| 1. |
Area of Application |
| 1.1 |
These conditions of service apply exclusively to paconsult GmbH. Opposing or differing conditions are not recognized except as otherwise stipulated. These conditions only apply to businesses in terms of § 14 Abs. 1 BGB, judicial individuals of public law and public-judicial special assets in terms of § 310 Abs. 1 BGB. |
| 1.2 |
All agreements effected by the purpose of carrying out the contract are stipulated in writing. Changes, additional agreements, amendments, and cancellations of the contract must be made in writing. |
| 1.3 |
These conditions of service also apply to all transactions with the client in running business connections henceforth. |
| 2. |
Services |
| 2.1 |
paconsult will be active in advisory capacity, provided nothing further is arranged with the client. paconsult is therefore not liable for the success of the consultation, rather merely the supply of consultation. |
| 2.2 |
paconsult is authorized to completely or partially assign its incumbent services to third-parties as long as it is not in conflict with the interests of the client. |
| 3. |
Offers, Documents |
| 3.1 |
The offers from paconsult are fundamentally subject to change. A contract is first negotiated when paconsult confirms the request in written form or yields the service. In the case of offers and request confirmations of denoted honorarium by paconsult, only non-binding estimations based on information received from the client are principally concerned. |
| 3.2 |
Should paconsult turn over figures, drawings, calculations and the like with the offer or during the contract negotiations to the client, then the given details are only approximate and exemplary as long as they are not explicitly termed as binding. Such figures are no particular guarantees. |
| 3.3 |
On principle, paconsult reserves ownership and copy rights to its quotes, drawings, drafts, models and other documents, for example figures, drawings, calculations; they are not allowed to be made available to third-parties except as expressed otherwise. In particular, paconsult holds the client liable to only make documents it deems confidential to third-parties with its agreement. |
| 3.4 |
All suggestions, abstracts, and ideas that paconsult submits to the client during the offer phase, are not allowed to be used by the client for its own purposes or for those of third-parties without completing a contract with paconsult. |
| 4. |
Remuneration and Conditions of Payment |
| 4.1 |
Provided nothing else is expressly agreed upon, paconsult settles remuneration according to the current price list, plus costs, and expenses. |
| 4.2 |
In particular, expenses for consumables, travel, and accommodation are among the costs. |
| 4.3 |
In the case of investigation of damages, the type of calculation for remuneration entitled to paconsult is determined by the corresponding offer. Travel costs and expenses are calculated separately in this case. |
| 4.4 |
The remuneration determined by paconsult is valid, provided nothing else is agreed upon, in Euros and without sales tax. If any accrues, this compounds additionally according to the applicable, legal VAT rate at the time of the invoice. |
| 4.5 |
Project related services by external labor are also calculated. paconsult is entitled to calculate an extra administrative charge of up to 15 % per external labor invoice total. |
| 4.6 |
paconsult is entitled to bill any corresponding costs and expenses directly to the client; provided nothing else is agreed upon, paconsult may proportionally bill consultation remuneration at the end of every month. If by exception a contractual labor relationship (§§ 631 BGB) is arranged between the client and paconsult, paconsult is entitled to bill the befitting partial payment at the end of every month according to project progress. |
| 4.7 |
Provided nothing else is arranged, all due net invoices are to be paid in Euros through the appointed paying agent within ten days of invoice receipt. Should the client default, paconsult is entitled to the legal default interest. Point 4.8 remains intact. |
| 4.8 |
The client is only entitled to charging rights if its counterclaims are valid, indisputable, or recognized by paconsult. The exercising of right of retention and to refuse performance by the client is only legitimate if the counterclaim of the client is also based on the same labor relationship. |
| 4.9 |
Provided nothing else is arranged, the client may only use the project results from paconsult after full payment. |
| 4.10 |
If paconsult is obliged to advance payment and should troubles be made known to paconsult after the end of the contract, after which the pecuniary claim is endangered by a lack of ability by the client, then paconsult can choose either to demand a deposit within an appropriate deadline or concurrent payment against supply of service. Should the client fail to follow through, then paconsult is, subject to further legal rights, entitled to cancel the contract. |
| 5. |
Time of service |
| 5.1 |
The start of given line time by paconsult presupposes the clarification of all essential questions and the adherence to the obligations of the client. Provided nothing further is arranged or anything arises from the contractual relationship, the given delivery or time of service is non-binding. |
| 5.2 |
Delays in service due to higher demand or due to unforeseeable problems and problems by which paconsult is not at fault, such as disruption of operation, strikes, lock-outs, official decree, delayed supply by subcontractors, do not lead to a default by paconsult. The stipulated time of service is extended according to the length of encumbrance. Should the encumbrance take longer than two months, then each party is entitled to cancel or back out of the as yet incomplete part of the contract after the appropriated notification. Claims for damages in this case do not apply. |
| 5.3 |
paconsult is entitled to partial services, insofar as no apparent interest of the client conflicts. |
| 6. |
Fulfillment of contract |
| 6.1 |
Concerning paconsult’s completion of services, the recognized rules of procedure and the applicable legal provisions and norms in Germany are observed in the case of non-existing particular stipulations. |
| 6.2 |
Should foreign procedures and norms be observed by paconsult, then the client is to advise paconsult of these and, as the case may be, to explicate these upon request. paconsult will not undertake its own research on foreign regulations and norm. |
| 6.3 |
The client is obligated to support the services of paconsult in appropriate measures. In particular, this affects the obligations of the making available of necessary information and advice during the contractual relationship. |
| 6.4 |
Written documents important for the completion of service by paconsult may be copied and saved within the bounds of completing the service. |
| 7. |
Industrial property rights/copy rights |
| 7.1 |
paconsult reserves all industrial property and copy rights regarding services by paconsult. The client may only use the services for the intended purpose that were disclosed to paconsult before service provisions or for those identified by paconsult. A further use through the client requires special agreement with paconsult. |
| 7.2 |
As long as paconsult is not expressly advised by the client or by conclusion of the contract to relay its results to third-parties, the relaying of results to third-parties without expressed agreement of paconsult is illegal. |
| 7.3 |
paconsult will observe the industrial property and copy rights of the client concerning the thereby supplied material. paconsult is entitled to retain the corresponding documents up to the statute of limitations of possible defects liability and, in particular, liability claims by the client against paconsult. |
| 8. |
Defects liability |
| 8.1 |
In the case of service contracts, particularly consultation services, the client has an initially appropriate period of clearance to acknowledge the defects (by choice of paconsult through amendment or new service) representative of paconsult. Should this fail, paconsult refuse, or the supplement be unacceptable to the client, then it is entitled to legal claims. Point 9 applies to claims for damages. |
| 8.2 |
If by exception, a labor contract (§§ 631 ff. BGB) is signed, the following applies: |
| 8.2.1 |
The commercial client’s defect claim presupposes that it analyzes this immediately after receiving the service and reprehends possibly noticeable deficiencies (such as hidden deficiencies) after the analysis with specific indication thereof in written form to paconsult (§ 377 HGB). If the client is not a merchant, it has within two weeks of receipt of service to reprehend apparent deficiencies in written form; otherwise the client’s defect claim expires. |
| 8.2.2 |
Defect claims do not exist if only negligible discrepancies of the agreed upon condition or only a negligible impairment of the result’s utility are existent. |
| 8.2.3 |
In the case of defects representative of paconsult, paconsult is to be given an appropriate period of time to provide supplementation and may choose either remediation of defects or new provision of services. |
| 8.2.4 |
Defect claims of the client fall under the statute of limitations in 12 months at point of passing risk (handover or -- as far as mandatory or stipulated -- approval). Quality defects, for which by law the regular three year statutory period of limitation applies, fall under the statue of limitations within two years. The legal statutory period of limitations apply however in the case of intentional or roughly negligent cause of defect and fraudulent concealment of defect as well as all other legal statutory periods of limitation for claims of defects that are more than two years old. The defined statutory periods of limitation also apply to secondary damages based on defects. If subsequent performance due to defects is required, the statutory period of limitation will only be maintained until the subsequent performance and will not be reapplied. |
| 8.2.5 |
Point 9 applies to assertion of entitlement for damages due to claims of deficiency. |
| 8.3 |
Third-party industrial property rights, defect of title |
| 8.3.1 |
Provided nothing else is expressly agreed upon, paconsult only generates its services unencumbered by third-party rights in Germany. |
| 8.3.2 |
Should paconsult services be used outside of Germany, the client has third-party rights to inspect the services of paconsult before it uses them or to notify paconsult unsolicited of the existence of corresponding third-party trademark rights in sufficient time before the carrying out of services through paconsult to allow paconsult to bear this in mind. paconsult undertakes no research concerning possibly established industrial property rights outside of Germany. |
| 8.3.3 |
In the case of breach of third-party trademark rights representative of paconsult, paconsult can, at its own expense, either gain and grant ample rights of use for the determined or preconditioned utility, change the services so that the trademark rights are not breached, or exchange the service as far as thereby the determined or preconditioned utility of the object of service is not impaired by the client. If this is not possible or unreasonable for paconsult, the client is entitled to legal rights and claims. Point 10 applies to claims concerning damages. As for the rest, point 8.2 pertains to defect of title. |
| 9. |
Claims to damages and liability for other reasons |
| 9.1 |
The assertion of defectual harm or from claim for damages on the basis of deficient service is excluded, unless, paconsult were responsible for intentional or roughly negligent deficiencies, or those by negligent breach of essentially contractual obligations (the adherence to responsibilities which the client may rely on). The assertion of secondary damages, particularly foregone wins based on such deficiencies are excluded as long as paconsult only caused unexacting, negligent deficiencies or did so by no fault of its own. This also applies to expenditure claims of the client due to defects. paconsult’s liability for negligence is limited, however, to foreseeable damages specific to the contract. |
| 9.2 |
Otherwise, claims for damages and expenditure claims of the client irrespective of legal basis, particularly due to breach of responsibilities from the contractual obligation and from unauthorized operation are excluded. |
| 9.3 |
Preceding limitations of liability do not apply for claims from the Product Liability Act, in cases of intent or rough negligence, for loss of life, damage caused to body and health, due to taking over a guarantee for the availability of a capacity. |
| 9.4 |
As long as the liability of paconsult is barred or limited this also applies for the personal liability for staff, employees, co-workers, representatives and assistants of paconsult. |
| 9.5 |
The statute of limitations of these claims between the client and paconsult aligns itself with point 8.2.4 of these conditions, insofar as no claims from the Product Liability Act are affected. |
| 9.6 |
paconsult itself is not a manufacturer of any product or its components. Product liability claims are therefore excluded from all rules. |
| 9.7 |
Subject to paconsult’s express agreement or provided nothing else is expressly agreed upon, paconsult’s performance outcomes, particularly consultation services and advice, are not allowed to be released to third-parties. For that purpose in particular, they are not allowed to confide in third-parties to effect the accuracy of paconsult’s performance outcomes. Should the third-party exercise claim for damages on paconsult due to paconsult’s performance outcomes, the client is to absolve paconsult of the given claims. |
| 10. |
Reservation of proprietary rights paconsult guards the ownership of possible property sent to the client out of the business connection until the client has made the entire payments. |
| 11. |
Court of jurisdiction – place of fulfillment |
| 11.1 |
As long as the client is a merchant, Hamburg is the exclusive jurisdiction for all from and in connection with this contract. paconsult is, however, entitled to bring the client to trial at the court in its registered office. |
| 11.2 |
Provided nothing else expressly arises from the contract, Hamburg is the place of fulfillment. |
| 12. |
Applicable law, severability clause |
| 12.1 |
Privity of contract arises exclusively after German law under debarment of the UN-Contract for the International Sale of Goods. |
| 12.2 |
Should individual ordinances of the contract or these conditions be ineffective, the effectivity of the other ordinances is hereby not to be touched. |
| |
|
To top