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.
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.