Terms and Conditions

General Terms and Conditions for Services of Consulting4Drive GmbH

I. Applicability of Terms and Conditions

  1. Subject to deviating agreements in particular cases the
    conclusion of contracts with us is governed exclusively by
    the following Terms and Conditions; when placing an order
    the Customer thereby accepts our Terms and Conditions.
    Adverse or deviating terms and conditions of a Customer
    will only have binding effect on us if we have expressly
    confirmed them; our confirmation must be in writing. Our
    Terms and Conditions also apply when we provide our
    services in knowledge of a Customer’s adverse or deviating
    terms and conditions without any reservation.
  2. These general Terms and Conditions are applicable to all
    our services and to all of the duties that might result from
    any relationship with the client under the law of
    obligations. For entrepreneurs (Unternehmer) and legal
    entities incorporated under public law our Terms and
    Conditions apply also for all future business relations.

II. Conclusion of Contract / Amendments of Contract

  1. A contract shall only be deemed concluded with us if the
    Customer either accepts our offer without reservation or if
    he receives our written confirmation of his order or if we
    commence with the rendering of services. In case we issue
    a written confirmation following the Customer’s order, this
    confirmation will define the subject and the scope of the
    contract, unless expressly agreed upon otherwise.
  2. Amendments, collateral agreements and additional
    provisions as well as any respective stipulation of condition
    (Beschaffenheitsvereinbarung) or the issuance of
    guarantees shall require an explicit agreement in order to
    become effective; this must be in writing to take effect.

III. Subject matter of contract

  1. The supply of services usually requires a close co-operation
    between the Customer and us. The parties therefore
    undertake to each take consideration of the other and to
    inform each other fully and without delay. The Customer
    shall provide us with all relevant facts we require to
    perform our work. We are not obliged to check any data,
    information or other work provided by the Customer for
    completeness and correctness insofar as there is no reason
    for this considering the respective circumstances of the
    individual case or the duty to check was not assumed
    explicitly as a contractual duty.
  2. Insofar as work is performed on the Customer’s premises,
    the Customer shall provide our employees with the
    workstations and resources necessary free of charge.
  3. The Customer undertakes it as a main contractual duty to
    ensure that all duties to participate in the performance and
    all his contributions agreed upon will be available in the
    necessary quality and in the time agreed upon or which is
    necessary to realize the project in time without further
    costs for us. As far as it is necessary for the project’s
    success the Customer will especially provide own personnel
    in sufficient number and competent addressees for the
    complete duration of the project.

Terms and Deadlines

  1. Deadlines shall be binding only if they have been explicitly
    agreed to as binding deadlines; this agreement must be
    done in writing to take effect. To the extent terms and
    deadlines have not been agreed upon as being binding, we
    shall not be in default until an additional period of time of
    reasonable length the Customer has granted to us for the
    rendering of services we owe elapsed.

VI. Fees and Payments, Right to Set-off

  1. The fees we have specified shall be decisive; the respective
    VAT is to be added as prescribed by law if applicable.
    Unless otherwise agreed upon we are entitled to receive a
    refund for expenses in addition to the fees agreed upon.
  2. Our invoices are to be paid – without deduction of cash
    discount and free of additional expenses – in accordance
    with the agreed schedule of payment, otherwise within 15
    working days after the date of the invoice. Should we – in
    individual cases – accept checks or bills of exchange by
    virtue of express agreement, the acceptance does also not
    allow for a deduction of cash discount and is pending full
    discharge of the debt. Any respective discount charges
    shall be borne by the Customer. We shall only
    acknowledge payments by checks as satisfaction of the
    contractual terms if our account has been unreservedly
    credited to the amount of the respective sums. We do
    reserve the right to require adequate payments on account
    and advance payments.
  3. In case of several debts due and owing by the Customer,
    we shall determine which debt is to be counted against
    payments made.
  4. The Customer can only claim rights of set-off if his
    counterclaims have been either determined by legal force
    (res judicata), or are undisputed or acknowledged by us in
    writing. The same shall apply in respect to claims of rights
    of retention.
  5. Should we receive notice of circumstances after conclusion
    of the contract which seem to endanger our claims against
    the Customer because of the lack of his ability to perform,
    we shall be entitled to render due services only against
    prepayment or provision of security and we shall also be
    entitled to rescind the contract after expiration of a
    deadline set for the prepayment or provision of security;
    paragraph VI. 3. of this Terms and Conditions shall apply
    mutatis mutandis.

VII. Warranties / Claims of Fault (Mängelansprüche)
for Separate Work Performance

  1. If, in derogation of paragraph III.1. of these Terms and
    Conditions, other work performances separately agreed on
    in addition to services of consulting are subject matter of
    this agreement, the following terms and conditions apply
    to claims of fault (Mängelansprüche).
  2. Should the services we have rendered have any faults, the
    Customer shall give us an opportunity to subsequent
    performance within reasonable time unless such
    subsequent performance cannot be reasonably accepted by
    the Customer in an individual case, or special
    circumstances are given which, taking into consideration
    the interests of both parties, justify an immediate
    rescission of the contract. In any case, we shall be entitled
    to choose between remedying the defect or rendering
    services free of faults. In case of remedying a defect we
    are to bear all costs which are necessary for remedying the
    defect, especially transport, travel, work, and material
    costs insofar as these are not increased by the fact that
    the object of purchase has been brought to a location other
    than the place of performance.
  3. The rights of the Customer with respect to defects assume
    that the Customer has duly satisfied his obligations to
    examine and complain according to section 377 of the
    German Commercial Code (HGB).
  4. The Customer must make claims of fault
    (Mängelansprüche) in writing naming all faults noticed and
    the circumstances under which they showed. It is not
    considered a fault if a fault the Customer objected to
    General Terms and Conditions for Services of Consulting4Drive GmbH page 2 of 3
    Version 1.0 / as of: 20th February 2008
    cannot be reproduced. If the Customer manipulated the
    result of work in any way, he may make claims of fault
    (Mängelansprüche) only if he can prove that his
    manipulations were not the cause for the fault.
  5. Should it become apparent that the fault the Customer has
    declared is indeed not given, and especially in cases in
    which a fault asserted cannot be reproduced, we shall be
    entitled to demand reasonable compensation for our effort
    and cost unless the Customer has acted in simple
    negligence (leichte Fahrlässigkeit).
  6. Should the subsequent performance fail, should we refuse
    to perform it or should the Customer not be able to
    reasonably accept it, the Customer shall solely be entitled
    to the usual claims of faults (Mängelansprüche) the law
    provides for (rescission of the contract, diminishment of
    the agreed remuneration (Minderung), self-execution
    (Selbstvornahme), damage payments or compensation for
    frustrated expenses (vergebliche Aufwendungen)). Claims
    for damages shall be given solely as far as Section IX. of
    these Terms and Conditions provides for.
  7. Should the fault consist in a merely slight deviation from
    the respective condition stipulated to (vereinbarte
    Beschaffenheit), we shall at our discretion only grant the
    Customer either the right to subsequent performance or to
    a reasonable diminishment of the agreed remuneration
    (Minderung). Should no condition have been stipulated to,
    the same shall apply to any deviation from the suitability
    for the use provided for in the agreement otherwise the
    usual suitability, provided that it is only an immaterial
    deviation. The suitability shall be assessed against what is
    usual in goods or services of the same type and the
    standards the Customer can expect as a result of the type
    of goods or services.

VIII. Right of Use

  1. Insofar as in derogation of paragraph III. 1. of these Terms
    and Conditions, works and services are to be provided
    according to a contract concluded with the Customer we
    grant the Customer a simple, which means a non-exclusive
    right of use to the results (e.g. concepts, construction
    drawings, software or similar results) insofar as nothing to
    the contrary has been explicitly agreed upon. The right of
    use will be specified in the agreement specifically
    concluded in each individual case. In case the results
    delivered were not compiled by us we will, as a rule, only
    act as intermediary for a contract with the third-partysupplier.
    The Customer therefore agrees to the terms and
    conditions delivered by the third-party-supplier to which
    we will make reference explicitly; these Terms and
    Conditions will be authoritative for the scope of the right of
    use.
  2. Independently from the scope of the right of use granted
    to the Customer we may in any case use ideas, concepts
    and know-how gained etc. for purposes of further
    development and services, also for other customers.

IX. Liability and Right of Rescission

  1. Our liability is exclusively governed by the following
    regulations:
    Our liability for cause is limited to
    – intentional acts or gross negligence
    – negligent breach of essential contractual obligations.
    Except in cases of intentional acts our liability is limited in
    amount to the contractually typical and foreseeable
    damages. As far as we are liable in cases of slight
    negligence (leichte Fahrlässigkeit), our liability shall in any
    case of pecuniary damages be limited to a maximum
    amount of 􀀁 100,000.00 per case of damage. In case of
    damages to property caused by slight negligence there is a
    limit in the maximum amount of 􀀁 500,000.00. Any further
    liability on our part for pecuniary damages or damages to
    property shall be excluded. The liability for personal injury
    as well as product liability will not be affected by the
    preceding clauses.
  2. We are only liable for the retrieval of data if the Customer
    made certain that lost data may be retrieved with
    appropriate expenditure. The Customer is therefore under
    the obligation to regularly save the data and programs in
    adequate intervals.
  3. The exclusion of liability based on the preceding clauses
    comprises the personal liability of our organs, employees
    and other co-workers, representatives or vicarious agents
    and shall also apply to all claims based on negligence in
    the cause of contracting, breach of an ancillary contractual
    duty (Verschulden bei Vertragsverhandlungen), inadequate
    performance and torts (Sections 823 ff. Bürgerliches
    Gesetzbuch [German Civil Code]) to the exceptions of
    claims under Sections 1, 4 Produkthaftungsgesetz (German
    Product Liability Law).
  4. The right of the Customer to rescind the contract as a
    result of an infringement of our contractual duties due to
    reasons for which we are not at fault and which do not
    consist of a fault of goods delivered or services rendered
    shall be excluded.

X. Period of limitation

  1. To the extent the Customer is not a consumer, any
    contractual claims of the Customer be statute-barred
    within one year from the start of the statutory period of
    limitation.
  2. The periods of limitation provided for by law shall not be
    affected by the above provisions in the following cases:
    – for damages resulting from injuries to lives, bodies or
    health;
    – for any other damages based on intentional or grossly
    negligent failure to comply with our contractual duties
    by ourselves, our legal representatives or vicarious
    agents;
    – for the Customer‘s right to rescind the contract due to
    our failure to comply with our contractual duties for
    which we are at fault;
    – for claims resulting from fraudulent concealment of a
    defect and a guarantee (Beschaffenheitsgarantie)
    within the meaning of Section 443 of the Bürgerliches
    Gesetzbuch (German Civil Code).

XI.Covenant not to Assign

  1. The assignment of a Customer’s claims against us which
    arise from the business relationship is excluded.

XII. Place of Performance, Place of Jurisdiction and
Applicable Law

  1. Place of performance for all goods delivered/services
    rendered shall be Berlin, Germany, unless otherwise
    agreed.
  2. The exclusive legal venue for all claims against
    entrepreneurs and legal entities incorporated under public
    law which result from this business relationship is Berlin.
    This includes cases of claims based on checks, torts and
    cases of third party notice. We reserve the right to also sue
    Customers at every other competent court.
  3. If we perform cross-border services, Berlin is the
    exclusively legal venue for disputes arising out of the
    contractual relationship between the Customer and us
    (Article 23 of the European Council Directive on Jurisdiction
    and the Recognition and Enforcement of Judgements in
    Civil and Commercial Matters [EuGVVO] or Article 17 of the
    European Civil Jurisdiction Convention [EuGVÜ]). We
    reserve the right to also sue the Customer at their place of
    general jurisdiction or call upon any court which has
    jurisdiction according to said European Council Directive or
    the European Civil Jurisdiction Convention.
  4. All legal relations arising out of or in connection with the
    contractual relationship between a Customer and us are
    governed by the substantive law of the Federal Republic of
    Germany excluding the rules on the conflict of laws; the
    application of the United Nations Convention on Contracts
    for the International Sale of Goods (CISG) shall be
    excluded.

XIII. Final Provisions

  1. In case of differences between the German and English
    version of these Terms and Conditions only the German
    version shall apply and be legally binding.
  2. If any provision of the above Terms and Conditions is or
    will become invalid, it will not affect the validity of the
    other provisions. In place of the invalid provision new
    provisions shall be inserted which will in meaning get
    closest to the economic goals of the contract with due
    observance of the parties’ interests.
  3. All our previous general Terms and Conditions for services
    are substituted by these provisions.