered the manufacturer of the new item. If, when processing, mixing, or combining with third-party items, their ownership rights remain intact, the Contractor acquires co-ownership in proportion to the invoice values of the processed, mixed, or combined items. In all other respects, the new item is subject to the same conditions as the Performance Items subject to retention of title.
     

  6. If the Client sells the Performance Items subject to retention of title to third parties without receiving full consideration in advance or simultaneously, the Client must agree with these third parties to a retention of title in accordance with these conditions. The Client hereby assigns to the Contractor any claims arising from such resale as well as the rights from the retention of title agreed by the Client. The Contractor accepts this assignment in advance. The Client's obligations under item 2 above apply accordingly to these assigned claims. Furthermore, the Client remains authorized to collect these assigned claims alongside the Contractor. The Contractor agrees not to collect the assigned claims as long as the Client meets their payment obligations to the Contractor, there is no deficiency in the Client’s ability to pay, and the Contractor does not demand return of the items under item 3. However, if this is the case, the Client is obligated to inform the buyers of the assignment and provide the Contractor with the necessary information and documents required to assert the Contractor's rights against the buyers; in this case, the Contractor is entitled to revoke the Client’s right to further sell the Performance Items subject to retention of title.
     

  7. If the realizable value of the Performance Items subject to retention of title exceeds the Secured Claims by more than 10%, the Contractor is, upon the Client's request, obligated to release securities of the Contractor’s choice within a reasonable period.

§ 4 Performance Deadline and Delay in Performance

  1. The deadline for the Contractor's performance ("Performance Deadline") is either individually agreed upon with the Client or specified by the Contractor in their offer or upon acceptance of an order. Unless explicitly agreed as a fixed date transaction, compliance with performance deadlines is not considered an essential part of the Contractor's performance obligations. Therefore, a delayed performance still constitutes fulfillment of the Contractor's obligation.
     

  2. The Contractor's adherence to performance deadlines assumes, where applicable, the fulfillment of all obligations on the Client's part, particularly the timely receipt of all physical and intangible contributions from the Client (including documents, plans, materials, components, software, etc.), necessary approvals, and clearances, as well as compliance with the agreed payment terms by the Client. If these conditions are not met, not fully met, or not met on time, the performance deadlines shall be extended accordingly. In this case, no delay shall be considered.
     

  3. If the Contractor is unable to meet performance deadlines due to reasons not attributable to them ("Non-availability of the Performance"), the Contractor will promptly inform the Client and provide an estimated new performance deadline. If the non-availability of the performance persists within the new performance deadline, the Contractor is entitled to withdraw from the contract, in whole or in part. A case of non-availability of the performance specifically includes failure of timely self-supply by a supplier or sub-supplier when the Contractor has concluded a corresponding covering transaction and neither the Contractor nor the supplier or sub-supplier is at fault or the Contractor is not obligated to procure the performance in a specific case.
     

  4. The occurrence of a delay on the part of the Contractor ("Delay in Performance") is determined according to legal provisions, with a reminder from the Client with a reasonable deadline being required in every case. Flat-rate damage claims and/or contractual penalties require an explicit written agreement between the Client and the Contractor; even when flat-rate damages are expressly agreed, the Contractor retains the right to prove that no damage or only a lesser amount than the agreed flat rate was caused to the Client. Otherwise, the legal consequences of delay apply.
     

  5. The Client's rights under § 12 of these GTC and the statutory rights of the Contractor, particularly in cases of exclusion of performance obligations (for example, due to impossibility or unreasonableness of the performance and/or supplementary performance), remain unaffected by the above provisions.

 

§ 5 Transfer of Risk and Delay in Acceptance

  1. All services provided by the Contractor are delivered ex works, which is also the place of performance for deliveries (including deliveries of performance items) and any supplementary performance. Deliveries must generally be made available for loading without packaging. Shipment to another destination will only be at the Client's expense and based on a corresponding agreement. Unless otherwise agreed, the Contractor is entitled to determine the type of shipment (particularly the transport company, shipping route, and packaging) when shipping.
     

  2. The risk of accidental loss or deterioration of the performance passes to the Client no later than upon delivery to the Client. If the Client picks up the goods, this risk passes upon notification of completion and the performance being made available at the Contractor's premises. In the case of data transmission, the risk passes as soon as the data is sent to the Client. In the case of shipping, the risk and the risk of delay pass to the Client as soon as the goods are handed over to the carrier, freight forwarder, or any other person or institution designated to carry out the shipment.
     

  3. If acceptance is agreed upon, it is decisive for the transfer of risk. Otherwise, the statutory provisions of contract law on work contracts apply accordingly to an agreed acceptance, to the extent that they are applicable. Acceptance or handover is deemed to have occurred if the Client is in delay with acceptance.
     

  4. If the Client is in delay with acceptance, fails to perform a required act, or if the Contractor's performance is delayed for other reasons attributable to the Client, the Contractor is entitled to claim compensation for the resulting damage, including additional expenses (e.g., capacity re-planning, failure to utilize planned capacities, storage costs). The Contractor may charge a flat-rate compensation of 0.5% of the performance value for each started calendar week, beginning with the performance deadline or the notification of readiness for collection, but not exceeding 5% of the delivery value of the performance affected by the delay in acceptance. The Contractor’s right to prove a higher damage amount and to assert statutory claims (in particular, reimbursement of additional expenses, appropriate compensation, and termination) remains unaffected. The flat rate is to be credited against further monetary claims.

The Client is allowed to prove that the Contractor has suffered no damage or only considerably less damage than the aforementioned flat rate.

 

§ 6 Payment Terms and Payment Default

  1. The Contractor's prices are net prices and are understood to be ex works, excluding transport, insurance, and packaging, unless otherwise agreed in individual cases. Value-added tax will be invoiced separately to the Client; any legal changes to the VAT rate do not entitle the Client to terminate the contract. If shipping is agreed, the Client bears all transport costs and associated costs, including packaging and transport insurance, from the place of delivery. In addition, the Client is responsible for any customs duties, fees, taxes, and other public charges.
     

  2. The Contractor is entitled to invoice the Client for services not included in the Contractor's offer or in an accepted order but requested by the Client during the course of the performance relationship ("Additional Services"), at market rates. Additional services also include additional work arising from changes requested by the Client, even if the Client is not separately notified of these services.
     

  3. The Contractor is entitled to invoice for services on a monthly basis, unless otherwise agreed. The respective invoice amount is due for payment within fourteen (14) days of the invoice date, unless otherwise indicated on the invoice ("Payment Deadline"). The Contractor is also entitled, in the course of an ongoing business relationship, to carry out services either entirely or partially only against advance payment. The Contractor will state such a reservation no later than with the order confirmation.
     

  4. Upon expiration of the payment deadline, the Client is in default without the need for a reminder. The invoice amount will accrue interest at the applicable statutory default interest rate. The Contractor's claim to commercial default interest (§ 353 HGB) and the assertion of further default damages, as well as the application of the flat-rate compensation according to § 288 Abs. 5 BGB, remain unaffected.
     

  5. Invoices from the Contractor are deemed accepted if the Client does not object to them in text form within two weeks of receipt.
     

  6. The Contractor is entitled to apply the Client's payments first to older debts and to settle incoming payments first with costs, interest, and then the principal performance.
     

  7. In the event that the Contractor recognizes a threat to the price claim due to the Client's insufficient ability to perform after the conclusion of the contract (e.g., due to an application for insolvency proceedings, refusal of an important credit, issuance of insufficient checks, etc.), the Contractor is entitled to refuse performance according to statutory provisions. This right to refuse performance expires if the Client settles the price claim or provides security for it. The Contractor may set a reasonable deadline within which the Client must fulfill the price claim or provide security in exchange for performance at the Contractor's discretion. After the deadline has passed without success, the Contractor may withdraw from the contract.
     

  8. The Client is only entitled to offset or withhold payments in the case of claims that have been legally established or are undisputed. In the case of defects in the Contractor's performance, the Client's counter-rights remain unaffected, particularly in accordance with § 12, item 5, sentence 2 of these GTC.

 

§ 7 Acceptance Obligation for Work Performance

  1. If acceptance of the work is possible due to the nature or characteristics of the performance, the client is obligated to accept the work that is completed by the contractor ("ready for acceptance") without delay. A performance is considered ready for acceptance if it meets the essential features of the agreed-upon specifications. Regardless of this, the client may also accept the performance before it is ready for acceptance.
     

  2. If the contractor's performance can be separated into several sub-performances that are independently usable by the client, the client's obligation to accept applies to each sub-performance.
     

  3. The client is required to create a written acceptance protocol and submit it to the contractor without undue delay. If the client fails to do so, a work performance is deemed to be implicitly accepted if (i) its suitability and defect-free nature can be determined by the client through an external inspection and the client accepts it without rejecting it within fourteen (14) days, (ii) the client puts it into use definitively after a trial period of fourteen (14) days, or (iii) the client unconditionally pays the corresponding price to the contractor.
     

  4. The client may not refuse acceptance due to minor defects in the performance ("acceptance capability"). Acceptance capability exists particularly if the usability of the performance for the client is not or only insignificantly impaired, e.g., for cosmetic defects. Likewise, the absence or incompleteness of documentation, construction documents, or source code does not impair acceptance capability.
     

  5. A performance is considered accepted even if the contractor has set the client a fourteen (14)-day period for acceptance after the completion of the work, and the client has not refused acceptance within this period by indicating at least one defect.
     

  6. The setting of an acceptance period by the contractor to the client, as described in § 7, Item 5, also applies when the contractor sends an invoice for the corresponding work performance to the client, and the payment period of the invoice is considered the acceptance period.

§ 8 Effects of Force Majeure

Force majeure of any kind, including unforeseeable disruptions in operations, transportation, or shipping, fire damage, flooding, unforeseeable shortages of labor, energy, raw materials, or auxiliary materials, strikes, lockouts, government orders, or other obstacles not attributable to the contractor, which delay, prevent, or make the manufacture, shipping, or acceptance of the performance impossible or unreasonable, will release the contractor from the obligation to deliver or accept for the duration and extent of the disruption. If the delivery and/or acceptance is delayed by more than eight (8) weeks due to the disruption, both parties are entitled to withdraw from the contract.

§ 9 Rights to Tools for Performance

  1. The business secrets, practical knowledge, know-how, industrial property rights, (software) copyrights, and any combination thereof ("intangible tools") used by the contractor in the context of their services remain the property of the contractor. The client is not granted any usage or exploitation rights to the intangible tools.
     

  2. The tools, auxiliary models, working materials, equipment, models, molds, etc., ("tangible tools") created by the contractor in the course of their services are not part of the subject of the contract unless explicitly agreed otherwise in the offer documents and remain the property of the contractor; the contractor retains all usage and exploitation rights to these tools.
     

  3. The tangible tools will be stored by the contractor for a period of six (6) months after acceptance by the client without acknowledgment of any legal obligation. After this period, the contractor may dispose of the tools unless the contractor and the client have agreed on further storage of the tools or the transfer of ownership against a reasonable payment.

§ 10 Rights to Performance Results and Inventions

  1. The rights of the contractor to the intangible or intellectual performance results ("performance results") will pass to the client after the property retention under § 3 of these general terms has been lifted, insofar as this is legally possible.
     

  2. For copyright-protected performance results, the client is granted the right to use these results in an unlimited, spatial, temporal, and content-based manner for all known types of use ("usage right"). This includes the right to reproduce, distribute, display, perform, present, make publicly available, transmit, and reproduce by any medium. The usage right is transferable and sub-licensable. The contractor retains a usage right for its own scientific research and development purposes. To the extent legally possible, the contractor waives the right to attribution.
     

  3. If the performance results contain patentable inventions and no differing contractual agreement has been made, the rights to these inventions remain with the contractor. The client is granted a simple, unrestricted, transferable, and sub-licensable usage right to these inventions, which is considered covered by the total compensation. In exchange for this grant, the client is obliged to bear the costs incurred by the contractor, especially for employee invention compensation. Upon the client's request, made in writing within one year after the performance results are available, the contractor will transfer exclusive rights to these results for a reasonable and market-based compensation; after the transfer, the client has the right to file for protection rights, but is not obligated to do so.
     

  4. If inventions arise in the course of the contractual collaboration in which both the client’s and contractor's employees or agents are involved, the provisions for joint ownership apply.

§ 11 Third-Party Intellectual Property Rights

  1. The contractor will make reasonable efforts to ensure that the performance items in the country of fulfillment are free from third-party intellectual property rights that would prevent or impair the client’s use of the performance ("contrary intellectual property rights"). This effort does not include research into or evaluation of conflicting intellectual property rights ("intellectual property search").
     

  2. The client may, on a case-by-case basis, agree with the contractor to conduct an intellectual property search regarding the performance items. The client must provide the scope (in terms of content and territory), set a cost framework, and bear all resulting costs. Any affected delivery deadlines will be extended by the duration of the intellectual property search. The client acknowledges that even with the most thorough search, it is impossible to identify all relevant conflicting intellectual property rights, and that the evaluation of any conflicting rights will always involve some uncertainty.
     

  3. If the client becomes aware of conflicting intellectual property rights through the results of an intellectual property search or otherwise, they may, at their choice, (i) request the contractor to develop a technical solution that does not infringe on the identified intellectual property rights, (ii) instruct the contractor to temporarily cease the work in order to address the conflicting rights or acquire a license, or (iii) terminate the contract with the contractor in accordance with § 17, Item 2 of these general terms.
     

  4. If the client is sued by a third party for an alleged infringement of conflicting intellectual property rights by the performance items, the client must immediately inform the contractor in writing, not acknowledge the infringement, and retain all defense rights for both themselves and the contractor. If the client ceases to use the performance results, they must inform the third party that such cessation does not imply acknowledgment of the intellectual property infringement.

§ 12 Client's Warranty Claims

  1. The client’s rights regarding material and legal defects (including incorrect and insufficient delivery as well as improper assembly or faulty assembly instructions) are governed by the statutory provisions, unless otherwise specified below. Statutory special provisions for the delivery of unprocessed goods to a consumer remain unaffected, even if the consumer further processes the goods (supplier recourse under § 478 of the German Civil Code). Claims for supplier recourse are excluded if a defective performance has been further processed by the client or another contractor (e.g., when integrated into another product).
     

  2. The basis for the contractor’s liability for defects is the agreement on the quality of the performance. All performance descriptions that form part of the individual contract are considered agreements on quality. If no such agreement has been made, the statutory provisions apply to determine whether a defect exists. The contractor is not responsible for public statements (e.g., advertising claims) made by a supplier or third parties, including the client, to their customers. Regardless, the client must immediately inform the contractor in writing of any recourse cases arising in the supply chain upon becoming aware.
     

  3. The client must fulfill their statutory inspection and notification obligations (§§ 377, 381 of the German Commercial Code) in order to assert any warranty claims. If a defect is discovered upon delivery, inspection, or later, the client must inform the contractor immediately in writing. Any obvious defects must be reported within ten (10) business days after receipt of the goods, and hidden defects must be reported within the same period after discovery. If the client fails to inspect or notify the contractor of discovered defects in a timely manner or in the required form, the contractor’s liability for that defect is excluded. If the client accepts a performance despite being aware of a defect, warranty claims for that defect are only available if they explicitly reserve the right in writing at the time of acceptance.
     

  4. If the contractor’s performance is defective and warranty claims have not been excluded, the contractor may initially choose whether to provide a remedy by rectifying the defect (repair) or by delivering a defect-free replacement (replacement delivery). The contractor’s right to refuse remedy under statutory conditions remains unaffected.
     

  5. The contractor is entitled to condition any remedy on the client’s payment of the due price. However, the client may withhold an appropriate portion of the price in relation to the defect.
     

  6. The client must provide the contractor with the time and opportunity necessary for remedy, especially by returning the contested performance for inspection purposes. In the case of a replacement delivery, the client must return the defective item in accordance with statutory provisions. The client’s remedy claim does not cover the removal of a defective performance or reinstallation if the contractor was not originally obliged to install.
     

  7. Any expenses required for inspection and subsequent performance, in particular transportation, travel, labor, and material costs, as well as any costs for removal and installation, shall be borne or reimbursed by the contractor in accordance with the statutory provisions, if a defect is actually found. Otherwise, the contractor may demand reimbursement from the client for costs arising from unjustified defect claims (in particular inspection and transport costs), unless the client could not have recognized the absence of a defect. Without express agreement, this cost-bearing provision does not entitle the client to request an advance from the contractor to cover transportation, travel, removal, or installation costs, even if the existence of the alleged defect is still unclear.
     

  8. In urgent cases, e.g., when there is a threat to operational safety or to prevent disproportionate damage, the client has the right to remedy the defect themselves and to claim reimbursement from the contractor for the objectively necessary expenses incurred. The contractor must be notified immediately, preferably in advance, of any such self-remedy. The right to self-remedy does not exist if the contractor would be entitled to refuse subsequent performance under the statutory provisions or if no defect existed that the contractor was obligated to remedy.
     

  9. If subsequent performance fails twice or if an appropriate deadline set by the client for subsequent performance expires without success, or if it is dispensable under the statutory provisions, the client may withdraw from the contract or reduce the price. However, in the case of an insignificant defect, no right of withdrawal exists.
     

  10. Claims for damages or reimbursement of futile expenses by the client due to defects exist only in accordance with Section 13 of these General Terms and Conditions and are otherwise excluded.
     

  11. Notwithstanding any further claims of the contractor, the client is obliged, in the event of an unjustified complaint of defects, to reimburse the contractor for the expenses incurred for inspection and, if required, for the remedy of the defect.

 

§ 13 General Liability of the Contractor

  1. Unless otherwise specified in these General Terms and Conditions, including the following provisions, the contractor is liable for breaches of contractual or non-contractual obligations according to the statutory provisions.
     

  2. The contractor is liable for damages and reimbursement of futile expenses – regardless of the legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, the contractor is liable, subject to a milder standard of liability according to the statutory provisions (e.g., for care in their own matters), only:

    a. for damage to life, body, or health,
    b. for damage caused by a non-insignificant violation of an essential contractual obligation (an obligation whose fulfillment makes proper performance of the contract possible and which the client can regularly rely on); in this case, the contractor's liability is limited to compensating for the foreseeable and typically occurring damage,
    c. for damage caused by a non-insignificant violation of the obligation to perform defect-free; in this case, the contractor's liability is also limited to compensating for the foreseeable and typically occurring damage.
     

  3. In the case of § 13 paragraph 2 letter b of these GTC, the parties assume that the foreseeable and typically occurring damage does not exceed the amount of one (1) million euros. The contractor's liability in these cases is therefore limited to this amount. This liability cap does not apply if the client indicates a higher damage value in writing before the order is placed – at the latest before the performance starts. In this case, the indicated value will be the liability cap. If the indicated value exceeds five (5) million euros, the contractor has the right to terminate the contract extraordinarily.
     

  4. In the case of § 13 paragraph 2 letter c of these GTC, the parties assume that the foreseeable and typically occurring damage does not exceed the total value of the counter-performance as the maximum possible value of a defect. The contractor's liability is therefore limited to this amount. This liability cap does not apply if the client indicates a higher damage value in writing before the order is placed – at the latest before the performance starts. In this case, the indicated value will be the liability cap. If the indicated value exceeds twice the value of the counter-performance, the contractor has the right to terminate the contract extraordinarily.
     

  5. Furthermore, the contractor is only liable for the loss of data if the client has ensured through proper data backup that the data can be reconstructed with reasonable effort, and if the data backup is not part of the contractor's contractually agreed services. The liability is limited to the effort required for data restoration.
     

  6. Unless otherwise agreed contractually, the contractor is only liable for a violation of conflicting protective rights if it is a violation of an obligation under § 11 paragraph 1 of these GTC. In this case, the contractor has the right, at their discretion and at their own cost, to either obtain a usage right for the conflicting protective right or modify the affected performance so that the conflicting protective right is no longer violated. Claims from the client are also excluded if such a violation of protective rights results from the client's use of the performance in a way that the contractor could neither have known nor been informed about, or if the performance is modified or used together with products not supplied by the contractor.
     

  7. The liability limitations in §§ 13 paragraphs 2 to 6 of these GTC also apply in the event of breaches of duty by or in favor of persons whose fault the contractor is legally responsible for, particularly their legal representatives, executives, and vicarious agents. They do not apply if the contractor has fraudulently concealed a defect, if the contractor has given a guarantee for the quality of a performance, or if the contractor is liable under statutory mandatory provisions, particularly the Product Liability Act.
     

  8. In the event of a breach of duty that does not constitute a defect, the client can only withdraw or terminate the contract if the contractor is responsible for the breach. The client's right to terminate freely (especially according to § 648 of the German Civil Code) is excluded. In all other respects, the statutory conditions and legal consequences apply.

§ 14 Liability of the Contractor in Case of Impossibility

  1. If the contractor refuses to perform because the performance was impossible at the time of the contract or required an effort that is grossly disproportionate to the client's interest in performance, the contractor is liable for damages instead of performance, provided they are responsible for the impossibility. The contractor is not liable if they did not know and could not have known about the impossibility. The client's damages claim is limited to 10% of the value of the part of the performance that cannot be used due to impossibility. This limitation does not apply in cases of intent, gross negligence, or violations of life, body, or health, nor does it affect the burden of proof to the detriment of the client. The client's right to withdraw from the contract remains unaffected.
     

  2. If impossibility or disproportionate effort occurs after the conclusion of the contract, the contractor is liable for damages unless the occurrence was unforeseeable or unavoidable.

§ 15 Statute of Limitations for the Client's Claims

  1. The client's claims for defects expire after twelve (12) months from delivery. If acceptance is agreed upon, the limitation period begins with the acceptance.
     

  2. If the performance is a building or an item that has been used in a building in accordance with its usual use and caused a defect (construction material) or is a work whose success lies in providing planning and supervision services for a building, the limitation period is five (5) years from delivery. Other statutory special regulations regarding limitation periods (in particular, § 438 paragraph 1 no. 1, paragraph 3, §§ 444, 445b BGB) remain unaffected.
     

  3. The above limitation periods also apply to contractual and non-contractual claims for damages by the client based on a defect in the performance, unless the application of the regular statutory limitation results in a shorter period in the individual case – in which case that applies. Claims for damages by the client under § 13 paragraph 2 sentence 1, § 13 paragraph 2 sentence 2 letter a, and § 13 paragraph 7 sentence 2 of these GTC expire solely according to the statutory limitation periods.
     

  4. The notification of a defect or negotiations about a claim or the circumstances supporting the claim do not interrupt the limitation period.

§ 16 Client's Compliance with Legal Requirements

  1. The client undertakes to comply with all applicable laws, regulations, and norms ("Legal Norms"), especially those regarding the fight against corruption, restrictions on competition, unfair trade practices, and export control norms.
     

  2. The client must take all necessary and appropriate measures to prevent corruption. In particular, the client undertakes not to offer, promise, or grant, either directly or indirectly, any gifts or other benefits (such as money, non-business-related gifts, or invitations to events like sports, concerts, or cultural events) to the contractor’s employees or managers, including their family members, nor to allow third parties to offer, promise, or grant them. The client will immediately inform the contractor if they become aware of or suspect any corruption cases related to the contractor’s services or contractual relationships.
     

  3. The client must take all necessary and appropriate measures to comply with European, national, and, if applicable, international – particularly U.S. – export regulations. This applies especially to the export of the contractor’s services to sensitive buyer countries or end-user countries. All embargoes must be observed by the client. Sanction lists must be carefully reviewed and complied with by the client.
     

  4. If the contractor finds that the client is violating legal norms regarding anti-corruption or export restrictions, the contractor has the right to terminate all contractual relationships.
     

  5. The client will indemnify the contractor from any claims, fines, or other sanctions arising from the client's violation of legal norms – especially anti-corruption laws and export control laws – in connection with the contractor’s services.

§ 17 Withdrawal and Termination

  1. Except in the cases mentioned in these GTC, the client does not have the right to withdraw due to non-performance or non-contractual performance if the contractor is not responsible for the breach. This does not apply if a special agreement (e.g., fixed date agreement) provides for the client’s right to withdraw regardless of fault; in such cases, the statutory regulations apply.
     

  2. If the client terminates the contract, the contractor is generally entitled to the agreed compensation, offsetting any savings made due to the termination or income from the contractor's workforce or that the contractor maliciously fails to acquire.

§ 18 Non-Solicitation Agreement

  1. The client undertakes not to directly or indirectly solicit employees of the contractor who were involved in providing services for the client ("employees") during and for one year after the completion of the relevant service provision:

    a. to solicit or induce them to leave their employment with the contractor,
    b. to hire or attempt to hire them, unless the employee’s employment with the contractor ended more than one year before such hiring.
     

  2. If the client violates § 18 paragraph 1 of these GTC, the client agrees to pay the contractor a penalty of two gross annual salaries that the employee earned in the year before the penalty was incurred. The amount is due within fourteen (14) days after signing the employment contract between the client and the employee. The contractor is also entitled to terminate all contractual relationships with the client for good cause.

§ 19 Subcontracting Rights

Unless otherwise agreed in the individual case, the contractor is not obliged to personally perform the work; they may subcontract all or part of their performance obligations.

 

§ 20 Applicable Law and Jurisdiction

  1. These General Terms and Conditions (GTC), as well as all contracts concluded on their basis and all contractual relationships between the client and the contractor, shall be governed exclusively by the laws of the Federal Republic of Germany, excluding conflict-of-law provisions and the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
     

  2. If the client is a merchant according to the German Commercial Code (HGB), a legal entity under public law, or a public-law special fund, the exclusive jurisdiction – including international jurisdiction – for all disputes directly or indirectly arising from the contractual relationship is the local court at the contractor's place of business. This also applies if the buyer is an entrepreneur according to Section 14 of the German Civil Code (BGB). However, the contractor is also entitled to file a lawsuit at the place of performance of the delivery obligation according to these GTC or any priority individual agreement, or at the general jurisdiction of the client. Mandatory statutory provisions, particularly regarding exclusive jurisdictions, remain unaffected.

§ 21 Final Provisions

  1. The place of performance for delivery is the respective shipping point; for payment, it is our headquarters in Berlin.
     

  2. Commercial clauses are to be interpreted according to the Incoterms 2020.
     

  3. Subject to statutory provisions on the permissibility of assignment bans, the transfer of rights and obligations from contractual agreements requires the consent of the contractor to be valid.
     

  4. Should any clauses of these GTC or any other contractual agreement between the client and the contractor be wholly or partially invalid or later become invalid for reasons other than those specified in Sections 305 to 310 of the German Civil Code (BGB), this shall not affect the validity of the remaining provisions and regulations, unless their implementation would result in an unreasonable hardship for the client or the contractor under the circumstances. The client and the contractor are aware of the case law of the Federal Court of Justice, which holds that a severability clause merely shifts the burden of proof. However, the explicit intention of the client and the contractor is to maintain the effectiveness of the remaining clauses and agreements under all circumstances, thus waiving the application of Section 139 BGB in its entirety. The same applies to any regulatory or contractual gaps. In place of the invalid or unenforceable provision, a reasonable, lawful provision shall apply that most closely aligns with what the client and contractor intended or would have intended had they considered this point at the time of contract conclusion or later during the contract’s execution.

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GTCs

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