General Terms of Business
Status: December 2019
1. Scope of application
All deliveries, services, and offers made or rendered by Etanomics Service GmbH (“Etanomics”) are subject only to these General Terms of Business. These GTB are an integral part of all contracts that Etanomics enters into with companies within the meaning of § 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) (the “Client”) for the deliveries or services it offers. These GTB also apply to all future deliveries, services, and offers made to or rendered for the Client even if they are not separately agreed again.
Terms and conditions of the Client or third parties do not apply even if Etanomics does not separately object to their validity in individual cases. Even if Etanomics refers to a letter that contains or refers to the terms and conditions of the Client or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
Unless otherwise agreed, the GTB in the version valid at the time of contract formation in accordance with Clause 2.1 (or in any case, in the version last communicated to the Client in text form) shall also apply as a framework agreement for similar future contracts even if the GTB’s applicability is not referred to again.
If Etanomics wishes to amend non-material provisions of these GTB in the case of continuing obligations, it shall notify the Client accordingly and submit a written offer to amend the contract.
2. Offer and contract formation
All the offers Etanomics makes are non-binding and subject to change unless they are expressly designated as binding or contain a specific acceptance period. Orders and all others agreements become legally binding for Etanomics and the Client only if Etanomics confirms them in writing. Acceptances or rejections of orders by Etanomics shall be deemed to have been made in due time if they are made within 14 days of receipt of the order.
Etanomics is not bound by verbal orders unless they are confirmed in writing.
The legal relationship between Etanomics and the Client is governed exclusively by the contract entered into in writing, including Etanomics’ General Terms of Business.
Unless otherwise agreed, Etanomics may use the services of a subcontractor.
The offer is based on the framework conditions, processing periods, and statutory requirements known to the parties when the offer is made. If these change during the co-operation, the Client and Etanomics shall agree on the appropriate additional or reduced expenditure without undue delay and agree on an adjustment to the order.
If the order is amended by agreement during its performance (particularly if it is extended), Etanomics may demand that the agreed prices and remuneration be adjusted accordingly, particularly by increasing them. As long as and to the extent that no agreement is reached, services shall be rendered based on the previous agreement. Furthermore, Etanomics may temporarily suspend performance of its contractual services until an arrangement is reached, if it has informed the Client with reasonable prior written notice. The Client shall bear any delays resulting therefrom. The Client shall not change the contractual service unilaterally.
Contract performance is subject to the condition that there are no obstacles due to national or international regulations (particularly export control regulations), embargoes, or other sanctions. The Client shall provide all necessary information and documents. Delays due to the aforementioned obstacles shall suspend deadlines and delivery times. If the necessary authorisations are not granted, the parties shall be entitled to extraordinary termination regarding the affected parts.
The Client shall notify Etanomics without undue delay of any changes to its data that are essential for order processing, particularly changes to its name, legal form, and registered office (and if a SEPA basic mandate has been agreed, bank details).
3. Prices and payments
The prices apply to the scope of services and delivery listed in the order confirmations excluding additional costs such as packaging, customs duties, and VAT. Additional or special services shall be charged separately.
Etanomics may adjust prices for services if those services are rendered more than twelve months after the contract is entered into and personnel, material, or distribution costs change significantly. It shall notify the Client of those adjusted prices in writing no later than three months before they take effect. The price change shall be deemed accepted unless the Client gives written notice of termination to Etanomics within one month after receiving the notification of the price change.
Unless otherwise agreed, Etanomics shall invoice the Client each month.
Unless otherwise agreed in writing, invoice amounts are due immediately after invoicing and shall be paid in full by bank transfer within 10 days. Each invoice shall be deemed paid on the date on which Etanomics receives the payment.
If the Client fails to make payment within 10 days, Etanomics may charge 5% interest p.a. on the outstanding amounts beginning with the due date. Etanomics may, however, assert higher interest and further damages if the event of Client’s default.
The Client shall not set off Etanomics’ claims against its counterclaims, or withhold payment based on those counterclaims, unless those counterclaims are undisputed or have been established by final judgment.
4. Cooperation of the Client
The Client shall provide Etanomics with all the materials, data, documents, and records Etanomics needs to perform the contract, in the form, quality, and scope appropriate to the purpose, without undue delay after contract formation and/or upon request by Etanomics. If Etanomics recognises that these are faulty or cannot be used in the agreed manner, it shall notify the Client immediately. The same applies to necessary working conditions, particularly access to premises or the necessary IT environment.
All data the Client transmits to Etanomics shall remain the Client’s exclusive property. The Client alone is liable for the completeness, accuracy, quality and usability of these data as well as its freedom from third-party property rights. The Client hereby grants Etanomics a simple, unlimited, free, sub-licensable right to use these data within the agreed scope of the contract during the contract term. The Client shall not revoke this right except for good cause.
If the Client must cooperate for the contract to be performed, the Client shall provide sufficiently qualified personnel as needed. The Client shall obtain the necessary permits for the use of the operating resources in order to enable Etanomics to render the service.
If the Client is in default, §§ 642 et seq. BGB shall apply accordingly.
5. Cancellation of appointment by the Client
The Client may cancel or postpone a previously agreed appointment two working days or more before the agreed appointment at no charge.
If the Client cancels, postpones, or fails to appear on the day of the agreed appointment, the Client shall pay the full remuneration as a cancellation fee.
6. Dates for deliveries and services
If no dates for deliveries and services have been agreed, Etanomics shall determine them at its reasonable discretion. Deadlines and dates for deliveries and services set by Etanomics shall be considered fixed deadlines or fixed dates only if this has been expressly promised or agreed.
The delivery or performance period commences on the day of order acceptance, but not before all the necessary documents or information have been received and all the requirements the Client must meet have been fulfilled.
Deadlines and dates shall be extended by the period during which the Client fails to fulfil its contractual obligations to Etanomics.
Etanomics is not liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events that were unforeseeable when the contract was entered into (such as operational disruptions of any kind; difficulties in procuring materials or energy; transport delays; strikes; lawful lockouts; shortage of labour, energy, or raw materials; difficulties in obtaining necessary official permits; official measures; or the failure of suppliers to deliver correctly, or on time, or at all) for which Etanomics is not responsible. If such events make it considerably more difficult or impossible for Etanomics to deliver or perform and the hindrance is more than temporary, Etanomics may withdraw from the contract. If a temporary hindrance arises, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of that hindrance insofar as it demonstrably has a considerable influence on the delivery or performance. If possible, Etanomics shall notify the Client in writing without undue delay (email or fax is sufficient) of the beginning and end of such hindrances. The Client may withdraw from the contract by written notice to Etanomics if the latter does not declare its acceptance of the transaction within a reasonable period of time. The above provisions shall apply mutatis mutandis to the Client if the aforementioned circumstances occur at the Client’s premises.
Etanomics Service GmbH may make partial deliveries, particularly if
the Client may use the partial delivery within the scope of the contractual purpose,
the delivery of the remaining ordered goods is ensured and
the Client does not incur any significant additional work or costs as a result.
Etanomics shall not be deemed in default until a reminder is issued. Liability for damages is limited in accordance with Clause 11 of these General Terms of Contract.
If performance is delayed, the Client shall, at Etanomics’s request, declare within a reasonable period whether it continues to insist on performance or withdraws from contract.
7. Place of performance, dispatch, packaging, transfer of risk, acceptance
Unless otherwise agreed, the place of performance for all obligations arising from the contract relationship is the registered office of Etanomics.
Etanomics shall duly select the mode of dispatch and packaging.
The risk shall pass to the Client at the latest when the delivery item is handed over to the Client, the forwarding agent, carrier, or other third party designated to carry out the shipment. This also applies if partial deliveries are made or Etanomics has taken on other services (dispatch or installation, for example).
The Client shall not refuse to accept deliveries and services due to minor defects.
If an acceptance procedure is provided for and nothing else has been agreed, the delivery or service shall be deemed accepted if
- Etanomics has notified the Client of the completion of the delivery or service
- 12 working days have elapsed since this notification and
- the Client has not notified Etanomics within that period of any defect that would preclude or significantly impair the use of the delivery or service.
Etanomics may carry out a separate acceptance procedure for each partial service if this is reasonable to the Client. Upon acceptance of the last partial service, the contractual interaction of all parts shall be checked (final acceptance).
Unless otherwise agreed, the place of performance for all obligations arising from the contract relationship is the registered office of Etanomics.
8. Property rights
Etanomics retains the ownership title or copyright to any offers and cost estimates it submits, as well as to any drawings, plan documents, illustrations, calculations, brochures, catalogues, models, tools, and other documents and aids provided to the Client. Except with the express consent of Etanomics, the Client shall not make these items accessible, disclose them, use them or arrange for third parties to use them, or reproduce them. At Etanomics’s request, the Client shall return these items to Etanomics in full and destroy any copies made if the Client no longer needs them during the ordinary course of business or if negotiations do not lead to the formation of a contract.
Regarding all the works and work results Etanomics develops on the Client’s behalf, Etanomics shall grant the Client the simple, non-exclusive and perpetual right to use them to the extent described in the respective order, upon full payment.
The Client ensures that the services it provides and the documents, information, data and items provided as part of its co-operation are free from third-party property rights that preclude or impair their contractual use by Etanomics. If a third party asserts a claim against the Client alleging that a service provided by Etanomics infringes industrial property rights or copyrights, the Client shall notify Etanomics in writing without delay. The Client shall leave all decisions regarding the essential defence measures to Etanomics and shall not make any acknowledgement or reach any settlement regarding the asserted claims except with the consent of Etanomics. The Client shall give Etanomics all the information Etanomics needs for an appropriate defence and to provide other appropriate support.
Etanomics is entitled to exclusive, irrevocable rights to use or exploit – anytime, anywhere, and regardless of content – all the property rights to all services and developments that Etanomics creates during or because of the contractual provision of services. Etanomics’s right of use and exploitation also includes the permission to process, and to award licences to third parties, unless this would conflict with the confidentiality of processed information.
The same applies to the same extent to ideas, concepts, expertise and techniques.
9. Confidentiality and data protection
The Client and Etanomics shall treat all information disclosed within the scope of this agreement as strictly confidential, shall not pass it on to third parties, shall use it only within the scope of the purpose of the respective order placed, and shall obligate their employees to do the same. This information shall be treated as strictly confidential even if it has not been or is not expressly designated as such. Within the scope of the intended purpose, Etanomics may forward the information to third parties insofar as it is obligated to do so in accordance with these provisions.
The obligations of this agreement do not apply to information which was already generally accessible at the time of its disclosure, which was demonstrably already known to the receiving party, which becomes generally accessible without the direct or indirect involvement of the receiving party, which was demonstrably transmitted to the receiving party by a third party authorised to disclose it, or which must be disclosed due to a party’s legal or official obligation. In addition, the disclosing party may authorise the disclosure of the confidential information by prior written consent.
Both Parties shall comply with all relevant data protection regulations in accordance with the German Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) and the General Data Protection Regulation (GDPR).
When processing and using the data, both parties shall obligate the persons they employ to process the data to the necessary extent in accordance with the requirements of the GDPR and to document this in writing.
The Client and Etanomics shall enter into a separate contract for commissioned data processing pursuant to Article 28 GDPR, if personal data are processed on the Client’s behalf.
These confidentiality agreements shall survive the contract relationship by five years; Clauses 9.4 and 9.5 shall remain valid until revoked.
In the event of an order, the Client consents to the use of the following details for the use of the jointly realised project as a reference for customers acquisition, for inclusion in customer reference lists, and for other sales and marketing purposes. The following information may be used: Name of the Client, logo of the Client, main project content, project duration.
It goes without saying that no internal project documents or confidential company figures shall be made public.
The warranty period for delivered products is 1 year from delivery or, if an acceptance procedure has been agreed, from acceptance. By way of derogation, the statutory periods pursuant to § 438, para. 1(2) (buildings and things used for buildings), § 438, para. 3 (fraudulent concealment), § 479, para. 1 (right of recourse), and § 634(a), para. 1(2) (construction defects) BGB shall apply.
Defects are to be reported by way of a comprehensible description of the error symptoms, as far as possible proven by written records, hard copies or other documents illustrating the defects (including by fax or email). The Client’s statutory obligations to inspect and give notice of defects remain unaffected.
At Etanomics’s request, the Client shall return the rejected delivery item to Etanomics carriage paid. If a justified complaint is made, Etanomics shall reimburse the costs of the most favourable shipping route; the Client shall bear costs that increase because the delivery item is located elsewhere than the place of intended use. The rectification of the defect is limited exclusively to the delivery relating to the defect and does not include the removal and installation of the same.
If an alleged defect is not subject to the obligation to rectify, Etanomics may charge the Client for the services Etanomics provided for verifying and rectifying the defect, at Etanomics’s applicable remuneration rates plus the expenses incurred, unless the Client could not have recognised the lack of defectiveness.
In particular, Etanomics is not liable for defects caused by improper operation or operating conditions or the use of unsuitable equipment by the Client. The same applies if the Client modifies the delivery item or arranges for a third party to modify it without Etanomics’s consent and this makes it impossible or unreasonably difficult to remedy the defect.
11. Liability for damages
Unless otherwise agreed below, Etanomics shall be liable in accordance with the statutory provisions regardless of legal grounds.
Etanomics or its legal representatives or vicarious agents shall be liable without limitation for damages caused intentionally or through gross negligence.
If a material contract obligation is breached through slight negligence, Etanomics’s obligation to pay compensation shall be limited to foreseeable damage typical of this type of contract. A contract obligation is deemed to be “material” if it makes the proper fulfilment of the contract possible in the first place and the counterparty relies and may rely on its being complied with.
Otherwise, liability for damages caused by slight negligence is excluded.
If a material contract obligation is breached through negligence, Etanomics’s liability for all claims arising under an order shall be limited to the cover provided by Etanomics’s public liability insurance, up to a maximum of twice per year and per claim. If an uninsured or uninsurable risk is realised, Etanomics’s liability shall not exceed the amount of its fee for the order.
The above provisions do not affect liability for guarantees given, personal injury, or liability under the Product Liability Act.
Insofar as Etanomics pays compensation for damages on the merits in accordance with Clause 11.3, liability shall be limited to direct damages, meaning Etanomics will not be liable for loss of prospective profit, loss of production, loss of unrealised savings, consequential damages, or other and comparable indirect damage.
Insofar as Etanomics provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services it owes, this is done free of charge and to the exclusion of any liability.
The commissioned services are provided to the best knowledge and belief and with all due care that are customary in the industry. Statements made in subsidy applications are based on the information provided by the Client and empirical values from comparable orders. The Client shall not be liable for the usability of the service for the purposes intended by the Client unless this is due to gross negligence or wilful misconduct. Otherwise, any liability of the Client is excluded to the extent permitted by law.
12. Retention of title
The goods Etanomics delivers to the Client shall remain Etanomics’s property until all secured claims have been paid in full (“Reserved Goods”).
The Client may process and sell the Reserved Goods in the ordinary course of business until the enforcement event (Clause 12.10) occurs, unless insolvency proceedings are opened. Pledges or transfers of ownership by way of security are not permitted.
If third parties seize the Reserved Goods, particularly by attachment, the Client shall immediately inform them of Etanomics’s ownership and inform Etanomics thereof, handing over the necessary documents to enable Etanomics to enforce its ownership rights. If the third party cannot reimburse Etanomics for the judicial or extrajudicial costs incurred in this regard, the Client shall be liable for such costs.
13. Non-poaching clause
The Client shall not poach any of Etanomics’s employees or arrange for them to be poached, either directly or indirectly, either itself or through third parties.
This obligation includes not only employment contracts but also other offers and agreements on the basis of which the employee’s labour no longer benefits Etanomics but the Client in whole or in part.
This agreement shall survive the end of the contract by 12 months.
If this non-poaching clause is breached, the Client shall pay Etanomics 50% of the annual salary of the employee concerned (according to the employment contract with Etanomics) as liquidated damages. This does not affect any other claims, particularly claims for damages.
14. Final provisions
There are no oral side agreements. Amendments, supplements and the cancellation of these General Terms of Business shall be made in writing to be effective. This also applies to the amendment of this written form clause.
Unless otherwise agreed, any termination notice shall use the written form in accordance with § 126 BGB.
Transmission by fax and email fulfils the requirement for the written form, provided that receipt may be proven (by fax log, email confirmation of receipt, for example).
The exclusive place of jurisdiction for all legal disputes arising from the business relationship between the Client and Etanomics is the latter’s registered office, provided that the Client is a merchant, a legal entity under public law, or a special fund under public law, or provided that the Client has no place of jurisdiction in the Federal Republic of Germany. Etanomics may also bring an action at the Client’s registered office.
The relationship between the Client and Etanomics is governed exclusively by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15. Severability clause
Finding one or more provisions of the individual order agreements or the terms of business of Etanomics, including any addenda, to be legally ineffective, now or in the future, or finding a loophole, shall not render the remaining provisions ineffective. If an ineffective provision is found, the parties shall replace it with an effective provision that comes as close as possible to its legal and economic result. If a gap is found, the parties shall replace it with an effective provision that comes closest to what they would have agreed in terms of meaning and purpose.