dena’s General Terms and Conditions of Business
Last revised: 07/2023
1. Scope
1.1 These General Terms and Conditions (GTC) apply to all contracts between Deutsche Energie-Agentur GmbH, Chausseestr. 128 a, 10115 Berlin, Germany (hereinafter referred to as ‘dena’) and contractors (hereinafter referred to as ‘Contractor’).
1.2 General terms and conditions of the Contractor(s) shall not apply unless dena has expressly agreed to their validity in advance. This shall also apply if contractual terms and conditions of the Contractor are attached to or referred to in contractual documents and if dena accepts services, deliveries and invoices without reservation or pays them in the knowledge of conflicting or deviating terms and conditions of the Contractor.
1.3 The provisions of the order shall take precedence over those of the offer and these GTC.
2. Provision of services and acceptance
2.1 The Contractor shall provide the services in accordance with the order including annexes and these GTC.
2.2 The Contractor shall perform the services in compliance with the statutory provisions and the generally recognised commercial principles and the state of the art in accordance with the recognised rules and with the necessary professional and technical expertise.
2.3 Acceptance or partial acceptance of a service under a contract for work and labour shall be effected by dena’s declaration in writing.
2.4 If dena has concluded a main contract with a main client and has subcontracted the contractual services to the Contractor, dena shall be entitled to await the corresponding acceptance by the main client before accepting the service of the Contractor.
3. Warranty for defects and default
3.1 In the case of contractual services, the Contractor is obliged to provide dena with its services free of material defects and defects of title.
3.2 The right to subsequent fulfilment, self-remedy and reduction shall exist even before acceptance if the legal requirements are met.
3.3 In the event that dena is subject to a statutory obligation to give notice of defects, the parties agree that a notice of defects within 10 (ten) working days is in any case timely.
3.4 In all other respects, 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. This shall not affect any claims that have already arisen from the failure to provide the service on time.
4. Rights of use and exploitation, indemnity
4.1 Insofar as copyrightable works are created or used in the provision of the contractually agreed services (e.g., images, graphics), the Contractor shall grant dena the simple, irrevocable and transferable rights of use to these works (publishing rights, rights of public access, editing rights, translation rights, modification rights, rights of storage on any available medium [multimedia rights] and database rights, etc.), which are unlimited in terms of content, time and territory. 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 originator is waived in writing in the individual case.
4.2 The Contractor warrants that they have acquired all rights of the authors and other authorised persons required for the fulfilment of the order and shall inform dena of any necessary copyright notices or references.
4.3 The Contractor shall indemnify dena upon first request against all claims by third parties arising from any existing copyrights or related property rights in connection with the results produced by the Contractor. This also includes the costs of an appropriate legal defence by dena against third parties.
4.4 If the Contractor is obliged to grant exclusive rights to dena as a result of the order, dena shall grant the Contractor simple rights of use in writing upon request if and insofar as the Contractor can assert a legitimate interest and dena’s interests do not conflict with this.
4.5 Granting the exploitation rights is a principal obligation under this contract.
5. Travelling expenses, terms of payment
5.1 Unless otherwise agreed in the order, the Contractor’s travelling expenses shall not be reimbursed.
5.2 dena shall pay the remuneration in one lump sum after the service has been completed and accepted within 30 (thirty) days of receipt of a proper invoice. The Contractor shall prepare the invoice in accordance with Section 14 of the German VAT Act and provide evidence of the type and scope of the service by means of documents in a generally accepted form. When issuing the invoice, the Contractor shall quote the order number and project number supplied by dena.
6. Subcontracts
6.1 The Contractor may only transfer the performance of the service or essential parts thereof to third parties with the prior consent (in writing) of dena if these third parties are obliged to comply with the obligations existing under these GTC. 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 professional experience required for the efficient and successful performance of the contractual services.
6.2 All employees and all third parties engaged by the Contractor within the scope of this contract, whether subject to instructions or not, are vicarious agents of the Contractor within the meaning of Section 278 of the German Civil Code.
7. General obligations
7.1 The Contractor shall perform its services in compliance with the statutory provisions as well as the generally recognised commercial principles and the state of the art in accordance with the recognised rules and with the necessary professional and technical expertise.
7.2 When fulfilling the contract in Germany, the Contractor shall be obliged to comply with the provisions of the German Minimum Wage Act and to pay its employees any applicable collectively agreed wages. Furthermore, the Contractor agrees to comply with the fundamental principles and rights at work in accordance with the Declaration of the International Labour Organization (ILO) of 18 June 1998 (freedom of association, the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation) in the performance of the contract.
7.3 When carrying out the order abroad, the Contractor undertakes to comply with the provisions by which the relevant core labour standards of the ILO (Conventions No. 29, No. 87, No. 98, No. 100, No. 105, No. 111, No. 138 and No. 182) are incorporated into the
law of the country in which the order is carried out. If the country of assignment has not ratified one or more core labour standards or has not transposed them into national law, the Contractor is obliged to comply with the regulations of the country of assignment that pursue the same objective as the core labour standards.
7.4 In accordance with Principles 1 and 2 of the UN Global Compact, the Contractor is obliged to respect fundamental human rights as defined in the United Nations Universal Declaration of Human Rights of 10 December 1948. This person also undertakes to comply with the laws and regulations applicable to them that prohibit discrimination on the grounds of race or ethnic origin, gender, religion, disability, age, sexual identity or political opinion.
7.5 If a Party to this agreement determines that a breach of a human rights-related obligation in connection with this contractual relationship has occurred or is imminent in their own business, it shall promptly take appropriate remedial action to prevent, end or minimise the extent of the breach. If the Party to this agreement cannot end the violation in the foreseeable future, this Party must draw up and implement a concept for ending or minimising it.
8. Confidentiality
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 applies in particular, but not exclusively, to circumstances or processes relating to business processes, business results, expertise, business partners or personal data. 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 deleted upon request or after termination of the contract without being requested to do so. Any right of retention is hereby excluded.
8.3 The Contractor shall observe the provisions of data protection law with regard to the personal data it receives from dena and shall take appropriate precautions. 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 of the GDPR, the contractor is obliged to conclude an order processing agreement.
8.4 The Contractor is prohibited from disclosing, reselling, processing or using the personal data collected, processed or used under this contract for purposes other than the fulfilment of its contractual obligations.
8.5 The Contractor shall ensure that personal data is protected from access by unauthorised persons and that employees and third parties are obliged to comply with data protection regulations.
8.6 The Contractor shall irretrievably delete the data immediately upon request, but at the latest after termination of the contract, and confirm the deletion to dena upon request, unless there is a legal obligation to retain the data.
9. Contract term, termination, withdrawal
9.1 Any term agreements arise from the order. Even in the case of a term agreement, dena has the right to terminate the contract early. There is no need for a period of notice.
9.2 If dena terminates the contract without giving reasons, the Contractor shall be entitled to remuneration for the services rendered up to that point and are ready for acceptance, as well as five per cent of the agreed remuneration for the part of the service not yet rendered.
9.3 If, however, dena terminates the contract for a reason for which the contractor is responsible, the Contractor shall only be entitled to a proportionate remuneration for the services provided up to that point, insofar as these services are usable by dena. Such a reason exists in particular if the Contractor violates his obligation under 7.5.
9.4 If the present contract is awarded as part of a grant-funded project, dena shall have the right to terminate the contract immediately if it can be proven that the project is not funded by the public funding body in the current financial year (including if the budget is frozen 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. If services are commissioned without the funding body having at least approved an early start to the measures, dena reserves the right to withdraw from the contract for reasons relating to funding law.
9.5 Cancellation and withdrawal must be in writing.
10. Integrity
10.1 The Contractor may not offer, grant or accept or demand gifts or benefits for itself or others, either itself or through third parties, in connection with the award or the order and/or performance of the contract; this also applies to facilitating payments.
10.2 The Contractor may not agree any restrictions on competition with one or more other companies.
10.3 Any form of corruption is prohibited. The Contractor is obliged to take suitable and appropriate measures to prevent and combat corruption. The Contractor is also obliged to report confirmed cases and serious suspected cases of corruption and/or property offences such as fraud, embezzlement or breach of trust in connection with the performance of the contract to the ombudsperson without delay. The ombudsperson can be contacted via email at jan.gerd.moeller@pwc.com, telephone at (+49-211) 981-4031 or mobile at (+49-170) 854-8529. Information can also be provided via the web form available at whistleblowerreporting.pwc.de/ecf7d254f0.
11. Contractual penalty
11.1 If the Contractor defaults on agreed delivery or service deadlines, they shall pay a contractual penalty of 0.2 per cent of the net order value of the respective scope of delivery or service for each working day on which the deadline is culpably exceeded. 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.
11.2 In the event of a culpable breach by the Contractor of the obligations under 7.2 (minimum wage), the Contractor shall be obliged to pay a contractual penalty in the amount of 1 (one) per cent, in the event of multiple breaches up to 5 (five) per cent of the order value, but at least €5,000. This shall also apply in the event that the breach is committed by a subcontractor engaged by the Contractor, unless the Contractor was not aware of the breach when engaging the subcontractor and, taking into account the duty of care of a prudent businessman, did not have to be aware of it. In the event of a disproportionately high contractual penalty, the Contractor may apply to the Client for a reduction of the contractual penalty.
11.3 In the event of a breach of 10 (Integrity), the Contractor shall be obliged to pay a contractual penalty of
€25,000 for each breach. If the pecuniary benefit conferred is higher than €25,000, the Contractor shall owe a contractual penalty in the amount of the benefit conferred.
11.4 A forfeited contractual penalty may be asserted by the client, even if it was not reserved upon acceptance and receipt of the service, until the due date of the final payment. Any claims for compensation above and beyond this shall remain unaffected. The contractual penalty liable to be paid shall be offset against the compensation claim.
12. Final provisions
12.1 Any ancillary agreements, amendments or additions to this contract must be made in writing in order for them to take effect. The same applies to any waiver of the written form requirement itself. No supplementary verbal agreements to the order exist.
12.2 If individual provisions of the contract are or become invalid, this shall not affect the validity of the remaining provisions. In such a situation, the contracting partner 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 in the event of any loopholes.
12.3 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
12.4 The place of jurisdiction for merchants, legal entities under public law or special funds under public law is Berlin, Germany.