Terms and Conditions
General Terms and Conditions of KISSEBERTH CO GmbH
§ 1 Scope, Form
(1) Kisseberth CO GmbH – hereinafter also referred to as the “Contractor” – is a service company engaged in the planning and execution of technical projects and products, advising, coaching, or acting as interim manager for production companies – hereinafter also referred to as the “Client”.
(2) The following General Terms and Conditions apply to all business relationships with clients, provided they are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) or legal entities under public law. Unless expressly agreed otherwise in an individual contract, services and offers are provided exclusively on the basis of the following terms and conditions. This also applies to ongoing contracts with the contractor, even without an express agreement. Any differing and/or supplementary terms and conditions of the client do not apply. These are hereby expressly rejected. The unconditional provision of services does not constitute acceptance of any differing or supplementary terms and conditions of the contractor.
(3) The Contractor reserves the right to amend or supplement the following General Terms and Conditions at any time. Amendments and/or supplements shall not affect existing legal transactions and shall therefore only apply to contracts concluded after the date of the update.
(4) Legally binding declarations and agreements between the parties (such as collateral agreements, amendments, modifications, notices of defects, setting of deadlines, etc.) must be in writing, i.e., in written or electronic form (e.g., letter, email, or fax), to be effective.
§ 2 Offer and Conclusion of Contract
(1) An offer from the contractor that is not accepted by the client within 14 days shall be deemed a rejection of the offer. In this case, the contractor is no longer bound by the offer.
(2) Unless otherwise agreed in an individual contract, a contract is concluded upon written order confirmation by the contractor or written acceptance of the offer.
(3) The service provided to the client is limited to the specific activity described in the offer or the individual contract. If the contractor prepares or creates calculations or other written (including electronic) documents or files in the course of performing its services, these merely constitute work steps for the performance of the service and remain exclusively the property and possession of the contractor, unless otherwise agreed in the contract.
§ 3 Contract Duration
(1) The commencement and termination of the contractual relationship are determined by individual agreement. Ordinary termination is excluded if the contract duration is individually fixed. The right of termination without notice for good cause remains unaffected for both parties.
(2) Unless the contract duration is individually agreed upon, the contractual relationship is entered into for an indefinite period and may be terminated by either party in writing with a notice period of two months to the end of the calendar month. Termination before the commencement of the contractual relationship is excluded.
§ 4 Performance of Services by the Contractor
(1) The services to be provided by the Contractor generally comprise the activities specifically described in the individual contract.
(2) Unless the performance period or deadline is agreed upon in writing in an individual contract, it is non-binding. Regardless of any written performance deadline, exceeding the deadline by one month does not constitute a default by the Contractor. An agreed delivery period shall also be extended in the event of labor disputes, unforeseen events (strikes, lockouts, import and export bans, legal or official regulations, shortages of raw materials or building materials, fires or road closures), and force majeure. Liability for damages due to a culpable delay in the contractually agreed delivery period exists only if this delay is due to intent or gross negligence on the part of the contractor.
(3) Unless otherwise agreed in an individual contract, the contractor is generally free to choose the place of performance. However, the contractor will coordinate with the client to ensure adherence to deadlines.
(4) If services are provided in several parts, these are considered independent services with regard to payment and warranty.
§ 5 Client's Obligations to Cooperate
(1) The client shall promote the contractor's consulting services through appropriate acts of cooperation and provide the contractor with the necessary information and data, as well as grant the contractor access to its business premises to the necessary extent during business hours. If the client fails to fulfill its obligations to cooperate and the contractor is therefore unable to provide or complete its consulting services in whole or in part within the agreed timeframe, the client shall not be in default.
§ 6 Remuneration
(1) Unless otherwise agreed in an individual contract, the contractor's invoices are due within 14 days of the invoice date without deduction. The client will be in default upon expiry of the payment period. Interest will accrue on the invoice amount at a rate of 9% per annum during the period of default. The right to claim further damages for default is reserved.
(2) The contractor is entitled to reimbursement of its necessary, invoiced, and documented expenses incurred in the performance of its work.
(3) The client is entitled to set-off or retention rights only to the extent that its claim has been legally established or is undisputed. The payment dates agreed upon in the individual contract must be adhered to even if the client asserts claims based on defects.
§ 7 Confidentiality
(1) Information disclosed by the client in connection with the execution of the contract may include confidential and protected data, both technical and commercial in nature. The client undertakes not to disclose this information to third parties without the prior written consent of the contractor. In particular, drawings, models, templates, samples, and similar items may not be given to or made accessible to unauthorized third parties.
(2) The client shall use the calculations, drawings, and documents prepared by the contractor exclusively in connection with this business transaction. All drawings, know-how, documents, etc., remain the intellectual property of the contractor and may be reclaimed by him at any time.
§ 8 Claims for Defects, Liability
(1) The Contractor warrants the careful and professional execution of its services in accordance with the state of the art. Claims for defects will only be recognized as such if they are submitted in writing. Furthermore, warranty rights are excluded if the service is attributable to the improper provision of information, documents, or materials submitted by the Client.
(2) Claims arising from defective performance are limited to free rectification of defects. The client must grant the contractor the necessary time and opportunity to rectify the defects, which must not be less than three weeks. Expenses required for inspection and rectification, in particular time, transport, travel, labor, and any material costs, will only be borne if a defective performance actually exists. Otherwise, the contractor may demand reimbursement from the client for the costs incurred due to the unjustified request for rectification if the client knew, or negligently failed to know, that no defective performance actually existed.
(3) If the rectification of defects fails, the contractor may repeat the rectification. If the rectification of defects is refused or repeatedly fails, the client has the right to reduce the contractor's remuneration appropriately or to withdraw from the contract.
(4) The contractor is liable for damages – regardless of the legal basis – within the scope of liability for fault in cases of intent and gross negligence. In cases of simple negligence, the contractor is liable, subject to statutory limitations of liability, only: a. for damages resulting from injury to life, body, or health; b. for damages resulting from a breach of a material contractual obligation; in this case, however, liability is limited to compensation for foreseeable damages that typically occur.
§ 9 Miscellaneous
(1) Each party is entitled to terminate the contract without notice if the other party becomes insolvent and/or has filed for insolvency proceedings, or if insolvency proceedings have been opened against it, or if the opening of such proceedings has been rejected due to insufficient assets.
(2) The place of jurisdiction is the court with jurisdiction over the contractor's registered office. However, the contractor is also entitled to bring an action at the customer's place of business.
(3) All legal relations between the contractor and the customer are governed exclusively by the laws of the Federal Republic of Germany.