- Our General Terms and Conditions (hereinafter referred to as “GTCs”) apply to all future agency contracts, service contracts and contracts to produce a work pertaining to deliveries or other services by zemicontrol Germany GmbH (hereinafter referred to as “zemicontrol”). Deviating or supplementary agreements made in respect of the GTCs apply only if agreed in writing by the parties.
- Any change to these GTCs by zemicontrol becomes part of the contract between zemicontrol and the customer unless the customer objects to the change in writing within one month of its issue.
- Terms and conditions of the customer that deviate from these GTCs apply only and to the extent that zemicontrol has expressly confirmed in writing that such terms and conditions apply in place of zemicontrol’s own GTCs. This is the case even if zemicontrol provides performance without reservation in full knowledge of those terms and conditions.
- In the event that these GTCs contain individual provisions that are wholly or partly invalid, this will not affect the validity of the rest of the GTCs
Offers and conclusion of a contract
- All offers by zemicontrol are made exclusively in writing. Unless otherwise specified on the offer, offers are valid for a period of 30 days.
- Any order placed by a customer is always binding. A contract is concluded only once a written order confirmation is received (electronically or by post) and based on its contents.
- Changes to the order and/or the order confirmation are made in agreement with the customer and/or client.
- zemicontrol is entitled to use suppliers and/or partners to provide performance.
Terms of business
- The prerequisite for compliance with a delivery deadline and/or a deadline to provide a service that is agreed in writing is that the customer provides in good time all information required for the delivery and/or to provide the service. Otherwise the deadline to provide the service and/or the delivery deadline is extended appropriately.
- Part performance is permissible to the extent that this is reasonable for the customer.
- If engagements are delayed for reasons outside of our control, the party placing the order must bear an appropriate portion of the costs for the waiting period and for additionally required journeys.
Prices and terms of payment
- The remuneration agreed in the respective individual case applies. If such an agreement has not been reached, the customary remuneration applies between the client and zemicontrol.
- All prices are net prices and are subject to statutory VAT.
- zemicontrol is entitled to issue weekly interim invoices and to require down payments.
- The invoice amount is due no later than 14 days after the invoice is issued. The authoritative date for the beginning of the deadline period is the date on the invoice.
- Cheques and bills of exchange are always accepted only on account of performance. zemicontrol reserves the right to refuse these.
- If the customer is a businessperson, he/she only has a right to offsetting or retention if the counterclaims were expressly recognised by zemicontrol or have final and binding effect.
- Only subject to the prior written consent of zemicontrol is the customer entitled to assign claims from this agreement or from any other contractual relationship with zemicontrol.
Warranty / liability for material defects
- Unless otherwise determined by mandatory legal provisions, the warranty claims expire one year after acceptance or transfer of the subject of performance or the subject of the contract. This does not apply to claims for defects by consumers as well as claims for damages due to injury to life, limb or health and/or claims for damages due to damage caused by gross negligence or wilful intent on the part of zemicontrol. The statutory limitation periods apply in this regard. Entrepreneurs must examine the goods delivered without delay for deviations in quality and quantity and must notify zemicontrol without delay of any recognisable defects. If the customer fails to provide such notification, the goods are deemed approved. The entrepreneur bears the full burden of proof for all claim prerequisites, in particular for the defect itself, the timing of determining the defect and the timeliness of the notice of defects.
- Warranty claims against zemicontrol are excluded if the customer interferes with and/or changes the subjects of performance or forbids zemicontrol from taking such action.
- zemicontrol must be given an opportunity to remedy the defects by way of cure at least twice within an appropriate period. If the client refuses this, zemicontrol is exempt from the warranty / remedy of defects.
- If the customer is a businessperson, warranty claims cannot be assigned. Only the customer as the direct contractual partner of zemicontrol can assert such claims.
- Agreed dates will be complied with by zemicontrol. zemicontrol will not be liable for force majeure that considerably hamper contractual performance or temporarily prevent or render impossible due performance of the contract by zemicontrol. Force majeure includes all circumstances independent of the will of and outside the control of the contractual parties. Examples include natural disasters, government measures, decisions by authorities, blockades, war and other military conflicts, mobilisation, domestic unrest, acts of terrorism, strikes, lock-outs and other industrial unrest, confiscation, embargoes or other circumstances that are unforeseeable, severe and for which the contractual parties are not responsible and that occur after conclusion of this contract. To the extent that one of the contractual parties is prevented from fulfilling its contractual obligations as a result of force majeure, this will not constitute a breach of contract, and the deadlines set out in the contract or based on the contract will be extended appropriately in line with the duration of the hindrance. The same applies to the extent that zemicontrol is dependent on advance performance by third parties and there is a delay in such advance performance. Each contractual party will do everything in its power that is necessary and reasonable to minimise the extent of the consequences of the force majeure. The contractual party affected by the force majeure will notify the other contractual party at the beginning and again at the end of the hindrance in writing without delay. As soon as it is apparent that the force majeure will extend beyond 6 months, each contractual party is entitled to terminate the contract by registered letter.
- zemicontrol will be fully liable for wilful intent and gross negligence. Except in the event of injury to life, limb and health, zemicontrol will be liable for slight negligence only if material contractual obligations (essential duties) are breached. Liability is limited to the foreseeable damage typical for the contract. Except in the event of injury to life, limb and health, liability for indirect and unforeseeable damage, loss of production and use, lost profit, foregone savings and economic loss due to claims by third parties is excluded in the case of slight negligence. Regardless of the legal nature of the claim asserted, liability that exceeds the scope in this contract is excluded. However, the above liability limitations and exclusions do not apply in respect of statutory no-fault liability (for example in accordance with ProdHaftG (“Produkthaftungsgesetz”: German Product Liability Act)) or liability from a no-fault guarantee. To the extent that liability is excluded or limited in accordance with 2 and 3, this also applies to the personal liability of the employees, workers, representatives, executive bodies and vicarious agents of zemicontrol.
Cooperation by the customer
- In order to provide performance that is the subject of the contract, zemicontrol is dependent on cooperation by the customer. As far as all information and documents necessary for the performance that is the subject of the contract are concerned, the customer undertakes to provide these in timely and complete manner on request.
- Unless expressly agreed otherwise, all cooperation by the customer is without remuneration.
- In the event that the client hires an employee of zemicontrol, a mediation fee of 3 months’ gross salary plus statutory VAT will be due. The gross salary agreed between the client and the employee is the authoritative figure here.
- The client must voluntarily notify zemicontrol of the conclusion of an employment contract with the contractor’s employee without delay.
- The client will inform zemicontrol of the gross monthly salary within 14 days of the request. After this deadline, 500 times the most recently paid hourly rate plus statutory VAT will be payable as a mediation fee.
- The contractual parties are obliged to treat strictly confidentially any business and trade secrets of the other contractual party and of that party’s business partners of which they become aware as part of the business relationship and not to make these available to third parties during the contractual term or for a period of two years after the end of the contract. This applies both to business and trade secrets referred to as such or that are obviously recognisable as such.
- This obligation does not apply if the contractual partner obliged to secrecy in principle can prove that it was already aware of this information prior to the collaboration with its contractual partner and/or that it was informed of the information by authorised third parties or that this information became public at no fault of the contractual partner obliged to secrecy.
- Applicable law / court of competent jurisdiction
- The court of competent jurisdiction for all disputes – also for special procedures deciding claims arising out of bills of exchange or cheques and summary procedures – is Düsseldorf to the extent that the contractual partner is a businessperson, a legal person governed by public law or a special fund under public law. The same applies if the contractual partner does not have a general court of competent jurisdiction in Germany or its habitual abode is unknown at the time the action is taken.
- The agreement is governed exclusively by the law of the Federal Republic of Germany.