General Terms and Conditions
General information
a. These terms and conditions apply to all current business relations of brawema GmbH with its clients and customers.
b. Entrepreneur in the sense of these terms and conditions is a natural or legal person or legal partnership or corporation with legal capacity, with whom a business relationship is entered into, and who acts in the exercise of a commercial or independent professional activity.
c. Clients in the sense of these business relations are both customers and entrepreneurs.
d. Orders in the sense of these business relations are both consultancy, consulting, training and workshop orders.
e. Offers, deliveries and services of brawema GmbH are based exclusively on these General Terms and Conditions. Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract, even if they are known, unless their validity is expressly agreed to in written form.
f. Insofar as offers, deliveries and services of brawema GmbH contain written provisions which deviate from the following general terms and conditions, these individually offered or agreed contractual rules shall take precedence over these general terms and conditions.
g. Offers, deliveries and services include classic consulting, devel-opment and training orders or offers.
§1 Conclusion of contract, scope and processing
a. By placing an order, the client bindingly declares to make use of the services of brawema GmbH. The legally effective acceptance by brawema GmbH shall be made either in writing or by execution of the service. The subject of the order is the agreed service and not any success.
b. The scope of individual orders is contractually agreed separately.
c. brawema GmbH is entitled to have the order carried out in whole or in part by expert consultants (employees, contractors and/or cooperation partners).
d. The client is not entitled to a specific consultant.
e. If the client is in default of acceptance of the service or fails to cooperate and set a deadline, brawema GmbH shall be entitled to terminate the contract without notice. Irrespective of the assertion of this right of termination, brawema GmbH shall be entitled to compensation for the damage or additional expenses incurred as a result of the delay or failure to cooperate.
§2 Obligation of the client to cooperate
a. In order to enable brawema GmbH to provide the desired service, the client will provide brawema GmbH with a list of all contract objectives and general conditions to be achieved and the necessary information for implementation. If necessary, the client will provide the order with personal capacity as well as the capacity of his employees in order to create the necessary conditions for the proper execution of the order.
b. All questions of brawema GmbH regarding the order and the actual as well as legal relations between the client and his con-tract partners within the order will be answered as completely, accurately and at short notice as possible by the client – as far as these relations are known to the client or his executives. The brawema consultants will only ask questions whose answers may be of significance for the assignment.
c. brawema GmbH will also be informed by the client unasked and as early as possible about such circumstances which could be of significance for the assignment.
d. Any interim results supplied by brawema GmbH will be immediately checked by the client as to whether the information contained therein applies to the order. Required corrections as well as change requests and additions will be communicated to brawema GmbH immediately in written form.
e. The consultants employed by brawema GmbH shall act exclusively on behalf of brawema GmbH during their assignment. Further possible orders or follow-up orders with the consultants employed are to be commissioned via brawema GmbH.
§3 Invoicing and terms of payment
a. Unless otherwise agreed, brawema GmbH is entitled to reimbursement of expenses in addition to the claim of fees. The fee for services rendered by brawema GmbH shall be calculated according to the time spent on the activity (time fees) or agreed in written form as a fixed price. A fee to be paid according to the degree of success or only in the event of success is always excluded unless this has been expressly agreed in writing. The fee rates agreed in the places order shall apply to the entire project.
b. In the absence of deviating agreements, brawema GmbH is entitled to invoice the client monthly in arrears for fees and expenses as incurred.
c. Unless otherwise agreed in writing, invoices issued by brawema GmbH in accordance with the contract are due for payment immediately.
d. If the client is in default with payment of invoices, brawema GmbH shall be entitled to suspend its work on the order until these claims have been met.
e. A set-off against claims of brawema GmbH for remuneration and reimbursement of expenses is only permissible with undisputed or legally established claims.
§4 Premature termination of contract and remuneration for consulting contracts
a. Unless other individual contractual agreements have been made, brawema GmbH grants the client the right to terminate any consulting contract prematurely if the client so wishes. The premature termination does not affect agreed confidentiality obligations and other post-contractual fiduciary obligations.
b. The fees of brawema GmbH incurred up to the receipt of a premature termination shall be invoiced and paid.
c. The provision in paragraph b. shall apply accordingly if brawema GmbH has terminated the contract prior to the originally agreed conclusion.
d. Agreements regarding expenses and travel expenses shall apply in the individual contracts.
§5 Changes in services
a. Subsequent changes and additions to the order or the essential work results must be made in writing in order to be effective. This also applies to the waiver of the written form requirement. Minutes of meetings and of the order status do justice to this if they have been signed by the authorized representatives of both parties.
b. brawema GmbH is obliged to carry out subsequent requests for changes on the part of the client, insofar as this is possible without additional costs or postponements. Otherwise brawema GmbH will inform the customer within 14 days of the details of the necessary additional work. If the client does not confirm the change in writing within a further 14 days, the change request shall be deemed to have been cancelled.
§6 Confidentiality and data protection
a. brawema GmbH is obliged, even after completion of the order, to maintain silence about all business or customer-related facts which become known to it in connection with the execution of the order. brawema GmbH may neither pass them on to third parties nor exploit them for itself without the written consent of the client. This also applies to written statements, in particular order-related reports or recommendations.
b. brawema GmbH is authorized to process the personal data entrusted to it within the scope of the purpose of the order in compliance with the data protection provisions pursuant to Art. 6 GDPR.
c. brawema GmbH undertakes to obligate in writing all persons employed by it to carry out the order to comply with this provision.
d. The material provided to brawema GmbH (data carriers, data, control figures, analyses, programs, etc.) as well as all results from the execution of the work will be returned to the client or destroyed after completion of the order.
§7 Obstacles to performance, delay, impossibility in consultancy orders
a. brawema GmbH shall only be in default with its services if fixed dates have been agreed for certain completion dates and brawema GmbH is responsible for the delay. brawema GmbH is not responsible, for example, for an unforeseeable loss of the brawema GmbH consultant responsible for the project, force majeure, strike, lockout and similar events that make the agreed service at least temporarily impossible or unreasonably difficult for brawema GmbH.
b. If the obstacles to performance are of a temporary nature, brawema GmbH shall be entitled to postpone the fulfilment of its obligations for the duration of the hindrance and for a reasonable start-up period. If, on the other hand, the performance of brawema GmbH becomes permanently impossible due to obstacles within the meaning of paragraph a., brawema GmbH shall be released from its contractual obligations.
c. Insofar as brawema GmbH is responsible for breaches of duty within the meaning of § 280 BGB, § 7 (German Civil Code) shall apply additionally.
§8 Remedy of defects and warranty
a. brawema GmbH is entitled and obliged to remedy any inaccuracies and defects in its services that become known subsequently. It is obliged to inform the client of this immediately. The warranty period is 3 months.
b. The client is entitled to free remedy of defects, insofar as these are the responsibility of brawema GmbH. This claim expires six months after brawema GmbH has rendered the service complained about.
c. brawema GmbH shall fulfil its obligations to fulfil the order to the best of its knowledge and belief. It guarantees to provide all services in the sense of the client but is dependent on the cooperation of the client with regard to the correctness, completeness and truthfulness of its work. Especially with regard to economic and technical specifications of the client, brawema GmbH is bound to implement these and accepts no responsibility for the correctness, completeness and truthfulness of the results obtained, insofar as these are based on information provided by the client or result from information provided by the client.
d. In the case of warranty, subsequent improvement shall in any case take precedence over reduction or conversion. Insofar as claims for damages exist beyond this, the provisions of §7 shall apply.
e. The reversal of the burden of proof, i.e. the obligation of brawema GmbH to prove its innocence of the defect, is excluded.
§9 Liability for orders
a. If and to the extent that any order errors are based on the fact that the client has not, not completely or not on time fulfilled his obligations to cooperate according to §2, the liability of brawema GmbH is excluded. In the event of a dispute, the client will provide proof of the complete and timely fulfilment of all cooperation obligations.
b. brawema GmbH is only liable for damages of the client if and insofar as they have been caused by brawema GmbH intentionally or grossly negligent. brawema GmbH is only liable in the event of a breach of the contractual obligations necessary for the execution of the contract for damages foreseeable at the time of conclusion of the contract. brawema GmbH shall not be liable for damages caused by slight negligence.
c. All possible claims for damages against brawema GmbH shall become statute-barred after one year at the latest. The limitation period begins with the recognizability of a damage, at the latest however with the conclusion of the contractual activity.
d. brawema GmbH cannot guarantee the success of the cooperation resulting from the consultation with regard to the respective task.
e. To the extent that liability claims against brawema GmbH are excluded, this shall also apply to its vicarious agents.
§10 Protection of intellectual property
a. The client guarantees that the reports, organization charts, drafts, drawings, lists and calculations, presentations, data etc. produced by brawema GmbH within the scope of the order will only be used for his own purposes and will not be published in individual cases without express consent. The use of the services provided for companies affiliated with the customer requires a separate written agreement.
b. brawema GmbH remains the originator if the results of the work are copyrightable. In such cases, the client shall be granted the irrevocable, exclusive and non-transferable right to use the work results, limited only by paragraph a. and otherwise unlimited in time and place.
§11 Final provisions
a. The contractual relationships are subject exclusively to the law of the Federal Republic of Germany. The provisions of the UN Con-vention on Contracts for the International Sale of Goods and international private law shall not apply.
b. Place of jurisdiction for registered traders, for persons who do not have a general place of jurisdiction in Germany, as well as for persons who have moved their place of residence or habitual abode abroad after conclusion of the contract or whose place of residence or habitual abode is not known at the time the action is filed, is exclusively the registered address of brawema GmbH.
c. Should one or more of the above conditions be ineffective, the remaining conditions shall remain unaffected. In such a case, the contracting parties are obliged to replace an invalid provision with a valid one that comes as close as possible to the economic purpose of the invalid provision.