General terms and conditions of business
SolSaCon GmbH - general terms and conditions
These general terms and conditions of business (T&Cs) apply to the services offered by SolSaCon GmbH. (SolSaCon) according to the offer, which was signed by the client and SolSaCon and with which these terms and conditions have been enclosed as an annex. These conditions represent the complete agreement between the client and SolSaCon with regard to the services described in the offer, replace all previous oral or written communications and may only be changed or supplemented in writing through the signature of both parties (including changes in relation to the scope and type of services or the fee). If these conditions deviate from those of the offer, these conditions are decisive. This does not apply if individual agreements have been made in the offer. Terms defined in the offer have the same meaning in these terms and conditions, unless otherwise indicated.
§ 1 Client obligations
As a precondition for the performance of services by SolSaCon the client shall fulfil (i) the client obligations incumbent upon it (as defined in the offer) and ensure that all prerequisites (as in the offer) are present, (ii) give SolSaCon the required reliable, correct and complete information, (iii) take decisions in a timely fashion and obtain the required consent from management, and (iv) make available to the employees of SolSaCon suitable office space and the resources and accessories required in suitable scope. Furthermore SolSaCon can refer to all decisions and approvals made by the client independently of this agreement and/or prior to its conclusion by the parties. Insofar as nothing to the contrary is explicitly agreed in the offer, SolSaCon is not obligated to assess these decisions and approvals, to act as a consultant in relation to them, to modify, confirm or reject them.
§ 2 Confidentiality
In relation to this contract and the information supplied in connection with it, which was designated confidential by the revealing party, the recipient commits itself as follows: (i) to safeguard the confidential information appropriately or in accordance with the applicable professional principles, (ii) to use confidential information only for carrying out its obligations arising from this contract, and (iii) only to copy the confidential information insofar as this is required for fulfilment of this contract. The preceding does not apply for information which (i) is publicly known, (ii) is already known to the recipient, (iii) has already been revealed to a third party without restriction, (iv) has been independently developed or (v) is revealed as a result of legal requirements or decrees. With the proviso of the preceding provisions, SolSaCon can reveal confidential information of the client to its subcontractors and associated companies.
§ 3 The results to be implemented
SolSaCon owes only the performance of the consultancy activity described in the offer, not a specific business result.
The client may use, copy, internally distribute and alter the results to be implemented that are explicitly described in the offer (the results to be implemented) exclusively for internal business purposes.
Without the prior written consent of SolSaCon, the client shall not reveal the results to be implemented to a third party, cite them publicly or make reference to them. SolSaCon reserves all rights and claims in relation to the following: (i) the results to be implemented, in particular as regards all patents, copyrights, brands and other commercial protective rights associated with them and (ii) all methods, procedures, ideas, concepts, business secrets and know-how which are contained in the results, or which SolSaCon develops or supplies in connection with this contract (the SolSaCon know-how). With the proviso of the confidentiality restrictions in § 2 SolSaCon has the right to use the results to be implemented and the SolSaCon know-how for any purpose.
§ 4 Acceptance
The client is obligated to accept results implemented as being in accordance with the contract, which (i) correspond to the requirements of the offer or (ii) if applicable, successfully pass the acceptance test plan. The client shall notify SolSaCon immediately if the results do not correspond to these requirements (non-conformity), and, depending on the degree and complexity of the non-conformity, SolSaCon shall be granted enough time to remedy this non-conformity. If the client uses the results to be implemented prior to acceptance, fails to notify SolSaCon of a non-conformity immediately or delays the beginning of the acceptance test unnecessarily, the results to be implemented shall be considered accepted by the client.
§ 5 Claims of fault
SolSaCon shall perform the services with professionalism and due care. The client has a claim for the rectification of any faults, insofar as the rectification is possible at reasonable cost, and insofar as the client has notified SolSaCon of the fault in writing within thirty days after performance of the services or, if applicable, after successful conclusion of the acceptance test plan. If the fault cannot be rectified or if the repair fails, the right is reserved to the client to withdraw from the contract or to request a reduction of the fee. If the order has been issued by a company within the scope of its commercial business, a legal person under public law or a special fund under public law, the client may then only withdraw from the contract if the service performed is without interest because of the failure of the repair. For damages claims going beyond this § 6 applies.
Claims in accordance with the preceding paragraph, which are not based on wilful action, expire after the passage of one year from the beginning of the period of limitation.
SolSaCon is not liable for the products or services of third parties not acting as subcontractors of SolSaCon. The sole and exclusive rights and legal remedies of the client with regard to such products or services of third parties exist in relation to the third party and not in relation to SolSaCon.
§ 6 Liability
Regardless of legal grounds, with the exception of damages arising from injury to life, body and health, the liability of SolSaCon in relation to the client, its employees, assistants and third parties in the case of damages caused by simple negligence is limited to €10,000. The sum of the damages claims from all those entitled to make a claim resulting from a single service that can be limited by time or purpose is to be understood as a single damages case. For damage arising within the framework of several identical unified services as a result of several infringements based on the same technical error, SolSaCon shall also be liable only for the amount of €10,000.
If, in the opinion of the client, the foreseeable contract risk significantly exceeds €10,000, SolSaCon, at the request of the client, shall attempt to take out an additional insurance concerning its liability obligation with a larger maximum amount, insofar as the insurance coverage is to be requested from a domestic insurer and the client pays for the additional insurance premiums.
The restrictions on liability and other provisions of paragraph (a) also apply for damages caused by gross negligence if the order was issued by a company within the scope of its commercial business, a legal person under public law or a special fund under public law. This also applies for damages caused by the gross negligence of a non-managerial employee.
For damages that are not typical of contracts, SolSaCon shall not be liable when the cause is negligence unless the danger of an unusual occurrence of damage was pointed out to SolSaCon by the client.
As SolSaCon performs the services exclusively for the benefit of the client, the client indemnifies SolSaCon, its associated companies and their partners, and other employees from all costs, fees, expenses, obligations to pay damages and liabilities in relation to the claims of a third party in connection with or as a result of the services of SolSaCon or in connection with the claims of a third party arising from the use of the results to be implemented or this contract by the client (including the costs of legal representation).
Complaints against SolSaCon are to be raised within a period of twelve months after the grounds for the complaint have arisen. Shorter limitation periods remain unaffected by this.
§ 7 Employees
SolSaCon shall endeavour to meet the wishes of the client regarding the deployment of specific employees, but shall deploy and re-assign employees in accordance with what is reasonable and possible for the performance of the services.
For the duration of this contract and during a period of six months after the expiry or cancellation of this contract, no party shall actively attempt to recruit employees of the other contract party who have been directly involved in performing the services arising from this contract.
§ 8 Cancellation
This contract can be cancelled at any time by either party through written notification to the other party observing a notice period of fifteen (15) days.
The client shall reimburse SolSaCon for the services performed and the expenses incurred until the date on which the cancellation becomes effective and shall compensate SolSaCon for all properly incurred costs in connection with the cancellation.
With the exception of matters in connection with the confidentiality or commercial protective rights the parties shall initially attempt to settle disputes or a claimed infringement of the contract internally by involving the business management, and prior to the start of any legal dispute shall carry out an arbitration process that is acceptable to both parties.
§ 9 General provisions
Neither of the parties may use the name, brands, logos, trade name and/or the trademark of the other without their prior written consent. SolSaCon may mention or list the name of the client and/or a general description of the services/project, insofar as nothing to the contrary is defined here. The client furthermore declares its agreement to giving out information about SolSaCon after reasonable notification in advance (for example in the form of telephone discussions with analysts, clients, presentations and the like).
The parties shall not be liable for delays or non-fulfilment resulting from circumstances that are outside of their control.
Rights and duties arising from this contract cannot be assigned or in any other way transferred without the prior express written consent of the other party. For rights and duties arising from this contract, SolSaCon is entitled to bring in its subcontractors to perform the services.
The notifications to be made within the framework of this contract have to be made in writing, sent to the addresses indicated in the offer and will be seen as having been made upon receipt.
No provision of this contract shall be seen as having been waived, and no infringement against provisions of this contract is excused unless the waiver declaration or the consent is made in writing and was signed by the party which declares the waiver or consent.
If a provision of this contract is declared contrary to the law or unenforceable, this provision shall be considered annulled and all other provisions shall remain effective without restriction.
This contract does not make one party a representative or legal proxy of the other, nor does it found a company or a joint venture. The parties are independent contracting parties and act on their own account.
§§ 2 to 9 of these terms and conditions of business remain in effect after expiry or cancellation of this contract.
The law of the Federal Republic of Germany applies to this contract.
The place of fulfilment and jurisdiction for all services arising from this offer is Landsberg a. Lech.
The client confirms and acknowledges that (i) SolSaCon and the client may correspond or send information by email unless the client explicitly rejects this, (ii) no party has influence over the capability, reliability, availability or security of electronic mail, and (iii) SolSaCon is not liable for losses, damage, expenses, disadvantages or disruptions arising from the loss, delay, interception, destruction or alteration of electronic mail for reasons over which SolSaCon has no influence.
Updated: July 2009
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