1. scope of application
1.1. These General Terms and Conditions apply to all orders placed with BeOne Hamburg GmbH (BeOne) by the Principal (Principal or Borrower), in particular for services and work contracts as well as for the provision of employees. Furthermore, these GTC apply to all products which the CL purchases from BeOne. The products are sold exclusively in commercial business transactions. The GTC also apply to all future services (contractual relationships) with BeOne, even if they are not separately agreed upon again.
1.2. Terms and conditions of the CL or third parties do not apply, even if BeOne does not separately object to their validity in individual cases. Even if BeOne refers to a letter that contains or refers to terms and conditions of the CL or a third party, this does not constitute an agreement with the validity of those terms and conditions.
2. Offer, Conclusion of Contract and Changes to Contract
2.1. All offers of BeOne are binding for 10 calendar days from the date of preparation and transmission to the CL or until the date stated in the offer (acceptance period); thereafter the offers are subject to change and non-binding. BeOne may accept orders within 14 days after receipt.
2.2. Oral promises made by BeOne prior to the conclusion of the contract are not legally binding and oral agreements of the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding. Additions and amendments to the agreements made, including these GTC, must be in writing to be effective. With the exception of managing directors or authorised signatories, BeOne’s employees are not entitled to make any deviating agreements.
2.3. All information provided by BeOne regarding the subject matter of the delivery or service (e.g. dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings, illustrations, plans, etc.) are only approximately authoritative unless the usability for the contractually intended purpose requires an exact conformity (definition) or such conformity has been contractually agreed. They are not guaranteed quality features, but descriptions or identifications of the performance. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
2.4. Changes to the scope of the contractually agreed performance during the execution of the order shall be agreed in writing. BeOne shall submit a supplementary offer (change of performance, adjustment of remuneration, etc.) to the CL, which must be accepted within 5 working days. If no timely acceptance is made by the CL, the contract amendment shall be deemed not to have been agreed. Irrespective of this, BeOne shall also be entitled to an adjustment of the remuneration without a written agreement if contract amendments are carried out in agreement with the CL.
2.5. In the event of rejection of the supplementary offer by the CL, BeOne is entitled to temporarily suspend the provision of services with regard to the change in services until agreement has been reached on a corresponding adjustment of the remuneration, if BeOne has notified the CL of this at least 3 working days in advance. Any delays resulting from this shall not be at the expense of BeOne.
3. prices, terms of payment
3.1. Prices can be agreed as a binding fixed price or on an hourly basis; they are quoted in EURO and do not include the statutory value added tax. If the type of remuneration and invoicing mode have not been expressly agreed, monthly invoicing shall be based on hourly expenditure.
3.2. The prices stated in the offer shall apply exclusively as prices. Any accessories to the product are not part of the order unless explicitly mentioned in the offer. Packaging and shipping costs shall be charged separately.
3.3. Invoices are due for payment within 30 days of the invoice date without discount. If the Principal is in default, the amounts outstanding for payment shall be subject to interest from that time onwards at the rate of 9 percentage points above the respective base interest rate. The right to claim higher interest or further damage caused by default remains unaffected.
3.4. BeOne is entitled to perform or render outstanding services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the CL and which jeopardise the payment of BeOne’s outstanding claims by the CL.
3.5. Offsetting against counterclaims of the OP or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.
4. the principal’s duty to cooperate
4.1. The CL shall provide BeOne with all information and documents required for the performance of the services in a timely manner and shall perform all duties to cooperate incumbent upon him without delay.
4.2. If the CL does not fulfil his duties to cooperate in good time, in particular to provide the necessary documents, information and data, any delays resulting therefrom shall be at his expense.
4.3. The CL shall be liable to BeOne for ensuring that the documents, information and data provided by him are free of errors and free of third party intellectual property rights which exclude or impair the contractual use of BeOne.
5. termination provisions
BeOne is entitled to terminate the contract for good cause if the CL fails to perform an act for which it is responsible and thereby puts BeOne out of the position to perform the service or if the CL fails to make due payments or otherwise defaults. In this case BeOne is entitled to remuneration for the performance of the service until receipt of the termination. In all other respects the statutory provisions shall apply in the event of termination.
6. Non-disclosure agreement and archiving obligations
6.1. The CL and BeOne are mutually obliged to treat all information regarding the business and operational affairs of the respective other party as strictly confidential and to use it only within the scope of the contractual provisions and not to pass it on to third parties. This shall also apply if no contractual relationship is established after the exchange of confidential information.
6.2. Suppliers or subcontractors commissioned by BeOne to provide services are not considered third parties. BeOne will oblige suppliers and subcontractors to the same extent to maintain confidentiality in accordance with section 6.1.
6.3. BeOne has the right to destroy the project documentation after the expiry of the applicable warranty and/or limitation periods, unless the contracting parties make a separate agreement regarding the archiving of the project documentation.
7. Liability – Compensation
7.1. BeOne’s liability for damages, irrespective of the legal reason, in particular due to impossibility, delay, defective or wrong delivery or service, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this clause 7.
7.2. BeOne is not liable in case of simple negligence of its organs, legal representatives, employees or other vicarious agents, as far as it does not concern a breach of essential contractual obligations. Material contractual obligations are the obligation to perform in a timely manner and free of defects as well as advisory, protective and custodial obligations which are intended to enable the Principal to use the performance in accordance with the contract or which are intended to protect life and limb of the Principal’s personnel or third parties or the Principal’s property from significant damage.
7.3. Insofar as BeOne is liable on the merits for damages according to section 7.2, this liability is limited to damages which BeOne foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or which BeOne should have foreseen taking into account the circumstances which were known or which BeOne should have known when exercising due care. Indirect damages and consequential damages which are the result of defects in the provision of the service are furthermore only compensable insofar as such damages are typically to be expected when using the service as intended.
7.4. In the event of liability for simple negligence, BeOne’s liability to pay compensation for damage to property and further financial losses resulting therefrom is limited to the amount of the remuneration for the individual order, unless the existing business liability insurance is liable to pay in the event of damage; this also applies in the event of a breach of material contractual obligations. The above exclusions and limitations of liability apply to the same extent in favour of BeOne’s corporate bodies, legal representatives, employees and other vicarious agents.
7.5. Insofar as BeOne provides technical information and/or advice and this information and/or advice is not part of the contractually agreed scope of services owed, this is provided free of charge and to the exclusion of any liability.
7.6. The Principal’s claims for damages shall become statute-barred after 12 months. The limitation period shall commence with the passing of risk in the case of purchase contracts and with acceptance in the case of work performance. In the case of other claims, e.g. from service contracts, the limitation period shall begin at the end of the year in which the Principal becomes aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware without gross negligence.
7.7. The limitations of liability according to Clauses 7.2 – 7.6 do not apply to BeOne’s liability for wilful misconduct, for guaranteed characteristics, for injury of life, body or health or according to the German Product Liability Act.
8. copyrights and rights of use
8.1. BeOne reserves the right of ownership or copyright of all submitted offers and cost estimates as well as data, software programs, software tools, drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the CL, especially in the offer process (pre-contractual area). The CL may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of BeOne, neither as such nor in terms of content. Upon BeOne’s request the CL shall return these items in full and destroy any copies made if they are no longer required by the CL in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
8.2. For all works and work results as well as employee inventions developed by BeOne on behalf of the CL, BeOne grants the CL, upon payment in full, the exclusive and temporally unlimited right to use them to the extent described in the respective order.
8.3. If drawings, models, samples or other data are included in the customer’s requirement profile, the customer is responsible for ensuring that their use does not infringe the property rights of third parties. The CL shall indemnify BeOne against claims of third parties in this respect and pay compensation for any damage incurred.
9. retention of title
BeOne reserves the right to reclaim the delivered goods and services until full payment of all purchase price claims by the CL.
9.1. The items of the Supplies (Retained Goods) remain the property of BeOne until all claims against the Purchaser to which BeOne is entitled under the business relationship have been fulfilled. If the value of all security interests to which BeOne is entitled exceeds the amount of all secured claims by more than 20 %, BeOne will release a corresponding part of the security interests at the request of the OP.
9.2. During the existence of the retention of title, the OP is prohibited from pledging or reselling or transferring the goods by way of security.
9.3. In the event of pledges, seizures or other dispositions or interventions by third parties, the OP must notify BeOne immediately.
9.4. In the event of breaches of duty by the CL, in particular in the event of default in payment, BeOne is entitled to withdraw from the contract and take back the goods after the unsuccessful expiry of a reasonable deadline set for the CL to perform; the statutory provisions on the dispensability of setting a deadline remain unaffected. The CL shall be obliged to surrender the goods.
9.5. The processing or transformation of the Reserved Goods by the Purchaser shall always be carried out in the name of and on behalf of BeOne. In this case the expectant right of the OP to the goods subject to retention of title of the transformed object shall continue. If the goods subject to retention of title are processed with other objects not belonging to BeOne, BeOne acquires co-ownership of the new object in proportion of the objective value of the product to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the product of the CL is to be regarded as the main product, it is agreed that the CL transfers co-ownership to BeOne on a pro rata basis and keeps the sole ownership or co-ownership thus created in safe custody for us.
10. enticement clause, contractual penalty
The CL undertakes to refrain from soliciting employees of BeOne and other persons contractually associated with BeOne, who are involved in the provision of services or the production of a work within the scope of the order processing, for his own company or third parties or to support solicitation activities. This obligation to refrain applies for the entire duration of the project as well as for one year after the end of the project. Any direct or indirect influence on an employee of BeOne or other persons contractually associated with BeOne with the aim of establishing a new employment relationship or entering into an employment contract with the Client or a third party is considered to be enticement. A contractual penalty of EUR 30,000 is payable for each case of infringement.
B WORK CONTRACTS
11. the following terms and conditions shall apply additionally to the conclusion of contracts for work and services:
11.1. Delivery dates Delivery dates shall be agreed in individual contracts, if applicable. If no dates are agreed, the latter shall be determined at our discretion.
11.2. Place of Performance The order shall be executed at the premises of BeOne. The complete or partial execution at the Principal’s premises can be agreed upon, especially if continuous technical discussions or technical coordination are required. The right to issue instructions to its vicarious agents and employees is exclusively incumbent upon BeOne. This shall not affect the CL’s right to issue instructions for the execution of the order in individual cases.
11.3. Acceptance The handover of the services shall be specified in writing in an acceptance protocol. If acceptance is not possible at the time of handover of the service or the work, the CL is obliged to declare acceptance to BeOne in writing without delay, but at the latest within 2 weeks after handover of the work or the service result. BeOne must also be notified in writing of any defects within this period. If the Principal does not refuse acceptance in writing within 2 weeks after handover of the work or the result of the service, acceptance shall be deemed to have been granted. Acceptance shall also be deemed to have taken place in the event of the sale of the work or the intended use of the work or the performance by the CL or third parties. In the case of completed partial performances, BeOne shall have the right to demand that partial acceptances be carried out.
11.4.1. In the event of defects in the service, BeOne shall be given the opportunity to repair the service within a reasonable period of time or to produce the work again, initially to the exclusion of any further claims by the CL.
11.4.2. If the repair/reproduction fails despite at least two attempts at subsequent performance, the OP may demand a reduction in price or rescission as well as damages within the scope of the limitation of liability pursuant to clause 7. Insignificant defects (insignificant deviation from the agreed quality or insignificant impairment of usability) shall not entitle the Principal to withdraw from the contract. Self-remedy by the CL is excluded unless BeOne agrees to it in writing.
11.4.3. If the CL or third parties carry out improper repair work or changes to the service result/work, no warranty claims shall exist for these and the resulting consequences. Claims of the CL for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that the expenses are increased because the Work delivered by BeOne has subsequently been taken to a place other than the CL’s place of business, unless such transfer is in accordance with its intended use.
11.4.4. The warranty period shall be 12 months. The warranty period shall commence upon acceptance or, if later, upon performance of the last service to be rendered under the contract.
C SERVICE CONTRACTS
11.5. In the case of service contracts, the following terms and conditions shall apply in addition: Without prejudice to the right to terminate without notice, service contracts may be terminated by either party with 8 weeks’ notice to the end of the month.
D EMPLOYEE LEASING CONTRACTS
11.6. The basis for the calculation of BeOne’s remuneration is the contractually agreed hourly rate plus the statutory value added tax.
11.7. The following surcharges shall be added to the agreed hourly rate: Overtime in the amount of 25 % Night work (from 22:00-6:00) in the amount of 20 % Work on Sundays and public holidays in the amount of 50 % Work on 1 May, Christmas, Easter or New Year in the amount of 100 %.
11.8. If several surcharges coincide, only the highest surcharge shall be paid. Further additional costs shall be incurred for business trips carried out on behalf of the hirer. Business trips shall be invoiced according to expenditure. Travel time shall be treated as working time.
11.9. In the event of permanent employment of a temporary employee during the project term and up to six months after termination of the temporary employment, BeOne shall charge the HIRER a placement commission in the amount of 3 monthly salaries of the placed temporary employee.
11.10. Within the framework of employee leasing contracts BeOne as the Lender does not assume any bank guarantees, in particular not for any recourse claims due to the claim of the Lender by the competent collection agency for social security contributions according to § 28 e II SGB IV.
E FINAL PROVISIONS
12. The place of jurisdiction for all claims arising from or in connection with the contractual relationship shall be the respective registered office of BeOne. German law shall apply exclusively. Insofar as the contract or these GTC contain invalid clauses or loopholes, those legally valid provisions shall be deemed to have been agreed which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC if they had known of the invalidity of the clause or the loophole.