© 2020 Gherzi van Delden GmbH
General Terms and Conditions of Services of Gherzi van Delden Deutschland GmbH

1. Scope of Application

1.1 These General Terms and Conditions (hereinafter: "GTC") shall apply to any and all – even future – contractual relations (including the pre-contractual obligations) under which Gherzi van Delden Deutschland GmbH (hereinafter: "Gherzi") or companies affiliated with Gherzi as defined in Sec. 15 of the AktG [German Stock Corporation Act] render services of any type for entrepreneurs (Sec. 14 of the BGB [German Civil Code]), legal persons under public law or special funds under public law (hereinafter: "Customer"), unless explicitly otherwise agreed in writing.

1.2 These GTC apply exclusively. Any deviating, contradictory or supplementary general terms and conditions of our Customer or of third parties will only become an integral part hereof if and insofar as we have given our explicit consent, in text form (e.g. by letter, email, fax), to their applicability. This requirement of consent shall apply in any case, even if we accept services without reservations in full awareness of the general terms and conditions of the Customer or of third parties or refer to a letter containing or referring to general terms and conditions of the Customer or of any third party.

1.3 Individual agreements made with the contractor in individual cases (including side agreements, supplements and amendments) shall in any case prevail over these GTC. A contract in text form or our confirmation in text form shall be decisive for the contents of such agreements, unless a counter evidence exists.

1.4 These GTC apply to the following services of Gherzi:

a) Product and design developments;

b) Marketing and sales services;

c) Certification services for certifications of quality, environmental, safety and other management systems, certification of product conformities, certification of processes, performance of audits;

d) Management consultancy, establishment and management of supply chains (Supply-Chain-Management);

e) Arrangement of business opportunities and orders.

2. Offers, Scope of Services, Conclusion of Agreements

2.1 Offers of Gherzi are non-binding. Purchase orders shall not be binding upon Gherzi, unless such are explicitly confirmed in writing. If any purchase order is to be qualified as an offer in terms of Sec. 145 of the BGB, Gherzi may accept it within 4 weeks.

2.2 Type and scope of the services owed by Gherzi are specified in the written order confirmation of Gherzi or the written service agreement, in connection with the specifications, if appropriate. Oral side agreements and changes of the order confirmation or of the service agreement must be confirmed in writing to be effective.

2.3 Gherzi reserves property rights and copyrights to figures, drawings, calculations, and other documents. Such must be made accessible, in particular, insofar as such documents were identified as being confidential. The Customer shall obtain the explicit written consent of Gherzi prior to their disclosure. Any reproduction shall only be allowed in the context of order processing for their own purposes.

3. Rendering of Services

3.1 Gherzi shall deploy qualified personnel for performing the agreement. Gherzi may also deploy third parties (vicarious agents). Gherzi shall be liable for any fault committed by their vicarious agents like for their own faults pursuant to Sec. 278 of the BGB, according to the limits of liability set out in Art. 11. The Customer will allow Gherzi and their vicarious agents to disclose any information necessary for fulfilling the entrusted services. If Gherzi is subject to a duty of confidentiality toward the Customer, that shall apply only insofar as Gherzi has committed their vicarious agent to confidentiality in the same manner as Gherzi is obliged to confidentiality toward the Customer.

3.2 Gherzi may render the services on the Customer's premises, on their own premises or at any other place of their choice, unless otherwise provided for in the service agreement. If the service needs to be rendered at the Customer, the Customer will […][FR1] . Conditions and prices apply exclusively to places of performance located within the Federal Republic of Germany.

4. Types of Agreements, Remuneration, Payment Terms

4.1 Type and scope of the remuneration are set out in the order confirmation or the service agreement which will generally provide for a remuneration either according to type A or B. Type A comprises services that are rendered against a remuneration on the basis of evidenced working times (in particular, product development, management consultancy, supply chain management), and type B applies to agency services (in particular the arrangement of business transactions of all types) that are subject to a success-based, normally, revenue-related commission.

4.2 Type A:

In case of Type A, the remuneration for (project-related or continuous) services, travel times, expenses as well as travel and ancillary expenses is based on hourly or daily rates (so-called man-days) and on the other provisions set out in Gherzi's price list, unless otherwise agreed. Basis for the calculation are the times spent as evidenced by Gherzi. The remunerations invoiced to the Customer are based on the actual time spent for rendering the services. If Gherzi should accept the warranty for the correctness of time and expense estimates, that shall be agreed in writing. Gherzi will evidence the deployments of their employees by activity reports (date, person in charge, activity, time). Gherzi will provide the activity reports to the Customer in regular intervals for verification and confirmation. If the Customer fails to object to the activity reports provided to them for verification within 10 calendar days after receipt, the times specified in the activity reports shall be deemed to be confirmed. A copy of the activity reports will be attached to the invoices. The remuneration for the services rendered shall fall due in arrears. Gherzi shall be authorised to request an adequate part of the estimated total remuneration as collateral (so-called Retainer) upon commencement of the agreement. The Retainer will be returned by Gherzi after the end of the agreement / project and full payment of the owed remuneration, unless otherwise agreed.

Type B:

The remuneration for agency services under Type B depends on the net order value of the business transaction arranged for the Customer. It shall amount to 6 % of the net order value, unless otherwise agreed and unless any other rate of commission arises from Gherzi's price list for the concrete transaction. The claim to remuneration will arise as soon as and insofar as the arranged transaction was effectively concluded and if the Customer received the agreed remuneration from their contract partner. The Customer shall be obliged to immediately notify Gherzi of the fact that the transaction was concluded, of the contents of the agreement concluded, and the payments received under the agreement. Gherzi has a claim to be provided with information and to inspect the Customer's documents on the arranged transaction. The Customer may request that Gherzi must have the claim for inspection exercised by an auditor, tax consultant or lawyer who is obliged to professional secrecy.

4.3 All remunerations are quoted in Euros and exclude value added tax at the legal rate (VAT).

4.4 The remuneration shall be due within 14 days, without deduction, after receipt of the invoice, unless otherwise agreed. Any deduction of discount is prohibited, unless a separate agreement was made.

4.5 If the Customer is in default of payment, they shall pay default interest in the amount of 9 percentage points above the base interest rate on the outstanding claim. That does not exclude the right to assert a higher damage caused by default.

4.6 In case of a payment default and justified doubts about the Customer's solvency or creditworthiness, Gherzi shall be authorised to request advance payments for outstanding services and to make any and all claims arising from the business relationship due for immediate payment.

4.7 The Customer shall only be entitled to rights of set-off if their counter-claims were found to be legally effective by a court, are undisputed or were recognised by Gherzi. In addition, the Customer is entitled to exercise a right of retention, insofar as their counter-claim is based on the same contractual relationship.

5. Rights

5.1 If the agreed scope of services comprises the provision of written or machine-readable work results to the Customer, the latter will receive the simple – non-exclusive and non-transferable – authorisation regarding any work results worthy of protection to use such work results for their intra-company purposes. Otherwise, all rights to the work results – in particular the right to inventions – shall remain with Gherzi; that shall also apply insofar as the work results arose by a cooperation or at the instigation of the Customer.

5.2 The grant of any other rights of use to the Customer shall require a written agreement. Gherzi shall, even in this case, not be prohibited from making developments which are similar or comparable to the work results provided to the Customer.

5.3 If the services rendered by Gherzi serve the preparation of other services by Gherzi, the Customer's right to utilise the affected work results by involving third parties, to the exclusion of Gherzi, shall require the prior agreement between the parties.

6. Retention of Title

All rights to the work results will remain the property of Gherzi, in particular, the property and any and all rights arising from the copyright or other technical property rights, until the full payment of any and all claims arising from the business relationship with Gherzi.

7. Exclusion of Assignment

The Customer must not transfer to any third parties the claims and rights to which they are entitled under any service agreement with Gherzi, unless Gherzi has given its consent.

8. Delivery times, Deadlines

8.1 The deadlines or schedules communicated under an offer or in any service agreement constitute a non-binding outlook to any potential course of the project-related services and serve as an orientation. Binding deadlines (contractual deadlines) must explicitly be specified as such in the agreement and must be agreed in writing.

8.2 Gherzi will calculate any service periods and delivery periods for work results according to the offer, order confirmation or service agreement starting with the receipt of the technically clarified order from the Customer. They shall, in particular, not start prior to the provision of any documents, approvals and releases to be obtained by the Customer.

8.3 If it is necessary to exceed any contractual deadline for reasons of construction and/or development, Gherzi shall be authorised to exceed the contractual deadline by a reasonable period, however by a maximum of 6 weeks, unless otherwise agreed. Gherzi will notify the Customer accordingly and specify a new contractual deadline. After its expiry, Gherzi might be put in default by the Customer. In case of any negligently caused default, the damage caused by default shall be limited to the typical and foreseeable damage.

8.4 Any delays caused by force majeure and those that are based on events which essentially impair Gherzi's ability to render the services or make them impossible not only temporarily – in particular, strike, lock-outs, orders by authorities – shall not be attributable to Gherzi, even if they affect the contractual deadlines.

8.5. The performance periods will be prolonged by the duration of the impairment, plus a reasonable start-up time, for impairments falling under the Customer's sphere of risk (Art. 9) or those that are not attributable to Gherzi – like in the event of force majeure.

9. Customer's duty to cooperate, communication

9.1 The Customer is obliged to adequately cooperate in the performance of the services, insofar as that is reasonable for them. If the Customer fails to comply with their cooperation duties, in particular, since they fail to notify, in due time, of any decisions, releases or information, Gherzi shall not be liable for any delays of the services.

9.2 Type and manner of the electronic communication (email, PGP, FTP, etc.) will be determined mutually at the beginning of the agreement. If no such determination is made, any communication shall be made by email.

10. Impairment of the performance

10.1 If Gherzi fails to or does not properly render the agreed services, the Customer shall provide a written complaint and shall grant Gherzi the opportunity to properly render the service within a grace period of an adequate duration specified in writing. If the service is not properly rendered even after the expiry of the grace period, the Customer shall have the right to prematurely terminate the relevant service agreement and to request damages or the reimbursement of futile expenses according to the limits of liability agreed in Art. 11.

10.2 If the granting of a grace period is impossible for continuous services and due to the type of the violation of the duty, it shall be replaced by a written warning. If Gherzi subsequently fails to properly render the due services repeatedly, the Customer shall have the right to terminate the affected service agreement without notice and to request damages or the reimbursement of futile expenses according to the limits of liability specified in Art. 11.

10.3 Terminations shall be made in writing to be effective.

10.4 If the work results to be rendered according to the agreement are subject to the laws on contracts for sale and for work, the legal provisions on material defects and defects of title shall apply to any material defects and defects of title, under the condition that the Customer must issue warnings and grant periods in writing. A limitation period of one year applies to claims for defects. Art. 11 applies to damages or the reimbursement of futile expenses.

11. Liability

11.1 In all cases of contractual or non-contractual liability for damages or reimbursement of futile expenses, Gherzi shall not be liable to the Customer in an unlimited amount, unless in case of intent or gross negligence and in case of a violation of a material contractual duty (cardinal duty). The liability for the violation of cardinal duties caused by slight negligence shall, however, be restricted to such foreseeable damage the occurrence of which should have been prevented by the infringed duty.

11.2 Gherzi's liability for indirect damage and for lost profits shall be excluded for cases not provided for in Art. 11.1; Gherzi's liability for other types of damage shall be limited to half the remuneration of the affected service agreement; and in case of continuous services (continuing obligations) it shall be limited to the annual remuneration for one calendar year under the affected contractual relationship.

11.3 Gherzi shall not accept any liability for any delay of the services, defective information or non-contractual consultation outside of the liability provided for in Articles 11.1 and 11.2.

11.4 The period of limitation for claims under Art. 11.1 to 11.3 shall be one year and it commences at the end of the year in which the claim arose and the Customer gained knowledge of the circumstances justifying the claim and the person of the debtor or should have gained knowledge of such without gross negligence. That shall not apply to claims for intentional or grossly negligent activities or the cases provided for in Art. 6.6. The statute of limitation shall commence, in all cases, not later than upon expiry of the legal limitation period.

11.5 The liability on the part of Gherzi for personal injury and for guarantees provided by Gherzi shall remain unaffected by the above limitations of liability.

12. Term, Termination

12.1 Project-related service agreements will be concluded for the foreseeable duration of the project (initial term) as specified in the service agreement and cannot be terminated with due notice during such period, unless otherwise agreed. After expiry of the initial term, the agreement will be prolonged automatically, unless either party terminates the agreement, in writing, with a notice period of 3 months to the end of the initial term. After expiry of the initial term, the agreement can be terminated, at any time, with a notice period of 2 months to the end of a quarter.

12.2 Continuous service agreements are deemed concluded for an indefinite period of time, unless otherwise agreed. Either party may terminate them with a notice period of 2 months to the end of a quarter.

12.3 The right of extraordinary termination for an important reason shall remain unaffected. An important reason shall be deemed to apply, in particular, if

a) either party violates the contractual duties in a sustainable manner and despite a warning / granting of a grace period;

b) either party violates the duties of secrecy to which they are obliged;

c) insolvency proceedings are initiated over the assets of either party, if a request for such proceedings is filed or if the initiation of insolvency proceedings is rejected for lack of assets; or

d) either party ceases their business operation.

12.4 Agreements regarding agency services can be terminated, at any time, with a notice period of 14 days to the end of the month, unless otherwise agreed. That shall not apply, insofar as the agency services exceed occasional arrangements and insofar as a commercial agency relationship exists already; if that is the case, Articles 89, 89 a, 89 b of the HGB [German Commercial Code] shall apply.

13. Confidentiality

13.1 The parties mutually undertake to keep in confidence and to not disclose to any third parties, to not make accessible to and to protect against the access by any third parties the work results of the other party as well as any other information, in particular, that of a technical and economic type, intentions, experience, findings, constructions and documents, including the results, of which they gain knowledge on the basis of the cooperation (hereinafter confidential information). The obligation shall also survive the term hereof.

13.2 In addition, the parties will ensure that the employees, free-lancers and subcontractors they engage for the performance of the service agreements will comply with the above duty of confidentiality.

13.3 The above obligations shall not apply to any confidential information that has already been known to either party prior to their disclosure under the service agreement, was prepared or otherwise lawfully obtained by them or which is or comes to the public domain without any violation of this agreement.

13.3 The documents (including copies) containing confidential information which are in the Customer's possession or under their control shall be returned completely and immediately or be erased or destroyed – at the request of the other party.

14. Final Provisions

14.1 Chemnitz, Germany, shall be the place of fulfilment for any and all claims arising from these GTC or from the underlying service agreement and from their performance or termination, unless otherwise provided for in the order confirmation or the service agreement.

14.2 The exclusive place of jurisdiction for any and all current and future claims arising from the business relationship shall be Chemnitz, Germany. The same place of jurisdiction shall apply if the Customer has no general place of jurisdiction in Germany, if they relocated their place of residence or registered office from Germany after the conclusion hereof or if their place of residence or registered office are unknown at the time when the action is filed.

14.3 German law shall apply exclusively, to the exclusion of the UN Convention on contracts for the international sale of goods (CISG).

14.4 If any of the provisions of these GTC is or becomes legally ineffective or impracticable, in full or in part, the other provisions shall remain in full force and effect. The affected provision shall be interpreted in a manner that it comes as close as possible to the will of the parties in a legally effective manner.

14.5 Gherzi will collect, process and use data of the Customer by observing the provisions of the Bundesdatenschutzgesetz [German Federal Data Protection Act] and of the General Data Protection Regulation and only insofar as that is necessary to perform the contractual relationship.