Unless anything to the contrary has been agreed (such as in regard to any services which have been agreed upon as ancillary services within the scope of a purchase contract), exclusively these General Terms and Conditions of Contract shall apply to any services to be provided by us and corresponding pre-contractual obligations in business dealings.
The Customer’s Contract Terms and Conditions shall not form part of the content of the contract, even if we do not explicitly object to them.
Even if no further reference is made to them when future contracts of a similar nature are concluded, exclusively the version of our General Contract Terms and Conditions that is accessible on our website www.workingwell.com at the time of the customer’s contractual declaration being submitted shall apply, unless the contractual partners have agreed anything else in writing.
Conclusion of the contract
Unless they are designated as binding in writing, our offers are non-binding and subject to change without notice. They only become legally binding through the contract being signed by both parties or through our written order confirmation, and otherwise also through our commencing the performance after having received the corresponding order. Should the customer make contractual declarations vis-à-vis us, we may require them to be confirmed in writing.
The customer shall be bound, for two weeks, to his, her or its declarations in regard to concluding a contract.
Separate contracts are to be concluded for supplies and services of any other kind. Both contractual partners shall be free to conclude such contracts.
Subject matter of the contract, scope of services
Unless anything to the contrary has explicitly been agreed, we shall only owe the services that have been precisely laid down contractually, which we provide while simultaneously observing the generally recognized rules of technology and the statutory requirements
Determinative for the scope, nature and quality of the services is the contract, signed by both parties, or our order confirmation, and otherwise our offer. Any other details or requirements will only form part of the contract if the contractual partners have explicitly agreed to them in writing or we have confirmed them in writing. Any subsequent amendments to the scope of services shall require a written agreement or our written confirmation.
The customer shall be required to make known to us all the facts relevant to us carrying out our services, in their entirety and accurately. We are not obliged to check the data, information or other services provided by the customer for its completeness and accuracy, unless there is reason to do so under consideration of the respective circumstances of the individual case or the order expressly includes this obligation.
Insofar as it is necessary for us to carry out our services, the customer shall be required to grant us access to its premises at any time during normal business hours, and provide all the necessary documents (e.g. construction drawings, room plans, etc.). Should the customer be required to co-operate with us in carrying out our services, on one occasion or more, it needs to do so at its own expense. No expenses can be reimbursed to the customer unless this has been agreed in writing. Should the customer fail to comply with said obligations to co-operate or fail to provide the information laid down in subsection 3 above, fail to do so in good time, or fail to do so in proper form, we shall be entitled to charge it for any additional expenses incurred thereby. This also applies in the event of any services or partial services provided by us based on subsequent amendments that are not attributable to us proving to no longer be utilizable. We expressly reserve the right to assert any further statutory claims.
Work results and rights in the latter
When carrying out the order placed with us, we provide services; we do not render work services. Should our services nonetheless exceptionally require acceptance, the customer shall be obliged to carry out the acceptance. Irrespective of the customer’s rights to assert statutory claims for defects, any minor defects which do not seriously impair the suitability of the service for the contractually established purpose shall not entitle the customer to refuse to accept the services. In the case of self-contained partial services, we may also require partial acceptances.
Intellectual services shall be deemed to have been accepted, unless the customer explicitly puts forward reservations in written form, giving a specific description of individual deficiencies, within 14 days of receipt of the respective services. In the event of such a reservation being put forward, we will review our services. Should such a reservation on the part of the customer transpire to be unjustified, the customer shall bear the additional costs incurred, unless the customer only acted with slight negligence.
Subject to the reservation of full payment of the remuneration to which we are contractually entitled, we hereby grant the customer a non-exclusive, non-transferable right of use, unlimited by time or place, to the work results provided by us in the execution of the order. Any ideas and concepts handed over or transmitted by us in any other way prior to the order being placed shall remain our sole property. In particular, the customer shall not be entitled to exploit such ideas and concepts, or have them exploited by third parties, without our consent.
The passing on and utilization of our services beyond the scope of the contractually established purpose, in particular publishing them, shall only be permitted with our prior written consent. Solely the customer shall be responsible for complying with the applicable statutory provisions in regard to the utilization of our services. To that extent, the customer shall be required to indemnify and release us from any claims made by third parties as well as any necessary expenses of its own in connection therewith.
Time of performance, delays, place of performance
Information on dates and times for deliveries and services are non-binding unless we designate them as binding in writing. We shall be entitled to make partial deliveries insofar as the parts supplied can be reasonably used by the customer.
Deadlines for deliveries and services shall be extended by the period of time in which the customer has fallen into arrears with payment, under the contract, and by the period of time in which we, through circumstances which are not our fault, are prevented from delivering or providing services, and by a reasonable lead time once the reason for the impediment is over. Such circumstances shall also include Acts of God and industrial action. Deadlines will be deemed to have been extended by the period of time during which the customer, contrary to contract, fails to comply with its requirement to co-operate, e.g. fails to provide certain information, fails to provide access, does not provide necessary ancillary equipment or fails to make staff available.
Should the contractual partners subsequently agree upon different or additional services, which have an impact upon agreed deadlines, said deadlines shall be extended by a reasonable period of time.
Any reminders and deadlines set by the customer shall require to be laid down in writing in order to be valid. Any grace period needs to be acceptable. A deadline of less than two weeks shall only be considered reasonable if particular urgency exists.
The place of performance shall be the place at which the service is to be provided. Unless anything to the contrary has explicitly been agreed, we shall in principle be free to choose the place of performance and the method of providing our services, as well as the scheduling of the time required for our work. Otherwise, Munich shall be the place of performance for any performances arising from and in connection with this contract.
Binding nature of the contract and termination of the contract
Any termination of the further exchange of services (e.g. in the event of withdrawal from contract, a reduction in the price, termination for a significant reason, compensation for damage in lieu of performance) always needs to be notified in advance, specifying the reason and setting a reasonable grace period for remedy (which, except in emergencies, shall be at least two weeks), and may only be declared within two weeks of the deadline expiring. In the cases stipulated by law (cf. Section 323(2) of the German Civil Code (BGB)), the setting of a deadline may be dispensed with. Whoever is wholly or predominantly responsible for the impairment of performance may not demand rescission.
All declarations in this regard shall require to be laid down in writing in order to be legally valid.
The agreed remuneration is to be paid in accordance with the agreed payment schedule and receipt of the invoice by the customer, without any deduction and within 14 days.
In the absence of any other written agreements, our respective price list and list of terms and conditions shall apply.
Travelling expenses, allowances and accessories are to be remunerated in addition, in line with expenditure. Any additional services required by the customer (e.g. advice and support) will be invoiced in accordance with our respective current price list.
The statutory VAT is to be paid in addition to any remuneration.
The customer may only offset our claims with claims which are recognized by us in writing or have been established as being final and non-appealable. Except in the field covered by Section 354(a) of the German Commercial Code (HGB), the customer may only assign any claims arising from this contract to third parties with our prior written consent. The customer shall only be entitled to assert a right of retention or the objection of the contract not having been fulfilled within this contractual relationship.
Should we have provided a deficient performance, unless it is unacceptable in the individual case, or particular circumstances exist, which, when weighing up the interests of both parties justify immediate withdrawal by the customer, the customer shall be required to give us the opportunity to make at least two attempts at subsequent fulfilment within acceptable deadlines. We shall in any case have the choice between remedying the defect and subsequent delivery or fulfilment. Should the subsequent fulfilment be unsuccessful, the customer shall be entitled to reduce the remuneration or withdraw from the contract, including the statutory claims of withdrawal and compensation for damage. However, no claim to withdrawal and compensation for damage shall exist if the deviation from the quality owed is only insignificant.
Apart from the cases mentioned in subsection 1, a right of withdrawal shall only exist, on the part of the customer, if we are at fault in regard to the breach of duty based on which the withdrawal is supposed to be declared.
Any obvious defects need to be asserted without delay, and latent defects without delay after discovering them – however within the warranty period.
Defects in title
We guarantee that no rights of third parties are in conflict with the contractually agreed use by the customer.
The customer shall be obliged to inform us in writing, without delay, if third parties assert any rights against it.
Article 8 (1) and (3) shall apply mutatis mutandis.
We shall only pay compensation for damages or reimburse any futile expenses, irrespective of on what legal grounds (e.g. based on contractual and quasi-contractual obligations, defects in quality or title, breach of duty and tort) to the following extent:
The liability in the case of willful intent, fraudulent intent or based on a guarantee shall be unlimited.
In the case of gross negligence, we shall be liable in the amount of the damage that is typical and foreseeable at the time of concluding the contract.
In the case of slight negligence of a cardinal obligation (an obligation the fulfilment of which first makes it at all possible to duly implement the contract, and compliance with which the contractual partner usually trusts and may trust, and the infringement of which jeopardizes achieving the contractual purpose), we shall only be liable in the amount of the damage that is typical and foreseeable at the time of concluding the contract, however, not exceeding EUR 25,000 per case of damage and EUR 50,000 for all cases of damage arising from and in connection with the contract as a whole.
In the event of injury to life, the body and the health, and in the case of any claims arising from the Product Liability Act, the statutory provisions shall apply, without limitation.
Statute of limitations
The period of limitation for any claims arising in accordance with Art. 8 – Art. 10 shall be:
In the case of defects in quality for claims to reimbursement of the remuneration due to withdrawal or a reduction in the price, one year as from delivery, however, for notices of defects complained about in proper form within the period of limitation, not less than three months as from submission of the valid declaration of withdrawal or a reduction in the price;
in the case of claims arising from defects in quality, one year;
in the case of claims arising from defects in title, two years;
in the case of any claims not based on either defects in quality or defects in title, for compensation for damages or reimbursement of futile expenses, two years. The period of limitation shall commence as at the date on which the customer has become aware of the circumstances substantiating the claim or would have had to have become aware of them without being grossly negligent.
The period of limitation shall commence at the latest upon the expiry of the maximum deadlines laid down in Section 199 German Civil Code (BGB). In the case of compensation for damage and reimbursement of expenses arising from willful intent, gross negligence, any guarantee, fraud, and in the cases specified in Art. 10(2), subsection 1 shall not apply.
Reservation of ownership
The ownership in the documents and items supplied and rights in accordance with Art. 4 shall only pass to the customer upon the contractual remuneration being paid in full.
Confidentiality and data privacy
The contractual partners undertake to treat all items received by them from the other respective party or which become known to them, either prior to or during the process of fulfilling the contract (e.g. software, documents, information), that are either legally protected or contain business or trade secrets or are marked confidential, as confidential, also beyond the termination of the contract, unless they are publicly known without this constituting any infringement of the confidentiality obligation. The contractual partners shall keep said items safe and secure them in such a way that access by third parties is excluded.
We process the customer’s data required in order to do business with the customer in compliance with the data privacy provisions. We shall be entitled to name the customer as a reference customer.
Any amendments and supplements to the contract must be made in writing to be effective. The written form requirement may only be waived in writing. Compliance with the written form requirement is a prerequisite for the validity of the respective declaration. Transmission in text form, in particular by fax or e-mail, shall be sufficient to comply with the written form requirement.
The law of the Federal Republic of Germany shall apply under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Place of performance and exclusive place of jurisdiction for all disputes arising from and in connection with this agreement shall be Munich if the contractual partner is a merchant or entrepreneur.
Should one or more provisions of the contract be or become invalid, this shall not affect the validity of the remaining provisions of this contract. In this case, the contractual partners undertake to replace the invalid provision with a valid provision that comes as close as possible to the invalid provision in terms of its meaning and purpose and its economic significance. The same procedure shall be followed if a contractual gap requiring supplementation should become apparent during the execution of the contract..