General Terms and Conditions of Sustainable AG Unternehmensberatung („sustainable“) 

NOTE: These General Terms and Conditions are provided in other languages solely for convenience: the German version remains authoritative. 

 

1 Applicability, written form 

 

  1. These General Terms and Conditions (GTC) shall apply exclusively to any form of delivery or other provision of services by sustainable. They shall also apply to all future business relations, even if they are not expressly agreed again. The validity of general terms and conditions of the contractual partner is expressly rejected. 

 

  1. Amendments or supplementations to these GTC by separate agreement or to the contracts concluded in the scope of application of these GTC shall only be effective if made in writing. This also applies to the abrogation of the requirement of written form. Notice of termination and other declarations, which are directed towards the termination or cancellation of contractual relationships, shall also be effected in writing. Amendments or supplementations to these GTC only apply to the supply or performance, which the separate agreement refers to. The staff members of sustainable are not authorised to undertake amendments by separate agreement. Only the management of the relevant company of sustainable can conclude such agreements. General amendments or supplementations to these GTC by sustainable shall become effective after specific notification of the Customer, also for current contractual relationships, if the Customer does not contradict within four weeks of notification. 

 

2 Applicable law, partial ineffectiveness 

 

2.1 The legal relationship between the contractual partner and sustainable, including the question of its conclusion, shall be governed solely by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. 

 

2.2 The inefficacy of individual provisions of these GTC leaves the effectiveness of the remaining provisions and of the contracts concluded unaffected as such. As far as individual provisions of such contracts should be ineffective or contain a loophole, the Customer and sustainable shall be obliged to create an effective provision, closest to the economic intention of the Parties, in place of an ineffective provision or loophole. 

 

3 Conclusion of contract, provision of services by third parties 

 

3.1 Offers made by sustainable are subject to change and non-binding. Orders placed by the contractual partner shall not be deemed to have been accepted until sustainable has confirmed the order, which may also be verbal, unless sustainable clearly indicates that the order has been accepted by taking action on the basis of the corresponding order or otherwise. 

 

3.2 Sustainable is entitled to use one or more subcontractors or other suitable third parties to fulfil its contractual obligations. 

 

4 Advice, information 

 

4.1 The content and scope of the order is set out in the order confirmation from sustainable. No specific commercial success is owed. Unless otherwise agreed in writing, sustainable shall be entitled to determine the method and type of service provision at its own discretion. 

 

4.2 Unless otherwise agreed, orders placed do not include sustainable's obligation to provide information, advice or similar opinions. Insofar as sustainable nevertheless provides such opinions, these are to be understood as non-binding suggestions. The contractual partner is also obliged to request written confirmation of any verbal comments which are of considerable importance to it or which are to serve as the basis for important decisions. Otherwise, it may not invoke the binding nature of the statement unless sustainable would be obliged to make such a statement in the individual case and on the basis of the order placed and would have made an incorrect statement intentionally or through gross negligence. 

 

5 Invoice, remuneration 

 

5.1 Invoices from sustainable are due for payment without deduction within 14 days of receipt by the contractual partner. Subject to the contracting party's consent, invoices may also be sent electronically. Recurring payments are due at the end of each month or other agreed end of a period. Prices are always quoted net, i.e. excluding the value added tax to be levied if the statutory requirements are met. 

 

5.2 Unless otherwise agreed, sustainable's claim for remuneration or other payment shall arise for each individual delivery or service as soon as it has been provided. All deliveries and services that are not expressly included in the agreed price shall be remunerated separately. 

 

6 Price increase, cost estimate 

 

6.1 sustainable reserves the right to increase prices appropriately in the event that applicable statutory regulations or other generally applicable provisions to be observed by sustainable are changed during the execution of the order and the cost of providing the delivery or service for sustainable increases as a result. In the case of the provision of services or work, sustainable reserves the right to increase prices due to rising labour or material costs. This shall not apply if a fixed price has been agreed. Price increases shall be justified upon notification to the contractual partner, stating the details. 

 

6.2 sustainable's cost estimates are non-binding. Sustainable will inform the contractual partner immediately if it is foreseeable that the estimated costs will be exceeded. 

 

7 Dates, grace period 

 

7.1 Agreed deadlines and delivery periods shall be observed by sustainable with the diligence of a prudent businessman. The establishment of a fixed-date transaction always requires a special written agreement. In the case of the provision of services or work, dates and deadlines communicated by sustainable are based on an estimate of the amount of work required according to the information provided by the contracting party. Dates and deadlines shall only be binding if this has been agreed in writing. Fixed deadlines shall only begin to run when the contractual partner has fulfilled its obligations to co-operate in the individual case. Firmly agreed deadlines shall be postponed by the duration of a corresponding delay on the part of the contractual partner. 

 

7.2 If sustainable misses binding dates or deadlines for the delivery or other service, the contractual partner must grant sustainable a grace period of two weeks for subsequent delivery or service. However, the grace period must not be longer than the original deadline for the delivery or other service. 

 

8 Acceptance, notification of defects, subsequent fulfilment 

 

8.1 Sustainable may submit each self-contained part of a service to be rendered separately for acceptance. 

 

8.2 The contractual partner must notify sustainable in writing of any complaints due to obvious defects within four weeks of receipt of the delivery item or the result of any other service. Otherwise, the delivery item or the result of the service shall be deemed accepted as free of defects due to such defects. If the contractual partner is an entrepreneur, a legal entity under public law or a special fund under public law, the statutory provisions of § 377 of the German Commercial Code (HGB) shall apply to the obligation to inspect and notify defects. If sustainable provides a service or work to such a contractual partner, the latter must inspect the result of such a service immediately, but at the latest within one week of its receipt, and notify sustainable in writing of any obvious defects. Otherwise and due to such defects, the result of the service shall be deemed to have been accepted as free of defects. Timely dispatch of the notification shall be sufficient to comply with the deadline. The same applies to all contractual partners: If defects subsequently become apparent in a delivery item or the result of another service, these must be notified to sustainable in writing within four weeks of their discovery. Otherwise, the delivery item or the result of the service shall be deemed to have been accepted as free of defects also due to such defects. 

 

8.3 If the delivery or other service provided by sustainable is not free of defects, the contractual partner shall be entitled to subsequent fulfilment. Subsequent fulfilment may, at the discretion of the contractual partner, take the form of rectification of the defect or delivery of a defect-free item. Sustainable is entitled to refuse the type of subsequent fulfilment chosen by the contractual partner if this is associated with disproportionate costs. During subsequent fulfilment, the contractual partner may not reduce the price or withdraw from the contract. Subsequent fulfilment shall be deemed to have failed after the second unsuccessful attempt. If the subsequent fulfilment has failed or if sustainable has refused the subsequent fulfilment altogether, the contractual partner may, at its discretion, reduce the remuneration or declare its withdrawal from the contract. 

  

9 Liability for defects and limitation periods, other damage, guarantee 

 

9.1 The contractual partner's rights to subsequent performance, compensation for damages and reimbursement of expenses (§ 437 BGB) due to defects in delivery items or to subsequent performance, self-remedy, compensation for damages and reimbursement of expenses (§ 634 BGB) due to defects in the results of other services are subject to a limitation period of one year (in deviation from § 438 and § 634a BGB). This does not apply in the following cases: if sustainable has fraudulently concealed the defect; if the delivery from sustainable is a building; if the delivery item is used for a building in accordance with its normal use and causes a defect there; if sustainable's other performance constitutes a building or a work whose success consists of a planning or monitoring service for a building; if sustainable has assumed a guarantee for the quality of other performance; if the contractual partner is a consumer. However, the limitation period for the aforementioned claims for defects in other services is also reduced to one year for the contractual partner as a consumer if sustainable's performance consists neither in the delivery of a movable item nor of a movable item to be manufactured or produced by sustainable. In the case of the delivery of a used movable item, sustainable accepts no liability for defects. 

 

9.2 The right of the contractual partner to assert further claims for damages remains unaffected. 

 

9.3 If sustainable has given a guarantee with regard to a delivery item or the result of another service, sustainable is also liable within the scope of this guarantee. However, sustainable is only liable for damages that are based on the absence of the guaranteed property, quality or durability but do not occur directly on the delivery item or service result itself if the risk of such damage is clearly covered by the guarantee. 

 

10 Offsetting and retention, refusal of performance, prohibition of assignment 

 

10.1 The contractual partner may only offset claims of sustainable against undisputed or legally established claims of its own. If the contractual partner is an entrepreneur, a legal entity under public law or a special fund under public law, the assertion of a right to refuse performance or a right of retention is also excluded, unless such a right is undisputed or has been recognised by declaratory judgement. 

 

10.2 Objectively justified doubts as to the solvency of the contractual partner shall entitle sustainable to make the continuation of the activity dependent on advance payments and the settlement of outstanding invoice amounts, regardless of any originally agreed payment terms. 

 

10.3 The assignment of claims of the contractual partner requires the written consent of sustainable. 

 

11 Processing of contracts, reimbursement of expenses, entitlement to remuneration 

 

In the event of cancellation, termination, rescission or revocation, Sustainable is entitled to reimbursement of all expenses incurred up to that point and to payment of remuneration corresponding to the actual cost of performance. Sustainable may claim reimbursement of expenses and remuneration individually or as a lump sum and may demand up to 20% of the expenses or remuneration for the entire order. In such a case, the contractual partner is permitted to prove that the actual expenses or the remuneration corresponding to the actual cost of performance is significantly lower than the lump sum determined by sustainable. 

 

12 Copyright and neighbouring rights, confidentiality 

 

12.1 Sustainable expressly reserves copyrights and neighbouring rights to delivery items and performance results to which such rights may arise. 

 

12.2 Sustainable transfers to the contractual partner the rights of use required for the respective purpose. Rights of use shall therefore only be transferred to the contractual partner to the extent that this is evident from the placement of the order in terms of content, time and space. 

 

13 Liability and force majeure 

 

13.1 The following applies to sustainable's liability with regard to any form of fault-based liability, including tortious claims: Sustainable is liable without limitation for damage to life, body and health as well as for all damage caused by wilful or grossly negligent breaches of duty or fraudulent intent on the part of sustainable, its legal representatives or its vicarious agents. Sustainable is also liable for damages caused by simple negligence, insofar as this negligence concerns the breach of such contractual obligations, the fulfilment of which is of particular importance for the achievement of the purpose of the contract (cardinal obligations). However, Sustainable shall only be liable if the damage is typically associated with the contract and foreseeable. Otherwise, sustainable shall not be liable for simple negligent breaches of non-essential contractual obligations. If sustainable has covered the typical contractual risk with (financial loss) liability insurance, sustainable's liability is limited to the sum insured. Insofar as the insurer is released from liability, sustainable shall provide its own compensation up to the amount of the sum insured if the relevant preconditions are met. Insofar as sustainable's liability is excluded or limited, this also applies to the personal liability of sustainable's legal representatives and vicarious agents. 

 

13.2 If the order placed involves special risks to life, body and health or the risk of particularly high financial losses, the contractual partner must inform sustainable of this when placing the order. 

 

13.3 When determining the amount of damages to be paid by sustainable or the contractual partner, the respective economic circumstances as well as the type, scope and duration of the business relationship and, if applicable, the value of the service to be rendered shall be taken into account appropriately in favour of the respective obligated party in good faith. 

 

13.4 Force majeure, labour disputes, unrest, epidemics, official measures and other unforeseeable, unavoidable and serious events shall release the contracting parties and sustainable from their performance obligations for the duration of the disruption and to the extent of its effect. This also applies if the events occur at a time when the affected contracting party is in default. The contracting party and sustainable shall provide each other with the necessary information as soon as reasonably possible and adapt their obligations to the changed circumstances in good faith. 

 

14 Place of fulfilment and jurisdiction 

 

14.1 The place of fulfilment is the registered office of sustainable. 

 

14.2 In business transactions with merchants, legal entities under public law or special funds under public law, the place of jurisdiction for legal action is the registered office of sustainable. 

 

14.3 If the domicile or habitual residence of the contractual partner is unknown at the time the action is brought or if the contractual partner has moved his domicile or habitual residence outside the area of application of the laws of the Federal Republic of Germany after conclusion of the contract, the place of jurisdiction shall also be the registered office of sustainable.