General Terms and Conditions

 1    Validity of these Terms and Conditions

1.1 The following General Terms and Conditions (henceforth referred to as “Conditions”) shall exclusively apply to any deliverable and service in the areas of consulting and market research which is provided by Facit Digital GmbH (henceforth referred to as “Facit Digital”); these Conditions are duly accepted by the Client when the contract is awarded or the service is received. They shall also apply to any future business with the Client with regard to deliverables and/or services in the areas of consulting and market research. The validity of any deviating or supplementary Terms and Conditions on the part of the Client is excluded, even if Facit Digital does not expressly refute them.

2    Conclusion of the contract; subcontracting to third parties; request for modifications

2.1   Unless otherwise agreed in writing, tenders submitted by Facit Digital are non-binding. A contract shall only be concluded once the order has been confirmed in writing by Facit Digital, and this contract shall exclusively be based on the content of the order confirmation and these Conditions. In order to become effective, any oral agreements or undertakings require written confirmation by employees of Facit Digital who are authorized as its representatives.

2.2    In order to fulfil its obligations arising from the contract, Facit Digital is also entitled to commission third parties as subcontractors.

2.3    If – after the contract has been concluded – the Client requests changes to a specified service/performance when compared to the original specification (for example, a client briefing), this alteration to the specified service/performance shall require a corresponding written agreement by the parties involved. If this alteration causes additional expenditure and/or Facit Digital is obliged to provide additional services, Facit Digital is entitled – following prior notification – to demand additional remuneration.

3    Nature & quality; liability for defects / defective performance

3.1    If and insofar as Facit Digital is obliged by the contract to produce a work or outcome as set out in Section 631 ff. German Civil Code, the following shall apply:

3.1.1   Facit Digital shall provide the Client with the work or outcome in accordance with its agreed nature and quality; the contractual nature/quality shall be exclusively assessed in accordance with the specific agreements concerning its features and characteristics that have been made in writing by the parties.

3.1.2   The unconditional acceptance of the work/outcome by the Client shall nullify any of his rights and claims with regard to defects that were already recognizable at the time of the acceptance. The assertion of claims with regard to defects that were not recognizable at the time of acceptance is excluded unless the Client notifies Facit Digital without delay – and in writing – of the defect after it has been discovered.

3.1.3   Whenever Facit Digital is notified of a defect, it is entitled to inspect the defective work/outcome; the Client shall provide Facit Digital with the necessary time and opportunity to do so. If a complaint about a defect that is made by the Client proves to be unjustified and the Client has recognized this prior to raising the complaint or has negligently not recognized it, the Client undertakes to reimburse Facit Digital for any loss or damage arising in connection with this.

3.1.4  Facit Digital shall at its own discretion remedy defects by eradicating them at no cost to the Client or alternatively by providing a non-defective work/outcome free of charge (collectively known as “subsequent performance”). The Client shall provide Facit Digital with the necessary and appropriate time and opportunity for this subsequent performance.

3.1.5   If the subsequent performance fails to materialize, is unacceptable to the Client, or Facit Digital has refused it in accordance with the statutory provisions, the Client may at its own discretion withdraw from the contract in accordance with the statutory provisions or reduce the agreed price and/or demand compensation or the reimbursement of its wasted expenditure as set out in Section 6. 2.

3.1.6   The period of limitation for the Client’s rights with regard to defects shall amount to 12 months, beginning at the point in time when the Client accepts the respective work/outcome. The statutory periods of limitation shall apply to claims for damages made by the Client for reasons other than defects in the work/outcome as well as the Client’s rights in the case of defects that have been maliciously concealed or wilfully caused.

3.2    If and insofar as the contract specifies that Facit Digital shall provide services as set out in Section 611 ff. German Civil Code, the following shall apply:

3.2.1   The Client is entitled to his statutory rights in the case of defective performance on the part of Facit Digital.

3.2.2    The period of limitation for claims made by the Client as a result of defective performance amounts to 12 months from the statutory commencement of the period of limitation as set out in Section 199 German Civil Code. The statutory periods of limitation shall apply to claims for damages made by the Client for reasons other than defective performance as well as to claims made by the Client in the case of defective performance that has been wilfully caused.

4    Prices; payment terms

4.1    The Client shall pay Facit Digital the price agreed in the contract for those deliverables and/or services that Facit Digital has provided in accordance with the contract.

4.2    Unless otherwise agreed in writing, Facit Digital shall invoice the Client for travel expenses in accordance with actual expenditure.

4.3    Invoices from Facit Digital are due for payment (net) by the Client within 10 days of the date of the invoice.

4.4    All prices are subject to sales tax / VAT at the statutory rate applicable on the day when the invoice is submitted.

4.5    If – once the contract has been concluded – Facit Digital becomes aware of a risk of defective performance on the part of the Client, Facit Digital is entitled to provide outstanding deliverables and/or services only if advance payment is made or adequate guarantees are provided. If the advance payments or guarantees have still not been provided after an appropriate period of grace has expired, Facit Digital may either wholly or partially withdraw from individual contracts or all those contracts that are affected. The assertion of further rights by Facit Digital remains unaffected.

4.6    If the Client delays payment, Facit Digital is entitled to demand interest on arrears amounting to eight percentage points above the annual base interest rate that is applicable in each case. The assertion of additional damages for arrears by Facit Digital remains unaffected.

4.7   The Client may only declare his intention to offset claims made by Facit Digital if his counterclaim is undisputed or has been established by a court of law.

4.8    The Client may only assert a right to refuse performance or a right of retention insofar as his counterclaim is based on the same contractual relationship and is undisputed or established by a court of law.

5    Delivery dates and deadlines

5.1    Delivery dates and deadlines shall only be binding if they were agreed in the contract as being binding and the Client has promptly made available to Facit Digital all the information and documents required to provide the deliverable/service and has duly made any partial payments that may have been agreed. Delivery deadlines begin with the date on which the order is confirmed. If any changes are subsequently agreed as set out in Section 2.3, the delivery dates/deadlines shall be correspondingly postponed/extended. Facit Digital shall notify the Client of any such postponement/extension.

5.2 Events that are unforeseeable, unavoidable and beyond the sphere of influence of Facit Digital and for which Facit Digital is not responsible (such as force majeure, war, natural disasters or industrial disputes) shall release Facit Digital for their duration from its duty of timely delivery / service provision. Dates/deadlines for delivery / service provision shall be postponed/extended in accordance with the duration of this interruption; the Client shall be appropriately advised of the occurrence of this interruption. Either party is entitled to withdraw from the contract if the end of the interruption cannot be foreseen or lasts for longer than two months.

5.3 If the deliverables/services provided by Facit Digital are delayed, the Client is only entitled to withdraw if Facit Digital is responsible for this delay and an appropriate deadline for provision of the deliverable/service that has been set by the Client has expired with no result.

6    Liability

6.1    Facit Digital undertakes to perform its services whilst adhering to the generally recognized regulations and methodology pertaining to corporate consulting and market and social research. Nevertheless, Facit Digital does not guarantee that the consulting services and research results it has been commissioned to deliver can be commercially exploited by the Client in a specific manner.

6.2    Limitation of liability and mitigation of damages

6.2.1   The contractual and statutory liability of Facit Digital in relation to compensation for minor negligence – regardless of the legal basis – shall be limited as follows:

(a)   If essential obligations arising from the contract are infringed, the amount of Facit Digital’s liability shall be limited to foreseeable damages that are typical of contracts.

(b)   Facit Digital shall neither be liable for the infringement of non-essential obligations arising from the contract nor as a result of minor negligence.

6.2.2   The limitations to liability as set out in 6.2.1 shall not apply in cases of compulsory statutory liability or culpable physical injury. Furthermore, they shall not apply if and insofar as Facit Digital has provided a guarantee.

6.2.3  Points 6.2.1 and 6.2.2 shall correspondingly apply to Facit Digital’s liability for wasted expenditure. The Client is obliged to take appropriate measures to prevent and reduce any loss or damages.

7    Client’s obligation to cooperate

7.1    The Client undertakes to make available to Facit Digital all the information necessary to provide the deliverables and services. Even if not requested, he further undertakes to advise Facit Digital of any circumstances that might be significant in relation to the provision of deliverables and services by Facit Digital and where the Client realizes that Facit Digital is unaware of them.

7.2   If the Client delays acceptance or infringes other obligations to cooperate, Facit Digital shall without prejudice to its other rights be entitled to withdraw from the contract in accordance with the statutory provisions.

8    Confidentiality

8.1    Even once the contract has been completed, the parties undertake to treat in strict confidence any information and documents received from the respective other party in the context of carrying out the contract (including tender documents submitted by Facit Digital); neither shall this information / these documents be made accessible to any third party, and this information / these documents must exclusively be used to carry out the contract. Nevertheless, the parties are entitled to pass this information and these documents to their colleagues/employees if and insofar as the latter must be aware of it/them in order to carry out the contract. However, any such passing to colleagues/employees presupposes that the latter undertake to duly comply with the duty of confidentiality as set out in this Section 8, and indeed – within the context of what is legally possible –  beyond the termination of the legal relationship on whose basis the respective colleague/employee is bound to the receiving party.

8.2    The duty of confidentiality as set out in 8.1 does not apply to information and documents

8.2.1  which at the time when they were accepted by the receiving party were already in the public domain or were subsequently made public by the receiving party without infringing the duty of confidentiality as set out in 8.1 or

8.2.2   which the receiving party was fully aware of at the time of disclosure or

8.2.3   which regardless of the confidential information and/or documents were developed by the receiving party itself or

8.2.4   which the receiving party acquired lawfully and in full from a different source which is entitled to disclose this information to third parties or

8.2.5  which is released from such restrictions in accordance with written authorization from the disclosing party or

8.2.6  which must be disclosed by the receiving party by law or in accordance with the decision of an administrative body, provided that the receiving party promptly notifies the disclosing party of a disclosure of this kind and in doing so ensures to the best of its ability to only disclose as little information as is required.

9    Self-promotion and utilization by Facit Digital

9.1   Facit Digital shall be entitled to utilize at no cost to itself and to the customary extent the contractual relationship with the Client for the purpose of self-promotion on the part of Facit Digital so long as the Client does not refuse this in writing in individual cases.

 

9.2    Facit Digital shall moreover be entitled to utilize for internal purposes the data, questionnaires and research results that have been gathered, obtained and created in the context of a contract, together with their various manifestations.

10  Final provisions

10.1    Any changes and additions to the contract and/or these Conditions must be in writing if they are to be effective. This also applies to any amendment to this requirement that such changes or additions should be in writing.

10.2    Oral or written secondary agreements shall only be binding for Facit Digital once they have been confirmed in writing.

10.3    If individual provisions of the contract and/or these Conditions become wholly or partly void or invalid, this does not affect the validity of the remaining provisions.

10.4    The sole place of jurisdiction for any disputes arising from or in the context of the contractual relationship between the parties shall be the registered office of Facit Digital.

10.5    These Conditions together with the contractual relationship between the parties are subject to the law of the Federal Republic of Germany.