As of 06/2021
1.1 These General Terms and Conditions of Business apply to all contracts entered into by German Energy Agency (dena), Chausseestr. 128a, 10115 Berlin (hereinafter referred to as "dena") and contractors (hereinafter referred to as “Contractor”).
1.2 The Contractor’s general terms and conditions shall not apply, unless dena has expressly agreed to their validity in advance. This applies even if the Contractor’s terms and conditions are attached to or referred to in contractual documents, and if dena unconditionally accepts or pays for services, supplies and invoices in full knowledge of the Contractor’s conflicting or deviating terms and conditions.
1.3 The rules set out in the order will take priority over those of the offer and these General Terms and Conditions.
2. Provision of services and acceptance
2.1 The Contractor shall perform the services in accordance with the order, including the annexes and these General Terms and Conditions.
2.2 The Contractor shall provide the services with the required competence and expertise in compliance with the applicable legal provisions, the generally accepted commercial principles, state of the art based on the recognised rules.
2.3 The acceptance or partial acceptance of a service under a contract for works and services shall be effected by dena's declaration in text form.
2.4 If dena has entered into a main contract with a main client and has subcontracted the contractual services to the contractor(s), then dena shall be entitled to wait for the corresponding acceptance by the main client prior to acceptance of the services of the contractor(s).
3. Warranty for defects and default
3.1 In the case of services provided under a contract for work or services, the contractor(s) shall be obliged to provide dena with their services free of material defects and defects of title.
3.2 Where the statutory conditions are met, the right to supplementary performance self-remedy of defects and reduction exists even before the approval.
3.3 Should dena be obliged by law to give notice of defects, the parties agree that a notice of defects within 10 working days is deemed to be timely.
3.4 For the rest, the statutory warranty provisions shall apply.
3.5 The Contractor shall be in default if the services are not delivered to dena in accordance with the contractually agreed schedule. If there are any delays in the provision of the service, dena must be informed about this in text form without delay. The Contractor may only cite postponements if dena has confirmed them in text form. Claims that have already arisen due to failure to provide services in time shall remain unaffected by this.
4. Rights of use and exploitation, indemnity
4.1 Insofar as copyrightable works are created or used during the performance of contractually agreed services (e.g. images, graphics), the Contractor shall grant dena the simple, transferable and irrevocable rights of use to these works, which shall be unrestricted in terms of content, time and place (publishing rights, right of public access, editing rights, translation rights, right of alteration, right of storage on any available medium (multimedia rights) as well as database rights, etc.). The Contractor shall agree to the processing and adaptation as well as the publication and exploitation, including revised and adapted works, by dena or third parties commissioned by dena. The Contractor shall be named as the originator/source, unless the naming as origi- nator is waived in writing in the individual case.
4.2 The Contractor warrants that it has acquired all rights of the authors and other entitled parties which are necessary for the fulfilment of the order and the transfer of the rights of use in accordance with subsection 4.1 and shall advise dena of any required names of originators or sources.
4.3 The Contractor shall release dena, upon first request, from all claims by third parties which the latter derive from the violation of any existing copyrights or related property rights in connection with the services provided by the Contractor. This also includes the costs of appropriate legal defence by dena against third parties.
4.4 If the Contractor is obliged by the order to grant the exclusive rights to dena, then upon request, dena shall in writing grant the Contractor simple rights to use, if and to the extent that the Contractor is able to demonstrate a legitimate interest and the interests of dena do not preclude this.
4.5 The granting of usage rights is a primary contractual obligation.
5. Travel expenses, terms of payment
5.1 Unless otherwise agreed in the order, the Contractor’s travel expenses shall not be reimbursed.
5.2 dena shall pay the remuneration in one sum after the services (and acceptance) have been completed in full within 30 days of receipt of a correct invoice. The Contractor shall draw up the invoice in accord- ance with Section 14 of the VAT Act (UStG) and provide evidence of the type and scope of the services in the form of generally accepted receipts. When issuing the invoice, the Contractor shall quote the or- der number and project number supplied by dena.
6.1 The Contractor may only assign the performance of its services or of essential parts thereof to third parties with dena’s prior approval (text form) if such parties are bound to comply with the obligations existing under these General Terms and Conditions. dena shall only refuse consent if its justified interests are prejudiced. dena's interests are prejudiced, in particular, if the third parties contracted by the Contractor do not possess the necessary qualifications and profes- sional experience required for the efficient and successful performance of the contractual services.
6.2 All employed staff and all third parties enlisted by the Contractor within the scope of this Contract, whether subject to instructions or not, are vicarious agents of the Contractor, as defined in Section 278 of the German Civil Code (BGB).
7. General Duties
7.1 The Contractor shall provide its services in compliance with the recognized rules and with the required technical and professional expertise, taking into account the statutory provisions, and the generally acknowledged business principles and the state of the art.
7.2 In fulfilment of this contract, the Contractor is obliged to comply with the International Labour Organization (ILO) Declaration on Fundamental Principles and Rights at Work of 18 June 1998 (freedom of association, the right to collective bargaining, the elimination of all forms of forced labor, the abolition of child labor, and the elimination of discrimination in respect of employment and occupation).
7.3 When fulfilling the contract in Germany, the Contractor shall be obligated to comply with the provisions of the Act on the Regulation of a General Minimum Wage (Mindestlohngesetz - MiLoG) and to pay its employees the applicable collectively agreed wages.
7.4 In particular, the Contractor shall be obliged to comply with the provisions implementing the relevant ILO core labor standards (Con- ventions No. 29, No. 87, No. 98, No. 100, No. 105, No. 111, No. 138 and No. 182) into the law of the country of assignment when fulfilling the contract. If the country of assignment has not ratified one or more core labor standards or has not implemented them into national law, the Contractor is obliged to comply with those regulations of the country of assignment, which pursue the same objective as the core labor standards.
8.1 The Contractor is obliged to observe secrecy with regard to confidential information received in connection with the provision of the above services to dena, and to ensure that third parties cannot access dena’s documents. This particularly concerns, although is not limited to circumstances or procedures that relate to the business processes, commercial results, expertise, business partners or personal data of dena. This obligation shall continue to exist even after the end of the contractual relationship.
8.2 Documents or data made available by dena must be destroyed or erased upon request or after the end of the order. Any right of retention is hereby excluded.
9. Data protection
9.1 The Contractor is obliged to observe the data protection rules and take appropriate precautions with regard to the personal data received from dena. Should the Contractor gather, process or use personal data for dena within the scope of this contract and if no joint controllership as defined in Art. 26 GDPR exists, then the Contractor is obliged to enter into an order (data) processing agreement.
9.2 The Contractor is forbidden to pass on, sell, process or use the personal data which is collected, processed or used within the scope of this contract for purposes other than to perform its contractual duties.
9.3 The Contractor shall ensure that the personal data is protected from being accessed by unauthorised third parties and that assigned staff or third parties are obliged to comply with the data protection rules.
9.4 The Contractor shall erase the data irretrievably upon request immediately, but at the latest at the end of the Contract and shall con- firm such erasure to dena upon request, unless there is a legal duty of retention.
10. Term of the agreement, termination, and withdrawal
10.1 Any agreements on the term of the contract can be derived from the order. dena shall also be entitled to early termination if an agreement on the term of the contract is concluded. There is no need for a period of notice.
10.2 If the premature termination is not due to a reason for which the Contractor is responsible, the Contractor shall, in the event of premature termination of a fixed-term contract for services, be entitled to payment of a remuneration amounting to 5 per cent of the remuneration due for the remaining term at the time of termination.
10.3 With contracts for works, dena shall be entitled to claim remuneration for the services which have been supplied up to that point in a state ready for acceptance as well as 5 per cent of the agreed remuneration attributable to the part of the works not yet supplied. Should dena terminate the contract for a reason for which the Contractor is responsible, the Contractor shall only be entitled to prorata remuneration for the services supplied up to that point, provided dena is able to use these services.
10.4 Where the present Contract is awarded as part of a project supported by a grant, dena shall be entitled to an immediate special right of termination if it can be proven that the project has not received funds from the public funding body in the current financial year (including a budget freeze for more than two months). In the event of a special termination, payment must only be made for the service thus far provided and subject to partial approval.
10.5 If services are commissioned without the funding body having decided at least on a provisional start date for the measure, dena reserves the right to withdraw from Contract for reasons relating to the laws on funding.
10.6 Termination and withdrawal must be in writing.
11.1 The Contractor may not offer, grant or accept or demand gifts or benefits for himself or others (including through third parties) in connection with the procurement respectively the order and/or fulfilment of the contract; this also applies to acceleration bribes.
11.2 The Contractor may not agree on restrictions of competition with one or more other companies.
11.3 Any form of corruption is prohibited. The Contractor shall be obliged to take suitable and appropriate measures to prevent and combat corruption. Furthermore, he is obliged to immediately report confirmed cases as well as severe suspected cases regarding corruption and/or offences against property such as fraud, embezzlement or breach of trust in connection with the fulfilment of the contract to the ombudsperson. The ombudsperson can be reached via e-mail (om- email@example.com), telephone (+49 30 2 83 05 50-90) or fax (+49 30 2 83 05 50-6).
12. Contractual penalty
12.1 Should the Contractor be in default with the agreed delivery or service dates, they shall be liable to pay a contractual penalty amounting to 0.2 per cent of the net order value of each scope of de- livery or service for every working day of delay for which it is responsible. The contractual penalty shall be limited to a total of 5 per cent of the net order value per scope of delivery and performance and up to total of 5 per cent of the net total order value.
12.2 The Principal is able to claim an incurred contractual penalty until the final payment is due, even if it was not reserved when the service was accepted and received. Any claims for compensation beyond this shall remain unaffected. The contractual penalty liable to be paid shall be offset against the compensation claim.
12.3 In the event of a breach of an obligation under Clauses 7.2 – 7.4 (minimum wage) and 13. (Integrity), the Contractor shall be obliged to pay a contractual penalty in the amount of EUR 25,000 per breach. If, in the case of a pecuniary benefit granted, the amount of such benefit exceeds EUR 25,000, the Contractor shall owe a contractual penalty in the amount of the benefit granted. Further claims for damages of the Principal shall remain unaffected. However, the contractual penalty shall be offset against such claims for damages.
13. Written form requirement, severability clause, governing law, place of jurisdiction
13.1 Any supplementary agreements, amendments or additions to this contract must be made in writing for them to be effective. The same applies to any waiver of the written form requirement itself. No supplementary verbal agreements to the order exist.
13.2 If any individual provisions of the contract are or become void, the validity of the remaining provisions will not be affected. In such a situation, the contracting parties shall replace the invalid provision with a different provision that is permitted and comes closest to the economic purpose of the ineffective provision. The same applies to any loopholes.
13.3 This contract shall be governed by the law of the Federal Repub- lic of Germany; the UN Convention on Contracts for the International Sale of Goods shall not apply.
13.4 Place of jurisdiction for merchants, bodies governed by public law or special funds governed by public law shall be Berlin.