Valid from November 15, 2012
1. General – scope of validity
1.1 The General Standard Terms and Conditions of designaffairs GmbH shall apply to all agreements concerning services provided by designaffairs GmbH to the Contractual Partner. designaffairs GmbH shall not recognise any contradictory terms or terms diverging from the General Standard Terms and Conditions of designaffairs GmbH on the part of the Contractual Partner, unless designaffairs GmbH has issued its express agreement to their validity in writing. The General Standard Terms and Conditions of designaffairs GmbH shall be applicable also if designaffairs GmbH, while being cognizant of contradictory or divergent terms on the part of the Contractual Partner, unconditionally accepts the contractually required service of the Contractual Partner or designaffairs GmbH unconditionally renders the contractually required service. Counter-confirmations on the part of the Contractual Partner referring to its terms of business or purchasing shall be hereby excluded.
1.2 The General Standard Terms and Conditions of designaffairs GmbH shall apply only with respect to companies, public corporations, and public funds.
1.3 The General Standard Terms and Conditions of designaffairs GmbH shall also apply for all future transactions with the Contractual Partner.
1.4 All agreements, modifications, supplements, and the partial or whole cancellation of agreements shall require written form; this shall also apply to the modification or cancellation of the requirement for written form.
2. Offer and conclusion of agreement
2.1 The offers provided by designaffairs GmbH shall be subject to confirmation and not binding. Confirmations of acceptance and all orders shall require written or fax confirmation by designaffairs GmbH in order to enjoy legal efficacy.
2.2 Drawings, diagrams, measurements, weights or other service data shall be binding only if agreed expressly in writing. designaffairs GmbH shall own the rights of property and copyright relating to drawings, diagrams, calculations and other documents (e.g. logos) prepared by designaffairs GmbH. These shall not be transferred and may not be made accessible to third parties without the express written agreement of designaffairs GmbH. They shall not be disclosed to third parties.
2.3 The employees of designaffairs GmbH shall not be authorised to make verbal ancillary agreements or to provide verbal assurances over and above the content of this written agreement; designaffairs GmbH shall not be bound to verbal ancillary agreements or commitments made by its employees.
3. Cost proposal and estimate of expense
3.1 If designaffairs GmbH issues a quotation or estimate of expense to the Contractual Partner, and should it become clear during the processing of the order that the quotation or estimate will be exceeded by more than 5%, designaffairs GmbH shall communicate this immediately to the Contractual Partner, providing the reasons and potential consequences for the execution of the order.
3.2 If the Contractual Partner cancels the order after receiving such notification, designaffairs GmbH shall be entitled to proportional remuneration incurred corresponding to the services rendered up to the time of cancellation.
4.1 To the extent that nothing else is agreed, designaffairs GmbH shall be bound to the prices contained in its offers for a period of 30 days following the date of such offers.
4.2 Additional services shall be billed separately. Additional expenses requiring remuneration shall include, among other things, expenses incurred by designaffairs GmbH because it has performed modifications at the request of the Contractual Partner after approval or partial acceptance of its services relating to services that have already been approved or accepted.
4.3 If the actual expense exceeds the estimated expense in individual orders by more than 5%, and the Contractual Partner cancels the order after notification of the excess according to Points 11.1, 11.2 or 11.4, designaffairs GmbH shall be entitled to claim the agreed remuneration corresponding to the services already rendered plus 5%.
4.4 If the total scope of the services to be rendered by designaffairs GmbH is reduced by a circumstance for which the Contractual Partner is responsible, designaffairs GmbH shall be entitled to raise the fixed daily rate by an appropriate amount, however, by a maximum of 15%.
5.1 Contractually binding periods of execution shall require written form.
5.2 Even in the instance of contractually agreed deadlines, designaffairs GmbH shall not be responsible for delays to work caused by force majeure or unforeseen events that lie outside the scope of influence of designaffairs GmbH, and which temporarily render designaffairs GmbH’s performance of service either difficult or impossible, including in particular strikes, inability to enter premises, regulatory orders etc. They shall entitle designaffairs GmbH to prolong the performance of its services by the duration of the delay, plus an appropriate start-up period. This shall apply also if the circumstances are brought about by sub-contractors or suppliers of designaffairs GmbH or its sub-suppliers. designaffairs GmbH shall correspondingly notify the Contractual Partner as soon as it is aware of such circumstances. If the execution of the agreement consequently becomes unacceptable for one of the parties, such party shall be entitled to withdraw from the agreement. The exercise of the right to withdraw shall be limited to the portion, or portions, of the agreement not yet performed, unless the partial satisfaction of the agreement is not of interest for the Contractual Partner.
5.3 If the delay lasts longer than six weeks, the Contractual Partner shall be entitled to withdraw from the agreement, either wholly or in part. If the period allowed for performance of the services is extended, or if designaffairs GmbH is released from its obligation, the Contractual Partner shall not be entitled to assert claims for damages against designaffairs GmbH. designaffairs GmbH shall be entitled to invoke the above-mentioned circumstances only if it has immediately notified the Contractual Partner regarding the delay that has occurred.
5.4 designaffairs GmbH do not verify and is not responsible for the admissibility of the services rendered and/or services provided by the Contractual Partner or third parties, products or statements (especially with regard to unfair competition law, industrial property rights, patents, utility models, industrial designs, brands etc.) unless it is expressly agreed in writing and therefore subject of the contract. If and when the Contractual Partner entrusts designaffairs GmbH with such, the Contractual Partner bears all fees and costs of designaffairs GmbH and/or third parties (lawyers, authorities, etc.), unless otherwise expressly agreed in writing.
5.5 If designaffairs GmbH identifies during the course of the execution of the agreement that the agreed services will clearly fail to have the success desired by the Contractual Partner unless additional services are rendered, it shall immediately communicate this to the Contractual Partner.
5.6 designaffairs GmbH shall be entitled to render partial services at any time, unless the partial service is identifiably not of interest for the Contractual Partner.
5.7 Observance of the service obligations of designaffairs GmbH presupposes the timely and proper satisfaction of the obligations and duties of the Contractual Partner.
5.8 In particular, the Contractual Partner shall be obligated to provide to designaffairs GmbH all information, work, and documents required for the rendering of services, completely and on a timely basis. Requisite information, work, documents shall particularly include those on which the order is based, those requested by designaffairs GmbH in order to perform the order, or those that are normally essential for the relevant order.
5.9 The Contractual Partner shall ensure that the requisite work and documents, which the Contractual Partner is required to provide as part of its obligations and duties, shall be transferred to designaffairs GmbH in good time before the execution of the order. Supply delays or cost increases arising through incorrect, incomplete, late or subsequently modified disclosures and information or documents made available, shall not be the responsibility of designaffairs GmbH, and shall not comprise part of the delay for which designaffairs GmbH is responsible. The Contractual Partner shall bear related additional costs.
5.10 The Contractual Partner shall immediately accept the plans, constructions, drawings, models etc that have been prepared for it, after designaffairs GmbH has announced that the project is complete. designaffairs GmbH shall rectify free of charge any defects determined at the time of acceptance, and within an appropriate timeframe. Significant defects that render the use of the plans, constructions, drawings, models etc impossible, shall be reaccepted after they had been rectified. If the Contractual Partner fails to make acceptance due to another, or a significant, defect, the corresponding plans, constructions, drawings, models etc shall be regarded as accepted four weeks after designaffairs GmbH has announced that the project is complete.
5.11 If the Contractual Partner delays acceptance, designaffairs GmbH shall be entitled to claim compensation for any damages it incurs as a consequence. If acceptance is delayed, the risk of accidental deterioration and accidental ruin shall transfer to the Contractual Partner.
6. Rights of use
6.1 To the extent that nothing divergent is expressly agreed, the Contractual Partner shall receive subject to full payment of the remuneration agreed the non-exclusive and without limitation in time or place right to use the services rendered by designaffairs GmbH, particularly the documents prepared by designaffairs GmbH, for the contractual purpose agreed.
6.2 If the service rendered by designaffairs GmbH includes software, data programming or application- or development data, particularly in the area of interaction design and interface design, the source codes as well as any development data and development environments are generally not in the scope of the benefits of designaffairs GmbH. In order to use such benefits and/or rights a separate written agreement must be concluded.
6.3 Plans, constructions, drawings, models and other documents made and/or transferred by designaffairs GmbH as part of the agreement shall enjoy copyright protection. To the extent that nothing else arises from the purpose of the agreement, the Contractual Partner shall not be entitled to modify these documents, to reproduce them, even in modified form, to publish them, or to revise them without the express prior consent of designaffairs GmbH.
6.4 designaffairs GmbH shall be entitled to make own use of, to make other use of and to develop further any unprotected ideas, concepts, experience, and techniques made or resulting from their services rendered, used or developed during the performance of the agreement unless otherwise expressly agreed in writing.
6.5 Should the project results contain patentable discoveries or ideas, designaffairs GmbH shall be entitled, at its discretion, to register patent rights, to pursue them further, and/or to fail to pursue them. designaffairs GmbH shall enjoy the exclusive right to patents and distribution of licences. Divergent regulations must be set down expressly in separate written agreements.
7.1 designaffairs GmbH shall warrant that the services contractually due are free of defects. The period of warranty shall be according to statutory regulations.
7.2 designaffairs GmbH’s warranty obligation shall be limited to providing repairs. If repairs fail after an appropriate period, the Contractual Partner shall be entitled to a discount from its payment.
7.3 If the Contractual Partner fails to follow operating, maintenance, or other instructions provided by designaffairs GmbH, or if it makes modifications, any resultant warranty shall be hereby rendered void, if the Contractual Partner fails to disprove a corresponding, substantiated assertion that one of these circumstances has caused the defect. § 645 of the German Civil Code (BGB) shall be hereby unaffected.
7.4 The Contractual Partner shall be obligated to notify designaffairs GmbH immediately of any identifiable defects, and to carry out all measures that enable the defects and their causes to be determined, or facilitate or accelerate the removal of such defects.
7.5 Solely the Contractual Partner shall be entitled to assert warranty claims against designaffairs GmbH, and these claims may not be transferred.
8. Payment terms
8.1 To the extent that nothing else is agreed, invoices presented by designaffairs GmbH shall be payable without discount 15 days after the preparation of the invoice. Cash discounts for the Contractual Partner shall be excluded to the extent that nothing divergent has been agreed in writing.
8.2 designaffairs GmbH shall be entitled, subject to divergent written agreements, to invoice the Contractual Partner for an amount equivalent to 30% of the total order after the order has been granted. Furthermore, designaffairs GmbH shall be entitled to invoice the Contractual Partner for appropriate mile-stone payments in accordance with the progress of the project.
8.3 A payment shall not be regarded as having been made until designaffairs GmbH has such an amount at its disposal. When cheques are tendered, the payment shall not be regarded as having been made until the cheque has been cashed.
8.4 If the Contractual Partner defaults, designaffairs GmbH shall be entitled to demand statutory interest amounts from the relevant point in time. designaffairs GmbH shall be entitled to present proof of higher extent of damages.
8.5 If designaffairs GmbH becomes aware of circumstances that call into question the creditworthiness of the Contractual Partner, in particular if a cheque is not honoured or the Contractual Partner cancels its payments, designaffairs GmbH shall be entitled to require prepayments or collateral to an amount equivalent to the residual liability.
8.6 designaffairs GmbH shall not be obligated to provide evidence in its invoices of working time performed and outlays to be reimbursed. The Contractual Partner shall be entitled, on request, to inspect related statements, and/or shall receive these in copy.
9. Limitation of liability
9.1 designaffairs GmbH shall be liable, both for itself and on the part of its vicarious agents, for any damages, for whatever legal reasons, including tortious act, only if designaffairs GmbH or its vicarious agents are guilty of violating a key contractual obligation (cardinal obligation) in a way that jeopardises the purpose of the agreement, or the damage is caused intentionally or through gross negligence on the part of designaffairs GmbH or its vicarious agents. Liability based on an assurance intended to protect the Contractual Partner from the risk of damages that might occur, as well as liability for damages arising from injury to life, body or health, shall be hereby unaffected.
9.2 Excluded claims shall also include defects in damages to production resources and products belonging to the Contractual Partner included in the services performed by designaffairs GmbH, for example, through taking into account ideas, proposals or concepts of designaffairs GmbH involved in the planning, design, construction or other external forming and structuring by the Contractual Partner, as well as defects in damages arising from the use of such products of the Contractual Partner.
This shall not apply to the extent that there is a mandatory liability, for example due to intention, gross negligence, and violation of key contractual obligations or to a lack of characteristics for which warranty has been provided. Compensation for damages due to the violation of key contractual obligations shall be limited, however, to typical contractual, foreseeable damages, to the extent that there is no instance of intention or gross negligence.
9.3 The Contractual Partner shall release designaffairs GmbH from all third-party claims raised against designaffairs GmbH and which have their origin in the use of the Client’s products, to the extent that the designaffairs GmbH has not caused the third-party damage as a result of intention or gross negligence.
9.4 designaffairs GmbH’s liability for, and arising from, the execution of an order shall be limited in each case to the amount entailed in the order.
10. Use of service providers and vicarious agents
designaffairs GmbH shall be entitled to mandate service providers and vicarious agents to render parts, or the entirety, of the services to which it is contractually bound.
11.1 Each Contractual Partner shall enjoy the right to cancel the contract for an important reason. However, the contractual partners shall, to an acceptable extent, grant each other the opportunity to address the reason for the cancellation before making such a cancellation.
11.2 If the agreement is cancelled for a reason for which one of the contractual partners is responsible, or the Contractual Partner cancels for a reason for which neither of the parties to the agreement is responsible, designaffairs GmbH shall receive the agreed remuneration. However, designaffairs GmbH must take into account expenses saved as a consequence of the early cancellation of the agreement. This shall apply also if the service has been rendered impossible as a consequence of a reason for which designaffairs GmbH is not responsible.
11.3 If designaffairs GmbH is responsible for the cancellation, designaffairs GmbH shall be entitled to compensation only with respect to services it has rendered up to the cancellation of the agreement, to the extent that the services are of interest for the Contractual Partner. Point 4.3 shall be hereby unaffected.
11.4 If a Contractual Partner is unable to make payment, insolvency proceedings have commenced with respect its assets, or such procedures have been declined due to a lack of bank-ruptcy assets, the other Contractual Partner shall be entitled to cancel the agreement.
12. Prohibition on enticement and hiring
The Contractual Partner shall be prohibited from enticing away or employing employees of designaffairs GmbH for the duration of the cooperation of the parties and for a subsequent period of two years without the prior agreement of designaffairs GmbH. In an instance where a party is guilty of infringing this prohibition, the Contractual Partner shall be obligated to pay to designaffairs GmbH a contractual fine equivalent to one year’s gross salary of the related employee. The Contractual Partner shall also be liable for group companies.
13. Applicable law, place of jurisdiction, invalidity
13.1 The law of the Federal Republic of Germany shall apply for the General Standard Terms and Conditions and for all legal relationships between designaffairs GmbH and the Contractual Partner.
13.2 To the extent that the Contractual Partner is a business person, public institution, or special public fund in the sense of § 38 of the code of civil procedure (ZPO), Munich shall be the exclusive place of jurisdiction for all disputes arising either directly or indirectly from the agreement.
13.3 Should a term contained in these General Standard Terms and Conditions of business, or a term contained in other agreements, be, or become, ineffective, the efficacy of all other terms or agreements shall be hereby unaffected.