General Terms and Conditions
Scope of application
1.1 These General Terms and Conditions of Business apply to all orders placed by the Client (or LOANER) with K-tronik Digital Solutions GmbH (K-tronik DS), in particular for services and work contracts as well as for the hiring of employees. Furthermore, these General Terms and Conditions shall apply to all products that the Client purchases from K-tronik DS. The products are sold exclusively in commercial business transactions. The GTCs also apply to all future services (contractual relationships) with K-tronik DS, even if they are not separately agreed again.
1.2 These GTCs apply exclusively; any GTCs of the customer which are contrary to or deviate from these GTCs will not be recognised unless K-tronik DS has expressly agreed to their validity in writing.
2 Offer, conclusion of contract and contract amendments
2.1 All offers of K-tronik DS are binding for 10 calendar days from the date of preparation and transmission to the AG or up to the date stated in the offer (acceptance period); after that the offers are subject to change and non-binding. K-tronik DS can accept orders or assignments within 14 days of receipt.
2.2 Oral promises made by K-tronik DS before conclusion of the contract are legally non-binding and oral agreements between the parties to the contract are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding. Supplements and amendments to the agreements made, including these GTC, must be in writing to be effective. With the exception of managing directors or authorised signatories, the employees of K-tronik DS are not entitled to make any agreements deviating from this.
2.3 All information provided by K-tronik DS on the object of the delivery or service (e.g. dimensions, utility values, loading capacity, tolerances and technical data) as well as representations of the same (e.g. drawings, illustrations, plans, etc.) are only approximately relevant, unless the usability for the contractually intended purpose requires exact conformity (definition) or this has been contractually agreed. They are not guaranteed characteristics of quality, but descriptions or identifications of the performance. Deviations which are customary in the trade and deviations which are due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided that they do not impair the usability for the contractually intended purpose.
2.4 Changes to the scope of the contractually agreed service during the order processing must be agreed in writing. K-tronik DS will submit a supplementary offer to the OP (change in performance, adjustment of remuneration, etc.), which must be accepted within 5 working days. If the OP does not accept it in time, the contract amendment is deemed not to be agreed. Irrespective of this, K-tronik DS shall also be entitled to adjust the remuneration without written agreement if changes to the contract are made in agreement with the AG.
2.5 If the AG rejects the supplementary offer, K-tronik DS is entitled to temporarily suspend the provision of services with regard to the change in services until agreement is reached on a corresponding adjustment of the remuneration, provided that K-tronik DS has informed the AG of this at least 3 working days in advance. Any delays resulting from this shall not be at the expense of K-tronik DS.
3 Price, terms of payment
3.1 Prices can be agreed as a binding fixed price or on an hourly basis; they are quoted in EURO and plus the statutory value added tax. If the type of remuneration and mode of invoicing have not been expressly agreed, monthly invoicing shall be based on the number of hours worked.
3.2 Prices are exclusively those stated in the offer. Any accessories for the product are not part of the order, unless explicitly mentioned in the offer. Packaging and shipping costs are calculated separately.
3.3 Invoices are due for payment within 7 days of the invoice date without discount. If the AG is in default of payment, the amounts outstanding for payment shall bear interest from this point in time at a rate of 9% points above the respective base interest rate. The assertion of higher interest rates or further damage caused by default remains unaffected.
3.4 K-tronik DS is entitled to perform or render outstanding services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the customer and which endanger the payment of the outstanding claims of K-tronik DS by the customer.
3.5 The offsetting of counterclaims of the customer or the retention of payments due to such claims is only permitted
4 Obligations to cooperate
4.1 The AG must make all information and documents necessary for the provision of services available to K-tronik DS in good time and must immediately fulfil all his obligations to cooperate.
4.2 If the Principal does not fulfil his obligations to cooperate, in particular to submit the necessary documents, information and data, in good time, any delays resulting therefrom shall be at his expense.
4.3 The AG is liable to K-tronik DS for ensuring that the services provided by him and the documents, information, data and objects provided within the scope of the cooperation are free of third party industrial property rights which exclude or impair a contractual use by K-tronik DS.
5.1 The AG and K-tronik DS are mutually obliged to treat all information relating to the business and operational affairs of the other party as strictly confidential and to use it only within the scope of the contractual provisions and not to pass it on to third parties. This also applies if no contractual relationship is established after the exchange of confidential information.
5.2 Suppliers or subcontractors commissioned by K-tronik DS to provide services are not considered to be third parties. K-tronik DS will oblige suppliers and subcontractors to the same extent to confidentiality in accordance with item 5.1.
6.1 The liability of K-tronik DS for damages, irrespective of the legal basis, in particular for impossibility, delay, defective or incorrect delivery or service, breach of contract, breach of obligations in contract negotiations and tort, is limited in accordance with the provisions of this clause 6, insofar as fault is involved.
6.2 K-tronik DS is not liable in the case of simple negligence of its organs, legal representatives, employees or other vicarious agents, as long as it is not a matter of breach of essential contractual obligations. Essential contractual obligations are the obligation to provide a timely, defect-free service as well as consulting, protection and custody obligations, which are intended to enable the OP to use the service in accordance with the contract or to protect the life and limb of the OP's or third party's personnel or the OP's property from substantial damage.
6.3 Insofar as K-tronik DS is liable for damages on the merits in accordance with clause 6.2, this liability is limited to damages which K-tronik DS foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which K-tronik DS should have foreseen when exercising due care. Indirect damage and consequential damage resulting from defects in the provision of services are only eligible for compensation if such damage is typically to be expected when the service is used as intended.
6.4 In the case of liability for simple negligence, the obligation of K-tronik DS to pay compensation for material damage and resulting further financial losses is limited to the amount of the remuneration for the individual order, unless the existing business liability insurance is liable to pay compensation in the event of damage; this also applies if there is a breach of essential contractual obligations. The above exclusions and limitations of liability apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of K-tronik DS.
6.5 As far as K-tronik DS provides technical information and/or acts in an advisory capacity and this information and/or advice is not part of the owed, contractually agreed scope of services, this is done free of charge and under exclusion of any liability.
6.6 Claims for damages of the OP shall become time-barred after 12 months. In the case of purchase contracts, the period of limitation begins with the transfer of risk and in the case of work and services with acceptance. In the case of other claims, e.g. arising from a contract of employment, the limitation period shall commence at the end of the year in which the OP becomes aware of the circumstances giving rise to the claim and the identity of the debtor or should have become aware of them without gross negligence.
6.7 The limitations of liability according to clauses 6.2 - 6.6 do not apply to the liability of K-tronik DS for intentional behaviour, for guaranteed characteristics, for injury to life, body or health or according to the Product Liability Act.
7 Copyrights and rights of use
7.1 K-tronik DS reserves the ownership or copyright of all offers and cost estimates submitted, as well as data, software programs, software tools, drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer, especially in the offer procedure (pre-contractual area). The AG may not make these items accessible to third parties, make them known, use them himself or through third parties or reproduce them without the express consent of K-tronik DS, neither as such nor in terms of their content. At the request of K-tronik DS, the AG must return these items in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
7.2 For all works and work results developed by K-tronik DS on behalf of the AG, K-tronik DS grants the Customer, upon full payment, the exclusive and unlimited right to use them to the extent described in the respective order.
8 Reservation of ownership
K-tronik DS reserves the right to reclaim the delivered services until the complete payment of all purchase price claims by the AG.
8.1 The items of the deliveries (goods subject to retention of title) remain the property of K-tronik DS until all claims against the OP arising from the business relationship have been fulfilled. If the value of all security rights to which K-tronik DS is entitled exceeds the amount of all secured claims by more than 20 %, K-tronik DS will release a corresponding part of the security rights at the request of the OP.
8.2 During the existence of the reservation of title, the OP is prohibited from pledging or reselling or transfer of ownership by way of security.
8.3 In case of seizure, confiscation or other dispositions or interventions by third parties, the OP shall inform K-tronik DS immediately.
8.4 In case of breach of duty by the OP, in particular in case of default of payment, K-tronik DS is entitled to withdraw from the contract and take back the goods after unsuccessful expiry of a reasonable deadline set to the OP for performance; the legal provisions on the dispensability of setting a deadline remain unaffected. The AG is obliged to surrender the goods.
8.5 The treatment, processing or transformation of the reserved goods by the OP is always carried out in the name and on behalf of K-tronik DS. In this case, the expectant right of the OP to the reserved goods of the transformed item continues. If the goods subject to retention of title are processed with other items not belonging to K-tronik DS, K-tronik DS acquires co-ownership of the new item in proportion to the objective value of the product to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing is carried out in such a way that the product of the AG is to be regarded as the main product, it is agreed that the AG transfers proportional co-ownership to K-tronik DS and keeps the sole ownership or co-ownership thus created for us.
9 Poaching clause, contractual penalty
The customer undertakes to refrain from enticing away employees of K-tronik DS and other persons contractually associated with K-tronik DS, who are involved in the performance of services or production of a work within the scope of order processing, for his own company or third parties, or to support enticement activities. This cease and desist obligation applies for the entire duration of the project, as well as retroactively for up to one year after the end of the project.
Poaching is defined as any direct or indirect influence on an employee of K-tronik DS or other persons contractually associated with K-tronik DS, which has the purpose of establishing a new employment relationship or entering into a contract of employment with the AG or a third party.
A contractual penalty of EUR 30,000 is payable for each case of infringement.
10. Termination provisions
K-tronik DS is entitled to terminate the contract for good cause if the customer fails to perform an action incumbent on him and thereby puts K-tronik DS out of the position to perform the service or if the customer fails to make due payments or otherwise falls into debtor's delay. In this case, K-tronik DS is entitled to remuneration for the provision of services until receipt of the notice of termination.
In other respects, the statutory provisions shall apply in the event of termination.
B WORKING CONTRACTS
11. the following terms and conditions shall apply in addition to the above when contracts for work and services are concluded:
11.1 Delivery dates
Delivery dates are agreed upon in individual contracts if necessary. If no dates are agreed, K-tronik DS will determine these at its own discretion.
11.2 Place of performance
The order will be carried out on the premises of K-tronik DS. The complete or partial execution at the customer's premises can be agreed upon, especially if continuous technical discussions or technical coordination is required. K-tronik DS has the exclusive right to give instructions to its vicarious agents and employees. This does not affect the right of the customer to issue instructions for the execution of the order in individual cases.
The handing over of the services is laid down in writing in an acceptance protocol. If acceptance is not possible at the time of handover of the service or work, the customer is obliged to declare acceptance to K-tronik DS in writing immediately, but at the latest within 2 weeks after handover of the work or the service result.
K-tronik DS must also be notified in writing of any defects within this period. If the customer does not refuse acceptance in writing within 2 weeks after handover of the work or the service result, acceptance is considered granted. Acceptance shall also be deemed to have been granted if the work is sold or if the work or the service is used by the customer or a third party in accordance with its intended use. In the case of completed partial services, K-tronik DS has the right to demand the execution of partial acceptances.
11.4.1 In the event of defects in the performance, K-tronik DS shall be given the opportunity, initially to the exclusion of further claims of the OP, to rectify the performance within a reasonable period of time or to produce the work anew.
11.4.2 If the rectification/new production fails despite at least two attempts at subsequent performance, the OP can demand a reduction or withdrawal as well as compensation for damages within the scope of the limitation of liability according to item 6. Insignificant defects (insignificant deviation from the agreed quality or insignificant impairment of usability) shall not entitle the OP to withdraw from the contract.
Self-execution by the customer is excluded, unless K-tronik DS agrees to it in writing.
11.4.3 If the CUSTOMER or third parties carry out improper repair work or changes to the performance result/work, no warranty claims shall exist for these and the consequences thereof. Claims of the OP for expenses necessary for the purpose of supplementary performance, in particular transport, travel, labour and material costs, are excluded, if the expenses increase because the work delivered by K-tronik DS has subsequently been taken to a place other than the OP's branch office, unless the transfer corresponds to its intended use.
11.4.4 The warranty period is 12 months.
The warranty period begins with the acceptance or, if later, with the fulfilment of the last service to be rendered according to the contract.
C SERVICE CONTRACTS
11.5 The following terms and conditions shall apply in addition to the above when service contracts are concluded:
Notwithstanding the right to terminate without notice, service contracts may be terminated by either party with 8 weeks' notice to the end of a month.
D TEMPORARY EMPLOYMENT CONTRACTS
11.6 The basis for the calculation of the remuneration of K-tronik DS is the contractually agreed hourly rate plus the statutory value added tax.
11.7 The following surcharges are calculated on top of the agreed hourly rate:
overtime 25 %
Night work (20:00-6:00) 25
Sunday work 50
Work on public holidays 100
11.8 If several surcharges coincide, only the highest surcharge is to be paid. Further additional expenses are incurred for business trips that are carried out on behalf of the hirer. The business trips will be invoiced according to expenditure. Travel time is treated as working time.
11.9 If a temporary employee is permanently employed during the project duration and up to six months after the end of the temporary employment, K-tronik DS will charge the BROKER a commission of 30% of the expected gross annual salary of the temporary employee.
11.10 Within the framework of employee supply contracts, K-tronik DS as lender does not assume any bank guarantees, in particular not for any recourse claims due to the recourse of the hirer by the competent collection agency for social security contributions according to § 28 e II SGB IV.
E FINAL PROVISIONS
12. Place of jurisdiction for all claims arising from or in connection with the contractual relationship is the respective registered office of K-tronik DS. German law applies exclusively.
As far as as the contract or these GTC contain ineffective clauses or loopholes, those legally effective regulations are deemed to be agreed upon which the contractual partners would have agreed upon according to the economic objectives of the contract and the purpose of these GTC if they had known about the ineffectiveness of the clause or the loophole.