Additional Contractual Terms and Conditions for Technical Property Management (ZVB TOM) 2022
1. Scope
1.1 These Additional Contractual Terms and Conditions (hereinafter referred to as “ZVB TOM”) apply to all orders and contracts (hereinafter referred to as “Order”), in particular to construction, work, and service contracts as well as to inspection, service, repair, and maintenance contracts for technical property management of EUROPA-CENTER AG and all companies affiliated with it within the meaning of Section 15 of the German Stock Corporation Act (AktG) (hereinafter referred to as “Client”), unless otherwise expressly agreed in writing. These terms and conditions, in their current version, also apply as a framework agreement to future orders with the same Contractor, without the Client having to refer to them again in each individual case.
1.2 The AG is only bound by the Contractor's General Terms and Conditions to the extent that they correspond to its own terms and conditions or have been agreed to in writing. This requirement of consent also applies if the AG accepts the Contractor's performance without reservation in full knowledge of the Contractor's General Terms and Conditions. The same applies to all other terms and conditions and regulations of the Contractor in other documents (e.g., order confirmations, specifications, data sheets, technical documentation, advertising material).
2. Form and receipt
2.1 Insofar as these GTC TOM refer to “in writing,” § 126 (1) of the German Civil Code (BGB) shall apply.
2.2 Unless a stricter or special form is required by law or contract, in particular in these GTC TOM, all correspondence shall be conducted electronically.
2.3 The timeliness of a declaration shall be determined by its receipt by the other party.
3. Contractual components
3.1 Unless otherwise specified in writing in the documents referred to in 3.1 a) to c), the following components shall form part of the contract in the order and ranking listed below:
a) the customer's order/contract,
b) the minutes of negotiations (if available),
c) the service description or service specifications,
d) these ZVB TOM,
e) in the case of orders for construction services: the VOB/B in the version valid at the time of conclusion of the contract,
f) the generally accepted rules of technology and the VOB/C as well as all DIN standards of the German Institute for Standardization e. V. in the current version, EN regulations, VDS, VDI, and VDE guidelines, in each case in the version valid at the time of acceptance. In addition, the processing and application instructions of the manufacturers must be observed,
g) the “Rules of Conduct and Safety for Employees of External Companies at EUROPA-CENTER” (if handed out on site)
h) “Permit for Fire-Hazardous Work” (Section 7.4).
3.2 The order of precedence in the event of contradictions and ambiguities in the components of the contract is determined by the order in section 3.1. However, if components of the contract in accordance with section 3.1 c) do not meet the requirements of the components of the contract in section 3.1 f), the latter shall prevail.
3.3 If a contradiction in the contractual components cannot be resolved despite the above provisions, the Client shall determine the type of performance within the framework resulting from the contractual components at its reasonable discretion. This determination of performance by the Client does not constitute a change in performance.
4. Conclusion of contract
4.1 Orders as well as additions, amendments, and subsidiary agreements to orders shall be made exclusively on the basis of and in accordance with these GTC TOM.
4.2 The order shall be placed by sending the Client's order form/order letter electronically or by post. If an order can only be placed via the Contractor's order platform, the Client's order form/order letter is not required for the order to be effective; any correspondence relating to the contract must be conducted using the EC ID provided.
4.3 The Contractor is obliged to confirm the content of the order to the Client in writing or electronically within one week (hereinafter referred to as “order confirmation”). If the Contractor fails to do so within the specified period, it shall be bound by the content of the order. Alternatively, the Client may revoke the order. Such revocation must be declared in writing or electronically within one week of the expiry of the period specified in sentence 1.
4.4 If the order confirmation deviates from the order, the Client shall only be bound if it has agreed to the deviation in writing or electronically. The unconditional acceptance of deliveries or services as well as silence or payments do not constitute consent on the part of the Client.
5. Evidence
5.1 The Contractor is obliged to provide the Client with the following documents before commencing execution of the order:
- For construction work: Valid exemption certificate from the responsible tax office in accordance with § 48 b EstG (German Income Tax Act)
- A current declaration regarding the payment of total social security contributions and contributions to statutory accident insurance
- If the contractor is subject to Section 14 of the German AEntG (AEntG): a current declaration regarding the payment of the minimum wage for all workers employed
5.2 If the contractor is assigned specialist construction management, they must name the responsible representative before work begins at the latest and submit the duly completed specialist construction manager declaration upon completion of their services. The specialist construction manager required under the State Building Code shall be present on the construction site at all times. Both he and his deputy are proficient in the German language and are familiar with the relevant provisions of the LBO.
5.3 If the specialist construction manager declaration is not submitted, the Client shall be entitled to refuse acceptance of the Contractor's services and/or payments of an appropriate amount. If the Contractor fails to submit the specialist construction manager declaration despite two requests within a specified period, the Client shall be entitled, after threatening to withdraw the order, to terminate the contract for good cause and to claim damages.
5.4 For the duration of its services, the Contractor is obliged to update all documents and certificates mentioned in clause 5.1 in accordance with their period of validity and to submit them to the Client unsolicited and without delay.
6. Place of performance, scope of services, remuneration, invoicing, changes to services
6.1 The place of performance is the place of service specified in the order; for payments, the place of performance is the registered office of the Client. If the place of performance is not specified, the Client is entitled to designate its place of business or the location of a property belonging to the EUROPA-CENTER Group as the place of performance. The respective place of performance is also the place of performance for any subsequent performance. In the event of assembly at the place of performance, the Contractor shall observe the house rules posted in the Client's property.
6.2 The Contractor shall inform itself of the existing and foreseeable conditions at the place of performance, insofar as it is reasonably possible for it to do so (e.g., by visiting the site, consulting the Client or the authorities). If the Contractor claims that the information was not disclosed, was not available, or that it was unreasonable to expect him to obtain it in the aforementioned sense, the burden of proof shall lie with him.
6.3 Unless otherwise agreed in writing or electronically in individual cases, the agreed fixed prices include all services, deliveries, and ancillary services of the Contractor, including so-called auxiliary and ancillary services (e.g., assembly, installation), which are necessary for the performance of the contractually owed success or – if no success is owed – to achieve the agreed contractual purpose, as well as all ancillary costs (e.g., costs of proper packaging, transport, including any transport and liability insurance, and travel expenses), even if these services and/or costs are not expressly named or described.
6.4 The prices also include instruction of the persons to be named by the client in the operation and maintenance of the delivered and/or assembled systems.
6.5 The contractor may only carry out changes to services and/or additional services after prior instruction from the client in text form. For construction work, the provisions of § 1 (3), (4) and § 2 (5), (6), (7) and (8) VOB/B shall apply.
6.6 Additional services must be ordered in writing or electronically by the Client prior to their performance. Otherwise, additional claims beyond the total fixed price are excluded.
6.7 The signing of hourly wage slips confirms receipt and factual accuracy. Furthermore, the signature does not constitute acknowledgment of an obligation to pay remuneration. Hourly wage work must be reported on each working day. Timesheets must be submitted to the Client on a weekly basis. Section 15 (3) sentence 5 VOB/B is excluded.
6.8 All invoices (partial invoices, final invoices) must be submitted in a verifiable form, stating the construction project, the order number, and the correct invoice recipient. Invoices without this information cannot be processed.
6.9 Invoices must be sent electronically to the email address rechnungseingang@europa-center.de. Invoices shall only be deemed to have been received upon receipt of an invoice issued to the client in accordance with clause 6.8. Invoices must be sent individually in PDF format (one PDF document per invoice). Multiple documents in one email are not permitted; any attachments such as measurements, delivery notes, or work records (e.g., timesheets) must be included in this one document with the invoice; the file name must not contain any special characters and the file size should not exceed 5 MB.
6.10 Invoices can only be processed by the client if they comply with the legal requirements, in particular the UStG (German Value Added Tax Act), as well as the requirements set out in sections 6.8 and 6.9. The contractor is responsible for all consequences arising from non-compliance with this obligation.
6.11 In addition to all quantity calculations (joint and/or measurements recognized by the Client) necessary to prove the type and scope of the service, drawings and other supporting documents, insofar as these were not attached to previous invoices, the final invoice shall also include drawings with dimensional entries of all services actually performed (as-built plans) and other documents required by or requested from the Client (circuit/connection diagrams, equipment logs, equipment descriptions, operating and maintenance instructions, manufacturing certificates, etc.) in triplicate, provided that the Contractor is obliged to hand over these documents to the Client.
7. Performance of the service, transfer to third parties
7.1 Unless otherwise specified, only approved, unused, quality-assured, pollutant-free, standard-compliant, and tested materials and objects of the highest quality shall be delivered, and work shall be performed in the best possible manner in accordance with standards. This shall be proven at the request of the client.
7.2 The Contractor shall be responsible for the accommodation and transport of workers and materials as well as the safe storage of materials and equipment and shall make the necessary arrangements for this. The Contractor shall be solely liable for compliance with the official regulations to be observed in the performance of its services. The Contractor shall obtain information about the possibilities for material storage, equipment installation, water and energy supply, staff accommodation, etc. at the place of performance at an early stage. The Contractor shall be allocated appropriate locations according to the available possibilities.
7.3 The Contractor must expect relocations and transfers during the execution of the work and cannot demand compensation for this. The instructions of the Client's site management must be followed. There is no entitlement to use the buildings and facilities of the property.
7.4 For welding, cutting, soldering, thawing, and grinding work in fire-hazardous areas in and around the building and in the outdoor facilities, as well as for work on safety-relevant systems, the Contractor must obtain the Client's written consent in the form of a permit before commencing work. A copy of this certificate must be carried at all times by the workers employed by the Contractor and presented at the request of the Client or its representatives. The Contractor is obliged to obtain a new permit from the Client annually without being asked to do so.
7.5 The Contractor must perform the service at its own premises. The transfer of orders to third parties is not permitted without the prior written or electronic consent of the client and entitles the client to terminate the contractual relationship in whole or in part for good cause and to claim damages if the contractor has not complied with a written or electronic request for remedy from the client within a reasonable period of time. The client's termination must be made in writing.
8. Representation
The Contractor shall appoint a responsible German-speaking representative at the place of performance before commencing work. The Contractor's representative shall attend the meetings arranged by the Client and shall be authorized to make or receive all declarations necessary for the performance of the contract on behalf of and against the Contractor. The Contractor's representative must have the expertise required for his field of expertise. Within the scope of his sphere of activity, he shall be directly responsible in the regulatory sense.
9. Environmental protection and waste disposal
The Contractor is responsible for the proper, regular collection, removal, recycling, or disposal of the waste it produces at its own expense. In doing so, it must comply with the applicable legal requirements of the federal government, the state, municipal statutes, and the applicable regulations. In particular, the Contractor is obliged to dispose of the hazardous waste it generates at its own expense in accordance with the applicable legal provisions. The relevant disposal certificates and consignment notes must be presented to the Client's site management upon request. If it is necessary to prepare a waste balance sheet in accordance with § 19 KrW/AbfG (German Closed Substance Cycle and Waste Management Act), the Contractor shall provide the Client with the necessary information and evidence. The client shall be indemnified against environmental liability risk in the event of violations by the contractor.
10. Execution deadlines, default of acceptance
10.1 In order to ensure a smooth workflow, the Contractor shall coordinate the workflow with the Client in good time before commencing work and shall inspect the local conditions and preliminary work.
10.2 The specified execution deadlines and durations, as well as any agreed delivery deadlines, are contractual dates and must be strictly adhered to.
10.3 The Client must be notified immediately in the event of a foreseeable delay in performance or subsequent performance.
10.4 The statutory provisions shall apply to the occurrence of a default of acceptance on the part of the Client, with the following proviso: The Contractor must expressly offer its performance even if a specific or determinable calendar time has been agreed for an action or cooperation on the part of the Client (e.g., provision of material). If the Client is in default of acceptance, the Contractor may demand compensation for its additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract concerns an irreplaceable item to be manufactured by the Contractor (custom-made product), the Contractor shall only be entitled to further rights if the Client undertakes to cooperate and is responsible for the failure to cooperate.
11. Contractual penalty
11.1 If the agreed deadline is exceeded for reasons for which the Contractor is responsible, the Client shall be entitled to charge a contractual penalty of 0.2%, up to a maximum of 5% of the net invoice amount, for each working day or part thereof of the delay. If the corresponding reservation is not made upon acceptance or approval of the services or subsequent performance, the contractual penalty may nevertheless be claimed until the final payment.
11.2 If the Contractor is obliged to pay the Client a contractual penalty for delay, this shall be offset against any claims for damages by the Client against the Contractor due to delay. If the client is entitled to compensation for damages due to delay in meeting contractual deadlines (interim deadlines and/or overall completion date), it may demand the forfeited contractual penalty as the minimum amount of damages. The assertion of further damages is not excluded.
12. Risk assumption
The Contractor shall be obliged to operate the systems that require operation and/or monitoring on its own responsibility until acceptance or handover to the Client.
13. Special provisions for maintenance and inspection contracts
For contracts concluded by the client with the contractor for maintenance and inspection services (hereinafter referred to as “maintenance”) on technical systems and equipment (hereinafter referred to as “systems”), the special provisions of the following paragraphs shall apply, unless otherwise agreed in the contract.
13.1 The scope of maintenance services is based on the respective contractual components in accordance with Section 3. The contractual components include a list of generally customary maintenance work, which, however, should not be regarded as mandatory specifications. If necessary due to the nature of a plant, the scope of services may be specified in the form of changes or additions to the services.
13.2 In connection with maintenance, the Contractor is also obliged to carry out any repair work that is necessary to restore the system to its target condition, is not already covered by the components of the contract, and does not significantly increase the time normally required for maintenance.
13.3 The Contractor shall carry out other repair work within a reasonable period of time upon request, provided that its operations are equipped to do so. A separate agreement shall be concluded for this purpose. The Contractor shall have no legal claim to the transfer of such services.
13.4 Even outside the agreed/regular maintenance dates, the Contractor is obliged to remedy any malfunctions that impair the safety of the system and/or the safety emanating from the system or endanger the use of the building upon request. The Contractor must carry out this work immediately, even outside normal working hours (e.g., at night and on Sundays and public holidays). If it is to be expected that the rectification of the malfunction will incur considerable costs and if an interruption in the operation of the system can be accepted, the Client may first request the Contractor to determine the causes of the malfunction and to indicate the estimated costs for its rectification.
13.5 The Contractor shall perform its services in such a way that the safety of the systems is guaranteed. As far as possible, the operational readiness of the system shall be maintained during maintenance.
13.6 The Contractor shall be obliged to provide or deliver all aids (e.g., measuring instruments and tools) and auxiliary materials (e.g., lubricants and cleaning agents) required for the performance of the services.
13.7 If the Contractor discovers or suspects defects or damage that could jeopardize the safety or operational readiness of the system, it must notify the Client immediately in writing or electronically and, if necessary, arrange for the system to be taken out of service. The Contractor shall immediately notify the Client in writing or electronically of any other defects or damage that do not need to be remedied immediately and whose remedy is not included in the services described in clauses 13.1 and 13.2.
13.8 If the Contractor recognizes that different maintenance intervals are necessary due to a change in the use of the plant or building, a change in legal provisions and/or a change in generally accepted rules of technology, or due to experience gained after several years of operation, he shall notify the Client immediately in writing or electronically.
13.9 The Contractor shall document the services performed and the general condition of the system, including any repair work that will become necessary in the foreseeable future and any parts that may have been replaced, in a work report and submit this to the Client in digital and paper form. For services to be remunerated separately in accordance with Section 13.4, the time required, the name and wage or occupational group (e.g., fitter) of the personnel employed, and the auxiliary and operating materials used must also be specified.
13.10 Maintenance shall be carried out during normal working hours. The time shall be agreed with the client in good time before the start of work. The interests of the client's tenant shall be taken into account.
13.11 The agreed remuneration covers maintenance in accordance with Section 13.1, repairs in accordance with Section 13.2 with the delivery of necessary small spare parts up to €25.00 per maintenance and system (spare parts with a net value of more than €25.00 per part will be reimbursed separately upon presentation of proof), the costs of the aids and materials specified in Section 13.6, the costs of materials to be delivered in accordance with the contractual components, the costs of disposing of replaced parts in accordance with the statutory provisions, auxiliary/operating materials, waste, and packaging, as well as all ancillary costs resulting from the services specified in Sections 13.1 and 13.2, e.g., travel and transport costs, expenses, daily allowances and overnight allowances, dirt and hardship allowances, overtime, and Sunday and public holiday surcharges.
13.12 The remuneration is a fixed price for a contract term of 12 months.
13.13 An extension of the term of the contract by one year at a time shall be deemed to have been agreed if the contract is not terminated in writing at least three months before the end of the term.
13.14 The customer shall be entitled to terminate the contract extraordinarily (special right of termination) if
a) systems that are the subject of the contract are sold or taken out of operation on a more than temporary basis;
b) systems that are the subject of the contract must be maintained by third parties for legal reasons;
c) the Contractor's operations are no longer equipped for the necessary maintenance as a result of significant changes to the system(s) that are the subject of the contract.
The Client may limit its special right of termination pursuant to sentence 1 to individual systems if the conditions set out in a) to c) apply to these individual systems. In this case, a corresponding reduction in remuneration shall be agreed. The right of the Client and the Contractor to terminate the contract for other important reasons remains unaffected. Such an important reason shall be deemed to exist in particular if the Contractor repeatedly fails to fulfill its obligations under the contract despite a warning.
13.15 If systems that are the subject of the contract, or parts thereof, are temporarily taken out of operation, the obligation to perform and the remuneration obligation shall be waived to the corresponding extent for this period.
13.16 If systems that are the subject of the contract are significantly modified, the client may demand a corresponding change in the performance and remuneration obligations.
14. Liability and insurance
14.1 The contractor shall be liable for all damage caused to the client or third parties through its own fault or that of its employees or other agents. It shall be obliged to indemnify the Client against all possible claims for damages by third parties in connection with the performance of the Contractor or third parties commissioned by it. This shall not apply if the Contractor proves that it is not responsible for causing the damage.
14.2 The Contractor shall provide the Client with proof of business liability insurance with sufficient coverage and coverage limits within 10 working days of the order being placed at the latest.
14.3 If the Contractor fails to fulfill its obligation under Section 14.2, the Client may terminate the contract for good cause without observing a notice period. Section 648a of the German Civil Code (BGB) applies accordingly. Notice of termination must be given in writing.
14.4 The Contractor hereby assigns to the Client, by way of security and without prejudice to its liability to the Client, any claims arising from the insurance to be taken out or existing in accordance with Section 14.2. The Client accepts the assignment. As long as it fulfills its obligations under the contract, the Contractor shall remain entitled to assert all claims in its own name. If an assignment is not permitted under the insurance contract, the Contractor hereby irrevocably instructs the insurance company to make any payments only to the Client.
The Contractor shall prove receipt of the assignment or payment instruction to the insurance company by means of the corresponding confirmation of receipt from the insurance company within 20 working days of the order being placed.
14.5 The Client's liability for breach of non-essential contractual obligations on the part of the Client shall be limited to intent and gross negligence.
14.6 Except in cases of intent, the Client's liability shall be limited to the foreseeable, contractually typical, direct average damage. The Client shall not be liable for atypical damage or unusual damage constellations.
14.7 Statutory liability for culpable injury to life, limb, or health shall remain unaffected.
15. Acceptance
15.1 Acceptance of the contractual service shall – insofar as acceptance is provided for – take place exclusively formally at the request of the Contractor after completion and commissioning of all its services. Unless otherwise agreed, acceptance in accordance with sentence 1 shall be subject to the performance of a functional test confirming the agreed function. If official acceptance of the Contractor's performance is required by law, this official acceptance shall be a prerequisite for acceptance in accordance with sentence 1.
15.2 Acceptance without express declaration by conclusive conduct or fictitious acceptance in accordance with § 12 (5) nos. 1 and 2 VOB/B (German Construction Contract Procedures) is excluded.
15.3 Unless otherwise agreed, acceptance is subject to the handover of all documents owed by the Contractor in connection with the contractual performance of its services (e.g., audit documents, test certificates, TÜV acceptance reports, operating and maintenance instructions, contractual evidence of the properties of certain building materials/components) in digital and paper form, as well as the updating and handover of existing inventory documents relating to the Contractor's scope of services that have been handed over by the Client.
16. Claims for defects (warranty)
16.1 The Contractor warrants that all services comply with the generally accepted rules of technology, the relevant legal provisions, and the regulations and guidelines of authorities, professional associations, and trade associations at the time of performance or, if acceptance is provided for, at the time of acceptance, and that it is not aware of any impending changes. This applies in particular to the environmental protection regulations applicable in the EU, the Federal Republic of Germany, and at the Contractor's place of business. The Contractor shall immediately inform the Client in writing of any forthcoming changes of which it is aware.
16.2 Unless otherwise specified in these GTC TOM, the statutory provisions of the German Civil Code (BGB) shall apply to the Client's claims for defects.
16.3 The limitation period for defects leading to subsequent performance shall recommence upon completion of the subsequent performance measure.
16.4 The following applies to construction work: Notwithstanding § 13 (4) Nos. 1 and 2 VOB/B, the limitation period for the Client's claims for defects shall be 5 years, calculated from the transfer of risk in accordance with Clauses 12 and 15, unless a longer warranty period applies due to statutory or separate contractual provisions.
16.5 The Contractor shall bear the costs incurred for the purpose of inspection and rectification even if it transpires that there was in fact no defect. The Client's liability for damages in the event of an unjustified request for rectification of defects remains unaffected; however, the Client shall only be liable in this respect if it recognized or, through gross negligence, failed to recognize that there was no defect.
16.6 Insofar as the Client is entitled to have services that are not in accordance with the contract or not performed on time performed by the Contractor itself or by a third party, it may, in addition to the costs incurred as a result, charge a surcharge of 10% of these costs for its processing expenses (personnel, office costs, travel expenses, etc.) a flat-rate surcharge of 10% of these costs, unless the Contractor proves that the Client has incurred no or only minor expenses. The Client reserves the right to assert further claims for damages.
17. Payments
17.1 Payments shall be due within 30 calendar days of receipt of the invoices, provided they are available in a verifiable form within the meaning of Sections 6.8 and 6.9.
17.2 The Contractor shall grant
a) a discount of 3% of the payment amount on all advance payments made within 14 calendar days of receipt of the invoice
b) a discount of 3% of the payment amount on (partial) final payments made within 21 calendar days of receipt of the respective verifiable (partial) final invoice.
17.3 The date on which the Client initiates the payment shall be decisive for compliance with the discount period.
17.4 The payment period shall commence as soon as the service has been rendered in full or, if acceptance is required, the service has been accepted and the duly issued invoice has been received. If the Contractor is required to provide documents, the completeness of the service or delivery also requires the receipt of these documents. If there is a defect covered by the warranty, the Client is entitled to withhold payment in the amount of three times the costs required to remedy the defect. A cash discount deduction is also permissible if the Client offsets or withholds payments in the above amount due to defects; the payment period for the amount withheld due to defects shall commence after the defects have been completely remedied. The timeliness of the payment shall be determined by the client's initiation of the payment, which can be proven in particular by the confirmation of receipt of the payment order by the client's executing bank.
17.5 In the event of default in payment, the client shall owe default interest at a rate of 5 percentage points above the base rate pursuant to § 247 BGB (German Civil Code).
17.6 Payments and use/commissioning do not constitute acceptance of the services and deliveries as being in accordance with the contract.
18. Tools, molds, samples
18.1 Molds, samples, models, profiles, drawings, standard sheets, print templates, and gauges provided by the customer, as well as items manufactured on the basis thereof, may not be passed on to third parties or used for purposes other than those specified in the contract without the written or electronic consent of the customer. They must be secured against unauthorized access or use. Subject to further rights, the Client may demand their return if the Contractor violates these obligations.
18.2 Any rights of retention of the Contractor to documents as well as to molds, samples, models, profiles, etc. of the Client are excluded.
19. Special right of termination
If the Contractor suspends its payments, a provisional insolvency administrator is appointed, or insolvency proceedings are opened against the Contractor's assets, the Client shall be entitled to withdraw from the contract in whole or in part or to terminate the contract. In the event of withdrawal/termination, the Client may use the Contractor's existing equipment or services and deliveries already made for the continuation of the work in return for reasonable remuneration.
20. Contractor's obligations when employing workers
20.1 The Contractor undertakes to observe and comply with the provisions on the payment of the minimum wage and the regulations on the payment of vacation fund contributions in accordance with the MiLoG and the AEntG, as well as the provisions on the payment of total social security contributions in accordance with Section 28e (3a) -3e SGB IV and the statutory accident insurance contributions in accordance with § 150 (3) SGB VII. The Contractor shall prove compliance with these regulations to the Client upon request by presenting the relevant evidence and clearance certificates. In the event of the transfer of services under this contract, the Contractor shall expressly oblige its contractors and temporary employment agencies to comply with these regulations and shall require them to demand a corresponding declaration from their contractors and temporary employment agencies.
20.2 If the Contractor or the contractors or temporary employment agencies working for its service area violate the obligations specified in clause 20.1, the Client may be held liable for the payment of the minimum wage to an employee and for the payment of contributions to a joint institution of the parties to the collective agreement in accordance with § 13 MiLoG and § 14 AEntG. In addition, the client may be held liable for the payment of total social security contributions (Section 28e (3a-3e) SGB IV) and contributions to statutory accident insurance (Section 150 (3) SGB VII).
The employer may also be held liable by employees of the contractor or by employees of a contractor included in the contractor chain or third parties for payment of the minimum wage and/or payment of contributions to a joint institution of the parties to the collective agreement (holiday fund contributions) in accordance with § 13 MiLoG and § 14 AEntG.
20.3 If the Contractor or the contractors or distributors working for its service area culpably violate the obligations specified in Section 20.1, Sentence 1, the Contractor undertakes to indemnify the Client against the claims specified in Section 20.2. temporary employment agencies culpably violate the obligations specified in clause 20.1 sentence 1, the Contractor undertakes to indemnify the Client against the claims specified in clause 20.2 and to reimburse the Client for all costs and damages incurred by the Client as a result of the claim and/or payment for the claim.
20.4 On the basis of the “Act to Curb Illegal Activities in the Construction Industry” of August 30, 2001, the Client, as the recipient of the service, is obliged to deduct 15% tax from each payment on behalf of the Contractor and to pay this amount to the relevant tax office, unless the Contractor has presented a valid exemption certificate in accordance with Section 48b (1) sentence 1 of the German Income Tax Act (EStG). In accordance with Section 5.1, the valid exemption certificate from the competent tax office must be presented when the order is placed, and any expired certificate must be replaced immediately with a current one. If the exemption certificate is revoked, the Contractor must also inform the Client immediately in writing.
20.5 The Contractor undertakes to indemnify the Client against any liability arising from Section 48a (3) EStG for non-payment or underpayment of deductions and to reimburse the Client for all costs and damages incurred by the Client as a result of claims and/or payments arising from Section 48a (3) EStG.
21. Rights of use and property rights, third-party property rights
21.1 The Contractor grants the Client the non-exclusive, transferable, worldwide, and unlimited right
21.1.1 to use, reproduce, modify, and distribute all plans and other services of the Contractor, including documents and information to be submitted by the Contractor (e.g., also identification data, passwords, and licenses) as well as the associated documentation for the contractual project in its entirety for the construction project in question—this also applies in the event of premature termination of the contract;
21.1.2 to use or allow the use of software and the associated documentation (hereinafter collectively referred to as “software”);
21.1.3 to sublicense the right of use pursuant to clause 21.1.2 to affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG), commissioned third parties, other distributors, and end customers, insofar as this concerns individual software;
21.1.4 to use or allow the use of all works created through the Contractor's activities, in particular documents, project outlines, presentations, drafts, and marketing drafts (hereinafter referred to as “work results”); in particular, the Client is granted the right to reproduce, distribute, exploit, and edit them, as well as sole and unrestricted ownership of those work results to which ownership can be established and transferred. If ownership rights can be established and transferred to work results, the Contractor shall also grant these to the Client at the time of their creation;
21.1.5 Affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG) and other distributors shall be granted the right to license end customers the right of use in accordance with Clause 21.1.2.
21.1.6 to use software for integration into other products, in particular to copy it for installation in hardware or to have it copied by affiliated companies within the meaning of Section 15 AktG or other distributors.
21.2 In addition to the right granted in Section 21.1, the Customer, affiliated companies within the meaning of Section 15 AktG, and other distributors are authorized to permit end customers to transfer the software licenses.
21.3 All sublicenses granted by the Client must provide adequate protection for the Contractor's intellectual property in the software by using the same contractual provisions that the Client uses to protect its own intellectual property.
21.4 The Contractor warrants that third-party rights do not conflict with the intended use of the service or delivery, in particular that third-party property rights are not infringed. If claims are made against the Client due to a possible infringement of third-party rights, such as copyrights, patents, or other property rights, the Contractor shall indemnify the Client against such claims and any related services.
22. Assignment of claims
Assignments of claims by the Contractor shall only be permissible with the prior written consent of the Client.
23. Contractor's duty of confidentiality
23.1 The Contractor undertakes to maintain absolute confidentiality towards the Client in relation to third parties with regard to all knowledge and information accessible to it about the present project.
23.2 The Contractor shall not disclose to third parties any knowledge and experience, documents, tasks, business transactions, or other information obtained from and about the Client, nor shall it disclose the conclusion of the contract and the results to third parties—even beyond the term of the contract—as long as and to the extent that these have not become legally known to the general public or the Client has consented to their disclosure in writing or electronically in individual cases. If the Client has consented to the disclosure of orders to third parties, these parties shall be bound accordingly in writing.
23.3 If the Contractor culpably violates the confidentiality obligation under Sections 23.1 and 23.2, this shall constitute an important reason for termination on the part of the Client. The Client reserves the right to assert claims for damages instead of termination.
23.4 The Contractor undertakes to name the Client as a reference customer only with the Client's prior consent and/or to advertise with products that it has developed for the Client within the framework of the contractual relationship with the Client and/or to issue press releases or other public statements within the framework of the contractual relationship.
24. Data protection
24.1 If the Contractor comes into contact with personal data in the context of an order, it is obliged to observe data protection, in particular to maintain confidentiality. This obligation is comprehensive. The Contractor may not process personal data without the express permission of the Client and may not disclose or make this data available to other persons without authorization.
24.2 The EU General Data Protection Regulation (GDPR) defines processing as any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, distribution or other forms of provision, comparison or linking, restriction, erasure or destruction.
24.3 “Personal data” within the meaning of the GDPR is any information relating to an identified or identifiable natural person; A natural person is considered identifiable if they can be identified directly or indirectly, in particular by association with an identifier such as a name, an identification number, location data, an online identifier, or one or more special characteristics that express the physical, physiological, genetic, psychological, economic, cultural, or social identity of that natural person.
24.4 Under the GDPR, violations of data protection regulations may be punished with imprisonment or fines in accordance with § 42 DSAnpUG-EU (BDSG-neu) and other criminal provisions. Data protection violations may also constitute a breach of labor or service law obligations and have corresponding consequences. In addition, data protection violations may result in very high fines for the company, which may lead to claims for compensation against the Contractor.
24.5 The Contractor's obligation shall continue without time limitation and even after termination of the order.
24.6 The Contractor undertakes to support the Client in the event of inquiries from data protection supervisory authorities so that the Client can fulfill its obligations to provide evidence and other obligations under the GDPR (e.g., in relation to data processing, data protection) as the “controller within the meaning of data protection law.” The Contractor's rights of retention and/or refusal to perform are excluded in this respect.
25. Miscellaneous
25.1 Offsetting by the Contractor is excluded unless the Contractor's claims are either undisputed by the Client or have been legally established.
25.2 Any assignment to third parties of the Contractor's claims against the Client arising from the contract shall only be effective with the Client's written consent.
26. Choice of law and place of jurisdiction
26.1 These GTC TOM and all legal relationships between the Client and the Contractor shall be governed by the laws of the Federal Republic of Germany, excluding all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. The prerequisites and effects of the retention of title are subject to the law of the respective storage location of the item, insofar as the choice of law in favor of German law is inadmissible or ineffective according to this law.
26.2 If the Contractor is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive—including international—place of jurisdiction for all disputes arising from the contractual relationship shall be Hamburg. However, the Client shall also be entitled to bring an action at the place of performance of the delivery obligation.
27. Final provision
Should any provision of these GTC be wholly or partially invalid or unenforceable, this shall not affect the validity of the GTC as a whole. The parties undertake to replace the invalid/unenforceable provision with a valid/enforceable provision that comes as close as possible to the content and purpose of the invalid/unenforceable provision.