General Terms and Conditions of pacproject GmbH
Borsteler Chaussee 55, D-22453 Hamburg, hereinafter referred to as pacproject:
The parties shall work together in a trusting manner and shall keep each other informed in the event of deviations from the agreed procedure or doubts as to the correctness of the other party without delay.
If the customer recognizes that its own information and requirements are incorrect, incomplete, unclear or unenforceable, it must notify pacproject of the consequences recognizable to it without delay.
The contractual parties shall designate contact persons and their deputies to one another who shall manage implementation of the contractual relationship for the given contractual party expertly and responsibly.
The parties shall notify one another without delay of any changes in the respective designated persons. Up until the receipt of such notification, the above-mentioned contact persons and / or deputies shall be considered as authorized to make and receive declarations within the scope of their existing power of representation.
The contact persons shall notify one another at regular intervals as to the progress and obstacles during the implementation of the contract in order to be able to influence the implementation of the contract if necessary.
2. Customer’s duty to cooperate
The customer shall support pacproject in the performance of its contractually due services. These include the prompt provision of available information in particular, such as data material as well as hardware and software, if this is required by the customer’s cooperation obligations. The customer shall instruct pacproject in detail concerning the services to be provided by pacproject.
The customer shall provide the required number of its own employees who have the required expertise for implementing the contractual relationship.
If the customer has undertaken to provide materials to pacproject in connection with the implementation of the contract (image, sound, test or similar), the customer must make these available immediately and in a current, directly-utilizable and as far as possible digital form. If a conversion of the material transferred by the customer to a different format is required, the customer shall assume the costs incurred for these. The customer shall guarantee that pacproject obtains the rights required for the use of these materials.
The customer shall carry out cooperation activities at its own expense.
3. Involvement of third parties
The customer must vouch for third parties who engaged on behalf of the customer upon its request or with its acquiescence in the field of activity of pacproject in the same way as for vicarious agents. pacproject shall not be responsible to the customer if pacproject cannot comply wholly or partly or in good time with its obligations to the customer due to the conduct of one of the above-mentioned third parties.
Deadlines for performance of the service on the part of pacproject may only be confirmed by the contact person.
The contractual parties shall specify deadlines in writing as far as possible. Deadlines whose non-compliance menas that one contractual party defaults without a reminder notice in accordance with section 286 paragraph 2 of the German Civil Code [Bürgerliches Gesetzbuch (BGB)] (binding deadlines), must always be specified in writing and designated as binding.
pacproject shall not be responsible for delays in the performance of services due to force majeure (e.g. strike, lockout, official requirements, general telecommunications disruptions etc.) and circumstances in the customer’s sphere of responsibility (e.g. not performing the cooperation services in good time, delays by third parties attributable to the customer etc.). Such delay and circumstances shall entitle pacproject to extend the deadline for performing the services concerned by the duration of the hindrance plus an appropriate start-up period. pacproject shall indicate delays in the performance of services on account of force majeure to the customer.
5. Changes in the service
If the customer wishes to change the contractually-specified scope of the services to be provided by pacproject, it shall communicate this change request in writing to pacproject. The further procedure shall be in accordance with the following provisions. In the event of requests for changes which can be checked rapidly and are expected to be implemented within 8 working hours, pacproject may dispense with the procedure in accordance with paragraphs 2 to 5.
pacproject shall review what effects the requested change will have, in particular in terms of remuneration, additional expenses and deadlines. If pacproject recognizes that services to be provided cannot be carried out, or can only be carried out with delay, due to the review. pacproject shall notify the customer of this and shall point out to it that the change request can only be reviewed if the services concerned are postponed by an initially indefinite period. If the customer declares its approval of this postponement, pacproject shall carry out the review of the change request. The customer shall be entitled to withdraw its change request at any time; the change procedure begun shall end then.
After checking the change request, pacproject shall indicate the effects of the change request on the agreements reached. The statement shall contain either a detailed proposal for the implementation of the change request or details on why the change request cannot be implemented.
The contractual parties shall reach an agreement with one another regarding the content of a proposal for the implementation of the change request without delay, and append the result of a successful coordination as a supplementary agreement to the text of the agreement to which the change relates.
If no agreement comes into existence, or the change procedure ends for another reason, the original scope of service shall continue to apply. The same shall apply in the event that the customer does not agree to a postponement of the services for the further implementation of the review in accordance with paragraph 2.
The deadlines affected by the requests for changes shall be postponed with due regard to the duration of the check, the duration of the coordination regarding the proposal for changes and if necessary the duration of the requests for changes to be carried out plus an appropriate start-up period if required. pacproject shall notify the customer of the new deadlines.
The customer must bear the expense incurred by the change request. This shall include in particular the check of the change request, the drawing up of a change request and any standstill times. If an agreement regarding daily rates was reached between the parties, the expenses shall be charged in accordance with this; in other respects in accordance with the usual remuneration of pacproject.
pacproject is entitled to change the services to be provided under this contract or deviate from it if the change or deviation is acceptable for the customer, taking the interests of pacproject into account.
The customer shall bear all expenses such as travel and overnight expenses, charges and any remuneration claims by third-party falling due during the implementation of the contract on the basis of actual proven costs.
The remuneration of pacproject shall in principle take place according to time worked, which shall be invoiced monthly. Remuneration of the time worked shall be determined by pacproject’s currently applicable remuneration rates; unless otherwise agreed, pacproject is entitled to change or supplement the remuneration rates underlying the agreements at its sole discretion (section 315 BGB). Cost estimates or budget plans drawn up by pacproject are non-binding.
If the parties have not reached any agreement on the remuneration of a service of pacproject whose performance the customer should only expect in exchange for remuneration according to the circumstances, the customer must pay the usual remuneration for this service. In the event of doubt, the remuneration rates demanded by pacproject for its services shall apply.
All contractually agreed remuneration is quoted plus statutory turnover tax.
pacproject shall grant to the customer the simple right to the services provided, unlimited in terms of territory or time, to use these services in accordance with the contract. If the software is the subject matter of the services, sections 69d and 66e of the German Copyright Act [Urheberrechtsgesetz] shall apply.
Further use other than specified in paragraph 1 is not permitted. In particular, the customer is prohibited from granting sub-licences or duplicating, leasing or otherwise utilizing the services.
Up until complete payment of remuneration, the customer is only permitted to use the services provided subject to revocation. pacproject may revoke the use of such services for which remuneration payment by the customer is in default for the duration of the default.
The customer may only withdraw from the contract due to a breach of duty which does not consist of a defect in the purchased item or the work if pacproject is responsible for this breach of duty.
Total liability in the event of sample orders shall be limited in the case of negligence to the amount of the agreed remuneration.
In the event of consultancy assignments, pacproject and its employees shall act to the best of their knowledge and belief. However, they shall merely give recommendations and are by no means liable for their correctness. Claims of any kind on pacproject or its employees shall be expressly excluded.
10. Confidentiality, press release
The records, notified knowledge and experience transferred to the other contractual party are to be exclusively used for the purposes of this contract and not be made available to third parties unless they are to be made available to third parties according to their intended purpose or are already known to the third party. Third parties do not include the ancillary staff, such as freelancers, subcontractors etc., consulted to implement the contractual relationship.
In addition, the contractual parties agree to maintain confidentiality regarding the content of this contract and regarding the findings obtained during its handling.
The confidentiality obligation shall also apply beyond termination of the contractual relationship.
If one contractual party demands this, the records transferred by it such as strategy papers, briefing documents etc. must be returned to it after the termination of the contractual relationship, unless the other contractual party can assert a justified interest in these records.
Press releases, information etc. in which one contractual party refers to the other shall only be permitted after prior written consultation – including by e-mail.
In the event of any differences of opinion arising from or in connection with this contractual relationship, the parties shall initially attempt to bring about a solution though a detailed discussion between the contact persons.
Any differences of opinion that cannot be resolved by the parties shall be settled through an arbitration procedure. If one party rejects the carrying out of a arbitration process, it may have recourse to the general courts of law if it has notified the other party of this in writing beforehand.
To enable arbitration, the parties mutually waive the right of pleading the statute of limitations for all claims arising from the disputed actual situation, from the request for arbitration until one month after the end of the arbitration process. The waiver shall cause a suspension of the statute of limitations.
The deadlines affected by the arbitration process, including the preceding discussion between the contact persons, shall be postponed by taking into account the duration of arbitration and if necessary the duration of the arbitration results to be conducted plus an appropriate start-up period if required.
The assignment of claims shall only be permitted with the prior written consent of the other contractual party. The consent may not be unfairly refused. This shall not affect the provisions of section 354a of the German Commercial Code [Handelsgesetzbuch (HGB)].
A right of retention may only be asserted for counterclaims based on the respective contractual relationship.
The contractual parties may only set off its claims against counterclaims that are undisputed or recognized by declaratory judgement.
pacproject may state the customer's name as a reference customer on its website or in other media. Furthermore, pacproject may publicly disclose the seevices provided for demonstration purposes or draw attention to these, unless the customer can assert a contrary justified interest.
13. Final provisions
All changes and amendments to contractual agreements must be recorded in writing for evidentiary reasons. Notices of termination must be made in writing. Notices that must be made in writing may also be made be e-mail.
Should individual provision of the agreements between the parties be or become invalid in whole or in part, this shall not affect the validity of the other provisions. In this case, the parties shall replace the invalid provision by a valid provision that comes the closest to the economic purpose of the invalid provision. The same shall apply to any gaps in the agreements.
The customer’s General Terms and Conditions shall not become part of the contract.
The law of the Federal Republic of Germany shall apply, under exclusion of private international law and the UN Convention on International Sales Contracts.
The exclusive place of jurisdiction for all disputed arising from or in connection with this contract shall be the registered office of pacproject.
May 1, 2005
pacproject gmbh · borsteler chaussee 55 · D-22453 Hamburg
fon +49.40.80 90 539-0 · firstname.lastname@example.org