GENERAL TERMS AND CONDITIONS
§ 1 Validity and general provisions
All deliveries, services and offers of VELA Performance GmbH, Ostendstraße 25, 12459 Berlin, Germany, as well as of any company affiliated with it according to § 271 HGB (German Commercial Code) (jointly "Contractor") to an entrepreneur according to § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law ("Customer") shall be based exclusively on these General Terms and Conditions of Business ("Terms and Conditions") of the Contractor.
Unless otherwise agreed, these General Terms and Conditions of Business in the version valid at the time of the respective conclusion of the contract or, in any case, in the version most recently communicated to the Customer in text form shall also apply as a framework agreement for all future similar contracts between the Contractor and the Customer, without the Contractor having to refer or refer to them again in individual cases.
3. general terms and conditions of business of the Customer which are contrary to, supplement or deviate from these General Terms and Conditions of Business shall only become part of the contract if and insofar as the Contractor has expressly agreed to their validity. This requirement of consent shall apply in any case, for example, even if the Contractor carries out deliveries and services without reservation, accepts payments without objection or remains silent on a declaration of inclusion by the Customer.
4. individual agreements made in individual cases between the Customer and the Contractor (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. For the content of such individual agreements, subject to proof to the contrary, a written contract or a written confirmation by the contractor is authoritative.
5) Legally relevant declarations and notifications of the Customer with regard to the contract, in particular setting of deadlines, notification of defects, withdrawal and reduction, must be made in writing, i.e. in written or text form (e.g. letter, e-mail or fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected by this.
6. references to the validity of legal regulations only have a clarifying meaning. Even without such a clarification, the legal provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
7) With regard to any information duties of the contractor under the DSGVO, reference is made to the data protection declaration available at https://www.vela-performance.com/datenschutz.
8) VELA Performance GmbH shall be entitled to amend the General Terms and Conditions and other conditions. VELA Performance GmbH shall make such amendments only for valid reasons, in particular due to new technical developments, changes in case law or other equivalent reasons. If the contractual balance between the parties is significantly disturbed by the amendment, the amendment shall not be made.
§ 2 Tender and accompanying documents
1. verbal offers made by the contractor are always non-binding and subject to change without notice; they only become binding upon confirmation in writing or text form. This requirement of written or text form shall also apply to any collateral agreements and amendments. A conclusion of contract cannot be brought about by unilateral written reference by the Customer to contractual negotiations that have taken place. Silence on the part of the Contractor shall in no case be deemed to constitute consent.
The binding period of (confirmed) offers in written or text form shall be thirty (30) days from the date of issue stated in the offer, unless otherwise expressly stated in the offer, irrespective of receipt of the offer.
3. the information contained in the letter of offer and in the documents named therein as attachments for the determination of the contractually owed properties, functions and/or quality features of the service ("offer documents") shall be examined by the Customer with regard to their suitability both for the use planned by the Customer and for normal use. In the event of discrepancies, the Contractor must be notified within ten (10) days of receipt of the offer documents, otherwise the Customer shall be responsible for any resulting defects and deviations.
4. any data and information contained in documents submitted with the offer documents, such as catalogues, technical documentation, calculations, costings, DIN standards or data sheets ("Accompanying Documents"), such as technical descriptions, drawings, illustrations, data, programs and physical performance data, are non-binding and in particular do not constitute an agreement on quality in accordance with § 12 number 2 of these GTC.
5) The Contractor reserves all property rights, rights of use and exploitation rights to the offer and accompanying documents themselves and to the information contained therein. In addition, the information contained therein constitutes business and/or trade secrets of the Contractor. The client is prohibited from unauthorized exploitation as well as unauthorized communication to third parties.
§ 3 Retention of title
1. the embodied and incorporeal or intellectual performance results ("subjects of performance") owed by the contractor remain the property of the contractor until all present and future claims of the contractor arising from an ongoing business relationship with the customer ("secured claims") have been settled.
2. the subjects of performance subject to retention of title may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The Customer shall immediately notify the Contractor in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. attachments) seize the objects of performance belonging to the Contractor.
In the event of conduct on the part of the Customer in breach of contract, in particular in the event of default in payment, the Contractor shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the objects of performance on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; the contractor is rather entitled to demand only the subjects of performance subject to retention of title and to reserve the right of withdrawal. The subjects of performance shall then be subject to the contractor's free right of exploitation. In such a case, all rights of use and exploitation of the Customer granted within the scope of the contract shall expire if software is provided. If the Customer's conduct in breach of the contract is based on default of payment, the Contractor may only assert these rights if it has previously set the Customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
4. until revocation, the Customer is entitled to resell and/or process the subjects of performance subject to retention of title in accordance with the conditions of the following clauses within the framework of orderly business operations.
5. in the case of processing, mixing or combining of objects of performance subject to retention of title with one or more other objects, the contractor's retention of title shall extend to the entire new object; the contractor shall be deemed to be its manufacturer. If the right of ownership of third parties remains in force in the case of processing, mixing or combination with objects of third parties, the contractor shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined objects. In all other respects, the same shall apply to the new object as to the objects of performance subject to retention of title.
6. if the customer sells the objects of performance subject to retention of title to third parties without receiving the full consideration in advance or concurrently, he must agree a retention of title with these third parties in accordance with these conditions. The Customer hereby assigns to the Contractor his claims arising from such resale and the rights arising from the retention of title agreed by him. The contractor accepts this assignment already now. The obligations of the Customer arising from the above clause 2 shall apply accordingly in consideration of these assigned claims. Furthermore, the customer remains authorized to collect these assigned claims in addition to the contractor. In this connection, the Contractor undertakes not to collect the assigned claims as long as the Customer meets its payment obligations to the Contractor, there is no defect in the Customer's ability to pay and the Contractor does not demand surrender by exercising its right under the above clause 3. If this is the case, however, the Customer shall be obliged to notify the purchasers of the assignment and to provide the Contractor with the information and documents required to assert its rights against the purchasers; in addition, the Contractor shall in this case be entitled to revoke the Customer's authority to further sell the subjects of performance subject to retention of title.
If the realisable value of the subjects of performance subject to retention of title exceeds the secured claims by more than 10%, the contractor is obliged to release securities of the contractor's choice within a reasonable period of time at the request of the customer.
§ 4 Performance period and delay in performance
1. the period for the provision of a service by the Contractor ("performance period") shall either be agreed individually with the Client or specified by the Contractor in its offer or in the acceptance of an order Unless a firm deal has been expressly agreed, compliance with performance deadlines shall therefore not be deemed to be an essential part of the Contractor's performance obligations, so that a delayed performance shall also constitute fulfilment of the Contractor's performance obligation.
2. the observance of performance deadlines by the contractor presupposes the fulfilment of all obligations incumbent on the client, in particular the timely receipt of all physical and non-physical materials to be provided by the client (including documents, plans, materials, components, software, etc.), necessary permits and releases as well as the observance of the agreed terms of payment by the client. If these prerequisites are not, not completely or not in time fulfilled, the performance periods shall be extended accordingly; the statutory consequences of default are excluded in this respect.
If the Contractor is unable to meet performance deadlines for reasons for which he is not responsible ("unavailability of performance"), the Contractor shall inform the Customer thereof without undue delay and at the same time notify the Customer of the expected new performance deadline. If the non-availability of the performance continues within the new performance period, the Contractor shall be entitled to withdraw from the contract in whole or in part. A case of non-availability of the service is considered to be in particular the untimely self-supply of the contractor by a supplier or sub-supplier, if the contractor has concluded a congruent hedging transaction, neither the contractor nor the supplier or sub-supplier is at fault or the contractor is not obliged to procure in individual cases.
4. the occurrence of default on the part of the contractor ("default in performance") shall be determined in accordance with the statutory provisions, whereby a reminder from the customer with an appropriate deadline must be sent in any case. Lump-sum damages and/or contractual penalties shall in any case require an express written agreement between the Customer and the Contractor; even in the case of expressly agreed lump-sum damages, the Contractor shall in any case be entitled to prove that the Customer has suffered no damage or only a smaller damage than the lump-sum. Otherwise, the statutory consequences of default shall apply.
5. the rights of the Customer arising from § 12 of these General Terms and Conditions and the statutory rights of the Contractor, in particular in the event of exclusion of the obligation to perform (for example due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected by the above provisions.
§ 5 Transfer of risk and default of acceptance
1. every service provided by the contractor is ex works, which is also the place of performance for deliveries (also for deliveries of objects of performance) and any subsequent performance. Deliveries must always be made available ready for loading without packaging. Shipment to another destination shall only be made at the Customer's expense and on the basis of a corresponding agreement. Unless otherwise agreed, the Contractor shall be entitled to determine the type of dispatch (in particular the transport company, the dispatch route and the packaging) itself.
2. the risk of accidental loss and accidental deterioration of the performance shall pass to the Customer at the latest upon delivery to the Customer. In the event of collection by the Customer, this risk shall pass to the Customer upon notification of completion and contractual provision of the service in the Contractor's works. In the case of data transmission, this risk shall pass to the Client as soon as the data is sent. In the case of dispatch, this risk as well as the risk of delay shall pass to the Customer upon delivery to the forwarding agent, the carrier or any other person or institution designated to carry out the dispatch.
3. if acceptance has been agreed, this is decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services also apply accordingly to an agreed acceptance. If the client is in default of acceptance, it is equivalent to handover or acceptance.
4. if the customer is in default of acceptance, if he fails to cooperate or if the performance of the contractor is delayed for other reasons for which the customer is responsible, the contractor is entitled to demand compensation for the resulting damage including additional expenses (e.g. capacity rescheduling, non-utilisation of planned capacities, storage costs). For this purpose, the Contractor may charge a lump-sum compensation amounting to 0.5% of the value of the performance per commenced calendar week, beginning with the performance deadline or with the notification of the readiness for collection of the performance, but not exceeding a total of 5% of the delivery value of the performance covered by the default of acceptance. The Contractor's proof of higher damages and statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be set off against further monetary claims.
The Customer shall be entitled to prove that the Contractor has not incurred any damage at all or that the damage incurred is significantly lower than the above lump sum.
§ 6 Terms of payment and default of payment
1. the contractor's prices are net prices and are ex works excluding transport, insurance and packaging, unless otherwise agreed in individual cases. The Client shall be additionally charged the value added tax; a legal change in the amount of value added tax does not give the Client the right to terminate the contract. If dispatch is agreed, the customer shall bear all transport costs and ancillary transport costs ex works including the costs of packaging and transport insurance. In addition, the customer shall bear any customs duties, fees, taxes and other public charges.
2. the Contractor is entitled to charge the Customer separately at normal market conditions for services not included or listed in the offer of the Contractor or in an order of the Customer accepted by the Contractor, which the Customer has requested the Contractor to perform in the course of a service relationship ("additional services"). Additional services shall also be deemed to include any additional services provided by the Contractor as a result of changes requested by the Customer, without the need to notify the Customer separately.
3. the contractor is entitled to invoice his services on a monthly basis, unless otherwise agreed in individual cases. The respective invoice amount is due within fourteen (14) days from the date of invoice and is to be paid by the Customer, unless otherwise stated on the invoice ("payment period"). The Contractor is entitled at any time - even within the scope of an ongoing business relationship - to perform a service in whole or in part only against advance payment. The contractor declares a corresponding reservation at the latest with his order confirmation.
4. upon expiry of the payment period, the Customer shall be in default without the need for a reminder. During the period of default, the invoice amount shall bear interest at the statutory default interest rate applicable at the time. The claim to the commercial due date interest (§ 353 HGB) as well as the assertion of a further damage caused by delay and the assertion of the lump sum according to § 288 para. 5 BGB by the contractor remain unaffected.
5. invoices of the contractor shall be deemed to have been accepted if the customer has not objected to them in writing within two weeks of receipt.
6. the contractor is entitled to set off payments of the customer against his older debts and to set off incoming payments first against costs, interest and then against the main service.
7. in the event that, after conclusion of the contract, the contractor's price claim is visibly endangered due to the client's lack of ability to pay (e.g. due to an application to open insolvency proceedings, rejection of an important credit, submission of uncovered cheques, etc.), the contractor is entitled to refuse performance in accordance with the statutory provisions. This right to refuse performance shall not apply if the Customer fulfils the price claim or provides security for it. The Contractor may set a reasonable period of time within which the Customer shall, at the Contractor's discretion, either fulfil the price claim or provide security for the performance. After the unsuccessful expiry of the deadline, the contractor may withdraw from the contract.
8. the client is only entitled to offset or retention in the case of legally established or undisputed claims. In the event of defects in the performance of the contractor, the counter rights of the client - in particular in accordance with § 12 number 5 sentence 2 of these general terms and conditions - remain unaffected.
§ 7 Obligation to accept work services
1. insofar as acceptance is possible according to the type or nature of the service, the customer must immediately accept a work service produced by the contractor ("ready for acceptance"). The work shall be deemed ready for acceptance if it has the essential features of the agreed quality. Irrespective thereof, the Customer may also accept the work before it is ready for acceptance.
If the work performed by the Contractor can be divided into several partial work performances which can be used independently by the Customer, the Customer shall be obliged to accept each partial performance.
3. the client must prepare a written acceptance protocol about the acceptance and send it to the contractor without culpable hesitation. If the Customer fails to comply with this obligation, a work performance ready for acceptance shall be deemed to have been conclusively accepted if (i) its suitability and freedom from defects can be determined by the Customer by means of an external inspection and the Customer accepts it without refusing it within fourteen (14) days, (ii) the Customer finally puts it into use after a trial period of fourteen (14) days, or (iii) the Customer pays the corresponding price to the Contractor without reservation.
(4) Customer may not refuse acceptance in case of minor defects in the performance ("Acceptability"). Acceptability shall be deemed to exist in particular if the fitness for use of the performance is not or not significantly impaired for the Customer, e.g. in the case of cosmetic defects. Likewise, the absence or incompleteness of documentation, design documents or the source code shall not impair the acceptability.
5. the performance shall also be deemed to have been accepted if the Contractor has set the Customer a 14-day (fortnightly) deadline for acceptance after production of the work and the Customer has not refused acceptance within this deadline, stating at least one defect.
6. setting a deadline for acceptance by the Contractor to the Customer within the meaning of § 7 number 5 of these General Terms and Conditions shall also be deemed to be the transmission of an invoice for the corresponding work performance to the Customer, whereby the payment deadline for the invoice amount shall be deemed to be the deadline for acceptance.
§ 8 Effects of force majeure
Force majeure of any kind, in particular unforeseeable operational, traffic or shipping disruptions, fire damage, floods, unforeseeable shortages of labour, energy, raw materials or auxiliary materials, strikes, lockouts, official decrees or other hindrances for which the contractor is not responsible and which delay, prevent or make unreasonable the production, shipping or acceptance, shall 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 exceeded by more than eight (8) weeks as a result of the disruption, both parties shall be entitled to withdraw from the contract.
§ 9 Rights to aids for the provision of services
1. the business secrets, practical knowledge, know-how, industrial property rights, (software) copyrights as well as any combination thereof ("incorporeal aids") used by the contractor within the scope of his services remain with the contractor The Customer shall not be granted any rights of use or exploitation of the incorporeal aids.
2. the tools, auxiliary models, work equipment, devices, models, moulds, etc. produced by the contractor within the scope of his services shall remain the property of the contractor. ("physical aids") are not part of the object of performance without express agreement in the offer documents and remain the property of the contractor; the contractor is also entitled to all rights of use and exploitation of these aids.
3. the physical aids shall be stored by the Contractor for a period of six (6) months after acceptance of the parts by the Customer without recognition of any legal obligation. After expiry of this period, the Contractor may scrap the tools, unless the Contractor and the Customer have agreed on further storage of the tools or transfer of ownership against payment of an appropriate fee.
§ 10 Rights to Performance Results and Inventions
1. the rights of the contractor to the non-physical or intellectual objects of performance owed ("performance results") shall, in accordance with the following provisions, become the property of the customer, insofar as this is legally possible, with the lapse of the reservation of title from § 3 of these general terms and conditions.
2. the client shall be granted the right to use the copyright-protected service results in all known types of use ("right of use") without any restrictions in terms of space, time or content, once the reservation of title under § 3 of these GTCs has lapsed. This right of use includes the right of reproduction, the right of distribution, the right of exhibition, the right of lecture, performance and presentation, the right of making available to the public, the right of broadcasting, the right of reproduction by means of image or sound carriers and the right of reproduction of radio broadcasts and of making available to the public. The right of use shall be granted on a transferable and sublicensable basis. The contractor retains a right of use for his own scientific research and development purposes. As far as it is legally possible, the contractor waives the right to be named as author.
If the results of the services contain inventions which are capable of being protected by intellectual property rights and no deviating contractual agreement has been made, the rights to these inventions shall be due to the contractor. The contractor is not obliged to apply for a patent. The Customer shall be granted a simple right of use to these performance results, which is unlimited in terms of territory, time and content, as well as transferable and sublicensable and shall be deemed to be settled with the total remuneration. In return for this granting, the client is obliged to bear the costs incurred by the contractor (in particular for employee invention compensation). At the request of the Customer, which must be asserted against the Contractor in text form within one year of the availability of the corresponding performance results, the Contractor shall transfer the exclusive rights to these performance results to the Customer in return for reasonable remuneration in line with market conditions; after transfer, the Customer shall be entitled but not obliged to apply for industrial property rights.
4. if, within the scope of the contractual cooperation, inventions are made in which employees or agents of the Customer and the Contractor are involved, the regulations on fractional ownership shall apply.
§ 11 Third party property rights
1. the Contractor shall endeavour, using the care customary in the industry, to ensure that the objects of performance are free from third-party industrial property rights in the country of the place of performance which exclude or impair the use of the performance by or for the Customer ("conflicting industrial property rights"). This effort does not include a search for or evaluation of conflicting property rights ("property rights search").
The Customer may agree with the Contractor in individual cases to commission a search for industrial property rights with regard to the subjects of performance. For this purpose, the Customer must specify the (content and territorial) scope in advance, define a cost framework and bear all costs incurred. Any delivery periods affected shall be extended by the duration of the property right search. The client acknowledges that even if a search is carried out with the utmost thoroughness, it is impossible to find all relevant conflicting property rights of third parties and that the assessment of a possible infringement will always be burdened with uncertainties due to the necessary interpretation of conflicting property rights found.
3 If the client becomes aware of conflicting property rights through notification of the result of a conducted property right search or by other means, he may, at his discretion, (i) request the contractor to develop a technical solution against payment which does not make use of the specifically named conflicting property rights, (ii) give up the temporary suspension of services to the contractor against reimbursement of costs in order to take action against the conflicting property rights or to acquire a license to them, or (iii) terminate the contract with the contractor with the consequences according to § 17 number 2 of these General Terms and Conditions.
4. if claims are asserted against the Customer by third parties on account of an alleged infringement of conflicting industrial property rights by the subjects of performance, the Customer shall inform the Contractor of this immediately in text form, shall not acknowledge an infringement and shall reserve all means of defence for itself and the Contractor. If the use of such performance results is discontinued, the Customer must inform the third party that this discontinuation does not imply any acknowledgement of the infringement of property rights.
§ 12 Claims for defects by the client
1. the statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise provided for below. In all cases, the statutory special regulations shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse according to § 478 BGB). Claims from supplier recourse are excluded if a defective performance has been further processed by the customer or another entrepreneur (e.g. if it has been incorporated into another product).
2 The basis of the contractor's liability for defects is the agreement reached on the quality of the performance. All service descriptions which are the subject of the individual contract are deemed to be an agreement on the quality. If the quality has not been agreed upon, the legal regulation shall be used to determine whether or not there is a defect. The Contractor shall not be liable for public statements (e.g. advertising statements) made by a supplier or sub-supplier or other third parties, including the Client to his customers. Irrespective of this, the Customer shall be obliged to notify the Contractor immediately upon becoming aware of any case of recourse occurring in the supply chain.
All claims for defects of the Customer require that the Customer has complied with his statutory obligations to examine and give notice of defects (§§ 377, 381 HGB). If a defect is discovered during delivery, examination or at any later time, the client must notify the contractor of this defect immediately in text form. In any case, the notification of obvious defects must be received by the Contractor in text form within ten (10) working days from receipt of the service and of defects not detectable upon inspection (hidden defects) within the same period from their detection. If the Customer does not carry out an inspection or does not notify a discovered defect, does not notify it in time or does not notify it in the agreed text form, the Contractor's liability with regard to this defect is excluded. If the Client accepts a service with knowledge of a defect, he shall only be entitled to claims for defects in this respect if he expressly reserves the right to do so in writing upon acceptance.
4. if a service provided by the contractor is defective and claims for defects on the part of the client are not excluded, the contractor may initially choose whether to provide subsequent performance by eliminating the defect (rectification of defects) or by delivering a defect-free item (replacement delivery). The right of the contractor to refuse subsequent performance under the statutory conditions remains unaffected.
5. the contractor is entitled to make any subsequent performance owed thereafter dependent on the customer paying the price due. However, the Customer is entitled to retain a reasonable part of this price in relation to the defect.
6. the customer must give the contractor the time and opportunity necessary for a subsequent performance owed, in particular to hand over the rejected service for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to the Contractor in accordance with the statutory provisions. The Customer's claim for subsequent performance does not include the removal of a defective service or the reinstallation if the Contractor was not originally obliged to install it.
7) Any expenses necessary for the purpose of testing and subsequent performance, in particular transport, travel, labour and material costs as well as any dismantling and installation costs shall be borne or reimbursed by the Contractor in accordance with the statutory provisions if a defect is actually present. Otherwise, the Contractor may demand reimbursement from the Customer for the costs incurred as a result of the unjustified demand for the removal of defects (in particular testing and transport costs), unless the lack of defect was not recognisable to the Customer. In the absence of an express agreement, this cost-bearing rule does not constitute a claim on the part of the Customer to demand an advance payment from the Contractor to cover transport, road, installation or removal costs, even if the existence of the claimed defect is still unclear.
In urgent cases, e.g. in case of danger to operational safety or to prevent disproportionate damage, the customer has the right to remedy the defect himself and to demand compensation from the contractor for the objectively necessary expenses. The Contractor shall be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy shall not exist if the Contractor would be entitled to refuse a corresponding subsequent performance according to the statutory provisions or if there was no defect at all which the Contractor would have been obliged to remedy.
If the supplementary performance fails twice or if a reasonable period of time to be set by the Customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the contract or reduce the price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.
10.the client's claims for damages or reimbursement of wasted expenditure shall only exist in accordance with § 13 of these General Terms and Conditions, even in the case of defects, and shall otherwise be excluded.
§ 13 General liability of the contractor
1. unless otherwise provided for in these General Terms and Conditions including the following provision, the contractor shall be liable for any breach of contractual or non-contractual obligations in accordance with the statutory provisions.
2. the contractor shall be liable for damages as well as for the reimbursement of futile expenses - irrespective of the legal grounds - within the scope of the liability for culpability in the case of intent and gross negligence. In the case of simple negligence, the contractor is only liable, subject to a milder liability standard in accordance with the statutory provisions (e.g. for care in his own affairs)
a. for damages resulting from injury to life, body or health
b. for damages arising from the not insignificant breach of an essential contractual obligation
(Obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the Client regularly relies and may rely); in this case, however, the liability of the Contractor is limited to the compensation of the foreseeable damage typically occurring,
c. for damages arising from the not insignificant breach of the obligation to provide defect-free performance; in this case, however, the liability of the contractor is limited to the compensation of the foreseeable, typically occurring damage.
3. in the case of § 13 number 2 letter b of these General Terms and Conditions, the parties assume that the foreseeable, typically occurring damage does not exceed the sum of one (1) million euros. The liability of the Contractor in these cases is therefore limited to this amount. This limitation of liability in terms of amount shall not apply if the Customer states a higher damage value in text form in good time before the order is placed - at the latest before the start of the performance of the service. In this case, the total liability limit shall be the stated value. If the stated value exceeds the amount of five (5) million euros, the contractor is entitled to extraordinary termination.
4 In the case of § 13 number 2 letter c of these GTC, the parties assume that the foreseeable, typically occurring damage does not exceed the total value of the consideration as the maximum of a possible defect value. The liability of the contractor is therefore limited to this amount. This total limitation of liability shall not apply if the Client states a higher damage value in text form in good time before the order is placed - at the latest before the start of the service provision. In this case, the total liability limit shall be the stated value. If the stated value exceeds twice the value of the consideration, the contractor is entitled to extraordinary termination.
Furthermore, the Contractor shall only be liable for the loss of data if the Client has ensured by means of a properly performed data backup that this data can be reconstructed at a reasonable cost and the data backup is not part of the contractually agreed services of the Contractor. The liability is limited to the amount of the expenditure of the restoration.
6. unless otherwise agreed in the contract, the Contractor shall only be liable for a violation of conflicting industrial property rights in the event of a violation of an obligation under § 11 number 1 of these General Terms and Conditions. In this case, the contractor has the right, at his discretion and at his expense, either to obtain a right of use for the conflicting property right or to modify the affected performance in such a way that the conflicting property right is no longer infringed. Claims of the Customer shall also be excluded if such an infringement of property rights is caused by a use of the performance which is neither known, nor notified to the Contractor nor foreseeable, or by the fact that the performance is modified by the Customer or used together with products not supplied by the Contractor.
7 The limitations of liability resulting from § 13 items 2 with 6 of these General Terms and Conditions shall also apply to breaches of duty by or in favour of persons whose fault the contractor is responsible for according to statutory provisions, in particular that of his legal representatives, executives and vicarious agents. They shall not apply if the Contractor has fraudulently concealed a defect, if the Contractor has assumed a guarantee for the quality of a service, and if the Contractor has mandatory legal liability, in particular under the Product Liability Act.
8) The Customer may only withdraw or terminate due to a breach of duty which does not consist of a defect if the Contractor is responsible for the breach of duty. A free right of termination of the Customer (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 14 Liability of the contractor in case of impossibility
1. if the contractor refuses performance because performance was already impossible at the time of conclusion of the contract or required expenditure which is grossly disproportionate to the client's interest in performance, the contractor shall be liable to the client for damages instead of performance, insofar as the contractor is responsible for the impossibility. The obligation to represent shall not be considered if the Contractor neither knew nor should have known the impossibility of performance. The Customer's claim for damages shall be limited to 10% of the value of that part of the performance which cannot be put into useful operation due to impossibility. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this shall not imply a change in the burden of proof to the detriment of the Customer. The Customer's right to withdraw from the contract remains unaffected.
2. if the impossibility or disproportionate expense of the performance of the service only occurs after conclusion of the contract, the contractor shall be liable for damages, unless the occurrence was not foreseeable or avoidable.
§ 15 Limitation of claims of the client
1. claims for defects on the part of the Customer shall become statute-barred twelve (12) months after delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
2. if the service is a building or an object that has been used for a building in accordance with its usual purpose and has caused its defectiveness (building material) or a work whose success consists in the performance of planning and supervision services for a building, the limitation period shall be five (5) years from delivery. Other statutory special regulations on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
3. the above limitation periods shall also apply to contractual and non-contractual claims for damages of the Customer which are based on a defect in the performance, unless the application of the regular statutory limitation period leads to a shorter limitation period in individual cases - in which case this shall apply. Claims for damages of the Customer pursuant to § 13 number 2 sentence 1, § 13 number 2 sentence 2 letter a and § 13 number 7 sentence 2 of these General Terms and Conditions shall be subject to the statutory limitation periods exclusively.
4. neither the notification of a defect nor negotiations concerning a claim or the circumstances substantiating the claim suspend the limitation period.
§ 16 Responsibility of the client for compliance with the law
1 The Customer undertakes to comply with all applicable laws, ordinances and regulations ("legal standards"), in particular legal standards for combating corruption, restrictions of competition and unfair competitive actions as well as legal standards for export control.
2) The Customer must take all necessary and appropriate measures to prevent corruption. In particular, the Principal undertakes not to offer, promise or grant, directly or indirectly, any benefits or other advantages (such as money, gifts of monetary value or invitations that are not predominantly of a business nature, e.g. to sporting events, concerts, cultural events, etc.) to employees and managing directors of the Contractor including their relatives, nor to offer, promise or grant them in any other way by third parties. The Customer shall inform the Contractor without delay if he has knowledge or a concrete suspicion of cases of corruption that are related to a contractual relationship with the Contractor or its performance in a concrete context.
The customer shall take all necessary and appropriate measures to comply with European and national, and if necessary also international - in particular US-American - export regulations. This applies in particular to the export of the contractor's services to sensitive buyer states or end user states. All embargoes shall be observed by the Customer. The sanctions lists are precisely checked and observed by the Customer.
4. if the contractor determines that the client violates legal norms of anti-corruption or export restrictions, the contractor is entitled to terminate all contractual relationships.
5) The Customer shall indemnify the Contractor against all claims, fines or other sanctions which may be imposed on the Contractor due to the Customer's violation of legal norms - in particular anti-corruption law and export control law - in connection with the Contractor's services.
§ 17 Withdrawal and termination
1 Except for the cases mentioned in these General Terms and Conditions, the Customer shall not be entitled to withdraw from the contract due to a service not provided or not provided in accordance with the contract, if the Contractor is not responsible for the breach of duty. This shall not apply if a right of withdrawal of the Customer arises from special agreements (e.g. fixed-date transaction), irrespective of fault; in such cases the statutory provisions shall apply.
2. if the customer terminates the contract, the contractor is generally entitled to the agreed remuneration, taking into account what he saves in expenses as a result of the termination of the contract or what he acquires or maliciously omits to acquire through other use of his labour.
§ 18 Prohibition of enticement
1. the Customer undertakes not to employ, either directly or indirectly, any of the Contractor's employees whom the Contractor employs in the performance of services for the Customer ("Employees") during and until two years after the end of the respective performance of the services, neither directly nor indirectly:
a. poach or induce them to give up their employment with the contractor
b. hire or attempt to hire, unless the employment relationship of the employee concerned with the contractor was terminated more than one year prior to such hire.
2. in case of violation of § 18 clause 1 of these GTC, the Customer undertakes to pay to the Contractor a contractual penalty in the amount of two gross annual salaries, which the employee received from the Contractor in the year before the contractual penalty was forfeited. The amount is due within fourteen (14) days after signing the employment contract between the Customer and the Employee. The Contractor is otherwise entitled to terminate all contractual relationships with the Customer for good cause.
§ 19 Right to subcontract
Subject to deviating agreements in individual cases, the contractor is not obligated to perform personally; he may subcontract or commission the performance obligations incumbent upon him in whole or in part.
§ 20 Applicable law and place of jurisdiction
These General Terms and Conditions and all contracts concluded on the basis thereof and all contractual relationships between the Customer and the Contractor shall be governed exclusively by the law of the Federal Republic of Germany, excluding the conflict of laws provisions and the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the locally competent court at the registered office of the Contractor. The same applies if the purchaser is an entrepreneur within the meaning of § 14 BGB. However, in all cases, the contractor is also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the purchaser. Priority statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.
§ 21 Final provisions
Place of performance for the delivery is the respective shipping point, for payment our headquarters in Berlin.
2. clauses customary in trade are to be interpreted in accordance with Incoterms 2020.
3 Subject to statutory provisions on the permissibility of prohibitions of assignment, the transfer of rights and obligations from contractual agreements requires the consent of the contractor in order to be effective.
4. if individual clauses of these General Terms and Conditions or of any other contractual agreement between the Customer and the Contractor are or become invalid in whole or in part for reasons other than those set out in §§ 305 to 310 of the German Civil Code (BGB), or become invalid at a later date, this shall not affect the validity of the remaining provisions and regulations, unless, taking into account the following, the execution of the contract represents an unreasonable hardship for the Customer or the Contractor. The customer and contractor are aware of the case law of the Federal Court of Justice, according to which a severability clause merely reverses the burden of proof. However, it is the express will of the Customer and the Contractor to maintain the validity of the remaining clauses and agreement under all circumstances and thus to waive § 139 BGB in its entirety. The same applies to a loophole in the regulations or contract. The invalid or unenforceable provision shall be replaced by an appropriate, lawful provision that comes as close as possible to what the Client and Contractor intended or would have intended with the invalid provision if they had considered this point when concluding the contract or when subsequently taking it up.