General Terms and Conditions (GTC) of Gesellschaft für technische Beratung GmbH & Co KG
1. general terms and conditions
These General Terms and Conditions as amended from time to time shall apply to all offers, orders, agreements and all further - also future - business relations of Gesellschaft für technische Beratung GmbH & Co KG (in short and in the following: GeTeBe) with its clients. Deviating or supplementary terms and conditions of the client shall only apply if and to the extent that they are expressly accepted by GeTeBe in writing. Subsidiary agreements, promises and other declarations shall only be legally binding if and to the extent they are expressly confirmed in writing by GeTeBe. All amendments or supplements must be made in writing. Amendments or supplements by e-mail or verbal agreements are expressly excluded.
2. placing of orders
The type, scope and duration of GeTeBe's services shall be specified in writing when the order is placed. If, in the course of the execution of the order, necessary changes or extensions of the stipulated scope of the order arise, these shall be agreed upon additionally and in writing in advance. In this case, both parties have the right to withdraw from the contract if they cannot reasonably be expected to adhere to the contract with regard to the changes or extensions. However, the client shall pay the agreed remuneration or, in the absence of an agreement, an appropriate remuneration. § 649 p.2 and 3 BGB shall apply mutatis mutandis.
3. execution of the order
GeTeBe shall perform the services in accordance with the recognized rules of technology and at its due discretion. GeTeBe shall be free to use newer or different technologies, systems, procedures or standards than initially offered, provided that this does not result in any disadvantages for the customer. Unless expressly agreed otherwise in writing, GeTeBe shall be free to arrange the execution of the order in terms of time, place, duration and scope of services and shall be entitled to engage subcontractors or other third parties for the execution of the order. In any case, GeTeBe shall be entitled, at its discretion and at the expense of the client, to take out order-related liability insurance, provided that the client expressly requests such insurance and such risk assumption is offered by an insurance company.
The client is obliged to cooperate in the execution of the order, in particular to provide GeTeBe with all necessary information at the beginning and also during the execution of the order, to submit documents and to inform GeTeBe of all facts relevant to the order.
If the services are to be provided on the client's premises or business premises, the client shall be responsible for the entire local instruction. In this case, the client shall ensure that GeTeBe's employees are trained and informed about any accident prevention and safety regulations as well as plant and special regulations of the client that must be specifically observed. The client shall have the right to monitor the proper execution of the order on an ongoing basis and to issue instructions within the scope of the overall management to which it is entitled and to ensure operational safety, the operational sequence and the overall coherence. GeTeBe shall be released from the obligation to verify the correctness and expediency of such instructions and their implementation and shall be exempt from any liability in this respect.
Insofar as completion dates are specified in the individual service contracts for individual sections of the order, the client shall issue a confirmation of partial completion in each case. After completion of the entire order, the final completion confirmation shall be issued immediately.
Upon completion of the entire agreed scope of services or upon regular completion of partial scopes of the agreed services, the results of the services provided by the Contractor shall be deemed to have been provided and accepted. If the Customer does not accept the subject matter of the contract (or agreed parts thereof) after it has been made available for a reason other than a defect proven by the Customer and accepted by both parties, the subject matter of the contract (or agreed parts thereof) shall be deemed to have been accepted 10 working days after it has been made available for acceptance, or alternatively upon invoicing of the (partial) scopes. With this acceptance, the (partial) work services agreed in this contract end. Likewise, at this point in time, the complete responsibility for the work performance as well as the result of the work performed shall pass to the Client. Accordingly, GeTeBe as well as third parties involved in the project via GeTeBe shall be released from any further liability.
4. terms of remuneration and payment
The remuneration of GeTeBe shall be agreed upon in writing when the order is placed. Unless a fixed price or another basis of assessment is expressly agreed upon, the fees according to the list of services of GeTeBe valid at the time the order is placed shall apply for the billing of the services or, in the absence of such a list, the fees customary in the locality and reasonable for comparable services. Services of subcontractors or other third parties shall be invoiced by GeTeBe plus a contractor surcharge of 15%. This shall also include premiums for liability insurance taken out in connection with the order, provided that the client expressly requests such insurance and such risk assumption is offered by an insurance company.
GeTeBe may demand reasonable cost advances and/or issue partial invoices in accordance with the services already rendered. Unless otherwise agreed, invoices shall be due for payment immediately. The client shall be in default by reminder or at the latest 15 days after receipt of the invoice. If a payment date determined according to the calendar is agreed upon, the client shall be in default upon its expiration. During the period of default of the client, the client shall pay interest on the outstanding invoice amount at a rate of 8 percentage points p.a. above the base interest rate. GeTeBe shall be entitled to prove a higher damage caused by default interest.
The fees shall be subject to the statutory value added tax at the statutory rate applicable from time to time. The value added tax shall be shown separately on the invoice.
Complaints about GeTeBe's invoices must be justified in writing within a preclusion period of 7 days after receipt of the invoice.
5. term, termination
The term of the order shall be determined in accordance with the provisions made when the order was placed. The order may be terminated in writing by either party at any time for good cause. GeTeBe shall be entitled to terminate for good cause in particular if:
-the client refuses to provide the necessary cooperation - even after unsuccessful request with a reasonable period of time,
-the client violates other contractual obligations,
-compulsory execution is initiated against the client's assets, insolvency proceedings are opened or such proceedings are rejected due to lack of assets;
-the client has not paid due invoices despite reminders and GeTeBe has threatened to terminate the contract.
In the event of termination for good cause for which GeTeBe is not responsible, GeTeBe shall retain the full amount of the remuneration claim for the services rendered. For the services not yet rendered at the time of termination, GeTeBe shall receive 15% of the agreed remuneration due thereon, unless the client proves higher saved expenses.
In the above-mentioned cases, GeTeBe may also refuse to provide further services at its own discretion. The right of termination shall remain unaffected.
6. performance periods and dates
The performance periods and deadlines stated by GeTeBe are non-binding unless their binding nature has been expressly agreed upon in writing. GeTeBe shall not be responsible for delays in performance due to force majeure (e.g. strike, lockout, official orders, general disturbances of telecommunication, pandemics, etc.) and/or circumstances within the responsibility of the client (e.g. non-timely provision of cooperation services, delays by third parties attributable to the client, etc.). These shall entitle GeTeBe to postpone the performance of the affected services for the duration of the impediment plus a reasonable start-up time. GeTeBe shall notify the client of delays in performance due to force majeure. In any case, the customer shall pay GeTeBe for the services rendered until the occurrence of the event on a pro rata basis.
The order is basically subject to the regulations of the service contract law of the German Civil Code (BGB). If, according to the legal nature of the respective individual order, GeTeBe is liable for errors or defects in the execution of the order, the following shall apply:
GeTeBe's warranty shall only cover the services expressly commissioned. In the event of a proper and justified notice of defect, the client shall initially only have a claim to subsequent performance free of charge, whereby GeTeBe shall be entitled to choose between removal of the defect and new production. Any self-performance by the client shall release GeTeBe from its warranty obligation for the defect in question. In the event of failure of subsequent performance, the client may only choose between self-execution, reduction of the purchase price and withdrawal from the contract, except in cases of assumption of a guarantee, a guarantee of quality with respect to the work, assumption of a procurement risk and fraudulent concealment of a defect. Further warranty claims, also with regard to any consequential damage caused by a defect, shall be limited or excluded in accordance with Section 8 of these General Terms and Conditions.
GeTeBe shall only be liable if an essential contractual obligation ("cardinal obligation") is violated. The liability for the violation of a cardinal obligation shall be limited to the amount of the damage typically foreseeable at the time of the conclusion of the contract, but not more than the agreed order value. If liability claims exceeding this amount have been legally established, the amount of liability shall be limited at most to the liability capital of GeTeBe - Gesellschaft für technische Beratung GmbH & Co KG as well as its liable general partner, GeTeBe - Verwaltungs- GmbH and its liability capital in the amount of their respective shareholder contributions. The client shall indemnify GeTeBe from any claims exceeding this amount. With regard to the transfer of responsibility and liability for the services rendered within the agreed scope of services to the client, reference is made to §3 "Execution of the order". Any liability is excluded if a defect or damage is based on an instruction or a special request of the client within the scope of the right to issue instructions to which the client is entitled.
9. secrecy, copyright, prohibition of poaching
GeTeBe shall be entitled to take copies for its files of written documents which are handed over to it for inspection and which are of importance for the execution of the order.
If, in the course of the execution of the order, expert opinions, test results, calculations, etc. are prepared which are subject to copyright protection, GeTeBe shall grant the client a simple, non-transferable right of use to the extent this is required for the contractually stipulated purpose. Further rights are expressly not transferred, in particular the client is not entitled to change or process expert opinions, test results, calculations and the like or to use and exploit them outside its business operations.
GeTeBe shall not disclose and exploit without authorization any business and trade secrets which come to its knowledge during the execution of the order. This obligation to maintain secrecy shall also apply beyond the termination of the contractual relationship.
The client undertakes not to entice away any employee of GeTeBe for the term of this agreement and for a period of 6 months after its termination.
10. Place of Jurisdiction, Place of Performance, Applicable Law (Final Provisions)
The law of the Federal Republic of Germany shall also apply exclusively in the relationship with foreign clients to the exclusion of international or inter-national regulations. The place of performance and exclusive place of jurisdiction for all legal disputes arising from or in connection with the respective order shall be the registered office of GeTeBe.
Amendments and supplements to these General Terms and Conditions or to the respective order must be made in writing in order to be effective. This shall also apply to the amendment or cancellation of this clause.
If individual provisions of these General Terms and Conditions are or become invalid or incomplete, this shall not affect the validity of the remaining provisions. In this case, the contracting parties shall replace the invalid or incomplete provision with another provision that comes closest to the economic purpose of the invalid or incomplete provision in a permissible manner.