General contractual terms and conditions
esploro® projects GmbH
Section 1 - General
The basis for the contract is the respective measures and costs agreed between esploro® projects GmbH and the Client.
hese general contractual terms and conditions apply to all contracts concluded between esploro® projects GmbH and their clients. Conflicting or deviating business and/or contractual terms shall not be recognised, unless their validity is agreed in writing.
Section 2 - General
The services provided by esploro® projects GmbH are services within the meaning of the Dienstleistungsrecht [Act on Service Provision] in accordance with the German Civil Code BGB. Thus it is the delivery of agreed measures, and not their success, that is owed.
The parties agree that the strictly contractual nature of the service obligation of esploro® projects GmbH shall not be affected even if esploro undertakes to provide written records of the results of its service as well as creating and transmitting progress reports, project plans, slides and the like.
In the event of force majeure that makes performance of the service more difficult or impossible, esploro® projects GmbH may postpone fulfilment of its obligations until the impediment has been eliminated completely. The term ”force majeure” refers to events for which esploro® projects GmbH is not responsible and that could not be foreseen, such as war, strikes, natural disasters, traffic obstructions and the like. esploro® projects GmbH must report the occurrence of such circumstances immediately.
Section 3 - Data protection, data transfer
The Client agrees that data and information exchange shall be carried out with the Client, all project participants and third parties during the course of the collaboration, including via unencrypted e-mails.
The Client is aware that the content of unencrypted e-mails or their attachments may possibly be read by unauthorised third parties. If the Client prefers that alternative communication technology be used, this must be communicated to esploro projects GmbH in writing.
esploro® projects GmbH shall handle the order- and business-related information communicated by the Client with the greatest possible discretion. This also applies after termination of the contractual relationship.
Section 4 - Outsourced services
esploro® projects GmbH reserves the right to commission third parties to carry out third-party services within the scope of the order.
Section 5 - Intellectual property rights
In principle, esploro® projects GmbH does not grant the Client intellectual property rights. Texts, presentations, brochures and similar documents produced by esploro projects GmbH remain the property of esploro® projects GmbH with all inherent rights.
A transfer of copyrights and other powers for publication, reproduction and utilisation of the services granted to the Client under the agreement can be contractually agreed.
Any agreement concluded for individual cases within the meaning of point 2 requires the written form. A separate remuneration can be agreed for this purpose.
Section 6 - Duties and obligations of the Client
The Client shall provide esploro projects® GmbH with the full and correct information and documents required for execution of the order.
The concepts, publications, text manuscripts and other measures submitted to the Client have to be checked and approved by the Client in due time. If no response is received from the Client within a reasonable time, esploro® GmbH can assume that the Client has approved these.
In the case of particular urgency, esploro® projects GmbH shall be entitled to set a time limit within which the approval must be granted, indicating the reason for the particular urgency.
If, upon the request of esploro® projects GmbH, the Client does not perform the cooperative actions as it is obligated in full, esploro projects® GmbH is entitled – but not obligated – to terminate the contract without notice after prior written notification. In this case, esploro projects® GmbH may invoice the Client for either the services actually rendered up to the date of termination or, alternatively, the agreed or projected total remuneration minus the expenses saved by early termination of the contract.
The Client issues esploro® projects GmbH with a declaration of completeness confirming that the information and documents provided by him are complete and correct and that there are no indications or assumptions present or known that are likely to challenge their completeness and correctness.
If esploro projects® GmbH provides the Client with a progress report, this must be checked within a period of 14 days, and any shortcomings in the performance of the service must be pointed out. If the Client has not indicated otherwise by the time the deadline expires, it shall be assumed that the services detailed in the progress report have been approved and recognised as being without shortcomings.
Section 7 - Minutes of meetings
The contents of a meeting can be recorded by esploro® projects GmbH in the minutes of the meeting.
If the minutes of a meeting are drawn up, these minutes shall be deemed to be approved by both parties and shall constitute a binding description of the performance, unless one of the parties expressly rejects it in writing within a period of one week from receipt of the minutes.
Section 8 - Intellectual property rights
Remuneration is governed by the contract. Unless otherwise agreed, the normal remuneration and reimbursement of expenses in the normal amount shall be deemed agreed, unless a flat rate has been agreed. All remuneration is subject to the applicable value-added tax.
esploro® projects GmbH is entitled to invoice appropriate advance payments for the services to be provided, or appropriate interim payments for services already rendered.
If the invoices for advance payments, interim payments or other amounts are not paid to esploro® projects GmbH at all or not completely, esploro® projects GmbH is entitled to cease further activities until the outstanding claim is fully paid. In addition, esploro® projects GmbH may terminate the contract without notice after prior written warning with notice of termination. In this case, esploro® projects GmbH may invoice the Client for either the services actually rendered up to the date of termination or, alternatively, the agreed or projected total remuneration minus the expenses saved by early termination of the contract.
Any forecasts esploro® projects GmbH makes with regard to time and compensation in relation to the execution of an order represent a non-binding estimate, since the time required can depend on factors that cannot be influenced by esploro® projects GmbH.
If the actual expenses deviate by more than 15% from the expense calculation in the agreement, esploro® projects GmbH shall prepare a post calculation and submit it to the Client for approval.
If the actual expenses are more than 25% higher than the forecast in the agreement, the Client has the right to either terminate the contract and pay for the service provided up to that point under the agreed conditions, or to continue with the order and pay the extra working time additionally on a day-to-day basis.
Section 9 - Travel costs and expenses
In addition to the fee claim pursuant to Section 8, esploro® projects GmbH is still entitled to compensation for all costs and out-of-pocket expenses incurred for the provision of the services owed.
This applies in particular to expenses in connection with travel required by the Client. The following expenses can be charged:
air travel in premium economy class or train journeys in first class for trips within the European Union that do not exceed a flight time of three hours;
air travel in business class for of air travel within the European Union exceeding a flight time of three hours and for intercontinental flights;
if needed, mid-range rental cars (e.g. Mercedes-Benz E-Class, BMW 5 Series, Audi A6);
if needed, upper-middle class hotels (e.g. four-star category according to HOTREC).
Section 10 - Payment terms
Invoices created by esploro® projects GmbH are payable within 14 days after receipt without deduction.
Value-added tax is calculated at the statutory rate in each case.
If an order has several contracting entities, these clients are jointly and severally liable for the remuneration.
Set off against claims of esploro® projects GmbH shall only be allowed if the counter-claim is uncontested or if it is the subject of a final court decision. The Client shall only be able to exercise a right of retention where the counter-claim in question is based on the same legal relationship.
Section 11 - Statute of limitations
All claims resulting from the contractual relationship between the Client and esploro® projects GmbH shall lapse one year after their emergence. By derogation from this, the statutory period of limitation of 3 years applies if esploro® projects GmbH is guilty of deliberate intent.
Section 12 - Changes in the scope of services
In the event of a change in the scope of services, a new contract has to be concluded by mutual consent.
Measures already agreed upon can be refused by the Client without the consent of esploro® projects GmbH. The Client must explain the refusal of agreed measures in writing. The Client must compensate any damages incurred by esploro® projects GmbH in this regard
Section 13 - Liability
esploro® projects GmbH is not liable for and does not guarantee the success of measures carried out in connection with its activities. This also applies if esploro® projects GmbH provides a supporting function in the implementation of agreed or recommended measures.
The liability of esploro® projects GmbH is also void if the damage is due to incorrect or incomplete information or documents received from the Client. esploro® projects GmbH is also not liable for damages resulting from the Client not granting approval for proposed measures or not granting this in time.
The liability of esploro projects® GmbH for damages incurred by the Client is excluded, unless such damages were caused by intentional or grossly negligent breach of duty; in the case of gross negligence, the amount is limited to three times the remuneration contractually stipulated for a project, but not more than EUR 100,000.00 per claim. In the case of a breach of duty that is covered by the insurance cover of esploro projects GmbH, esploro® projects GmbH is furthermore only liable to a maximum of the amount made available by its liability insurer.
Notwithstanding the above provision, esploro® projects GmbH is liable for damages resulting from culpable loss of life or injury to body and health, as well as for damages resulting from culpable violation of essential contractual obligations (so-called cardinal obligations); in the case of minor negligence, however, liability for the latter is limited in scope to the contract-type damages foreseeable at the time of the commencement of the contract.
esploro® projects GmbH is not liable for patent, design, copyright and trademark protection or the capacity of concepts, drafts, project plans, proposals etc. supplied in the course of its activities by esploro® projects GmbH to be registered. This also applies to the legal permissibility of the proposed measures.
esploro® projects GmbH is only obligated to draw attention to possible general legal risks, insofar as they become known in the course of a project. There is no duty to provide legal advice.
esploro® projects GmbH is not liable for freedom from encumbrances with copyrights, rights of performance or other rights of third parties that are contrary to a usage, within the framework of services provided for a project.
esploro® projects GmbH is not liable for the continued existence of transferred rights.
The entrepreneurial decision of the Client lies solely in the scope of risk of the Client, even if this is based on proposals, recommendations, drafts, project plans or other statements provided by esploro® projects GmbH.
Section 14 - References
esploro® projects GmbH is in principle entitled to name the Client as a reference, unless otherwise expressly agreed or if this would impair the legitimate interests of the Client. The Client's name can be mentioned in any customary and appropriate form, in particular also on the website of esploro® projects GmbH, also by using the Client's logo and linking to its website.
Section 15 - Miscellaneous
Changes to these General Contractual Terms and Conditions will become part of the contract if esploro® projects GmbH has notified the Client of the changes and the Client does not expressly object to them.
Changes, extensions and other supplementary agreements need to be recorded at least in text form.
The law of the Federal Republic of Germany applies.
The place of performance for all mutual rights and obligations and exclusive jurisdiction for litigation against esploro® projects GmbH is Bremen.
Section 16 - Severability clause
Should one or more provisions of this agreement be or become invalid, in whole or in part, this shall not affect the validity of the remaining provisions of the agreement. The void left by the ineffective provision shall be filled through interpretation of the contract by means of a regulation that corresponds to the concurring will of the parties.