General Terms and Conditions | avitea Industrieservice
A) General Provisions
1. Contractual Partners
The contractual partners are avitea Industrieservice GmbH (hereinafter referred to as "avitea Industrieservice") and the customer, who is not a consumer within the meaning of Section 13 German Civil Code.
2. Validity of the General Terms and Conditions
2.1 The business relations between avitea Industrieservice and the customer (together also referred to as "Parties") are exclusively subject to these General Terms and Conditions ("GTC").
2.2 The validity of deviating or supplementary regulations, in particular the general terms and conditions of the customer, is excluded, even if avitea Industrieservice does not expressly contradict them; other regulations only apply if avitea Industrieservice has expressly agreed to them in writing prior to the conclusion of the contract.
2.3 These GTC apply to the present transaction as well as to all future transactions without the need for a renewed reference to the applicability of the GTC. avitea Industrieservice provides works and services.
3. Contracts and Offers
3.1 Subject to a separate arrangement, the contract comes into effect upon receipt of the order confirmation from avitea Industrieservice, at the latest upon provision of the service by avitea Industrieservice.
3.2 All offers and quotes made by avitea Industrieservice are subject to change and are non-binding, unless expressly stated otherwise in the offer.
4. Services of avitea Industrieservice
4.1 The performance of avitea Industrieservice includes the execution of a specific task and may be provided in the form of work or services.
4.2 The services shall be provided in accordance with the service descriptions specified in the order document.
4.3 Further conditions for the contractual services may result from documents which become part of the respective contract as annexes. Annexes become part of the contract by reference (for example in an order document).
4.4 avitea Industrieservice will use employees to provide services who are qualified to fulfill the obligations established by this agreement. These employees are exclusively subject to the right of instruction of avitea Industrieservice. In addition, avitea Industrieservice is responsible for the selection and deployment, the supervision, management, control and remuneration of its employees – within the scope of the liability regulations detailed in number 10.
4.5 Within the scope of the execution of the respective order, avitea Industrieservice shall appoint a contact ("project manager") as a fixed reference person to whom the customer can turn in all matters concerning the respective order.
5. Acceptance for Work Services
5.1 The customer shall immediately perform and declare any acceptance of the work services provided by avitea Industrieservice, insofar as there are no significant defects. avitea Industrieservice is entitled to participate in each acceptance.
5.2 If no notification of significant defects is made within a period agreed for acceptance or, in the absence of a deadline, within 30 calendar days after provision for acceptance, or if the customer takes over the work results into its productive operation, acceptance shall be deemed to have taken place.
6. Duties and Obligations of the Customer
6.1 The customer shall ensure that all provision and cooperation services required by them are provided in time and to the extent required for avitea Industrieservice.
6.2 The information, data and documents provided by the Customer to avitea Industrieservice shall only be examined by avitea for obvious errors.
6.3 The customer shall provide avitea Industrieservice's employees with all necessary support for their work at the customer's premises. This support includes, among other things, that the customer:
- ensures that a qualified employee is available as a contact person at the place of performance,
- provides avitea Industrieservice employees with the information necessary for the activity in a timely manner,
- ensures that avitea Industrieservice employees are granted free access to the company premises at the agreed times, and
- ensures that its auxiliary personnel comply with the occupational health and safety regulations.
6.4 If the customer does not provide a required cooperation service, does not provide it on time or does not provide it in the agreed manner, and if the customer is responsible for this, the consequences resulting from this (e.g. delays, additional expenses) shall be borne by the customer.
7. Compensation and Terms of Payment
7.1 The compensation to be paid by the customer for services to be rendered by avitea Industrieservice shall be determined in accordance with the rates agreed with customer for the specific order.
7.2 The prices specified do not include the relevant applicable value added tax.
7.3 Invoices of avitea Industrieservice shall be due and payable immediately and in full. However, this shall not apply to work performances if the performance has not yet been accepted.
7.4 All receivables of avitea Industrieservice shall be due immediately if the customer does not comply with the payment conditions for reasons for which the customer is responsible or if the customer ceases payment. However, this shall only apply to work performances if the acceptance of the performance has already taken place. Moreover, avitea Industrieservice shall be entitled to request advance payments for outstanding services and to withdraw from the contract or to demand compensation for damages due to nonperformance after providing due notice and a reasonable due date period.
7.5 The customer shall only be entitled to set-off insofar as its claims are undisputed or have been legally established. A right of retention of the customer is also excluded, unless the counterclaim of the customer originates from the same contractual relationship and is undisputed or legally established.
8. Complaints
Complaints of any kind must be reported to avitea in writing immediately upon their detection. Failure to make timely complaints shall be deemed approval.
9. Warranty
9.1 Within the scope of its legal obligation, avitea Industrieservice will remedy any defects in the agreed work performance of which it has been informed in writing by the customer. If avitea Industrieservice does not succeed in correcting a defect even after the setting and expiration of a reasonable grace period, the customer may – insofar as the value or suitability of the service is limited – demand a reduction in price or annulment of the contract at his discretion. In the case of insignificant errors or deviations, however, withdrawal from the contract is excluded. Claims for damages are excluded for insignificant defects.
9.2 In the case of services, there is no entitlement to warranty.
9.3 The assumption of a guarantee for certain properties requires an express written agreement by avitea Industrieservice in order to be effective.
10. Liability and Limitation
10.1 Subject to the provision in number 10.2, avitea Industrieservice's contractual and legal liability for damages is limited as follows:
- avitea Industrieservice shall be liable for the slightly negligent breach of essential obligations arising from the contractual relationship limited to the amount of damages typically foreseeable at the time of the conclusion of the contract,
- avitea Industrieservice is not liable for the slightly negligent breach of immaterial obligations arising from the contractual obligation,
- avitea Industrieservice is liable for the negligent breach of obligations, except in cases of gross negligence, limited to the amount of their insurance.
10.2 The personal liability of avitea Industrieservice's legal representatives, vicarious agents and employees for property damage or financial loss caused by their negligence is excluded, unless it is a case of gross negligence.
10.3 The avitea Industrieservice shall be liable for loss of data only if such loss would not have been avoidable even if the customer had exercised appropriate data backup measures, and only insofar as the data can be reconstructed with reasonable effort and expense.
10.4 The aforementioned limitations of liability shall not apply in cases of mandatory statutory liability and in the case of assumption of a guarantee or culpably caused injury to life, limb and health.
10.5 Claims of the customer shall become statute-barred 12 months after performance of the respective service, and in the case of work services 12 months after acceptance. The statutory warranty period pursuant to Sect. 634a Para. 1 (2) German Civil Code shall remain unaffected.
11. Force Majeure
11.1 Unforeseeable and unavoidable events beyond the control of avitea Industrieservice and for which avitea Industrieservice is not responsible, such as force majeure, traffic disruptions, strikes or lockouts, release avitea Industrieservice from the obligation to perform on time for the duration of the event.
11.2 If the duration of the event is longer than 6 weeks or the service to be provided by avitea Industrieservice becomes impossible as a result of the event, both the customer and avitea Industrieservice shall be entitled to withdraw from the contract. In this case, there shall be no obligation to pay damages unless the impediment to performance was known to one of the contracting parties prior to the conclusion of the contract or they are responsible for their lack of knowledge thereof.
12. Confidentiality, Data Protection
12.1 The customer undertakes not to disclose, either generally or to a third party, any data, in particular prices, knowledge or experience ("information"), provided to avitea Industrieservice in writing, orally or by any other means. The above obligation does not apply to “information” that can be proven to be public or that will become public knowledge at a later time without breaching this agreement. This requirement does not apply to “information” that the customer is known to be aware of or information that will be made known to the customer at a later date.
12.2 All rights related to the “information” provided (including commercial protection and patent rights) are reserved. Its publication does not entitle the customer to use the “information” for purposes other than the agreed purpose.
12.3 Confidentiality also applies to data covered by the data protection law. The Parties shall process and use the personal data of the other party only for contractually agreed purposes. In particular, they shall secure personal data against unauthorized access and, in addition, shall neither record nor store nor reproduce such data nor use or exploit it in any form or disclose it to third parties without the consent of the party. avitea Industrieservice observes the Federal Data Protection Act in its current version when processing data.
13. Termination
13.1 Insofar as a contract is concluded for an indefinite period, both Parties shall have a right to ordinary termination with a notice period of 3 months, effective at the end of the month.
13.2 Each party is entitled to terminate the contract without notice for good cause. Good cause shall be deemed to exist in particular if a party fails to meet its payment obligations despite being granted a reasonable grace period or if insolvency proceedings are applied for or are imminent in respect of its assets.
13.3 In the event of termination, avitea Industrieservice shall be entitled to discontinue the provision of the owed activities.
13.4 Other rights to which avitea Industrieservice is entitled in the event of termination, in particular claims for damages, remain unaffected.
14. Miscellaneous Info
The customer agrees that avitea Industrieservice may name the service relationship with the customer as a reference and, in particular, refer to the provision of services to the customer in websites, print media and other advertising materials.
C) Final Provisions
15. Written Form
15.1 Amendments and supplements to these GTC and any other contract concluded between the parties must be made in writing to be effective; the electronic form is excluded. This shall also apply to any amendment or cancellation of the provision requiring the written form.
15.2 The written form requirement shall not apply to an individual contractual agreement if this individual agreement also relates to the waiver of the written form requirement for the specific individual amendment or supplement to the contract.
16. Severability Clause
Should any of the provisions of these GTC or any other contract concluded between the Parties be or become invalid, this shall not affect the validity of the remaining parts of the GTC or the affected contract. The Parties undertake to replace the invalid provision with a valid provision coming as close as possible to the intended economic effect. The same shall apply for filling any gaps in the contract.
17. Place of Jurisdiction, Applicable Law
17.1 The court of jurisdiction for all disputes resulting from or in conjunction with the contractual relationship shall be Lippstadt, Germany. However, avitea Industrieservice is entitled to sue the customer at any other legal place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
17.2 The contractual relations and all claims arising from and in connection with this contract shall be governed exclusively by the laws of the Federal Republic of Germany (excluding the rules of private international law and the provisions of the CISG).