GENERAL TERMS AND CONDITIONS OF BUSINESS
1. Scope of application
The following General Terms and Conditions of Business apply to all current and future contracts between clients and KLEE GmbH office for technical planning and consulting (hereinafter referred to as KLEE). Deviations from these provisions and especially conditions on the part of clients are only valid if expressly accepted and confirmed in writing by KLEE. Stipulations made by contractual partners have no validity even if they are not expressly rejected or services are rendered by KLEE without reservation. KLEE has the right to withdraw from a contract if a contractual partner rejects the validity of these General Terms and Conditions of Business. Changes to our General Terms and Conditions of Business will be communicated to our contractual partners in writing. They are considered as approved if the contractual partner does not appeal against them within a month of receiving notice of the change. Individual arrangements always have priority.
2. Conclusion and implementation of contract
In accordance with the specification of the client (Project Description), KLEE will develop a written tender containing dates, locations and nature of the activities to be performed as well as the exact performance requirements and all costs. Unless otherwise specified, tenders produced by KLEE are non-binding regarding all the listed information including the fee. Tenders are to be countersigned and returned to KLEE. If a confirmation of an assignment by KLEE contains changes vis-à-vis the original tender document, these changes are considered as approved by the client unless they are rejected immediately, i.e. within three working days. If an agreement cannot be reached, KLEE has the right to withdraw from the contract. All agreements concerning the conclusion of the contract must without exception be made in writing.
KLEE undertakes to carry out client assignments in an orderly and correct manner in accordance with the generally accepted rules of technology and the principles of profitability. In order to fulfil contracts KLEE may draw on other appropriately qualified parties and give these qualified parties assignments in the name and at the expense of clients. KLEE is however obliged to give clients written notice of any such intention and to give clients the opportunity to reject the sub-contracting of the services in question to a third party within five working days. Such rejections must be communicated in writing.
3. Obligation to co-operate
Clients undertake to make available in a timely and comprehensive manner all information necessary for the completion of the assignment especially technical plans, drawings, ground plans, seating plans, escape and rescue plans, incomplete drawings and lists of materials. KLEE may give clients a deadline for providing this information. If the information is not provided by the deadline, KLEE has the right to withdraw from the contract.
4. Prices and payment, late payment
All fees are presented in euros unless the tender and contract expressly indicate a deviation from this arrangement. Fees are quoted exclusive of value added tax. This is to be paid separately by clients and will be invoiced for separately by KLEE. The fee levels as well as the nature and scope of the agreed services are constructed on the basis of the tender, contract, power of attorney and these General Terms and Conditions of Business. Unless otherwise agreed, KLEE’s prices are quoted exclusive of travel, hotel and subsistence costs. Discounts are only allowed in the case of special agreements.
Due dates for the payment of invoices are stated on the respective invoices. If these dates expire without payment the respective invoice becomes overdue. If no date is named then invoices are due for payment within fourteen days of completion of the assignment. A special reminder is not required. Overdue invoices attract interest at the rate of eight percentage points above the base rate. KLEE reserves the right to pursue further damage claims.
Payments are to be made free of charge to the bank account given on the invoice.
5. Working hours, accommodation, travel to and from place of work
Unless a different agreement has been made, the working day is limited to a maximum of ten hours. If additional hours are required for the performance of the services, clients are obliged to pay for each hour commenced at the rate of 10/100 of the agreed day rate. Personnel representing KLEE are to be accommodated in hotels of a least a medium standard. If clients do not make a hotel available then the contractor has the right to secure accommodation in a hotel of the designated class. These costs are to be borne by the client. The client is responsible for the payment of all necessary travel costs including any associated additional costs (e.g. taxi fares, public transport fares etc.). Any prepaid expenses incurred by KLEE are to be reimbursed immediately on presentation of invoice.
6. Right to cancel, expansion of scope
Clients may cancel a contract without providing a reason at any time until completion of the assignment. If a client cancels a contract without a reason, KLEE is entitled to demand full payment of the agreed fees. Travel and hotel costs that have been agreed but not incurred will not be charged in this instance nor will expenses be charged that have not been incurred.
If the client is late with a part payment or in delivering an agreed act of cooperation that makes it impossible for KLEE to complete the assignment or else significantly hinders this then KLEE has the right to withdraw from the contract. In this case KLEE likewise may demand payment of the fees in full. Travel and hotel costs that have been agreed but not incurred will not be charged in this instance nor will expenses be charged that have not been incurred.
If the client cancels a contract within the scope of their warranty rights (justified cancellation) then the services documented as having been performed by KLEE up to that point in time are to be paid for on the basis of the schedule outlined in the tender. Travel and hotel costs that have been agreed but not incurred will not be charged in this instance nor will expenses be charged that have not been incurred.
If in the course of carrying out the assignment an unforeseen increase in the originally agreed scope of service occurs KLEE will inform the client of this in good time and will draw up a supplementary new tender for the completion of the assignment. KLEE reserves the right to cancel the original contract if the supplementary tender is not accepted. In such an event the services rendered up to that point in time (working time and materials) are to be fully paid for by the client on the basis of the schedule contained in the original tender. Expenses incurred and prepaid expenses are to be reimbursed.
7. Warranty, liability and construing of rights
KLEE has a responsibility to carry out its services with the usual care expected from a specialist working in this field.
The client is responsible for checking the plans for the event on receiving them from KLEE or after the test set-up has been carried out and for communicating any complaints to KLEE without delay. This must always occur in writing. In the case of productions for which an employee or authorised representative of KLEE is present on site, oral communication will suffice.
The client must provide notification of any complaints concerning the planning or the test set-up and these must be acknowledged within five days maximum following the receipt of the plans or the performance of the test presentation. On expiry of this period, the services are considered approved in all cases. Inadequate delivery of part of the services does not provide a justification for criticism of the overall service. KLEE must be given at least two opportunities to make the necessary improvements. Claims for damages in respect of delayed service delivery may not be made while the relevant improvements are being effected. If the desired improvement is not achieved at the second attempt or does not occur with a reasonable time the client is entitled to withdraw from the contract (case of justified cancellation of contract).
KLEE accepts no liability for secondary damages and especially not for loss of profit. Irrespective of the legal justification KLEE or its appointed agents may only be held only liable for damages in the case of intentional or gross negligence or if they have given guarantees that involve such a liability. The latter must be made in writing and must expressly be described as such. KLEE can moreover only be held liable in cases of compulsory legal liability (injury to life, body or health). Further compensation claims are excluded by mutual agreement.
If KLEE or its appointed agents fail to fulfil their contractual obligations any liability that arises is limited to the extent of the contractually agreed remuneration.
To the extent that no limitations have been set, warranty is based on the provisions of the law.
The construing or exercise of a right of retention on the part of the client is only possible in the event of legally binding uncontested or recognised counterclaims. The client is only authorised to exercise a right of retention if their counterclaim is based on the same contractual relationship. The client is not entitled to transfer complaints of whatever sort against KLEE to third parties.
KLEE is obliged to treat as confidential all information received from the client in compliance with data protection regulations. KLEE is also obliged to keep secret its planning activity if and as long as the client has a justified interest in keeping this secret. On completion of the assignment KLEE is entitled to publish fully or in part the service rendered and the name of the client for the purposes of advertising as long as a contractual agreement to the contrary does not exist (references).
9. Planning protection, retention of title
Property rights and copyright in all KLEE‘s plans, prospectuses, reports, technical documents and the like made available to the client in connection with the award and execution of any commission resides with KLEE. Publication of such material whether in full or in part may only occur with KLEE’s permission. This also applies to the transfer or repeated use of any such materials by the client or by a third party.e.
10. Applicable law, place of performance and jurisdiction
All contracts between clients and KLEE are governed exclusively by German law. Place of payment and performance for all legal relationships is Berlin. KLEE is however also entitled to initiate proceedings against clients in its usual jurisdiction or in the jurisdiction of its registered office.
11. Severance clause
If any individual provisions of this contract are invalid or impracticable or should they become invalid or impracticable after signature of the contract this does not affect the validity of the contract as whole. In place of the invalid or impracticable provision a valid and practicable arrangement is to be applied whose effects approximate most clearly to the commercial objectives that the parties to the contract pursued by means of the invalid or impracticable provision. The above provisions apply correspondingly for the event that the contract should prove to be incomplete. If the invalidity is based on a determination of performance or time, the legally permissible measure shall be applied in its place.