General Terms and Conditions (GTC)
As of 08/2019
1. Subject and scope
1.1 These General Terms and Conditions (GTC) apply to all offers and services of b-good GmbH, Tuerkenstr. 67, 80799 Munich, Germany (Contractor).
1.2 The subject matter of the services results from the respective individual order (order) and these GTC.
1.3 Offers of the contractor are generally non-binding. If an offer is described as binding, it is binding for a period of two (2) weeks from the date of the offer, unless otherwise stipulated.
1.4 A contract is concluded for non-binding offers with a written order confirmation by the contractor, but no later than the beginning of the service by the contractor. In the case of binding offers, the order is concluded upon receipt of the offer countersigned by the client within the binding period.
1.5 The services of the contractor are subject exclusively to these terms and conditions. General terms of purchase or other terms and conditions of the client shall not apply, as far as their validity is not expressly confirmed in writing by the contractor. In particular, they also do not apply if they are referred to in the context of invitation to tender, purchase orders, receipt or acceptance of services and the contractor does not object to this.
1.6 Attachments to the respective order are an integral part of the order.
2. Scope of services and service provision
2.1 All services are provided by the contractor in accordance with the agreed specifications of the respective order and the state of the art.
2.2 The contractor will render its services as a service, unless a work service has been expressly agreed on the order.
2.3 The contractor always provides its services on its own responsibility and independently. If contractual instructions of the client lead to additional expenses or delays, these shall be borne by the client. The contractor will point out additional expenses or delays as a result of instructions from the client as quickly as possible and, if necessary, submit an addendum offer. Until the acceptance of the supplementary offer, the contractor will provide the services in accordance with the applicable order, unless the parties agree otherwise.
2.4 The contractor is entitled to use third parties as part of the provision of services. The contractor is liable for third party services as well as for own services.
3. Obligations of the client
3.1 The client will provide the contractor in due time with all necessary information for the execution of the order. The client will also make all agreed or necessary decisions (for example, selection or approval of drafts, concepts, planned performance variants or other work) in good time and inform the contractor immediately.
3.2 The client shall provide the contractor with access to the systems, applications, services and contents necessary for the provision of the services, for the provision of which the client is responsible. The client hereby ensures that the use of the resources to be provided by the client for the respective order is covered by sufficient licenses, permits or rights of use. Unless otherwise agreed, the client bears the costs for resources to be provided by him.
3.3 If the client grants the contractor access to the data of the client, the client shall ensure that the data are adequately secured against loss or damage during use by the contractor. The data backup by the client should correspond to the state of the art, taking into account the respective processing risks and the significance of the data.
3.4 The client is responsible for having the legal admissibility of functions, contents or measures to be created (eg campaigns, mailings, etc.) to be checked or checked by the user and to comply with the applicable legal provisions. The contractor owes no legal advice in the context of its activity. However, he will point out any content he may find problematic and seek the client’s decision. The contractor is not obliged to carry out illegal measures. In the case of provision of services in accordance with the contract, the client exempts the contractor from claims of third parties.
3.5 Special duties of co-operation of the client are specified in the respective order.
3.6 If the client does not fulfill his obligation to cooperate or not in time, the extra work and delays caused by this shall be borne by him. The remuneration claim of the contractor remains unaffected.
4. Approval of work services
4.1 If a work service has been agreed on the order, the contractor shall make the work available to the client for acceptance at the agreed time. The contractor is obliged to declare the acceptance in writing if the provided work performance meets the agreed specifications. The acceptance must be declared immediately, but at the latest within one (1) week of being made available for acceptance. Acceptance may not be refused because of such defects which do not or only insignificantly impair the usability or the functionality of the work performed.
4.2 If the acceptance is for reasons for which the contractor is not responsible, not within one (1) week from the date of provision for acceptance, the work performance shall be deemed to have been accepted by the expiration of the period.
4.3 The acceptance shall be deemed to have been made at the latest when the customer uses the work in the ordinary course of business.
4.4 The respective order may provide partial acceptance.
5. Prices, billing, payment terms
5.1 The prices offered by the contractor are net prices, payable in Euro and plus VAT.
5.2 If a fixed price has been agreed, all expenses of the contractor are covered. If compensation has been agreed according to expenditure, travel expenses (including accommodation and meals) and other expenses are to be reimbursed. The costs must be proven at the request of the client by submitting copies of the supporting documents.
5.3 For daily rates, a daily rate of eight (8) hours shall apply. Unless otherwise agreed, agreed daily rates apply only for the period between 7 am and 8 pm on weekdays, except on public holidays at the place of performance. For activities requested by the client outside these times, a surcharge of 50% applies, unless otherwise agreed. Individual time hours are charged pro rata. Starting time hours are rounded up to the next quarter of an hour.
5.4 Unless otherwise agreed in the order, all fees will be charged monthly for the preceding calendar month.
5.5 Payments of the client are to be made without deductions within two (2) weeks after invoicing to the account of the contractor stated in the invoice. Decisive for the timeliness of the payment is their receipt by the contractor.
5.6 The client may only set off against claims of the contractor with undisputed or legally established claims. The customer is entitled to assert a right of retention only for counterclaims from the same order.
5.7 The client is obliged to submit objections to invoices in writing within two (2) weeks after receipt of the invoice to the contractor. After the deadline, objections can only be asserted if the client was prevented from observing the deadline without own fault.
5.8 Until the full payment of the agreed remuneration, all rights of use to the work results and services provided by the contractor remain with the contractor.
5.9 If the client is in arrears with due payments, the contractor is entitled to suspend further services until the outstanding claims have been settled following notification in writing.
6. Price adjustments
The Contractor shall be entitled to change the cost of the work (daily or hourly) during the contract period once a year, but not before six (6) months from the date of entry into force of the contract in question. The change must be announced in writing or in writing with a notice period of three (3) months. In the event of a price increase, the client is entitled to terminate the respective order at the time of the planned entry into force of the change with a period of one (1) month.
7. Term, termination
7.1 The order begins on the date specified in the respective order and ends automatically with complete performance or the expiry of the agreed term.
7.2 If a basic term has been agreed for an order, it shall automatically be extended by an additional twelve (12) months if the order is not terminated by either party within three (3) months of the end of the basic term or at the end of an extension period.
7.3 The right to terminate for good cause in accordance with statutory provisions remains unaffected. If remedial action is possible with regard to the conduct of a party contrary to the contract, the termination is only permitted after the unsuccessful expiry of a reasonable period for remedial action in accordance with the statutory provisions.
7.4 Termination for cause by one party is particularly permitted if the other party
(a) seriously violates its primary contractual obligations;
(b) violates confidentiality obligations,
(c) violates data protection regulations; or
(d) stop their payments, institute bankruptcy or settlement proceedings over their assets, or be rejected for lack of assets, or have an out-of-court settlement procedure.
7.5 An important reason for the contractor is in particular, if the client does not fulfill its duties to cooperate or not in time and the service provision is thereby made difficult or impossible or difficult.
7.6 An important reason for the contractor is also if the client is in arrears with two (2) or more monthly payments or more than thirty (30) days in arrears. Termination is permissible in these cases without further extension.
7.7 The termination of an order requires the written form. The written form is maintained by fax.
8.1 The contractor shall be liable without limitation for damage resulting from injury to life, limb or health as well as in the case of intent and gross negligence, fraudulent concealment of a defect or assumption of the guarantee for the quality of a thing or service.
8.2 In the event of a breach of essential contractual obligations, the liability of the contractor in case of slight negligence shall be limited to the contractually typical, foreseeable damage. Significant contractual obligations are those obligations that arise from the nature of the contract and whose breach would jeopardize the achievement of the purpose of the contract and obligations imposed by the contract according to its content for the purpose of the contract, the fulfillment of which makes the proper execution of the contract in the first place and compliance with which the client may regularly rely.
8.3 Liability in cases of ordinary negligence is also limited to the amount of the remuneration due under an order. In the case of a contract with a term, liability for cases of ordinary negligence within a contractual year shall be limited to the amount of the remuneration due within that contractual year. The liability for lost profits is excluded. Section 8.1 remains unaffected.
8.4 Liability under the Product Liability Act and other cases of mandatory legal liability remains unaffected.
8.5 The liability for data loss is always limited to the typical recovery effort that would have occurred with regular and risk-appropriate preparation of backup copies. This does not apply if the contractor has assumed the security of the data as the main service obligation.
8.6 The above provisions also apply accordingly to the personal liability of the contractor’s employees and their subcontractors.
8.7 The above provisions shall apply mutatis mutandis to the reimbursement of expenses.
9. Liability for defects
9.1 The client shall notify the contractor of an obvious lack of services in written form or in writing within two (2) weeks of their occurrence at the latest. Otherwise, the performance shall be deemed approved in the light of the defect, unless the contractor has fraudulently concealed the defect.
9.2 In the event of defects in work performances, the Contractor will either rectify these defects within a reasonable period of time after his election or provide the service free of defects (subsequent performance).
9.3 The Contractor is entitled to a reasonable number of supplementary performance attempts according to the circumstances. As a rule, these are two attempts.
9.4 If the subsequent performance finally fails, in particular because the defect has not been remedied despite the removal attempts or permanently eliminated by a reasonable circumvention solution, the subsequent performance is unreasonably delayed or rejected by the contractor unjustified, the client may reduce the agreed remuneration of the affected service.
9.5 The contractor is not liable for such defects caused by changes or processing of the object of performance by the client or third parties.
9.6 The costs for a determination of defects requested by the customer shall be borne by the customer if the contractor is not responsible for the defect or if the cause of the defect can not be determined.
9.7 Claims arising from liability for defects become statute-barred twelve (12) months after the beginning of the statutory limitation period, except in the cases specified in Section 8.1.
9.8 Otherwise, the statutory provisions apply.
10. Intellectual property, rights of use
10.1 Unless otherwise agreed, all intellectual property rights, in particular copyrights, rights of use and industrial property rights, which existed prior to the conclusion of the order or which a party has purchased independently of the provision of the services or acquires during the term of the contract, remain in the Party that she held or acquired independently.
10.2 The client grants the contractor a non-exclusive right to use and process for the purpose of providing the service for the materials of the client or third parties to be used for the performance of the service. The client warrants that the materials provided by him are free of third party rights that restrict or exclude any use or processing for the services to be provided by the contractor.
10.3 The contractor grants the client all non-exclusive, temporally and spatially unrestricted right of use and results of work rendered by the contractor and fully compensated by the payment of the agreed remuneration to use and process these for his own business purposes. The rights of use are not transferable and are not sublicensable, unless otherwise agreed in the respective order. However, the customer is entitled to sell or transfer the rights of use as part of a business sale in whole or in part as well as within the framework of measures under the German Transformation Act.
10.4 Each party shall promptly notify the other party if a third party alleges any breach of the contractor’s performance or work results.
10.5 If a third party asserts infringements of the contractor’s work results or services, the contractor is obliged, within a reasonable period of time, to design the services or work results of his own choice either without protection or to acquire the necessary rights for use by the client. If such attempts finally fail, the client is entitled to reduce the remuneration for the services concerned. Further claims for compensation remain unaffected.
The parties will treat confidentially the terms and conditions of each order and any information and knowledge that they obtain from the other party’s business in connection with the performance of the respective order, and will not disclose it to third parties. This obligation shall continue for a period of five (5) years after the termination of the respective assignment.
12. Data Privacy
12.1 The client agrees that the contractor processes and uses contact details of the client for the purpose of carrying out and processing the respective order as well as for maintaining the business relationship.
12.2 If the client grants the contractor access to personal data of his customers and / or employees within the framework of the respective order, the client shall inform the contractor accordingly. At the request of the client, the parties shall enter into an appropriate agreement regarding order data processing.
13. Naming as reference
13.1 The contractor is entitled to name the client generally in the context of offers for third parties and on its website as a reference and for this purpose to use the brand and / or the logo of the client in the usual way.
13.2 The client is entitled to demand from the contractor in writing at any time to refrain from using his trademark and / or the logo in the future. The contractor will comply within a reasonable time.
14.1 Each party shall bear its own costs or in connection with the preparation, negotiation and conclusion of an order, unless otherwise expressly agreed.
14.2 No party may transfer the assignment in whole or in part, either by way of individual or universal succession, to a third party without the prior written consent of the other party.
14.3 Changes and additions to an order, including these GTC, must be made in writing in order to be valid. This also applies to an amendment or supplement to this written form requirement.
14.4 The contract is subject to German law, excluding the United Nations Convention on Contracts for the International Sale of Goods.
14.5 Place of performance for all services of the contractor is the registered office of the contractor.
14.6 The place of jurisdiction for all disputes arising from or in connection with this contract is Munich.
14.7 If individual provisions of the respective order or these terms and conditions should be ineffective or contain gaps, this will affect the validity of the remaining provisions not touched. In place of the invalid provisions, a provision that comes closest to the intended legal result and economic success applies. Any breach of contract shall be completed in good faith by way of supplementary contractual interpretation, as agreed by honest parties, provided that they have considered the matter in question in advance.