(1) These general terms and conditions (“GTC“) apply to all Services (as defined in §2) provided by API Schmidt-Bretten GmbH & Co. KG, Langenmorgen 4, 75015 Bretten, Germany (“Contractor“) to its business customers (each a “Customer“). These GTC do not apply towards consumers in the meaning of Section 13 of the German Civil Code (BGB).
(2) Any terms and conditions of the Customer that differ from, conflict with or are in addition to these GTC shall only become part of an agreement between the Contractor and the Customer (“Work Order” or “Agreement“) if the Contractor expressly agrees to their validity in text form. This applies even if such terms and conditions are not expressly objected to by the Contractor.
Defined terms used in these GTC and the Agreement shall have the meaning set forth below or given to them in the indicated places throughout these GTC or the Agreement.
“Inspection” means the determination and assessment of the actual condition of the Equipment including the determination of the causes of wear and tear and the derivation of the necessary consequences for future use.
“Servicing” means the totality of all Inspection and Maintenance activities as well as Repair work relating to the Equipment, in accordance with the Contractor’s performance obligations under the Agreement.
“Repair” means any measure taken to return the Equipment to the Agreed Condition, in particular by replacing parts including Wear Parts.
“Services” means the Contractor’s performance obligations under the Agreement.
“Defect” means the result of any success-related Service by the Contractor which deviates from that owed under the Agreement to the detriment of the Customer.
“Fault” means the condition of the Equipment which, irrespective of the reasons, prevents, impairs or endangers the use of the existing functions of the Equipment.
“Consumables” means materials that are characterized by the fact that their absence does not in itself eliminate the functionality of the Equipment (e.g. materials to be processed by the Equipment).
“Agreed Condition” means the intended functionality and operation of the Equipment as described in the original operating manual supplied with the Equipment.
“Wear Parts” means components of the Equipment that naturally wear out due to everyday use, friction, heat, or environmental factors and require periodic maintenance or replacement to ensure the full functionality of the Equipment.
“Maintenance” means any measure to delay the depletion of the wear reserve of the Equipment (preventive maintenance) and to observe and detect at an early stage the signs of wear and tear to be expected on the Equipment in the course of its intended use, so that Repair can ideally be carried out before the occurrence of a functional failure due to wear and tear or a risk to operational safety.
(1) The subject matter of the Services is exclusively the Servicing by the Contractor of the technical equipment specified in the Work Order (“Equipment“).
(2) The aim of Servicing is exclusively to maintain the Agreed Condition of the Equipment. In particular, the Contractor does not assume any responsibility with respect to (i) the original design, sizing, or thermal performance of the Equipment, (ii) a certain operating result or availability of the Equipment, and/or (iii) any third-party equipment (“Third Party Equipment“), in particular the proper condition and compliance of any Third Party Equipment (“Third Party Equipment Compliance“).
(3) The Contractor shall perform the Services owed by it based on its visual assessment of the Equipment and industry best practice only, taking into account the guidelines of the manufacturer of the Equipment to the extent known to it. If the Parties agree on a specific type of performance of the Services, in particular by reference to technical guidelines (e.g. DIN, EN, VDI, VDMA), these service descriptions shall be subject to a separate agreement in text form between the Parties and, once agreed, these service descriptions shall finally determine the technical standards in the relationship between the Parties. Accordingly, the Contractor shall not be obliged to notify the Customer of any deviations of such service descriptions from industry best practice or other recognized technical standards.
(4) The Contractor may also use third parties to perform the Services owed by it. However, the Contractor shall remain responsible to the Customer for the proper fulfillment of the contractual obligations.
(5) The Agreement shall not release the Customer from controls and measures imposed on it by law or other regulations, unless this has been expressly made part of the Services to be provided by the Contractor with reference to the relevant law and other regulations.
(1) The Contractor shall support the Customer via the communication channels offered by the Contractor (“Hotline“) regarding the application of the Equipment as well as in the event of a Fault of the Equipment.
(2) The Hotline is available to the Customer during the Contractor’s Operating Hours. In individual cases, the Parties may agree on the provision of Fault handling services outside these times against separate remuneration.
(1) The Contractor’s performance of the Services is subject to the Contractor carrying out an initial condition assessment of the Equipment prior to commencing any further Servicing Work to ensure that the Contractor will be in a position, both de facto and de jure, to provide the Services at the terms and conditions agreed between the Parties in the Agreement (“Initial Condition Assessment“). The Initial Condition Assessment includes, without limitation, the Contractor’s assessment of the age, configuration and all other relevant conditions (in particular, confirmation of any such conditions communicated by the Customer to the Contractor – or which the Customer failed to communicate to the Contractor – in the Site Readiness Checklist or otherwise during initiation of the Agreement) that have an impact on the scope, pricing and/or service level of the Services.
(2) If the Initial Condition Assessment reveals that the Contractor will not be in a position, de facto and/or de jure, to provide the Services at the terms and conditions agreed between the Parties in the Agreement (in particular, because any relevant condition determined during the Initial Condition Assessment materially differs from such condition communicated by the Customer to the Contractor – or the Customer failed to communicate to the Contractor such condition – in the Site Readiness Checklist or otherwise during initiation of the Agreement), the Contractor shall have the right to reasonably adjust the terms and conditions of the Agreement including, without limitation, with respect to the scope, pricing and/or service level of the Services. The Contractor shall inform the Customer in text form of any adjustment without undue delay following completion of the Initial Condition Assessment (“Adjustment Notice“).
(3) If the adjusted terms and conditions of the Agreement communicated with the Adjustment Notice are unreasonable for the Customer – taking into account the interests of the Contractor – the Customer may terminate the Agreement with immediate effect within a period of 10 business days following receipt of the Adjustment Notice. Termination must be made in text form. If the Customer fails to terminate the Agreement within this period, the adjustment shall be deemed approved by the Customer.
(1) Inspection and Maintenance Services comprise the professional performance of Inspection and Maintenance in accordance with the Contractor’s quality and maintenance standards. This includes in particular opening, cleaning, closing and testing the Equipment, as well as re-gasketing where required. Inspection and Maintenance Services shall be carried out by the Contractor on its own responsibility as a service (Section 611 of the German Civil Code). The Contractor may determine at its own discretion when and in what manner it carries out Inspection and/or Maintenance. Unless otherwise agreed, Inspection and Maintenance may be carried out only during the Customer’s Operating Hours and shall be announced at least 4 weeks in advance.
(2) The Contractor shall perform the agreed Inspection and Maintenance Services only to the extent they are objectively necessary to maintain the Agreed Condition of the Equipment.
(3) Maintenance shall also include the repair of minor damage to the Equipment on a chargeable basis (so-called minor Repair), provided this can be carried out without significant time expenditure using the materials and tools that the Contractor customarily brings to a scheduled Maintenance visit.
(1) In principle, the Contractor agrees to perform Repair work and, in each individual case, will provide the necessary Services as work performance (Section 631 of the German Civil Code) based on, and subject to the conclusion of, a separate agreement pursuant to paragraph 2. The aim of the Repair is to establish or maintain the Agreed Condition.
(2) Repair Services require a separate agreement between the Parties (“Repair Agreement“), to which, unless otherwise agreed, the terms of the Agreement (including these GTC) shall apply directly or mutatis mutandis (in the latter case, references in the Agreement (including these GTC) to “this Agreement” or “the Agreement”) shall be deemed references to the respective Repair Agreement). By reporting a Fault via the Hotline (§4) or separate instruction in text form, the Customer submits an offer for the conclusion of a Repair Agreement, unless otherwise stipulated in paragraph 9. The Contractor accepts this offer only if it declares acceptance in text form within 5 business days of Contractor’s receipt of the offer or the Contractor commences performance of the Services before the expiry of this period. For clarity, if the Contractor does not accept an offer within 5 business days of Contractor’s receipt of such offer nor commences performance of the Services before the expiry of this period, such offer shall be deemed rejected by the Contractor and no Repair Agreement in relation to such offer shall be concluded between the Parties.
(3) If the Repair primarily involves the supply of one or more goods (Wear Parts, Consumables, etc.), such that the Services to be performed are subordinate and constitute merely an ancillary service, then the law governing sales contracts shall apply, subject to the modifications agreed upon in the Agreement. Even in the case of sales contracts, subsequent performance is governed by §19, with the proviso that the Contractor may determine the method of subsequent performance. In such cases, formal acceptance (§14) shall not take place.
(4) The Customer shall report Faults in the Equipment in as much detail as possible, describing the symptoms, operating conditions, previous instructions to the Equipment and any relevant third-party machines or apparatuses. Each report must be made without undue delay after discovery of the Fault via the Hotline (§4).
(5) The duration of the respective response time is calculated during the Contractor’s Operating Hours from the time of receipt of the Fault report of the Customer by the Contractor. The duration of the response time depends on the service plan selected by the Customer as specified in the Work Order.
(6) If a Repair Agreement is concluded, the Contractor shall provide the Services required for Repair at its own discretion. The Contractor may remedy any Faults that occur, at its discretion, by means of one of the following measures in particular:
(7) The Contractor shall initiate the measure it has chosen within the specified response time at the latest. The work to eliminate the Fault shall be carried out within the scope of the Contractor’s capabilities, taking into account its contractual obligations. The Contractor does not guarantee the elimination of the Fault, but it shall endeavor to remedy the Fault within the agreed troubleshooting time, if any, otherwise within a reasonable time. As soon as the Contractor becomes aware that this time cannot be met, it will inform the Customer of this.
(8) In the event of Faults that do not impair the operational workflow of the Equipment, and provided a temporary workaround exists, the remedy may be postponed by the Contractor to the next suitable point in time at which time the Contractor will carry out Servicing in accordance with its planning with which the Fault can be remedied.
(9) If the Customer wishes to receive a cost estimate before the Repair work is carried out, it must inform the Contractor of this at the latest with the Repair order. A Repair Agreement shall only be concluded if the Customer accepts the Contractor’s offer that includes a cost estimate, or if the Parties agree otherwise. Unless otherwise agreed, a cost estimate is non-binding. The cost estimate shall be remunerated. If, during the execution of the work, it becomes apparent that the cost estimate will be exceeded by more than 10 %, the Contractor shall notify this and may only execute the work – except in urgent cases – after the Customer has given its consent.
(1) For Equipment manufactured by the Contractor or any of its affiliates, only original spare parts (“OEM Parts“) may be used. For any other (third party) Equipment, original spare parts of such third-party manufacturer or, subject to the Customer’s prior acknowledgement, any approved distributor equivalent may be used.
(2) Unless otherwise agreed, dismantled parts shall become the property of the Contractor without compensation if the Contractor takes them away and the Customer does not object beforehand. Unless otherwise agreed, the Contractor is not obliged to take along and dispose of dismantled parts, removed oils, greases, chemicals, filters, consumables or similar.
(1) Unless otherwise agreed in text form, the transport of the Equipment, or parts thereof, to and from the site, carried out at the Customer’s request – including any packaging and loading – shall be performed at the Customer’s expense. The Customer shall bear the risk of loss of or damage to the Equipment, or parts thereof, not caused by the Contractor.
(2) At the Customer’s request and expense, the transport may be insured against standard transport risks, where possible.
(3) There is no insurance coverage during the Repair work at the Contractor’s premises. The Customer shall, at its option and expense, arrange for the desired insurance coverage.
The Services provided by the Contractor, including but not limited to the hours worked and the spare parts used, shall be confirmed in text form by the Customer on-site in a service report (“Service Report“).
(1) Under the Agreement, there is no entitlement to the following services:
(2) The list in paragraph 1 is not exhaustive. It cannot be inferred from the lack of naming of services that these services are the subject of the Contractor’s contractual obligations.
(1) A prerequisite for the provision of the Services under the Agreement is that the Customer does not, without prior consultation with the Contractor, relocate the Equipment to a location other than the relevant location at the time of the conclusion of the Agreement, make substantial modifications to it, or operate it under different operating conditions.
(2) A further prerequisite for the provision of the Services under the Agreement is that the Customer operates the Equipment and any relevant Third Party Equipment in the agreed state of maintenance – or, in the absence of an agreement, in a state of maintenance complying with the recognized technical standards – unless doing so would be unreasonable for the Customer (for instance, because the Contractor failed to perform the Services owed in this regard under the Agreement). If the Customer is not obliged to operate the Equipment or relevant Third Party Equipment in a state of maintenance due to unreasonableness, and this is not attributable to the Contractor, the Contractor’s obligations to provide Services shall be suspended and the Contractor may terminate the provision of Services – if already commenced – at any time and without any penalty or other obligation owed to Customer. By separate agreement, the Contractor may assume the obligation to establish a state of maintenance that complies with recognized technical standards.
(3) A further prerequisite for the provision of the Services under the Agreement is that the Customer duly fulfills its obligations to cooperate in accordance with this §12. Otherwise, the Contractor’s obligations to provide Services shall be suspended and the Contractor may terminate the provision of Services – if already commenced – at any time and without any penalty or other obligation owed to Customer.
(4) The Customer acknowledges that the provision of Services owed by the Contractor under the Agreement requires particularly close cooperation between the Customer and the Contractor due to the complexity of the Equipment. The Customer is therefore obliged to provide comprehensive information to and cooperate with the Contractor and must ensure that the Contractor is warned in advance of and protected against risks and disruptive influences (including those from third parties, such as through Third Party Equipment) during the performance of the Services under the Agreement.
(5) The Customer shall support the Contractor in every respect in the performance of the Services under the Agreement. In particular, the Customer shall, without undue delay after the conclusion of the Agreement, designate and notify the Contractor of at least one responsible employee and a deputy with in-depth knowledge of the Equipment and relevant Third Party Equipment as contact persons for the Contractor.
(6) The employees designed pursuant to paragraph 5 shall consolidate and coordinate reports and inquiries from the Customer. In the event of a Fault or Defect, and prior to forwarding them to the Contractor, they shall first assess the reports and inquiries based on their own expertise to determine whether and how they can rectify the Fault or Defect themselves. If they are unable to rectify the Fault or Defect themselves, they shall forward the reports and inquiries to the Contractor via the Hotline. They shall also support the Contractor during Servicing work, for example, by taking the Equipment and relevant Third Party Equipment out of operation as well as providing power, water, and sewage connections.
(7) When operating the Equipment, the Customer shall observe the manufacturer’s operating manual as well as its recommendations and instructions. The Customer shall notify the Contractor of any anomalies in the Equipment without being prompted to do so.
(8) In particular, the Customer shall provide at least the following acts of cooperation:
(9) The Customer shall inform the Contractor in a timely manner of all events and circumstances that are directly or indirectly relevant to the performance of the Services under the Agreement. This also applies to events and circumstances that only become known while the Contractor is performing the Services. In particular, the Customer shall inform the Contractor in a timely manner and in advance of all hazards originating specifically from the Customer’s sphere of risk with which the Contractor’s employees may come into contact while performing the Services owed at the Customer’s premises.
(10) The Customer shall fulfill all obligations to cooperate under the Agreement – including this §12 – proactively, promptly, and at its own expense, free of charge to the Contractor.
(11) The Customer assumes all obligations to cooperate under this §12 as its own material contractual obligations. Furthermore, the Customer assumes vis-à-vis the Contractor – by way of an independent guarantee pursuant to Section 311 para. 1 of the German Civil Code – the unconditional and strict liability (liability regardless of fault) for the fulfillment of all obligations to cooperate under this §12.
(1) The Customer shall examine the Services of the Contractor including any amended or supplemented documentation without undue delay after they have been provided, in particular with regard to their completeness as well as their basic functionality and operability.
(2) The Contractor shall be notified without undue delay in text form of any Defects that are discovered. The notice of Defects shall contain a description of the Defects that is as detailed and specific as possible.
(3) Defects that could not be detected during the prescribed proper inspection shall be reported in text form without undue delay upon discovery. This notice of Defect shall also contain a description of the Defects that is as detailed and specific as possible.
(4) If the Customer fails to notify Defects without undue delay, any warranty rights the Customer may have shall lapse. In particular, the Customer shall be precluded from asserting claims for subsequent performance (§19) in such cases. The Customer may claim damages in these instances only to the extent that the damage is not attributable to the delayed notification.
(5) All claims of the Customer arising from Defects in the Services owed under the Agreement, including claims for subsequent performance (§19), shall become time-barred within 12 months of the claim arising. Excluded from this are claims for damages arising from injury to life, body, or health and/or claims for damages resulting from damage caused by the Contractor through gross negligence or willful misconduct. In such cases, the statutory limitation periods shall apply.
(1) Repair work pursuant to §7 shall be accepted by the Customer upon completion. Acceptance shall be declared in the Service Report (§10). If the times for performance are not specified in the Repair Agreement, the Contractor shall notify the Customer of the completion of the work. The Customer shall ensure that the acceptance report is signed only by employees who are authorized to do so.
(2) The Customer may not refuse acceptance due to minor Defects.
(3) If there is no express acceptance or refusal of acceptance, nor any acceptance or refusal expressed through conclusive conduct, and the Customer has put the work or a part thereof into use, acceptance shall be deemed to have taken place – except in the event of material Defects – 14 days after the commencement of use, unless otherwise agreed.
(1) Binding dates for the provision of Services shall be agreed upon in text form and designated as binding.
(2) If a binding date is missed for reasons for which the Contractor is solely and directly responsible, the Customer shall first request the Contractor in text form to perform the Service owed and grant the Contractor a reasonable grace period of at least 10 business days to do so. The Contractor shall be deemed in default only after the unsuccessful expiration of this period. In the event of default, the amount of damages shall be limited to 1% of the agreed annual flat-rate maintenance fee for each full week of delay, subject to a maximum of 5%. This paragraph shall not apply in cases of willful misconduct or gross negligence on the part of the Contractor or its agents. Furthermore, the Customer reserves the right to prove higher damages, and the Contractor reserves the right to prove that no damage or only significantly lower damage occurred.
(3) The claims under paragraph 2 constitute the Customer’s sole remedies in the event of the Contractor’s default.
(4) The Contractor shall not be liable for the impossibility or delay of performance of the Services insofar as this is caused by force majeure or other events unforeseeable at the time of conclusion of the Agreement (e.g., operational disruptions of any kind, mobilization, war, civil unrest, strikes, lockouts, natural disasters, sabotage, pandemic, epidemic, quarantine, border closures, official or sovereign interventions, supply chain disruptions, traffic accidents, or similar events) for which the Contractor is not responsible. If such events significantly impede or render impossible the provision of Services and the impediment is not merely temporary, the Contractor shall be entitled to withdraw from the Agreement. In the event of temporary impediments, the deadlines agreed for the provision of Services shall be extended, or the respective dates postponed, by the duration of the impediment plus a reasonable period for resuming operations. If, as a result of the delay, it is unreasonable for the Customer to accept the performance of the Services, the Customer may withdraw from the Agreement by means of an immediate declaration in text form to the Contractor.
(5) If the Customer fails to fulfill its obligations to cooperate – whether in whole or in part, or in a timely manner – any Service dates or deadlines affected thereby shall cease to be binding on the Contractor; in particular, the Contractor shall not be deemed in default. Following an initial unsuccessful reminder in text form, the Contractor shall be entitled to compensation for damages incurred, including all additional expenses. If the Customer fails to fulfill its obligations within a reasonable grace period set in a second reminder in text form, the Contractor shall additionally be entitled to terminate the Agreement with immediate effect and to claim damages in accordance with statutory provisions.
(1) The goods supplied by the Contractor to the Customer (Consumables, Wear Parts, spare parts, etc.) remain the property of the Contractor until full payment has been made.
(2) The Contractor and the Customer agree that the Contractor shall have a lien on items belonging to the Customer that come into the Contractor’s possession for Repair or Maintenance. The lien may also be asserted in respect of claims arising from work previously performed, the supply of goods, and other Services, provided such claims are related to the Equipment. With regard to other claims arising from the business relationship, the lien applies only insofar as the claims are undisputed or have been established by a final, non-appealable judgment.
(1) For the contractually agreed Services, the Customer owes the Contractor the remuneration agreed in each case in the Work Order and, additionally, the following provisions.
(2) Unless otherwise agreed, the Services for Hotline, Inspection and Maintenance shall be invoiced at a flat rate. The flat-rate fee is to be paid annually in advance, at the latest by the 3rd business day of each calendar year.
(3) Repair Services as well as the Initial Condition Assessment shall always be invoiced on a time and material basis. The Customer shall also pay for Inspection and Maintenance Services on a time and material basis if they are based on improper use of the Equipment, in particular non-observance of operating manuals and instructions of the manufacturer and Contractor, or failure to report Faults without undue delay.
(4) Consumables, Wear Parts, spare parts, and materials such as lubricants, filters, cleaning agents, etc. shall be invoiced separately based on actual usage. For OEM Parts (§8) required in connection with Servicing work performed during the term of the Agreement, the Customer shall be granted a personal discount – non-transferable to third parties – in the amount specified in the Work Order. If the Customer is in default, in whole or in part, regarding any payment due under the Agreement or a Repair Agreement, or if the Agreement terminates for any legal reason whatsoever, the Contractor shall be entitled to immediately cancel such discount without any further notice to the Customer required.
(5) The Customer shall bear all expenses such as accommodation costs, incidental expenses, and charges from third parties incurred during the performance of the Agreement against proof. Travel and transit times are to be compensated. Notwithstanding the foregoing, travel expenses are covered by the flat-rate fee pursuant to paragraph 2 and are not to be reimbursed separately. No charges shall be made for expenses incurred in connection with subsequent performance.
(6) For billing based on time and materials, the Contractor’s price list in effect at the time the provision of Services is agreed upon shall apply.
(7) Furthermore, Services provided by the Contractor shall always be remunerated, even in the absence of a specific agreement on remuneration, unless the provision of Services free of charge was expressly agreed upon as an exception. If the Parties have not reached an agreement regarding remuneration for a Service that the Customer could reasonably expect to be provided only in exchange for payment, the Customer shall pay the customary remuneration for such Service. In cases of doubt, the remuneration rates specified by the Contractor in the Agreement – or, failing that, those listed in the Contractor’s general price lists – shall be deemed customary.
(8) The Contractor may adjust the fees set forth in the Agreement at its reasonable discretion (Section 315 of the German Civil Code) with effect from the following year. It shall notify the Customer of the adjustment in text form no later than 6 weeks before it takes effect. If the Customer does not agree to the adjustment, it may object to it, giving one week’s notice prior to the date the adjustment is intended to take effect. The objection must be made in text form. If the Customer does not timely object, the adjustment shall be deemed approved by the Customer.
(9) Invoices shall be paid within 7 days of receipt into the account specified in the invoice, without deduction and free of charge to the Contractor. All contractually agreed remunerations are subject to statutory value-added tax.
To mitigate potential adverse effects, the Customer undertakes to maintain a plan for scenarios in which the Equipment is not used as intended (Business Continuity Planning) and for its subsequent restoration to operation (Disaster Recovery Planning).
(1) With regard to Repair Services pursuant to §7, the Contractor’s liability within the scope of the statutory obligation to provide subsequent performance is as follows. Only if subsequent performance fails is the Customer entitled, at its discretion, to reduce the remuneration or withdraw from the Agreement.
(2) Subsequent performance shall be provided free of charge. The place of performance for subsequent performance shall be the Contractor’s place of business, unless providing the subsequent performance at the Contractor’s place of business is impossible or entails an expenditure – particularly regarding transport costs – that is grossly disproportionate to the Customer’s interest in the subsequent performance. Alternatively, the place of performance for subsequent performance shall be the location where the Equipment was situated at the time the Service to which the subsequent performance relates was carried out.
(3) Claims for cure shall become statute-barred after 12 months.
(4) Before asserting claims for subsequent performance, the Customer shall examine with due care whether a Defect subject to the obligation of subsequent performance actually exists. If an alleged defect does not fall within the scope of the obligation for subsequent performance (apparent defect), the Contractor may charge the Customer for the services rendered in verifying and rectifying the issue at the Contractor’s then-applicable rates plus reasonable costs and expenses incurred, unless the Customer could not have identified the apparent defect even with the exercise of due diligence.
(5) Compensation is provided only for direct damage to the Equipment itself resulting from the Defect. Consequential damage to property outside the Equipment is excluded from liability. Otherwise, liability for damages is governed by §20.
(1) The Contractor shall be liable – regardless of the legal grounds – only in cases of willful misconduct, gross negligence, and the negligent breach of essential contractual obligations (cardinal obligations), as well as for damages resulting from injury to life, body, or health.
(2) In the event of a slightly negligent breach of essential contractual obligations (cardinal obligations), the Contractor shall be liable only for damages that are typical of the contract and foreseeable.
(3) The Contractor’s liability for lost profits, loss of production, business interruption, or other indirect damages is excluded to the extent permitted by law.
(4) Mandatory statutory liability provisions, particularly under the Product Liability Act, remain unaffected.
(5) To the extent that the Contractor’s liability is excluded or limited, this also applies to the personal liability of its employees, staff, representatives, and agents.
(6) The Customer will defend, indemnify, and hold harmless the Contractor, its Affiliates, and their respective officers, employees, and agents (“Indemnitees“) from and against any and all losses, claims, and expenses (including reasonable attorneys’ fees) (“Losses“) directly or indirectly arising out of, related to, or resulting from: (i) any breach of the Customer’s independent guarantee pursuant to §12; or (ii) the negligence or willful misconduct of the Customer, its Affiliates, or their respective officers, employees, or agents; or (iii) Contractor’s compliance with any Safety Instructions or other instructions or procedures of the Customer with respect to the performance of the Services; or (iv) any claims of third parties against any Indemnitees which, if such claims were made by the Customer, would be outside the Contractor’s liability pursuant to paragraphs 1 to 4 of this §20; provided that the Customer shall not be obliged to so defend, indemnify, and hold harmless the Indemnitees for any Losses to the extent that such Losses arise from the gross negligence or willful misconduct of any Indemnitees.
(7) The Parties agree that the indemnification obligations in favor of third parties pursuant to paragraph 6 shall be deemed to constitute an “imperfect contract for the benefit of a third party” (unechter Vertrag zugunsten Dritter) within the meaning of the German Civil Code. Such indemnification obligations shall not create any independent rights or direct claims on the part of the respective third parties against the Customer. The right to demand indemnification for the third party shall belong exclusively to the Contractor as a Party to the Agreement.
(8) The indemnification obligations pursuant to paragraph 6 shall apply without prejudice to any other claims or rights to which the Contractor or any other Indemnitees are entitled under the Agreement or applicable statutory provisions.
(1) Any confidential or proprietary information disclosed by or on behalf of one Party (“Disclosing Party“) to the other Party (“Receiving Party“) hereunder or otherwise learned by the Receiving Party in connection with the Agreement (including, without limitation, any knowledge, know-how, practices, processes, inventions, trade secrets and other technical, financial and business information) shall be treated as “Confidential Information” of the Disclosing Party.
(2) The term Confidential Information shall not be deemed to include information which the Receiving Party can demonstrate by competent proof: (a) is, at the time of receiving such information, or thereafter becomes, through no act or failure to act on the part of the Receiving Party, in the public domain; (b) is known by the Receiving Party at the time of receiving such information, as evidenced by its records; (c) is independently developed by or for the Receiving Party by employees or contractors without use of or reliance on the Confidential Information of the Disclosing Party; or (d) is hereafter furnished to the Receiving Party by a third party, as a matter of right and without restriction on disclosure.
(3) With respect to any and all Confidential Information of the Disclosing Party, the Receiving Party shall for as long as the Confidential Information is not in the public domain, hold in strict confidence and not disclose the Disclosing Party’s Confidential Information to any third party, and will use the Confidential Information for no purpose other than the performance of the Agreement. The Receiving Party may disclose Confidential Information solely to its officers, employees, and agents (and those of Affiliates) requiring access thereto to accomplish the purposes of the Agreement provided that such persons agree to maintain Confidential Information in confidence and to use Confidential Information only to the extent required to accomplish the purposes of the Agreement. The Receiving Party will take all steps necessary to ensure that such persons comply with the terms and conditions of the Agreement.
(4) Upon any expiration or termination of the Agreement, the Parties further agree to deliver promptly to the Disclosing Party, or, if requested by the Disclosing Party, destroy and certify destruction of, any documents reflecting Confidential Information and any copies thereof and any electronic or other record of such Confidential Information, except for (a) one (1) copy thereof which may be retained by the Receiving Party in its legal files for the sole purpose of maintaining a record of what it received in confidence and to ensure compliance with the terms of the Agreement, (b) such Confidential Information which the Receiving Party is required to keep in accordance with applicable laws, or (c) any computer records or files containing such Confidential Information that have been created solely by the Receiving Party’s automatic archiving and back-up procedures, to the extent created and retained in a manner consistent with such Party’s standard archiving and back-up procedures, but not for any other uses or purposes. All Confidential Information so retained shall continue to be subject to the terms of the Agreement for the period set forth in paragraph 5.
(5) The confidentiality and non-use obligations in this §21 shall remain in effect even after the termination of the Agreement for the maximum duration permitted by law.
(1) The Contractor is entitled to amend or supplement these contractual conditions as follows. It shall notify the client of the changes or additions in text form no later than six weeks before they come into effect. If the client does not agree with the changes or amendments to the contractual conditions, it can object with a period of one week from the date on which the changes or amendments are intended to take effect. The objection must be made in text form. If the Customer does not object, the amendments or supplements to the contractual conditions shall be deemed to have been approved by him.
(2) If statutory provisions or other regulations binding upon the Customer and the Contractor change – provided such changes do not constitute impediments to effectiveness – this shall have no impact on the Parties’ performance obligations. No adjustment to the Agreement may be demanded; any such adjustment is a matter for the free decision of the Parties.
(1) The Agreement enters into force upon signature by the last Party to sign (“Effective Date“). It has an initial term of one (1) year. Unless either Party terminates the Agreement by giving notice of 3 months prior to the end of the respective term, the Agreement shall automatically renew for successive one-year periods.
(2) The Customer’s right of termination at any time under Section 648 of the German Civil Code is excluded. The right of either Party to terminate the Agreement for good cause remains unaffected.
(1) The Customer may set off claims against the Contractor’s claims for remuneration under the Agreement only if such claims have been established by a final, non-appealable judgment or acknowledged by the Contractor. The assertion of rights of retention regarding the remuneration owed to the Contractor is likewise permissible only on the basis of claims that have been established by a final, non-appealable judgment or acknowledged by the Contractor and that, furthermore, arise from the same contractual relationship.
(2) Amendments and supplements to the Agreement require the form prescribed in paragraph 7. This shall also apply to the waiver of this formal requirement.
(3) Should any individual provisions of the Agreement (including these GTC) be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The Parties undertake to agree, in place of the invalid or unenforceable provision, on a valid provision that comes closest to the economic purpose of the invalid or unenforceable provision. The same applies in the event of a gap in the Agreement.
(4) The Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany without regard to any conflict of law principles and to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The place of performance shall be the Contractor’s registered office. Exclusive place of jurisdiction shall be Stuttgart, Germany.
(5) The Customer is responsible for compliance with data protection regulations during the commissioning and performance of the Services. If the processing of personal data is required to fulfil contractual obligations, such processing shall be carried out on behalf of the Customer. Where necessary, the Customer shall enter into a data processing agreement with the Contractor in accordance with Art. 28(3) of the GDPR.
(6) The English version of the Agreement is a convenience translation; only the German version of the Agreement is legally binding.
(7) The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be executed by hand or electronically, including by electronic mail in “portable document format” (“.pdf”) form of the executed original or electronic signature via recognized providers (e.g., DocuSign or Adobe Sign). Any counterpart so executed shall be deemed to have been duly and validly executed and be valid and effective for all purposes.
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