General Terms and Conditions of Peritum GmbH
1.1. These General Terms and Conditions (hereinafter “T&C”) apply to all contracts – even future ones – for deliveries or other services. No contracts are concluded with consumers. Agreements that differ from or supplement the T&C have priority over the T&C if the parties have agreed this in writing. These conditions are considered to have been agreed at the latest on receipt of the services by the customer
1.2. The customer’s T&C that vary from these conditions, even if Peritum is aware of these conditions and still provides the services, are only valid if and to the extent to which these have been confirmed as valid in writing instead of these T&C by Peritum.
2. Quotation and signature of contracts
2.1. Orders issued by the customer are always considered to be binding. The contract only exists after the receipt of and in line with the content of a written order confirmation (also per e-mail) from Peritum by the customer or at the latest on delivery of the goods ordered or services requested (hereinafter summarised as “services/goods”) or by the provision of the agreed service (hereinafter also summarised as “subject of the contract”) by Peritum.
2.2. The service features of the services and subjects of the contract are finally described in the service description of the relevant individual contract between Peritum and the customer or the order confirmation. Catalogue statements, drawings, images, measurements, weights and other features are only binding if they have been expressly confirmed . This also applies to properties that can be expected in line with public statements by Peritum or its agents, in particular in advertisements or by marking the goods. Technical and design variations that are reasonable for the customer and differ from statements made in brochures, catalogues, written documents as well as changes to models, designs and materials due to technical progress and further development may occur without this resulting in claims against Peritum.
2.3. If the subject of the contract between Peritum and the customer is consulting or other services, these are only provided by Peritum as a labour or delivery contract if this has been expressly agreed. In addition, Peritum is not liable as a matter of principle for any consulting or other success. The services to be provided by Peritum in individual cases depend on the content stated in the order confirmation.
2.4. Peritum does not undertake any guarantee in legal terms for the existence of particular characteristics of the services or goods provided if this is not expressly agreed.
3. Delivery and service terms
3.1. A delivery date or service provision date is agreed by Peritum in writing in line with the expected ability to provide and is to be understood as subject to ontime selfdelivery and unforeseen circumstances and impediments, no matter whether these occur at Peritum or another company from which Peritum purchases the goods or services in full or in part. These circumstances and impediments extend the delivery or service date as relevant, even if they occur during a delay that already exists. Any subsequent period set by the customer is also extended in this case by the duration of the circumstances and impediments. Peritum reserves the right to withdraw from the contract if the delay to the delivery or service resulting from a circumstance or impediment is longer than six weeks and for which Peritum is not responsible.
3.2. Adherence to the agreed written delivery periods and those for provision of services requires that the customer provides all information required for the delivery or provision of the service in good time, especially the relevant duties of cooperation. If this is not the case the delivery period or period to provide the service is extended as appropriate.
3.3. Peritum is entitled to provide reasonable partial deliveries and services.
4. Prices and payment terms
4.1. The deliveries and services provided by Peritum are remunerated as per the individual agreement made via a fixed price or time incurred. Consulting and other services by Peritum, if nothing further is agreed in the order confirmation, are always remunerated in line with the time incurred. The level of the hourly/daily rates is taken from the agreed prices in the written order confirmation.
4.2. Our written order confirmation is decisive for the scope of the delivery and setting the remuneration by a fixed price or as time incurred. If this varies from the order or customer’s purchase order it is still decisive if the customer does not contradict it without delay or accepts services from Peritum without restriction.
4.3. All prices are net and exclude any supplements and the relevant statutory value-added tax. Supplements may include in particular travel expenses, accommodation costs, additional food costs, telecommunications costs, printing costs, copying and postal costs. Net prices for the delivery of goods are understood as including normal packaging and exclude shipment costs and/or costs for transport insurance – if such has been concluded for the individual case – if nothing further has been expressly stated
4.4. Peritum is entitled to issue subinvoices and to demand partial payments.
4.5. For fixed price agreements – if nothing further has been agreed – sub-invoices will be issued as incurred for the fixed price each week or fortnight. If Peritum is remunerated by an agreed hourly rate, Peritum is entitled to issue intermediate invoices for the services provided each week or fortnight.
4.6. Invoices are due for payment at the latest 14 days after the invoice date if the relevant invoice does not state a different due date. The receipt of the payment by Peritum is key to deciding whether the payment was received in good time. If the customer has delayed payment of the invoice, the delay interest is 8% per year above the relevant basic interest rate of the European Central Bank. If payment is not received by the due date Peritum is entitled to terminate the contract without notice.
4.7. Peritum reserves the right to reject cheques or bills of exchange. They are only ever accepted on account of performance.
4.8. The customer is only entitled to offset or retain payment if the counterclaims have been determined in a legally binding manner or have been expressly recognised by Peritum
5. Granting of usage rights
5.1. Peritum is entitled to exclusive usage and sale rights to any work results that are subject to trademark rights (e.g. copyrights, patents, utility patents or registered designs) created by Peritum whilst providing the services.
5.2. The customer receives simple usage rights exclusively for the purpose stated in the contract. The granting of other usage, transfer or editing rights to the customer always requires special, express agreement.
6. Warranties for defects
6.1. With regard to the services provided Peritum is not liable for the economic or other success of the service desired by the customer.
6.2. In cases of material defects to the services/goods, Peritum may select subsequent improvement or delivery. Exchanged parts are transferred to the ownership of Peritum without compensation. If Peritum does not correct faults of which it is aware within an ap-propriate, written subsequent period or two attempts at subsequent improvement fail, the customer is entitled either to withdraw from the contract or to demand an appropriate discount. If the customer chooses to withdraw from the contract due to legal or material defects following a failed attempt at subsequent fulfilment, he will not be entitled to damages resulting from the defect unless binding compulsory legal provisions state something to the contrary. Warranty claims lapse one year after acceptance or transfer of the goods or services except in cases of deliberate action or the warranty explicitly taken over by Peritum for the characteristics of the item supplied; in this case the statutory limitation periods apply.
6.3. Warranty claims against Peritum are excluded if the customer makes changes or intervenes in the services/goods provided or uses these improperly. The warranty is not waived if the customer can prove that the changes, interventions or improper usages are not connected to the asserted defect.
6.4. Warranty claims are only applicable to the customer as a direct contractual partner of Peritum and can not be assigned.
7.1. Peritum is only liable for claims for damages no matter their legal basis a) for damages caused by deliberate action by statutory representatives or serious organisational action, without limitation to their level; b) whilst limiting their level to damages that are typical of the contract and predictable, for damages from the culpable infringement of a key contractual obligation (a so-called cardinal duty, i.e. an obligation only the fulfilment of which permits the proper implementation of the contract and on which the contractual partners regularly trust or may trust), or for damages caused by the deliberate action or infringement of key contractual obligations by a vicarious agent of Peritum.
7.2. The liability for negligence (including distant subsequent damages) is restricted in each individual case of damages to the amount of the contractual fee, for ongoing debt relationships to the annual fee. In the case that the level of the restriction stated above in the individual case is not in an appropriate relationship to the risk of damages that are typical of the contract, Peritum’s liability for negligence is restricted in all cases to the level of the coverage sum of Peritum’s business liability insurance (max. €1,000,000.00 per claim, max. €2,000,000.00 per year). Such claims lapse after one year. Liability due to fraud, personal injury and pursuant to the German Product Liability Act is unaffected by this.
7.3. Peritum is not liable for the loss of data if the damage would not have occurred if the customer had undertaken proper data backup for which it is responsible. Proper data backup can be assumed if the customer backs up his data records in machine readable form at least once a day and therefore guarantees that this data can be restored at reasonable cost. The liability of Peritum for the loss of data is restricted to the typical cost of restoration that would have occurred if proper data backups were made.
8. Reservation of title
8.1. Peritum reserves the title on all services/goods supplied until complete fulfilment of all claims by Peritum from the current business relationship. Before transferring the title, the goods may not be pledged or subject to a chattel mortgage. Further sales are only permitted within the framework of a proper business process. In case of further sale of conditional commodities, the customer assigns his full purchase price claim on conclusion of the contract against the purchaser to Peritum.
8.2. If the customer has delayed payment in full or part, stops payments or there is other justified doubt about his ability to pay or creditworthiness, he is no longer entitled to utilise the goods. Peritum can in such cases withdraw the customer’s recovery authorisation from the recipient of the goods. Peritum is then entitled to demand information about the recipient of the goods, to inform him of the transfer of claims to Peritum and to recover the customers liability from the recipient of the goods.
9. Customer cooperation
9.1. The customer is aware that Peritum depends on customer cooperation to provide the services that are covered by the contract. The customer is obliged to provide all documents and information that are required to carry out the services covered by the contract in good time and in full and to provide appropriate access to its rooms and systems to employees and any subcontractors or vicarious agents of Peritum who have been instructed to provide the services covered by the contract for the purposes of implementing the requested services to the extent necessary to implement the contract.
9.2. As part of its duty of cooperation the customer is obliged in particular on request by Peritum employees who are instructed to provide services, to provide suitable rooms without charge and in good time where the documents, work resources or data media can be stored safely.
9.3. All customer cooperation duties are provided without charge, if nothing further has been expressly agreed.
9.4. If the customer does not adhere to his cooperation duties, or does not do so in good time, Peritum can set the customer an appropriate period to fulfil its cooperation duties. If the cooperation duties are not fulfilled within the period set by Peritum, Peritum is entitled to terminate the contract for a compelling reason. Any termination does not affect other claims by Peritum.
10.1. The contractual parties are obliged to treat any information and/or knowledge on internal business or operational matters that is subject to nondisclosure and of which they become aware concerning the other contractual party and/or their business partners in the strictest confidence and not to make them accessible to third parties during the contractual period and two years after it ends. This obligation does not apply if the contractual party who is obliged to maintain confidentiality proves that he was aware of the information before the cooperation with the other contractual partner, was informed of it by authorised third parties or became aware of it without this being the responsibility of the contractual party that is obliged to maintain confidentiality.
10.2. It is clear that the nondisclosure duty does not apply to work produced by the customer or services provided by the customer unless these contain information that requires nondisclosure as stated in Number 10.1.
11. Rights of third parties
The customer is responsible for not infringing the rights of third parties if Peritum executes the order as per its requirements. In the event that Peritum is engaged by a third party the customer is obliged to indemnify Peritum for these claims. The indemnification duty also refers to all costs borne by Peritum with regard to claims by a third party.
12. Final provisions
12.1. The customer is not entitled to transfer claims from the existing contractual relationship between himself and Peritum to third parties unless Peritum expressly agrees to this transfer.
12.2. Individual variances and/or additions to the rules in these T&C must be in writing. The right of Peritum to the onesided modification of its T&C as stated in Number 1.3. remain unaffected by this.
12.3. German law is applicable to the exclusion of all others. The application of United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
12.4. The exclusive court of jurisdiction for all disputes from the business relationship is agreed to be the court responsible for Peritum’s head office.
12.5. Should a provision of these T&C be or become void, the validity of the remaining provisions of the T&C shall not be affected. The statutory provision shall replace the ineffective provision.