§ 1 Scope of application
1.1 These GTC apply to all services and offers of EnSi Solutions GmbH (“Provider”) to its customers. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
1.2 Terms and conditions of the customer or third parties shall not apply, even if the provider does not explicitly object to their validity in individual cases. Any reference by the Provider to letters or e-mails from the Customer that contain the Customer's GTC shall not constitute consent to the validity of those GTC.
1.3 The Provider has the right to amend and/or supplement these GTC unilaterally with effect for the future, insofar as this is necessary to safeguard legitimate interests. The Customer shall be informed in advance of any intended amendments or additions to these GTC with a reasonable period of notice. If the customer does not object to the validity of the new GTC within two weeks of notification (the “objection period”), the amended GTC shall be deemed to have been accepted by the customer. In its notification, the provider shall refer to the right of objection and the significance of the objection period. In the event of an objection, the customer may continue to use the service in accordance with the previous version of the GTC.
1.4 If the parties make agreements that deviate from these GTC, these shall take precedence over the provisions of the GTC. Deviating agreements must be in text form to be effective and must be explicitly confirmed by the provider.
1.5 The Provider concludes contracts exclusively with entrepreneurs, i.e. with persons who pursue a self-employed professional (secondary) activity. By concluding the contract, the Customer therefore warrants that it is an entrepreneur in this sense and is concluding the contract in this capacity
§ 2 Service obligations
2.1 The Provider shall provide consulting services in the area of product protection, in particular through product tests, environmental simulations and more.
2.2 The content and scope of the services owed shall be specified in the contractual offer. With regard to the performance of these services, the provider has a right to determine the performance in accordance with § 315 BGB.
2.3 The Customer shall promote the provision of services by the Provider through appropriate acts of cooperation. In particular, it shall provide the Provider with the necessary information and data free of charge and in good time. In addition, the Customer shall provide the necessary working materials at the Provider's first request.
2.4 The Provider shall also be entitled to have vicarious agents / subcontractors provide the services owed to the Customer.
2.5 Should the use of image material become necessary in the course of cooperation, the Customer shall provide the Provider with all rights of use and processing rights thereto for the purpose of fulfilling the contract or organize a sufficient license in each case.
2.6 If the parties determine that services are to be provided by the Provider that go beyond the agreed range of services, these shall be remunerated separately at an hourly rate to be determined by the Provider. In case of doubt, an hourly rate customary in the market shall be deemed agreed.
2.7 Unless expressly agreed otherwise in writing, the Provider shall not owe the Customer the provision of a specific result (work).
2.8 The Customer shall ensure the usual conduct of a bona fide businessman towards the Provider. The Provider reserves the right to prosecute any unlawful statements about the Provider and its services, whether by customers, competitors or other third parties, in particular untrue factual claims and abusive criticism, under civil law and also to bring criminal charges without prior notice.
2.9 The parties undertake to keep secret all business and trade secrets and confidential information that they receive or become aware of from the other party in the course of performing the contract and to maintain confidentiality in this regard. This confidentiality obligation shall continue to exist even after termination of the contractual relationship.
§ 3 Conclusion of contracts
3.1 The presentation of the services on the website, in social networks, in advertisements and brochures does not constitute a binding offer by the provider to conclude a contract.
3.2 The contract between the Provider and the Customer may be concluded by telephone, in writing or in text form.
§ 4 Services subject to acceptance
4.1 Insofar as the Provider provides services for the Customer that are subject to acceptance, the following points of this paragraph (4.2 to 4.7) shall also apply:
4.2 The Provider may demand acceptance of each partial service from the Customer after completion of the respective partial service and, in addition, overall acceptance of all services after completion of all customization services. The Provider reserves the right to demand corresponding advance payments for partial services. Changes shall be made within the scope of up to two correction loops without additional remuneration. Any additional services shall be remunerated by the customer.
4.3 The Provider may request the Customer to accept the goods in part or in full within a period of one week. It shall be deemed accepted upon expiry of the deadline if the customer has not declared to the provider in writing which defects still need to be rectified. The customer shall draw up a record of any defects and hand it over to the provider. The risk of transmission lies with the customer.
4.4 The (partial) service of the Provider to be accepted shall also be deemed accepted if the Customer does not declare acceptance of the respective (partial) service in writing within 7 working days at the request of the Provider.
4.5 If defects are identified by the Customer, the Provider shall be entitled to process and rectify them. In the event of a significant defect, the Provider shall be entitled to rectify the defect twice within a reasonable period to be set by the Customer.
4.6 If the Provider is prevented from providing the agreed services and the reasons for the hindrance originate from the Customer's sphere, the Provider's claim to remuneration shall remain unaffected.
4.7 Claims with regard to defects that were recognizable during the acceptance test shall only exist if the customer asserts or reserves the right to assert them during the acceptance test.
§ 5 Terms of payment
5.1 The prices stated and communicated by the Provider are binding and are net prices plus VAT. The amount of remuneration shall be determined in accordance with the agreement reached between the parties.
5.2 The Provider shall issue the Customer with a proper invoice showing VAT (if applicable, through vicarious agents). Invoices are due for payment in full without deductions immediately upon receipt, even in the case of pro rata (monthly) payment.
5.3 Payment shall be made by bank transfer.
5.4 Subject to an earlier reminder, the customer shall be in default no later than 14 days after the due date and receipt of an invoice or equivalent request for payment. In the case of pro rata (monthly) payment, this shall additionally only apply from the day following the respective payment date.
5.5 If the Customer is in arrears with payments due, the Provider reserves the right not to provide further services until the outstanding amount has been settled.
5.6 If the Customer is in arrears with at least two payments due to the Provider in the case of payment by installments (for term contracts), the Provider shall be entitled to terminate the contract extraordinarily and discontinue the services. The Provider shall be entitled to claim the entire remuneration due by the next ordinary termination date as compensation.
5.7 Offsetting against counterclaims shall only be mutually permissible if the other contracting party has acknowledged the offsetting or if this has been legally established. The same applies to the exercise of a right of retention by one contracting party.
5.8 Deadlines for the provision of services by the Provider shall not commence before the invoice amount due has been received by the Provider and the data required for the services has been received by the Provider in full in accordance with the agreement or the necessary cooperation has been provided in full.
§ 6 Termination
6.1 The contract shall have the minimum term agreed individually (by telephone or in writing) between the parties.
6.2 Ordinary termination of service contracts (consulting) is excluded. For the ordinary termination of contracts for work (e.g. the creation of a test plan), § 7 of these GTC shall apply.
6.3 Terminations must be in text form to be effective.
6.4 The right to extraordinary termination for good cause shall always remain unaffected.
§ 7 Cancellation / cancellation costs
7.1 If the Customer cancels an order before the start of the provision of services, the Provider shall be entitled to a lump-sum compensation payment amounting to 15% of the order volume.
7.2 If the Provider claims lump-sum compensation in accordance with 7.1, the Customer shall be entitled to prove that less damage or no damage at all has been incurred.
7.3 The Provider reserves the right to claim higher, individually calculated compensation instead of the flat-rate compensation in accordance with 7.1, provided that it can be proven that significantly higher expenses than the applicable flat rate have been incurred. In this case, the provider is obliged to quantify and substantiate the compensation claimed, taking into account the expenses saved and any other use of the services.
§ 8 Rights of use
8.1 The Provider shall grant the Customer an exclusive right of use to the simple rights of use created, arising or acquired or to be acquired by the Customer in connection with its services. This does not include the right to edit. This is not transferred.
8.2 The transfer shall be subject to the proviso that the customer has paid the remuneration to which the provider is entitled under the contract in full and on time. If payment in installments has been agreed, the right of use specified in Section 8.1 shall not be transferred to the Provider until the last installment has been paid in full, unless otherwise agreed individually.
8.3 The publication and forwarding of the work and service results to third parties (including affiliated companies) is excluded.
§ 9 Liability
9.1 The provider is liable without limitation for intent and gross negligence. In the event of simple negligence, the Provider shall only be liable for damages resulting from injury to life, limb or health or from a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely; in this case, however, liability shall be limited to compensation for foreseeable, typically occurring damage.
9.2 Within the limits of 10.1, the Provider shall not be liable for loss of data or programs. Liability for data loss shall be limited to the amount of the typical restoration costs that would have been incurred if backup copies had been made regularly and in accordance with the risks involved. Liability under the Product Liability Act remains unaffected at all times, as does liability for the assumption of a guarantee.
9.3 The above limitations of liability also apply in favor of the legal representatives and vicarious agents of the provider.
§ 10 Final provisions
10.1 The law of the Federal Republic of Germany shall apply.
10.2 Should individual provisions of these GTC, including this provision, be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The invalid or missing provisions shall be replaced by the respective statutory provisions.
10.3 The place of performance and exclusive place of jurisdiction shall be the registered office of the Provider.