General Terms and Conditions
General Terms and Conditions of heretonow GmbH for buying goods and services
1.1 These Terms and Conditions will become part of every contract by means of which heretonow GmbH (in the following “heretonow”) buys work and services, e.g. deliveries of goods, services, intellectual property or travel services. Conflicting or differing Terms and Conditions or other restrictions by the contractual partners do not apply, without a revocation being required, unless heretonow agreed to them explicitly and in writing in the individual case.
1.2 Other agreements, amendments and subordinate agreements shall be agreed mutually and in writing.
2. Offer and placing of contracts
2.1 The contractual partner shall comply with the enquiry exactly in its offer and in cases of variations draw attention to this explicitly. Offers (including estimates) by the contractual partner shall be submitted free of charge in all cases and do not give rise to any obligation on the part of heretonow.
2.2 Orders placed by heretonow are binding. All specifications of the contractual partner and any and all amendments and variations from the order placed shall require the text form. The content of verbal and telephone talks is only binding if it is confirmed in the text form.
2.3 The scope of the work and services in terms of quantity set in the order is binding. Any additional quantities will not be paid for, even if they are due to technical aspects of production. Designs, in particular alternative solutions, form part of the scope of the work and services.
2.4 All written documents of the contractual partner shall indicate the name of the employee of the contractual partner handling the matter, the name of the project, the full order number, the date the order was placed and any amendments.
2.5 heretonow can demand changes to the work or services to be provided by the contractual partner until the contract ends. The contractual partner shall execute the changes to the work and services, provided this is not unreasonable as part of its operating capabilities. Payment and delivery periods are to be adjusted if applicable. If an adjustment of remuneration or the delivery periods is necessary in the view of the contractual partner, it shall give notice of this without delay in the text form. If no direct consent in the text form is given by heretonow, the change is deemed not to have been ordered. In the event that no such notification takes place, the periods of time and remuneration originally agreed shall remain applicable.
2.6 Apart from this, all specifications of heretonow as well as any changes and variations from the order placed that are communicated to the contractual partner in the text form are binding if the contractual partner does not raise any objection without delay after receipt.
2.7 heretonow can terminate the contract at any time in full or in part until the contract ends. In the case of termination, heretonow shall inform the contractual partner what work that was begun still has to be completed. The contractual partner will execute this work on the terms and conditions agreed in this contract.
3. Time of performance, execution of the contract
3.1 Agreed deadlines or time periods are binding. The date of receipt of the work or services by heretonow or by the receiving point named by heretonow is the date applicable for compliance with the time period.
3.2 As soon as the contractual partner assumes that it will be unable to fulfil its contractual obligations in full or in part or not on time, it shall inform heretonow of this without delay in writing, stating the grounds and the anticipated duration of the delay. If the contractual partner fails to provide such notification, it cannot invoke impediment to heretonow even if the impediment was for reasons beyond its control.
3.3 If the contractual partner does not meet the deadline by the agreed date or within an agreed period, heretonow has the right to demand a contractual penalty of 0.1% of the net contract value for each working day that the date is overrun. If the overrun of the date relates to a separate part of the work or service only and does not impair the use of the part of the subject matter of the work or service already provided or to be provided, the contractual penalty will only relate to the separate part of the
subject matter of the work or service. The contractual penalty shall be a maximum of 5 percent of the net contract value. The contractual partner is permitted to prove that no or substantially less damage arose from the delay. heretonow can assert these or other contractual penalties until the final accounts are drawn up, also even if heretonow did not explicitly reserve the right at the time of acceptance of performance. Further statutory rights such as in particular rescission and damages are reserved by heretonow. However, the contractual penalty will be credited towards the damages. Insofar as the contractual partner exceeds agreed dates or deadlines by more than one month, heretonow can demand damages instead of performance pursuant to Section 280 para 3, Section 281 of the Bürgerliches Gesetzbuch (German Civil Code).
3.4 Rescission of the contract due to work or a service not provided or not provided in accordance with the contract pursuant to Section 323 of the Bürgerliches Gesetzbuch does not lead to lapsing of a contractual penalty incurred for the case of non-performance (Section 340 Bürgerliches Gesetzbuch) or improper performance (Section 341 Bürgerliches Gesetzbuch).
3.5 The involvement of third parties by the contractual partner to perform the service (suppliers, sub-contractors) will require the prior written consent of heretonow.
4. Transfer of rights and inellectual property rights
4.1 The contractual partner and heretonow agree that heretonow is to be put in the position enabling it to use and exploit the services and work results provided by the contractual partner (collectively "work results' in the following) in a way that is as comprehensive as possible either itself or by a third party (in particular the heretonow customers).
4.2 Thus, upon their creation or processing all transferable use and exploitation rights, intellectual property rights, legal positions equivalent to such property rights as well as ownership of all work results created under the contract will pass to heretonow or the contractual partner will irrevocably grant heretonow the exclusive and transferable rights of use and exploitation in and to the work results unlimited in time, place or content for all known and unknown forms of use as well as the right to use images of any models
4.3 In particular, heretonow has the right to process, adapt or alter the work results, to duplicate them, to circulate them, to make them accessible to the public, to broadcast, perform or exhibit them, to grant sub-licences and to file applications for registration of the intellectual property rights without the consent of the contractual partner. heretonow may use the work results of the contractual partner as part of the advertising devised by heretonow without any limitation of time for its own advertising on its web site or in print form and for competition entries. Works ordered specially or for which a contract was placed and that were created by the contractual partner, its employees or suppliers as part of an order are deemed to be work commissioned.
4.4 Insofar as, as a departure from 4.2, rights of use or exploitation of work results have not been transferred due to separate written agreement, heretonow can subsequently demand their transfer in full or in part in return for adequate remuneration. Remuneration will - as far as possible - be based on what has already been agreed with the contractual partner and otherwise in accordance with the remuneration rates of the performing rights organisations; if these do not have any effect, the remuneration is to be set by heretonow at its reasonably exercised discretion that can be verified by a court.
4.5 The contractual partner recognises that assertion of claims through the courts of law to review the right of use by heretonow or the customer of heretonow as well as a review of the decision made by heretonow at its discretion pursuant to 4.4 constitutes adequate procedural legal protection. The contractual partner hereby waives recourse to interim legal protection (interim injunction, distraint) in the event that heretonow has set remuneration pursuant to 4.4 and rendered payment to the contractual partner.
4.6 If the provision and use of work results by the contractual partner gives rise to copyright without the contractual partner having created these work results alone and exclusively, heretonow is deemed to be the copyright owner.
4.7 If in executing the contract placed, the contractual partner deploys employees and/or sub-contractors and/or third parties, it is obliged to acquire their rights of use and to transfer these to heretonow to the extent that has been agreed for its own services and work results pursuant to the above paragraphs. Furthermore, it shall impose on these persons the same duties as it had to assume for its own services and work results.
4.8 The contractual partner has no right to be named unless a different written agreement was concluded.
5. Defects and liability
5.1 The contractual partner is liable for ensuring that the subject matter of the work or service is free from material defects or defects of title, conforms with the terms and conditions named in the order as well as the guaranteed features, the generally recognised rules of technology, the specifications of heretonow as well as the applicable statutory, public authority and other guidelines and regulations, in particular the Gerätesicherheitsgesetz (Equipment Safety Act), the technical safety requirements, the regulations on safety at work and accident prevention and the requirements of environmental protection. Any claims of heretonow arising from a guarantee assumed by the contractual partner remain unaffected.
5.2 The contractual partner guarantees that by providing and using subject matter of the work or service by heretonow, the latter will not infringe any (protected) rights of third parties in Germany or elsewhere. The contractual partner undertakes to indemnify heretonow against any and all costs arising from any alleged infringement of a (protected) right at the first request and, if requested by heretonow, to conduct all legal disputes arising from the above at its own expense or to become a party to a relevant legal dispute between heretonow and a third party on the side of heretonow.
5.3 In the case of material defects or defects of title, heretonow has the full statutory warranty rights. heretonow will check goods supplied within a reasonable period to establish any deviations in quality or quantity. A complaint has been made by heretonow in time provided that it is received by the contractual partner within a period of 10 working days as of delivery of the goods in question. A complaint to the contractual partner regarding concealed defects can also be made within a period of 10 working days as of their discovery. A concealed defect has been discovered if a technical check of the goods delivered takes place after occurrence of first objections and heretonow has been informed of the defect. If a defect is revealed within the period of limitation of claims, it is presumed that the defect already existed at the time of passage of risk.
5.4 If as part of subsequent performance, heretonow chooses removal of the defect and the contractual partner defaults on removing the defect, heretonow has the right to remove the defect itself or have it removed by a third party at the expense and risk of the contractual partner irrespective of its continued liability for defects. In urgent cases, heretonow has the right to remove the defect without first sending a warning or setting a time period at the expense and risk of the contractual partner and irrespective of its continued liability for defects.
5.5 The statutory limitation of time applies unless the parties have agreed an extension. A complaint interrupts the period of limitation for the period of time between the complaint and removal of the defect. If the subject matter of the work or service is completely renewed, the period of limitation will begin anew. In the case of partial renewal, this will apply to the renewed parts.
5.6 Liability of the contractual partner for defects also extends to all parts or works made or delivered by suppliers.
5.7 The work or service complained about on the basis of the liability for defects will be at the disposal of heretonow and only after replacement will again become the property of the contractual partner without limitation.
5.8 If the subject matter of the work or service is to be accepted by heretonow within the meaning of Section 640 of the Bürgerliches Gesetzbuch, acceptance will be subject to all claims arising from defects also if at the time of acceptance heretonow did not explicitly reserve the right to claims arising from defects on account of defects known at the time of acceptance.
5.9 The contractual partner will indemnify heretonow against claims arising from manufacturers' liability and on the basis of the Produkthaftungsgesetz (Product Liability Act) insofar as the contractual partner or its supplier is answerable for or caused the product flaw giving rise to liability.
5.10 In other cases, the contractual partner will be liable under the statutory law provisions. Sections 478, 479 of the Bürgerliches Gesetzbuch will also apply if heretonow has not delivered the work or service to consumers but to entrepreneurs and the contractual relations between heretonow and its customer are thus not to be classified as sale of consumer goods.
5.11 If the work results of the contractual partner infringe the protected rights of a third party in contravention of Clause 5.2 and for this reason claims are asserted against heretonow or the customers of heretonow, the contractual partner will at heretonow's choice and at its (contractual partner) expense within a reasonable period set by heretonow either
a) obtain the right for the work result to be used by heretonow, or
b) create the work results in a way that they are not protected by third party rights, or
c) replace the work results by other equivalent results that do not infringe a protected right, or
d) Return the fee paid by heretonow for the work results and reimburse the associated expenditure and damage.
After expiry of the period, heretonow can carry out the measures under a) - c) above at the expense of the contractual partner either itself or have them carried out by a third party or obtain the permission of the entitled party in question.
6. Insurance, destruction of or damage to items owned by the contractual partner
6.1 The contractual partner is required to take out adequate third-party liability insurance at its own expense for damage caused by it, its employees or suppliers as a result of work of service provided, work or items delivered. heretonow is to be provided with proof of the insured amount per case of damage upon request.
6.2 The contractual partner will bear the risk of accidental destruction or damage to all items provided or contributed to heretonow or its suppliers by the former when executing the contract.
6.3 The contractual partner is required to take out adequate insurance of all risks arising from execution of the contract to cover all items provided or contributed to heretonow or its suppliers when executing the contract. heretonow will not accept any liability for destruction of or damage to items provided or contributed to heretonow except in cases of intent or gross negligence.
7. Shipping regulations, passage of risk and title
7.1 The contractual partner is required to send a detailed shipping notice, separate from the goods and the bill, for each individual consignment on the day of shipping. The delivery note and the packing list are to be enclosed with the consignment. The contractual partner shall choose the means of transport that is the most inexpensive and suitable for heretonow and comply with relevant regulations regarding packing and shipping. The order reference number and the details of the consignee specified by heretonow are to be indicated on all shipping notices, delivery notes, packing lists, consignment note, bills and the outer packing.
7.2 The subject matter of the goods or service will be transported at the risk of the contractual partner free place of receipt named by heretonow. Risk will only pass to heretonow after unloading. This will not apply if heretonow chose the haulage company or carries out transportation itself. Ownership will also pass to heretonow together with the passage of risk. No reservation of ownership in favour of the contractual partner exists.
7.3 All consignments that cannot be taken over due to non-compliance with these regulations will be warehoused at the expense and risk of the contractual partner. heretonow has the right to establish the content and condition of such consignments.
7.4 At its discretion, heretonow is entitled to return deliveries and services that do not conform to the specifications of the order to the contractual partner at the expense and risk of the latter.
8.1 Remuneration named in the contract is a binding fixed price and includes all work and services to be provided by the contractual partner, including all costs such as travel expenses, out-of-pocket expenses, packing, loading and unloading, insurance, customs duties and taxes, with the exception of the value-added tax, which is to be shown separately. No additional payment demands will be recognised.
8.2 In the event that the contractual partner reduces its prices or improves its terms and conditions in the time between the order and delivery, the prices as well as the terms and conditions valid on the day of delivery will apply.
9. Bill and payment
9.1 The wording, order of the text and the prices must be shown on bills in a way that conforms to the order and the bills must contain the information required under 2.4. Any additional deliveries or deficient deliveries are to be indicated on the bill separately.
9.2 At the discretion of heretonow, payment will be 30 days after receipt of the bill subject to the proviso of a complete delivery.
9.3 Periods for payment will expire at the agreed time, at the earliest with the complete receipt of goods and the bill. Periods for payment will only start provided that all requirements of the bills and
shipping of the goods have been met by the contractual partner. Otherwise, they will be extended by the time required for processing due to non-compliance with the regulations.
9.4 In the case of a defective delivery, heretonow has the right to refuse payment until proper performance.
9.5 Payment does not mean any recognition of terms and conditions or prices. Payment and the time of payment do not have any influence on the liability of the contractual partner for defects and the right of heretonow to file a complaint.
10. Assignment and offsetting
10.1 Without the prior written consent of heretonow, the contractual partner is not entitled to assign its payment claims against heretonow to a third party or have them collected by a third party.
10.2 The contractual partner can only offset payment claims that are undisputed or have been established with legal force. The same will apply analogously to asserting retaining liens.
11.1 All drawings, standards, diagrams, schemata, information, graphics, photographs, sound recordings, films, layout templates and other materials of documentation - be they on data carriers, as backup copies, in print form or as material for preparing printing or printing (collectively referred to as 'documents' in the following) which the contractual partner is provided with by heretonow for execution of the contract will remain the property of heretonow. heretonow reserves the intellectual property rights in and to all documents with which the contractual partner is provided. The contractual partner is obliged to keep these items and return them at the first request. The contractual partner does not have any retaining lien regarding these items.
11.2 The documents created or obtained by the contractual partner according to the specifications of heretonow may not be used by the contractual partner for other purposes, duplicated or made accessible to third parties. They are to be surrendered to heretonow without delay at its first request along with all copies and duplicates. The contractual partner does not have any retaining lien regarding these items.
11.3 The contractual partner will submit all documents required for discussing the subject matter of the service to heretonow. Such talks or other involvement of heretonow lie exclusively in the area of responsibility of the contractual partner and do not release the latter from any liability for defects or its other obligations.
11.4 Documents of any kind that heretonow requires for using, erecting, assembling, processing, warehousing, operating, servicing, inspecting, repairing and maintaining the subject matter of the work or service are to be provided by the contractual partner in sufficient time, unrequested and free of charge.
11.5 The contractual partner is required to make a backup copy of every electronic file on a separate data carrier and to keep this separately from the primary data carrier.
Moulds, models, tools, films and other reproduction material (e.g. printing materials such as composition, photos, punching moulds, lithographs) that have been made or obtained by the contractual partner to execute the contract will become the property of heretonow upon payment. They are to be kept carefully by the contractual partner until they are handed over to heretonow. They are to be taken over by heretonow after the expiry of 6 months upon a written offer made by the contractual partner. If sub-contractors or third parties are brought is, the contractual partner must ensure transfer of ownership by structuring contracts accordingly. The contractual partner is required to surrender these items upon request.
13. Control rights
heretonow has the right to check all relevant documents relating to the obligation of the contractual partner arising from this contract or the payments requested under the contract either itself or by a third party at reasonable times. The contractual partner is obliged to keep all relevant documents relating to the order for a period of two years of completions of the work or service arising from this order.
14.1 The contractual partner shall treat the enquiry, the content of the contract, the relevant work and services and all other commercial and technical details that are not self-evident that become known to it through the business relations as confidential as a business secret before, during and after execution of the contract. The contractual partner shall impose the same secrecy obligation on its employees, agents and suppliers as well as their employees.
14.2 Reference may only be made to the existing business relations with the explicit, written consent of heretonow.
15. Social security
15.1 Insofar as the contractual partner is not a legal entity, the contractual partner gives an assurance that it is not working for heretonow exclusively and does not obtain the largest part of its income from this activity, that it does not exclusively employ employees or family members exempted from the obligation to pay social security contributions but is an independent entrepreneur on the market. The contractual partner is required to furnish proof of this at the request of heretonow.
15.2 In the event that social security contributions are incurred irrespective of the kind on the strength of the contract with heretonow, the contractual partner will bear these alone in the internal relationship between the parties.
16. Contracts in the name of the customer
The contract is to be processed through heretonow even if it was placed by heretonow on the instructions of its customer. In this case, heretonow will not accept any liability for fulfilment of the contract by the customer or for its credit rating, which it has not checked.
17. Final provisions
17.1 The contractual partner will be liable for damage and bear the costs incurred by heretonow due to non-compliance with these Terms and Conditions. It is also responsible for ensuring compliance by its own contractual partners.
17.2 In the event that any individual provision of these terms and conditions and/or of the individual contract are without legal force or cannot by implemented either now or at any future time or anything has been omitted from the provisions, this will not affect the validity of the remaining provisions. The parties undertake to agree an adequate provision to replace them that most closely reflects the envisaged economic success.
17.3 With the exception of German international private law and the United Nations Convention on Contracts for the International Sale of Goods, German law only applies.
17.4 Unless anything else is agreed in writing, the exclusive place of performance is Berlin.
17.5 The place of jurisdiction will be Berlin. However, heretonow has the right to sue the contractual partner at is place of residence or business domicile. Statutory law regulations on exclusive jurisdictions are not affected.