General Terms and Conditions of Business

1. Scope of application

1.1 These General Terms and Conditions of Contract (AAB) are the basis and part of every order of services (hereinafter referred to as order) to schwarzprojekt GmbH & Co. KG, Grassistraße 20, 04107 Leipzig (hereinafter referred to as schwarzprojekt) by a client (hereinafter referred to as AG, together with schwarzprojekt parties).

1.2 A written offer of the OP to place an order by the OP shall be considered as his acceptance of these AAB.
1.3 These AAB shall apply exclusively. They shall also apply to all extensions and changes of orders, even if they are not explicitly referred to.
1.4 Any terms and conditions of the OP that deviate from, contradict or supplement these GTC shall only become part of an order if and to the extent Schwarzprojekt agrees to them or parts of them explicitly and in writing.

2. Conclusion and content of orders

2.1 All offers made by schwarzprojekt are subject to confirmation. We reserve the right to make changes.

2.2 Orders between schwarzprojekt and the client only come into effect by schwarzprojekt’s written acceptance of an offer of the client.

2.3 Subject and scope of the order result from the respective assignment of the client and the order confirmation by schwarzprojekt. Schwarzprojekt shall owe the agreed performance, not a certain economic success. The order is carried out by schwarzprojekt according to the principles of proper professional practice, especially self-responsible, conscientious, independent and discreet.

2.4 The client shall provide schwarzprojekt with all information and documents necessary for the proper execution of the order in due time and completely. Schwarzprojekt shall provide all consulting services on the basis of the data, documents and information provided by the customer or his authorized representative. These are checked for plausibility by Schwarzprojekt. The responsibility for their factual correctness and completeness lies exclusively with the client.

2.5 Schwarzprojekt is entitled to use experts for the execution of the order and to engage third parties as subcontractors. Schwarzprojekt is not obliged to submit offers or invoices of third parties to the customer.

2.6 Changes or deviations of individual contractual services from the agreed content of the contract are only allowed if explicitly confirmed by Schwarzprojekt.

3. Mediation services

Insofar as an order is for the procurement of services (hereinafter referred to as a brokerage transaction), the following provisions shall apply in addition.

3.1 In case the brokered contractor and/or the client are unable to provide the services they are obliged to, schwarzprojekt shall be released from all claims of third parties. In particular, schwarzprojekt is not obliged to provide replacement services to the client and third parties.

3.2 The client is obliged not to use the contacts established by schwarzprojekt for the conclusion of direct business. This obligation exists for the duration of the mediation relationship as well as six months after the conclusion of the mediated contract.

3.3 In case of a violation of an obligation from the preceding paragraph 3.2, schwarzprojekt has to be placed in the same position as if the direct business had been mediated by schwarzprojekt. In this case, Schwarzprojekt is entitled to a commission in the amount that the client would have been obliged to pay to Schwarzprojekt for the concrete brokerage transaction.

4. Remuneration

4.1 The amount of the remuneration shall be based on the agreement made when the order was placed. Services not agreed upon when the order was placed and which are carried out at the request of the OP are eligible for remuneration.

4.2 All agreed remunerations shall be in Euro and as net amounts, i.e. they shall be owed plus the statutory value added tax applicable at the time of performance of the services.

4.3 Several clients are jointly and severally liable for all claims of schwarzprojekt resulting from the order.

4.4 Unless otherwise agreed between the parties, the remuneration shall be due upon completion of the order. If a work in terms of §§ 631 ff. BGB, the due date shall be determined by the legal regulations. In the case of orders with a processing time of more than four weeks, the Principal shall make regular and in individual cases reasonable payments on account, unless otherwise agreed between the parties.

4.5 Schwarzprojekt shall be entitled to demand reasonable, non-interest-bearing advances in individual cases when placing the order for claims for remuneration and expenses already incurred or probably incurred. Schwarzprojekt may make the commencement of its activities dependent on the payment of the advance.

4.6 The remuneration shall be invoiced separately. Unless otherwise agreed, the remuneration shall be due for payment immediately after invoicing and without deduction.

4.7 Expenses for incidental expenses as well as travel costs and expenses for trips to be undertaken in connection with the order and which have been agreed with the OP shall be reimbursed by the OP.

5. Set-off, retention and prohibition of assignment

5.1 The OP may only offset undisputed or legally established claims or assert a right of retention due to undisputed or legally established claims from the same contractual relationship.

5.2 The OP may assign claims against schwarzprojekt or leave them to third parties for collection only with prior written consent of schwarzprojekt. This does not apply to assignments within the scope of application of § 354a HGB.

6. Consequences of obstacles to performance

6.1 Schwarzprojekt is entitled to charge additional expenses resulting from violations of the client’s obligations to inform and cooperate under the contract at the agreed hourly or daily rates, even if this results in an agreed remuneration budget being exceeded.

6.2 Schwarzprojekt shall only be in default with its services, if fixed deadlines are exceeded and Schwarzprojekt is responsible for the delay. Schwarzprojekt is not responsible for the unforeseeable loss of consultants and subcontractors intended for the project, force majeure and other events that were not foreseeable at the time of the conclusion of the contract and that make the services of schwarzprojekt at least temporarily impossible or unreasonably difficult.

7. Claims for defects

7.1 Schwarzprojekt is responsible for providing the agreed services properly. The services shall be deemed to have been duly rendered if they have been accepted by the customer without objection.

7.2 Schwarzprojekt does not guarantee that certain results can be achieved by the delivery of agreed services by the customer.

7.3 Schwarzprojekt has to be informed in writing about any defects immediately, at the latest within two weeks after receipt of the defective service. If a notification of defects is not made within the period of time specified above, all claims of the OP shall be forfeited.

7.4 Incorrectness such as typing errors or obviously recognizable calculation errors are not defects in the sense of this regulation and can be removed by schwarzprojekt at any time without the client being able to derive any claims from it.

7.5 If schwarzprojekt is responsible for a defect or a breach of duty, the obligation for free subsequent performance exists if the client has a legitimate interest in it. If the owed supplementary performance fails twice, the client may either withdraw from the contract or demand a reduction of the purchase price.

7.6 The OP may claim damages due to defects only if schwarzprojekt is at fault and only after the second failed attempt of supplementary performance.

7.7 The assertion of claims of the OP due to defects is subject to a limitation period of six months. Negotiations on claims arising from this contractual relationship shall not suspend the statute of limitations.

7.8 Schwarzprojekt shall not be liable for service disruptions and damages of the OP in connection with services that were explicitly marked as external services by Schwarzprojekt.

8. Liability

8.1 Any other claims for damages and reimbursement of expenses against schwarzprojekt for whatever legal reason, in particular due to a violation of obligations resulting from orders and from tort, are excluded. This does not apply in cases of intent, gross negligence, injury of life, body or health, liability according to the German Product Liability Act (ProdHaftG) as well as breach of essential contractual obligations. The claim for damages for the violation of essential contractual obligations is, however, limited to the foreseeable damage typical for this type of contract, unless there is intent or gross negligence, or liability is assumed for injury to life, body or health. A change of the burden of proof to the disadvantage of schwarzprojekt. is not connected with the above regulations.

8.2 As far as the OP is entitled to claims for damages according to this regulation, these claims shall become statute-barred after two years, unless the statute of limitations is mandatorily prescribed otherwise by law. The statute of limitations shall begin with the end of the calendar year in which the event triggering the claim for damages occurs.

9. Termination

9.1 The right to ordinary termination of a placed order results either from the contractual agreement or, if not regulated therein, from the statutory provisions.

9.2 If the customer terminates or cancels the contract without the contractor having given good cause for this, the contractor shall in this case be entitled to remuneration for the services rendered up to that point, whereby the services rendered shall also include claims by third parties whom the contractor has commissioned in reliance on the performance of the contract. With regard to services not yet performed, 40% of the remuneration agreed for these services shall be agreed as saved expenses. The Contractor must allow this rate to be offset against his claim for remuneration, unless the Contractor proves that only lower expenses were actually saved. Conversely, the customer is at liberty to prove that the contractor has been spared higher expenses.

9.3 The right of extraordinary termination without notice for good cause shall remain unaffected. Good cause shall be deemed to exist if the other party culpably breaches a material obligation assumed by it under the contract and does not remedy the breach even after having been requested to do so by setting a reasonable deadline.

9.4 In the event of termination for good cause by the contractor or withdrawal for reasons for which the customer is responsible, the above provision of paragraph 2. shall apply accordingly. The customer shall be at liberty to prove that no damage or not in the amount stated has occurred. The assertion of further damages is not excluded.

10. Copyright protection and rights of use, compensation

10.1 All copyrights to the work and works created by schwarzprojekt, its employees or third parties commissioned by schwarzprojekt, such as graphics, presentations, project sketches, project papers, concepts, layouts, analyses, reports, plans, organizational documents, expert opinions, etc., remain with schwarzprojekt.

10.2 The provisions of the Copyright Act shall also be deemed agreed upon if the level of creativity required under § 2 para. 2 Copyright Act is not reached in an individual case.

10.3 Suggestions and instructions of the OP shall not influence the remuneration and shall not constitute a co-authorship.

10.4 Rights of use shall be granted to OP subject to the condition precedent of full payment of the remuneration owed and only to the minimum extent required for the agreed contractual purpose. Unless the parties expressly agree otherwise, only the simple, non-exclusive right of use shall be granted; the granting of an exclusive right of use must be expressly agreed.

10.5 The OP may only use the work performed by schwarzprojekt for contractually defined purposes in his company. Without consent of schwarzprojekt, neither the original nor the reproduction of the work may be changed. Any imitation, even partial, is prohibited. Any duplication or passing on requires the written consent of schwarzprojekt. Unauthorized duplication or distribution excludes any liability of schwarzprojekt towards third parties and entitles schwarzprojekt to claim for injunction and compensation.

10.6 The Principal is obliged to name schwarzprojekt as author in case of duplication and publication of the works or the works.

10.7 A violation by the OP against the obligations and/or a copyright existing in favor of schwarzprojekt according to this clause 10 entitles schwarzprojekt to claim liquidated damages, whereby the amount of the claim for damages shall be 100% of the agreed remuneration. The right to prove a higher damage shall remain unaffected.

10.8 Schwarzprojekt shall not be obliged to check the legal admissibility of the services commissioned by the Principal, especially with regard to copyright, trademark, label and competition law violations, as well as the registrability and protectability of labels and trademarks, unless a separate agreement has been made.

10.9 The OP assures that he owns the rights of use for the materials provided by him that are necessary for the creation of the object of services and that the contract does not violate copyrights and rights of use of third parties. Furthermore, he assures that the rights to be transferred to Schwarzprojekt under this contract
a. are not transferred to third parties or encumbered with third party rights
b. third parties have not been commissioned to exercise them;
c. there are no other contractual/legal obligations at the time of conclusion of the contract that could impede the services to be rendered by schwarzprojekt.

11. Protection of competition, contractual penalty

11.1 For a period of 12 months after completion of an assignment, the persons employed by schwarzprojekt may not work for the AG and/or its affiliated companies (§§ 15 ff. AktG), neither directly nor indirectly, or be placed with third parties.

11.2 A lump-sum contractual penalty of EUR 1,000.00 shall be agreed upon for each case of violation of the above clause 11.1. In case of a permanent violation of the prohibition, the contractual penalty shall be justified for each week or part thereof. A permanent violation exists if the person employed by schwarzprojekt. enters into a contractual relationship with the client and/or its affiliated companies (§§ 15 ff. AktG) that lasts at least seven calendar days. A single violation is given if the prohibition of item 11.1 is violated in any other way. The contractual penalty shall be justified separately for each individual violation. Individual violations within the scope of a permanent violation do not constitute an additional contractual penalty. However, a permanent infringement does not exclude a further justification of the contractual penalty within one week by another permanent infringement or another single infringement. In this respect, the Principal waives the objections of the continuation context.

11.3 If the OP is a merchant, § 348 HGB shall not apply.

12. References
Schwarzprojekt is entitled to name the company names of the client as well as short descriptions of the order contents in a list which Schwarzprojekt can use as references, especially towards other clients.

13. Final provisions

13.1 All personal data provided by the client to schwarzprojekt shall be protected against misuse in accordance with the German Federal Data Protection Act (BDSG). The Principal declares his consent to the storage of the data required for the purpose of the contract.

13.2 Place of performance for the services is the registered office of schwarzprojekt Exclusive place of jurisdiction for all disputes arising from or in connection with the business relations between the parties is Leipzig, as far as the OP is a merchant in terms of the German Commercial Code (HGB), legal entities under public law or public special assets.

13.3 The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
General Terms and Conditions of Contract schwarzprojekt GmbH & Co. KG

Status: March 13, 2020