I. Object and Scope
The following General Terms and Conditions (GTCs) apply to all consultancy agreements and other services of Pawlik Consultants GmbH. These GTCs form part of all agreements that are concluded, unless agreed otherwise in individual cases. They also apply to future business relationships with the client, without the need for explicit reference to their inclusion. The client’s differing general terms and conditions and amendments and additions to these GTCs only apply to the extent that Pawlik Consultants GmbH acknowledges them in writing. This also applies if the client’s terms of business and/or delivery have not been explicitly rejected.
II. Content of the Assignment
The assignment, the procedure and the type of work documents or training content to be provided are regulated in the written agreements between the contracting parties. Pawlik Consultants GmbH may use the services of expert third parties to fulfill its obligations.
III. Copyrights and Rights of Use, Ownership
All designs, concepts, ideas, works, etc. created by Pawlik Consultants GmbH are copyrighted works as defined by Section 2 of the German Copyright Act (UrhG), even if they do not fulfill the requirements of this Section 2. All deliverables from Pawlik Consultants GmbH must therefore not be used or processed beyond the contractual purpose without the consent of Pawlik Consultants GmbH. If rights are transferred, the scope of the transfer in respect of space, time and content is based exclusively on the contractual agreements or the contractual purpose; Section 31(5) UrhG applies accordingly. The rights are transfered to the client only when full payment has been received for the assignment. Ownership of the work results produced by Pawlik Consultants GmbH transfers to the client only when full payment has been received for the assignment.
IV. Exclusion of Competition; Confidentiality
Pawlik Consultants GmbH undertakes to inform the client of potential competition conflicts with other companies and, upon request, undertakes to exclude competition for product and service areas defined in individual cases for the benefit of Pawlik Consultants GmbH. Pawlik Consultants GmbH undertakes to maintain confidentiality in respect of all confidential matters of which it becomes aware when executing the agreement. The client guarantees that it will refrain from all actions that could jeopardize the independence of Pawlik Consultants GmbH employees. The client therefore undertakes not to employ, otherwise engage or make such offers to Pawlik Consultants GmbH employees involved in the contractual project during the term of the consultancy agreement with Pawlik Consultants GmbH and for 24 months afterwards.
Unless a fixed fee is agreed, the actual costs will be invoiced on the basis of the current daily rates of Pawlik Consultants GmbH. The client bears all expenses associated with the execution of the assignment. The prices set out in the valid price list of Pawlik Consultants GmbH apply to daily allowances and car journeys. The agreed prices are subject to statutory sales tax. Invoices are payable in full immediately after receipt. Counterclaims may only be offset and a right of retention only asserted if the client’s claims are undisputed or established in law.
VI. External Costs
External and ancillary costs, such as costs for engaging expert third parties and expenses for telephone, fax, courier, etc. are to be paid to Pawlik Consultants GmbH separately on production of proof, unless a lump-sum agreement has been made. Pawlik Consultants GmbH is entitled to outsource all external services required to fulfill the assignment on behalf of and to the account of the client.
VII. Securing Services
The commissioned services cannot be canceled. Fixed appointments to execute the commissioned service must be agreed and realized within 12 months of the assignment being placed. If the client does not meet this obligation in due time or at all, the client will be charged the fee in full. If Pawlik Consultants GmbH cannot meet an agreed appointment to execute the service due to force majeure, illness, accident or other circumstances for which Pawlik Consultants GmbH is not responsible, Pawlik Consultants GmbH is entitled, without any obligation to pay damages, to provide the services at a newly agreed appointment or have these rendered by another employee. If the client cannot meet a firmly agreed appointment or defaults on acceptance of the services, the following applies: 50% of the fee, plus any external costs will be charged as a cancellation fee in the event of postponement of the service 4 to 2 months prior to the appointment agreed for execution of the service; 100% of the fee will be charged after this time.
The client is liable without limitation for damage of all kinds that it causes intentionally or in a grossly negligent manner, or even in a simple negligent manner in cases of injury to life, limb or health. In case of simple negligent breach of an obligation, the fulfillment of which is obviously of particular relevance for achieving the contractual purpose, the liability of Pawlik Consultants GmbH is limited to contractually typical, foreseeable direct damage. In such cases, the liability of Pawlik Consultants GmbH, irrespective of the legal grounds, is also limited to the assignment amount per damage event and year. A damage event is to be understood as the sum of the claims of all eligible claimants resulting from a single service. Liability for damage caused by simple negligence is excluded in other cases. If the client would like supplementary insurance from a liability insurer, the client must refer to this. The client bears the costs of the supplementary insurance in this case, if obtained. It is not the responsibility of Pawlik Consultants GmbH to review legal issues, especially in relation to copyright, competition and trademark law. Pawlik Consultants GmbH is therefore not liable for the legal admissibility of the content and/or form of work results. If third parties bring claims for injunctive relief or damages or similar against Pawlik Consultants GmbH due to the form and/or content of work results, the client will release Pawlik Consultants GmbH from any liability.
IX. Final Provisions
The place of fulfillment for delivery and payment and the place of jurisdiction for all disputes between the contracting parties is Hamburg if the client is a business person, legal person under public law or public law special fund. The place of jurisdiction also applies to persons other than those specified above if the client does not have a place of general jurisdiction in Germany, transfers his place of residence and/or business outside of Germany immediately after contract conclusion or his place of residence and/or business or habitual abode is not known at the time that the action is filed. The invalidity of individual conditions does not affect the validity of the rest of the agreement. Any invalid clauses are to be replaced by a supplementary interpretation of the agreement. Unless agreed otherwise, German law also applies to contractual relationships with foreign clients.
As at 02/2013