General Terms and Conditions
§ 1 Scope of Application
- 1. Our General Terms and Conditions (“GTC”) shall apply exclusively and shall constitute a part of all agreements between any contractual partner (“Customer”, the Customer and we each a “Party” and together the “Parties”) and us that concern services/ works provided by us via the Customer and which are further outlined in § 3 para. 2 below (the respective agreement in its entirety including these GTC hereinafter referred to as the “Agreement”). We do not recognize terms and conditions set by the Customer which contradict or deviate from our terms and conditions, except if expressly agreed upon in writing.
- Our GTC shall also govern all future transactions with the Customer and shall also apply if we perform our services or, if applicable, a delivery, despite our knowledge of differing or contrary terms. The version of our GTC valid at the time of conclusion of the respective Agreement shall be decisive.
- Individually agreed terms (e.g. as part of the Quotation as defined in the following section) shall prevail over these GTC. Verbal agreements shall be binding only, if they are confirmed in writing.
- Our GTC shall only apply vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 of the German Civil Code (BGB).
- Entrepreneurs in the meaning of the preceding paragraph shall be any natural or legal person (including founders) or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
§ 2 Quotations; Modalities of Contract Conclusion
- Our Agreements shall be concluded either (i) based on and upon the explicit or implied confirmation of our offers by the respective customer or (ii) upon the explicit confirmation of a Customer’s offer by us. The beginning of the work execution (upon unanimous agreement with the customer) shall be deemed as implied confirmation of our offers/ Quotations (as defined in the following paragraph) this.
- Our offers contain the essential technical, commercial and legal fundamentals (such offer, including annexes thereto hereinafter referred to as “Quotation”). Any quotation (including all annexes thereto) shall constitute an integral part of the Agreement.
- Our Quotations and confirmations are subject to a proper and timely delivery by our supplier(s).
- If a confirmation by the Customer deviates from the Quotation, it shall represent a new offer which needs to be expressly accepted by us. The beginning of the work execution (upon unanimous agreement with the Customer) shall not be deemed as implied acceptance of a new offer.
- Agreements are concluded either as contract for work (Werkvertrag), as contract for work and materials (Werklieferung) or as a service/ consultancy contract (Dienstvertrag). For the qualification as a contract for work (Werkvertrag) or a service contract (Dienstvertrag) the specification set forth in the Quotation shall be decisive. In case of doubt, Agreements shall be deemed to be legally concluded as service contracts (Dienstverträge). In case of doubt whether the Agreement is concluded as contract of work or as contract for work and materials, the Agreement shall be deemed to be legally concluded as the latter.
- Unless explicitly stated otherwise, these GTC shall govern all Agreements, irrespective of whether they are concluded as a contract for work (Werkvertrag) as a contract for work and materials (Werklieferung) or as a service or consultancy contract (Dienstvertrag). If certain, deviating rules shall apply to Agreements to specific contract types only, a specific reference to the relevant contract types is explicitly stated in the respective section or provision.
§ 3 Contract Matter
- We agree to develop or produce a product or rendering our services for the Customer as further described in the Quotation including all annexes thereto (“Contract Matter”) based on the contract types referred to in § 2 para. 5 of these GTC.
- The Contract Matter might comprise various forms of services/ works, such as development or consultancy services, the development and production of prototypes in accordance with specifications set forth in a separate performance specification annex to be enclosed to the Quotation (as [development or production] service or as [development] work), the drawing up of (industrialization) concepts or feasibility studies.
- In accordance with § 2 para. 5 of these GTC, in case of doubt, it generally shall apply that we are not obliged to achieve certain (development) results. Any targets or development steps described in the Quotation (including annexes thereto) shall be deemed to be agreed as intended (development) results or work products, save explicitly agreed otherwise in the Quotation. Regarding the former, we however shall be obliged to use best efforts to develop or provide a work product for the Customer or to achieve the (development) objectives as further described in the Quotation.
- Any obligation to transfer and/ or hand over (development results) or work products (including documentation thereto, if applicable) agreed under in the Quotation shall be understood to be agreed upon the achievement of the respective (development) result/ work product only, unless such obligation is agreed as part of a contract for work (Werkvertrag) or a contract for work and materials (Werklieferungsvertrag).
- If we agreed to provide our services as a contract for work (Werkvertrag) or a contract for work and materials (Werklieferungsvertrag), we agree to transfer and hand over to the Customer all development results or work products as further specified in the Quotation and § 11 below.
- We agree to start on a date specified in the Quotation or upon unanimous agreement with the Customer (“Commencement Date”). The development services are expected to be completed by the date specified in the Quotation (“Development Term”). Since the rendering/conduct of development services/ development work is entailed by various uncertainties and imponderables, any completion date set forth in the Quotation shall be deemed agreed as estimated completion date and not as fixed completion date, unless explicitly agreed otherwise.
- Irrespective of the agreement of specific milestones, we shall be entitled to subcontract the performance of the Agreement (or parts thereof). We shall also be entitled to make part-deliveries and to provide part-services as well as to provide our services/ work products before they are due.
§ 4 Right to Reserve Ownership (Eigentumsvorbehalt)
- We reserve the right of ownership to all (developed) work products and other items delivered or handed over to the Customer until the receipt of all payments from the Agreement with the Customer. In the case of any current account balance, we reserve the right of ownership until the balance is settled; in the case that bills of exchange or cheques have been accepted, until they have cleared.
- The Customer shall have the right to resell the work products and other items delivered/ handed over by us as part of its ordinary business activity and without an assignment exclusion having been agreed. Upon delivery/ hand-over, the Customer hereby automatically assigns to us its claims derived from resale with all ancillary rights up to the amount of the claim of the final invoice amount (including VAT). The same shall apply accordingly with regard to the claim for settlement, if the Customer agreed on current account agreements with the third party. The Customer shall remain authorized to withdraw (einziehen) the claim against its Customers/contractual partners. However, our right to withdraw the claims ourselves shall remain unaffected. We do not withdraw the Customer`s claims as long and insofar as the Customer is not default of payment to us and provided that no application for insolvency proceedings are made and no stay of payments is in place. If any of the cases mentioned in the preceding sentence occurs, the Customer shall be obliged to notify us about the assigned claims and their debtors and to provide us with all details required for the withdrawal as well as hand over the associated documentation. In addition, the Customer shall notify its debtors (third parties) about the assigned claim(s).
- If the Customer acts in breach of contract (e.g. late payment), we are entitled to withdraw from the Agreement and retrieve the delivered work products/ items.
- Any processing or reconstruction of the delivered work products/ items by the Customer shall be carried out on our behalf. If the delivered work products/ items are processed with other objects that we do not own, it shall be agreed that we have acquired the co-ownership of the new object in the ratio of the value of the delivered work products or items to the other processed objects at the time of processing. The provisions of this § 4 shall apply mutatis mutandis to the new object.
- The Customer may neither pledge nor assign by way of security any delivered work product/items subject to a reservation of ownership and must notify us immediately of any attachments which have been made at the instigation of a third party.
- Upon request by the Customer, we shall undertake to release the aforementioned securities, if the realisable value of our securities exceeds the secured claims by more than 10%. The choice of which securities are released lies with us.
§ 5 Aids for Performance of the Agreement
- If we produce models (auxiliary) models, moulds, tools etc. (hereinafter referred to as the "Tools"), for the requested services or work products, these tools shall not constitute part of the services or work products. As such, Tools shall remain our property, unless explicitly agreed otherwise in writing.
- Upon completion of our services or acceptance or risk transfer (whatever applicable in accordance with § 8 and§ 11), We will store these Tools for the period of six (6) months without acknowledging a statutory or legal duty to do so. Upon expiry of this period, we shall be entitled to scrap the Tools, unless we have explicitly agreed with the with the Customer to continue to store the Tools or to transfer the Tools against payment of an appropriate remuneration.
§ 6 Execution/ Cooperation
- The Parties commit themselves to a trustful cooperation.
- As early as possible, the Customer shall provide us with all data, documents and other information at least in text form that are necessary, or which need to be considered in rendering of our services or the performance of the Agreement.
- Modifications and supplements to the agreed Contract Matter and Contract Prices may be agreed only before the completion/end of the initially agreed (development) services/ work and upon consent of both Parties only. However, we are entitled to request appropriate modifications and/ or supplements to the agreed Contract Matter and/or Contract Prices, if such modifications and or supplements are necessary or reasonable/appropriate due to the fact that the Customer did not provide us with the necessary information pursuant to paragraph 2 of this section prior to the conclusion of the Agreement.
- Upon request of either Party, each Party shall be obliged to nominate a representative who shall be legally authorized to discuss and agree such modifications or supplements with the other Party.
§ 7 Prices; Payments; Payment Terms; Due Date
- We render our development services/ performance of development work against payment of the prices (“Contract Price”) set forth in the Quotation. Unless explicitly stated otherwise in the Quotation, the Contract Prices are net prices. Applicable value added tax (VAT) shall be added and detailed separately in the invoice.
- If the Contract Price is stated as total sum in the Quotation, the Contract Price shall be deemed agreed as total lump sum (Pauschalvergütung).
- If any milestones have been agreed between the Parties, the payment of the Contract Price shall be made in different instalments upon completion (and acceptance, if applicable) of each milestone as specified in the Quotation.
- All payments to us under the Agreement shall be made in Euro and free of charge or cost for us by irrevocable wire transfer of immediately available funds to our following bank account:
Bank: Sparkasse Mainfranken
IBAN: DE52 7905 0000 0048 8228 94
- Payments shall become due within fourteen (14) days upon receipt of a respective invoice issued by us and the occurrence of the following:
(i) in case of service or consultancy contracts (Dienstverträge): upon (partial) performance (and acceptance, of applicable) of the agreed services;
(ii) in case of contracts for work (Werkverträge): upon the acceptance (or unjustified refusal of acceptance) as set forth in § 8.;
(iii) in case of contracts for work and materials (Werklieferungsvertrag): upon the transfer of risk as set forth in § 11.
- Notwithstanding any provisions of statutory law, in the event of late payments we shall be entitled to demand default interest according to sec. 288 para. (2) BGB without being required to serve a warning notice. We are free to claim compensation of a proven higher damage.
- Our prices are quoted “ex works” and do not include cost for shipment, insurance, travelling cost plus expenses and packaging, unless explicitly agreed otherwise in the Quotation.
- Additional services that are not agreed in the quotation are rendered and invoiced separately. We have the right to request an appropriate advance before performing any services under the Agreement.
§ 8 Deterioration of the Customer's Assets
- If, after the conclusion of the Agreement, we become aware of facts that put into question the Customer`s ability to fulfill its payment obligations under the Agreement, we shall be entitled to demand full payment or provision of a relevant security before continuing the performance of the Agreement.
- Relevant facts in the meaning of the preceding paragraph shall be, inter alia, the repeated delays in payment, the initiation of enforcement measures against the Customer or the initiation of pre-insolvency restructuring measures.
- If the Customer does not comply with such request, we shall be entitled to withdraw or terminate (whatever applicable) the Agreement upon the expiry of an appropriate period to comply with our demand.
§ 9 Acceptance (Abnahme)
- If the Agreement was concluded as contract for work (Werkvertrag) or if agreed otherwise, the Parties shall conduct a formal acceptance based on the acceptance criteria agreed in the Quotation upon completion of the development service and/or, if applicable, each milestone. Agreed milestones shall constitute separate individual self-contained and billable parts of the Agreement. The acceptance shall be recorded in minutes and be signed by both Parties.
- Irrespective of the preceding paragraph, acceptance shall also be deemed to be occurred if the Customer receives the work products without insisting on the formal acceptance procedure set forth in the preceding paragraph.
- The Customer shall be entitled to refuse the acceptance only in case of material defects. We shall be entitled to remedy such material defects within a reasonable grace period of at least 60 days. In the event of non-material defects, the Customer shall be obliged to accept. All defects shall be recorded in the minutes of acceptance.
§ 10 Right of Retention / Set-Off
- The Customer`s right of retention shall be limited to counterclaims originating from the same Agreement.
- The Customer`s right to offset against our claims under or arising from or in connection with the Agreement shall be limited to claims that are undisputed or that are confirmed by final decision of the courts or an arbitral tribunal.
§ 11 Deliveries/ Place of Performance/ Risk Assumption
- Save agreed otherwise in the quotation, we provide our services or development work “ex works”. As such, the cost for shipment, insurance, travelling cost plus expenses and packaging (if applicable) shall be borne by the Customer, unless explicitly agreed otherwise in the Quotation.
- The place of performance including the place of supplementary performance in accordance with § 16 shall be the site of our administration office in 12489 Berlin, Rudower Chaussee 50.
- Upon request by the Customer, we organize the delivery of any work or service results on behalf of the Customer. The risk of loss and damage of any work product/service result shall transfer to the Customer upon handing over the respective work product or service result to a carrier or another person for the purpose of transportation or, if applicable, upon sending of data when data is transmitted electronically. Save agreed otherwise, we are, however, entitled to determine the modalities of transportation (including, inter alia, choice of the carrier, way of transportation, packaging).
§ 12 Intellectual Property – Background IP
- Any intellectual property – in the meaning of (i) industrial property rights (gewerbliche Schutzrechte), i.e. inventions, patents, utility models, designs and trademarks, (ii) copyright (exploitation right and rights of use) and (iii) know how (“Intellectual Property”), existing prior to the conclusion of the contract as our own Intellectual Property or which we are entitled to use (“Background IP”) shall remain with us. We are not obliged to register Background IP or to otherwise protect Background IP, or keep such protection of Background IP, as, for example, patents or patent applications, in force. Neither are we obliged to defend Background IP against third parties.
- If and insofar we need Intellectual Property rights from the Customer in order to carry out our development services/ work under the Agreement, the Customer hereby agrees to grant to us a simple, non-transferable and non-sublicensable royalty-free right to use the Customer`s Background IP. Such license shall be deemed as automatically granted by the Customer upon conclusion of the Agreement and shall be granted during the term of and exclusively for the purposes of the Agreement.
§ 13 Intellectual Property – Foreground IP
- 1. Any Intellectual Property created by us in performance of the development services during the term of the Agreement ("Foreground") shall be owned by us. We shall be obliged to use Customer`s Background IP that is contained in Foreground. In this regard, § 12 para. 2 sentence 1 shall apply accordingly.
- Any transfer of Foreground to the Customer and any right to use Foreground by the customer is subject to an explicit agreement by the Parties (“IP Agreement”). Such IP Agreement shall also cover the treatment of inventions that our employees make during the term and while discharging our obligations under the Agreement (“Employee Inventions”).
- If the Parties agree under the IP Agreement that Employee Inventions shall be transferred to the Customer, it being understood that the Customer shall be obliged to register Employee Inventions transferred to it. Furthermore, the Customer agrees to indemnify and hold us harmless upon first request against any claims arising from the German Act on Employee Inventions (Arbeitnehmererfindungsgesetz) for inventions concerning the Contract Matter.
- Unless stated otherwise in the IP Agreement, we shall be entitled to use (e.g. producing, offering, putting on the market or using a product) the Foreground free of additional charge as desired. This includes the right to grant licenses to third parties, affiliated companies and shareholders. The Customer, by conclusion of the Agreement grants us the rights of use to the Intellectual Property rights granted thereon which we have assigned to the Customer under the Agreement.
§ 14 Third Party Rights
- The Customer shall be responsible for ensuring that the Agreement can be performed in accordance with the required specifications. In addition, the Customer shall be responsible for ensuring that the performance of the Agreement does not infringe any rights of third parties. If a third party brings a claim against us in this regard, the Customer shall be obliged to indemnify us and hold us harmless from such claims. Such indemnification shall include all expenses (particularly costs of legal proceedings and legal advice) incurred by us to defend such third-party claims.
- We shall not be obliged to examine as to whether the performance of the Contract Matter/or any work result or its usage by the Customer might infringe third party (Intellectual Property) rights. However, if it turns out during the performance of the Agreement that the use of third parties’ Intellectual Property rights is necessary for a successful execution or continuation of the services under the Agreement, we shall be obliged to inform the Customer at short notice. The Customer shall be obliged to decide whether a license shall be requested or whether the work or services shall be carried out in a form avoiding a respective third-party infringement.
- Neither guarantee no warranty shall be assumed by us that our services or work products are free of third-party rights or do not infringe third party rights.
§ 15 Nondisclosure/ Confidentiality
- All information and trade secrets obtained by the Customer in connection with or while performing the Agreement or as a result of its execution (in particular, but not limited to know-how, drawings, sketches etc.) shall be treated confidential (“Confidential Information”). The disclosure of Confidential Information by the Customer shall require our prior consent, unless the disclosure is legally required (by law or by virtue of an enforceable decision of a public authority or court/ arbitral tribunal) or legally permitted (e.g., in accordance with sec. 5 of the Law on protection of trade secrets (Geschäftsgeheimnisschutzgesetz - GeschGehG). If a legally required disclosure concerns a trade secret, the Customer shall be obliged to immediately inform us of the legal requirement to disclose. In addition, the Customer shall be obliged to indicate as part of such disclosure that the information is a trade secret and shall use its best efforts to ensure protection in accordance with sec. 16 et seq. GeschGehG.
- Beyond the purposes of the Agreement set forth in the Quotation or product specifications and/or service description enclosed thereto, the Customer shall not be entitled to use Confidential Information or to make them accessible to third parties. The Customer particularly agrees not to use Confidential Information for its own works or services or to exploit any trade secrets disclosed by us. Such obligation shall include the prohibition to obtain or exploit Confidential Information by means of reverse engineering. Reverse engineering in this regard shall comprise all actions, including observing, testing, examining and reassembling and, if necessary, reassembling, with the aim of obtaining Confidential Information.
- The Customer shall be obliged to agree on appropriate protective measures also vis-à-vis its customers or other contractual partners to protect Confidential Information and its exploitation. Likewise, the Customer shall undertake appropriate protective measures against customers and other contractual partners to prevent reverse engineering.
- Only data, plans and other documents and information which have been explicitly declared as confidential by the Customer in writing are subject to any confidentiality obligation by us. If information is disclosed verbally by the customer, a written statement classifying the information as confidential must be given within ten (10) days following the disclosure.
- No confidentiality obligation under this § 15 shall be imposed if the information is in the public domain or ends up in the public domain without the Parties` fault or the information is developed independently and without utilizing the information from the other Party. If the latter concerns a Confidential Information, the Customer shall have the burden of proof that its obligations under paragraph 1 to 3 of this § 15 are not violated.
- If a Party breaches its obligations under this section, it shall owe a contractual penalty in the amount of EUR 50,000, unless it is not responsible for the breach. Further claims for such a breach of obligation shall remain unaffected. If further claims are raised against the Customer, the contractual penalty will be offset against these claims.
- The confidentiality obligations under this § 15 shall survive the expiry of the Agreement and remain in force for a period of four (4) years after its expiry.
§ 16 Warranty
- We shall be obliged to perform our (development) services in accordance with the recognized rules of technology (if applicable) and the agreed specifications and free of defects (Mängel) that would jeopardize or deteriorate the ability of being used generally or as assumed under the Agreement. Regarding third party rights, § 14 para. 3 remains unaffected. In case of service/consultancy contracts (Dienstverträge), however, we shall be obliged to use best efforts to achieve the agreed Contract Matter only and no further warranty shall be assumed for a successful achievement or that any achieved work product can be used generally or as assumed by the Customer.
- Faults in a product that (i) are caused by the Customer`s failure to follow operating and/or maintenance instructions or (ii) that concern adverse modifications to the work product or (iii) that are caused by the use of part or consumables which do not comply with the original specifications or (iv) have been altered or repaired by or on behalf of the Customer without our prior written consent shall not constitute a defect. The same shall apply to defects that concern or arise from the information or specification provided by the Customer. Eventually, the Customer shall not be entitled to assert any claims because of a non-material defect.
- If the Agreement is concluded as a contract for work and materials (Werklieferungsvertrag), the assertion of any warranty rights shall presuppose that the Customer has fulfilled its inspection obligations and its requirement to give notice of defects in accordance with Section 377 of the German Commercial Code (HGB) without delay, properly and in writing.
- In all other cases (i.e. beyond the scope of the preceding paragraph or sec. 377 German Commercial Code respectively), any defects of delivered work products/ items must be reported by the Customer within a cut-off period of two calendar weeks (2) from detection of the defect.
- The warranty term (Gewährleistungsfrist) shall be twelve (12) months beginning with the date of acceptance (or its unjustified refusal) in accordance with § 8 (if applicable) or upon (partial) completion of our performance and delivery of work products (if applicable) and/or the transfer of risk in accordance with § 11. This warranty term shall not apply to damage claims arising from the injury to life, body or health or arising from willful misconduct and gross negligence by us or our vicarious agents. In these cases, the statutory limitation (Verjährung) rules shall apply.
- In the event of defective work products/ (delivered) items, we shall be obliged and entitled to either cure the defect or replace the defective work product/ item by a non-defective work product/ item within a reasonable period of at least 60 days (“Supplementary Performance”).
- A failure of such Supplementary Performance shall be deemed occurred upon the second unsuccessful attempt. Upon such failure, the Customer may demand a reduction of the Contract Price in accordance with statutory provisions. The right to claim damages in accordance with clause § 17 shall remain unaffected.
§ 17 Liability
- Claims of the Customer for damages are excluded, except
(i) for claims of the Customer for damages from the injury to life, body or health or for a deviation of a guaranteed product specifications (within the meaning of Section 444 of the German Civil Code (BGB));
(ii) for claims under the German Product Liability Act;
(iii) for claims arising from a breach of a Material Contractual Duty (as defined in para. 3 below)
(iii) for damages that were caused by an intentional or gross negligent breach of a contractual duty by us, our statutory representatives or our vicarious agents.
- If our liability is not excluded in accordance with the preceding paragraph, any liability for damages outside the work product/ items itself(i.e. indirect and/or consequential damages including the loss of profit or loss of production) shall explicitly be excluded, except the claim concerns a Material Contractual Duty (as defined in the following paragraph).
- In case of a simple negligent breach of a Material Contractual Duty, we shall only be liable (on whatever legal grounds) for damages that are typical and which may reasonably be foreseen, unless it concerns claims for damages to which the exceptions set forth in para. 1 (i) and 1 (ii) apply. A Material Contractual Duty shall be understood as a duty that is essential and necessary to the proper performance of the Agreement (and thus essential to achieving the objective of the Agreement) and with its compliance the Customer may rely on.
- The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
§ 18 Force Majeure
- If a delivery/service or performance of the Agreement is not possible due to force majeure, we shall not be obliged to perform/ provide our services/ deliver as long as such prevention lasts. Likewise, we shall not be responsible for any loss or damage (including indirect or consequential damage or otherwise), detention or delay caused by a force majeure.
- Force majeure shall be understood as all incidents that are unavoidable or beyond our reasonable control or for which we are not responsible and due to which our delivery or services or otherwise the performance of the Agreement is materially affected or impossible. Force majeure shall particularly include (but not be limited to) fire, military authority, insurrection or riot, labor strikes and disputes or wartime embargoes, tempest, epidemic/pandemic, natural desasters, official measures not attributable to us as well as shortages (e.g. regarding energy, raw materials or labor), serious transport disruptions, non-culpable or unforeseeable disruptions to operations and other events with similar effects for which we are not responsible in the meaning of the preceding sentence.
- Irrespective of the occurrence of a force majeure event, all payment obligations of the customer against us that are due and owed to us in accordance with the terms of the Agreement at the point in time the force majeure event occurs, shall remain unaffected.
§ 19 Termination
- Either Party may terminate the Agreement for good cause. A good cause for each Party shall be, inter alia, if the following events occur:
(i) becomes insolvent or unable to pay its debts as and when they become due,
(ii) is winded up,
(iii) a liquidator is appointed or
(iv) ceases to continue its business or
(v) persistently fails to fulfill its obligations under the Agreement due to culpable conduct despite a warning notice and specifying a cure period of 60 days. For the avoidance of doubt, the execution of our right of supplementary performance following the delivery of a defective work products/ item in accordance with § 16 shall not be deemed as a persistent failure of our obligations. In addition, the Customer shall not be entitled to terminate or rescind due to non-performance or non-proper performance by us, if we are not responsible for the breach of obligation.
- Ordinary termination rights in accordance with statutory law shall remain unaffected, unless these GTC contain deviating or particular provisions that govern a specific issue.
- Any termination shall require a termination notice in writing.
§ 20 Non-Solicitation
- During the performance of the Agreement and a period of six (6) months following the end, the Customer shall ensure that neither the Customer nor its affiliates within the meaning of sections 15 ff. of the German Stock Corporation Act directly or indirectly solicit or attempt to solicit regarding employees that are/were (with the Customer`s knowledge) involved for us in the performance of the Agreement (“Involved Employee”).
- If the Customer, or one of its affiliates within the meaning of sections 15 ff. of the German Stock Corporation Act, concludes an employment contract with an Involved Employee within the period set forth in the preceding paragraph, we are entitled to charge 30% of the yearly income of such employee plus statutory value-added tax as a fee.
The relevant fee to be paid by the Customer shall be due in one sum upon conclusion of the employment contract between the Involved Employee and the Customer or one of its. its affiliates within the meaning of sections 15 ff. of the German Stock Corporation Act. The Customer shall provide the relevant information to enable us to determine the yearly income.
- The foregoing shall not apply if the reason of the employment contract with an Involved Employee does not lie in the violation of the Customer`s obligation under paragraph 1 of this § 20 or does not lie in the involvement of the Involved Employee in performing the Agreement. The Customer shall bear the burden of proof for non-causality and the fulfilment of its obligation.
§ 21 Final Provision
- The Agreement concluded in writing shall be decisive exclusively for the legal relationship between the Parties. The Agreement in writing fully reflects all understandings between the Parties regarding the Contract Matter. Verbal commitments made prior to the conclusion of the Agreement are not legally binding and any verbal agreement made between the Parties prior the conclusion but in light of the expected conclusion shall be replaced by the written Agreement, unless the Parties explicitly agree that the agreement shall continue to be binding.
- Amendments or supplements to the Agreement including this provision shall be in writing.
- Whenever a provision of the Agreement requires a written form, text form (including e-mail) In the meaning of section 126b German Civil Code shall be sufficient.
- The Agreement shall be governed and construed in accordance with the laws of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- All disputes arising out of or in connection with the Agreement or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of three (3) members. The seat of arbitration is Berlin, Germany. The language of the arbitration shall be German. The rules of law applicable to the merits, the burden of proof and the rules of taking evidence shall be adopted in accordance with German (civil procedure) law.
- If any provision of the Quotation is invalid or unenforceable (entirely or partly), this shall not affect the validity and enforceability of all other provisions of the Quotation. The invalid or unenforceable provision shall be regarded as replaced by the economic purpose of what the Parties had pursued by the invalid or unenforceable provision. Sec. 139 of the German Civil Code (BGB) shall not apply - not even as a distribution of the burden of proof.
- The same shall apply for these GTC.
- If the Agreement contains any regulatory gaps, those legally effective provisions shall be deemed agreed to fill these gaps which the Parties would have agreed to in accordance with the economic objectives and the purpose of the Agreement if they had known about the regulatory gap.