General Terms and Conditions for Services

Version: October 2023 - HESSEL Ingenieurtechnik GmbH

§ 1 Scope of Application, General

Our General Terms and Conditions for Services (hereinafter referred to as "GTC") apply to services rendered to persons who, at the time of conclusion of the service contract, are acting in the course of their commercial or independent professional activity (entrepreneurs), legal entities as well as legal entities under public law. In this context, the service contract shall regulate the scope of activity of our efforts to achieve success as the service provider. The contractual payments of the customer are made for the service rendered as such, irrespective of the result achieved. Our services include expert opinions, testing services and all obligations resulting from the contractual relationship with the customer.
The respective version of the General Terms and Conditions in force at the time of the conclusion of the service contract shall be binding.
We do not recognize any terms and conditions of the customer that conflict with or differ from our GTC unless we have agreed to their validity in writing in advance. This shall also apply if we execute the service order without objection in the awareness of conflicting or deviating terms and conditions of the customer.
A service contract concluded with the customer in writing as well as other agreements made with the customer in writing shall take precedence over these GTC. Written agreements made with the customer in individual cases, in particular ancillary agreements and amendments, shall take precedence over these GTC. However, verbal agreements are only binding insofar as they are confirmed by us in writing.

§ 2 Quotations, Prices, Price Adjustments

Unless otherwise stated in the text of the offer, our offers are valid for 2 months and are exclusively addressed to the respective customer. All offers are to be treated confidentially and may not be made known to third parties, either in whole or in part. Any disclosure of our offer or parts thereof requires our prior written consent.
Our prices are net prices and are invoiced plus VAT at the statutory rate. In the event of adjustments to the statutory turnover tax, we shall adjust our invoice in accordance with the respective legal situation. In this respect, the customer shall have no right of termination.
Unless expressly agreed otherwise, our prices shall apply on an "ex works" basis (EXW - ICC Incoterms 2020), plus shipping, packaging and insurance. Any additional services incurred shall be invoiced as separate item.
The customer shall pay an advance of 30% of the offer price prior to execution of the order, unless otherwise agreed in the contract.
In the case of continuing obligations, we are entitled to adjust our prices proportionately after the end of the first contractual year. This applies if cost changes, such as adjusted wage scales, have occurred since the conclusion of the contract. Price adjustments shall be notified to the customer with a notice period of four (4) weeks in advance and reasons shall be given upon request. In the event of price increases totaling more than 8 percentage points per calendar year, the Customer shall have the right to terminate the underlying service contract in writing with a notice period of 3 months to the end of the month.

§ 3 Conclusion of Contract, Place of Fulfilment

A contract with us shall only be deemed to have been concluded when the customer accepts our offer without reservation or when we send the customer a written order confirmation or commence with the performance of the service.
If we issue a written order confirmation to the customer, this confirmation alone shall be binding for the content and scope of the service contract.
All agreements made between us and the customer for the execution of the contract are fully and conclusively regulated in the service contract including these GTC. Verbal subsidiary agreements shall only have contractual effect if they are immediately confirmed by us in writing.
The place of fulfilment is the registered office of our company.

§ 4 Order Processing, Duties to Cooperate

When requesting a quotation, but at the latest before the quotation is prepared and the order is placed, the customer undertakes to notify us in writing of all relevant laws and other regulations based on which service is to be performed. We do not assume any liability for the applicability of the aforementioned laws and other regulations.
The same applies to specifications, data, documents, or other information to be considered in the fulfillment of the service. As a matter of principle, we are not obliged to check the correctness and completeness of data, documents or other information provided by the customer. Any deviation from this shall only apply insofar as the order expressly includes this.
Unless otherwise agreed in the contract, we shall be entitled to contract third parties for the entire or partial provision of the service.
Insofar as the performance of the service contract relates to interventions in the substance of the customer's property, we shall not provide any compensation for the actual impairments or destruction of such property resulting from the performance in accordance with the contract.
The transport of the customer's objects shall be at the customer's risk and expense. Return transport will only be carried out at the express request of the customer.
Insofar as the cooperation of the customer is required for the performance of our services, the customer shall provide this cooperation within the contractual framework at its own expense. Insofar as the customer does not fulfil his obligations to cooperate in due time or does not fulfil them properly, we shall be entitled to invoice the additional expenditure incurred.

§ 5 Delay, Performance Hindrances

If no contractual date of performance has been agreed, we shall only be in default if the customer has set us a reasonable deadline for the performance of the contractual service owed in text form. In this context, deadlines shall only begin to run when all acts of cooperation owed by the customer have been performed and the contractually agreed down payment has been made. Subsequent change orders or delayed cooperation on the part of the customer shall extend the performance times to a reasonable extent.
If we are unable to perform due to force majeure or other events for which we are not responsible, we shall be released from the delivery/service for as long as the impediment to performance persists and we have informed the customer thereof without delay. In such cases, we shall be entitled to postpone our performance for a reasonable period of time, usually the duration of the impediment to performance.
Force majeure in the aforementioned sense includes but is not limited to: Unforeseeable circumstances which cannot be influenced by us or our suppliers, in particular strikes, operational disruptions, industrial disputes, legal lockouts, transport obstacles, energy shortages, raw material shortages, official measures, pandemics and epidemics.
If the obstacle to performance lasts for more than six months, we shall be entitled to withdraw from the contract. At the request of the customer, we shall declare after the expiry of the period whether we will withdraw or fulfil our performance obligations within a reasonable period. Further claims for damages in this respect are mutually excluded.
Insofar as a penalty payment for delay in performance has been contractually agreed, our liability in this respect shall be limited to a maximum of 5% of the respective total Order value. Other or further claims for damages due to delay or non-fulfilment of the service contract are excluded in the case of simple negligence.

§ 6 Third Party Rights

When providing a service for the customer, the customer shall be responsible for ensuring that we do not infringe any third-party rights by providing the service on its behalf.
To the extent that claims are asserted against us by a third party due to a possible infringement of rights from the sphere of the customer, the customer shall be obliged to indemnify us against all claims in this respect. This indemnity refers to all expenses incurred, including legal costs.

§ 7 Non-Assignment

Any assignment or mortgaging of claims to which the customer is entitled from the contractual relationship with us is excluded.

§ 8 Usage Rights

The results resulting from our provision of services shall only become the property of the customer upon full payment of the contractual remuneration.
To the extent that rights capable of being protected arise in the course of our provision of services, the customer shall be granted the irrevocable, exclusive, temporally, factually/locally unlimited right to use and exploit the results at the customer's written request. This right of use and exploitation includes the right to reproduce, edit, publish, and market the results and to grant third parties rights of use thereto.
Insofar as the use and compensation of our employees is necessary for the above transfer of rights, we undertake to declare this use in due time. If we incur costs or other financial obligations as a result of the utilization or transfer of the rights, these shall be borne by the customer and shall indemnify us against all associated claims in this respect.

§ 9 Termination

Both parties may terminate their contractual relationship in writing with four (4) weeks' notice to the end of the month. The right to extraordinary termination remains unaffected.
In the event of termination, we shall provide and charge for our services in accordance with the contract until the effective date of termination. Any further costs which we can prove to have occurred on the performance of the terminated scope of services - in compliance with the general commercial duty of care - and which could not have been avoided, shall be borne by the customer.

§ 10 Liability

We shall be liable without limitation in accordance with the statutory provisions insofar as the customer asserts claims for damages based on intent or gross negligence, culpable injury to life, limb and health or a breach of the Product Liability Act.
The same applies if we culpably violate an essential contractual obligation. Material contractual obligations are those whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner may regularly rely. In the event of a negligent breach of material contractual obligations, our liability shall be limited to compensation for the damage foreseeable at the time of conclusion of the contract and typical for such contracts.
Otherwise, our liability is excluded, irrespective of the legal grounds.
Insofar as our liability for damages is limited or excluded in accordance with the above provisions, this shall also apply to the personal liability of our employees, representatives, and subcontractors.

§ 11 Confidentiality

The parties to the service contract are mutually obliged to keep confidential information of the other party confidential. In particular, documents, data, other documents, know-how and oral information are subject to confidentiality.
The obligation to maintain secrecy shall not apply if the aforementioned matters requiring secrecy are
a. the recipient was demonstrably aware of them at the time the contract was concluded,
b. public knowledge at the time of conclusion of the contract or public knowledge, thereafter, provided this is not based on a breach of a confidentiality obligation.
c. required to be disclosed due to mandatory legal obligations or by order of a court or public authority.
this mutual confidentiality obligation shall continue for a period of five (5) years after termination of the service contract.

§ 12 Data Protection

We undertake to comply with the statutory and contractual provisions on data protection when processing data. This also includes the obligation of our employees to maintain data secrecy.
We shall use and process data exclusively within the framework of the respective underlying service contract, insofar as this is legally permissible without separate consent. Upon termination of the service contract, all personal data of the customer will be closed and completely deleted after expiry of the legal retention periods.
Promotional use is only permissible with the express consent of the customer.
To the extent permitted by law, the customer has the right to information, correction and deletion of the data stored by us.

§ 13 Place of Jurisdiction, Applicable Law

For all present and future claims arising from our business relationship with commercial customers (natural persons and legal entities under private law) or legal entities under public law, the exclusive place of jurisdiction shall be our place of business.
However, we are entitled to sue the customer at his registered place of business or any other permissible place of jurisdiction.
The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the contracting parties. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

§ 14 Severability Clause

Should any point of the contractual relationship with the customer be or later become invalid in whole or in part, the validity of the remaining provisions shall not be affected. The same applies to a loophole in the contract.
The invalid, unenforceable or missing provision shall be replaced by an appropriate provision which comes as close as possible to what these parties intended or would have intended if they had considered the respective point when concluding the contract.
Overall, it is the explicit intention of the parties to maintain the validity of the remaining provisions of the contract and to waive section 139 of the German Civil Code.