general terms and conditions of business - gtb

§ 1 application

In the absence of any other express agreement, the following Terms and Conditions of the Exordium Media & Consult GmbH (hereafter called Exordium) shall govern all provided services by the Exordium to the contract partner (hereafter called Customer). Conditions conflicting to these terms of sales or additional conditions will only be part of contract if and as far as we agreed to them in written form. The present terms and conditions shall also apply with regard to all future business dealings with the Customer that are similar legal transactions (The most recent version of the GTB is available for download at www.exordium.de).

§ 2 contractual subject

The subject matter of these Terms and Conditions are the services provided for the customer. All contracts concluded with us are always service agreements. The subject of the contract is the provision of the defined and not the procurement of any specific economic success or the bringing about of a particular result.

These conditions shall apply for all orders with the Customer which have been confirmed by Exordium in writing.

We are entitled to use authorized experts, contract staff and other third parties for the execution of the contract. Consulting services on legal and tax issues will be neither committed nor provided due to the applicable regulations. We generally issue our services in written form. Exordium is not liable for information given orally.

§ 3 Records & Data Provided

We retain all rights of ownership and copyright to all records and data provided to the customer in connection with placing the order, such as drawings, catalogues, prospectuses and other sales documentation, etc. Records and data of this kind must not be made accessible to third parties unless we expressly give the customer permission in writing to do so.

§ 4 prices and payment

If nothing to the contrary has been expressly agreed in writing, all our prices apply in Euro plus the legally valid value added tax. Travel costs, expenses, and travel time will be billed separately.

Payment of the purchasing price is to be made exclusively to the account specified on the invoice. The deduction of any discount is only permissible in the event of a special agreement in writing.

The purchase price is to be paid within 10 days of receiving delivery, net and without deduction. One-off costs will be invoiced after the services are provided or according to the agreed on payment schedule. Monthly fees will be invoices on the first working day of each month and start on the day the service is initially provided ready for operation.

The default interest rate shall be 8 % above the respective base rate p.a. We reserve the right to assert claims for higher damages caused by delay. The contractual partner agrees not to hand on any bank charges to the Exordium and not to pay in cash or via check or bill of change. If no fixed price agreement has been made, we reserve the right to make reasonable price adjustments due to changes in wage costs, material costs and distribution costs for deliveries occurring 3 months or later after conclusion of the contract.

§ 5 set-off and rights of retention

The customer is only entitled to the right of set-off if the counterclaim is uncontested or determined as final and conclusive. The customer is only authorized to exercise his right of retention if his counterclaim is based in the same contractual relationship.

§ 6 Confidentiality

For maintaining the service within the framework of the contract intent it is necessary that the contractual partner provides Exordium with data and information on which the contractual partner as providing party has interest in maintaining confidential. To ensure an according information and data transfer with a confidential treatment of the contractual partner the following is agreed:

Exordium commits itself to treat all from the contractual partner transmitted information and data highly confidential and not disclose it to third parties unless the contractual partner has given its express agreement to the transfer. Exordium will only use the transmitted, confidential data for the purpose agreed on in writing.
The contractual partner receives the unlimited usage right over his knowledge and experience, especially over the information of transmitted data. Exordium is not entitled to any rights on or by the transmitted, confidential information of the contractual partner. 
Exordium will only give access to employees under the confidentially restrictions according to §11 BDSG and who are part of the team needed to serve the purpose of the contract. 

The obligation to maintain confidentiality shall not apply to information and data which are already general state of the art at the time they are handed over to the respective other party or which later become general state of the art without any fault on the part of the receiving party or in respect of which the receiving party can prove that they either were already internal state of the art at the receiving party’s when they were handed over, or later became internal state of the art at the receiving party’s independently of any communication with the other party to the contract, or were disclosed to the receiving party by third parties, e.g. under a license agreement. The obligation to maintain confidentiality shall remain in effect even after the termination of the contract.

 

§ 7 Contract Term & Termination

Unless otherwise agreed, the minimum period for this is 12 months. The contractual partner may terminate the contract for the first time for the end of the minimal duration of the contract and within a three-month notice period. The right of extraordinary termination shall remain unaffected thereby.
A due and sufficient cause for cancellation without notice by us exists if continuation of the contractual relationship, taking into account all circumstances of the individual case and giving due consideration to the interests of both parties, cannot reasonably be requested to continue the contractual relationship until the agreed termination or until expiry of the notice period for termination. Before such a termination is issued, a notice of reprimand is required, unless no success can be expected or the contractual relationship is damaged on a sustained basis so that the immediate abrogation of the contract is justified.
Each party is entitled to terminate the agreement, especially

  • if the other party is adjudicated bankrupt, if insolvency proceedings are applied for against it and rejected as unfounded or if the insolvency proceedings are not carried out due to lack of funds,
  • if the other party breaches important contractual commitments in any way and the breach of the contract is not remedied within a reasonable period of at least three weeks from receipt of a warning. A written warning and setting of a deadline are not necessary if the continuation of the contractual relationship is not reasonable due to the gravity of the breach, if no success can be expected or if a termination without any notice seems reasonable after weighing the interests of both parties whereby in case of defect Exordium has a frequent two time right of subsequent improvement. Termination without notice is in principle excluded if the breach is a minor violation of contractual duties and a termination without any notice does not seem reasonable after weighing the interests of both parties,
  • for Exordium if in spite of repeated written request for payment contributions are not paid or not fully paid by the contractual partner.

§ 8 Liability & Compensation

Liability is precluded for simple negligence due to affirmative breach of contract, negligence when entering into the contract, unauthorized action or on another legal basis, unless intent or gross negligence can be proven to Exordium. In case of gross negligence, the liability by Exordium is restricted to the immediate average damage, which is typical for the respective contract, if only insignificant contractual duties are violated. The limitation period for claims arising from unlawful acts is six months.

§ 9 Miscellaneous

This contract and the entire legal relationship between the two parties shall be subject to the laws of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Place of performance and exclusive court of jurisdiction for all disputes arising from this contract is Berlin, unless otherwise specified in the order confirmation. All changes and/or modifications of this contract (including those to this clause) shall be made in writing. 


Should any individual provisions of this contract be or become invalid or contain any loopholes, all other provisions shall remain unaffected. The parties undertake to replace the ineffective provision or fill the loophole contained within it by agreeing on a legally permissible regulation which comes closest to the commercial purpose of the invalid provision.