1. Scope, subject matter of the contract
(1) These General Terms and Conditions ("GTC") apply to all services as well as offers to Cremanski & Company GmbH, Linienstraße 145, 10115 Berlin (hereinafter referred to as "Client" or "C&C") from its contractual partners (hereinafter referred to as "Contractor"; C&C and Contractor hereinafter individually referred to as "Contracting Party" and jointly "Contracting Parties").
(2) These GTC shall apply in the version valid at the time of commissioning the Contractor by C&C to all current and future individual contracts between C&C and the Contractor, without C&C having to refer to them again in each individual case.
(3) These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Contractor shall only become part of the contract if C&C have expressly agreed to their validity in text form.
(4) The respective subject matter of the contract and the specific conditions for the work and/or services to be provided within the framework of these GTC are to be determined in a separate order, which is triggered by C&C to the Contractor (hereinafter referred to as "individual order" or "individual contract").
(5) Insofar as there are individual contractual provisions that deviate from or contradict the provisions of these GTC, the individual contractual provisions shall take precedence over those of the GTC.
(6) Legally relevant declarations and notifications that are submitted by the Contractor to C&C after the conclusion of a contract (e.B. setting of deadlines, reminders, declaration of withdrawal) must be made in text form in order to be effective.
(7) The establishment of a company and the conclusion of an employment contract are expressly not desired by the Contracting Parties and are not justified.
2. Initiation and conclusion of contracts
(1) C&C can present suitable projects to the Contractor by telephone, e-mail or via an online platform.
(2) The Contractor shall then inform C&C by telephone, e-mail or via an online platform whether it is interested in providing products and/or services to C&C or its Customers (hereinafter referred to as "Customer"). If so, the Contractor consents to the transfer of its personal data to the Customer (if applicable).
(3) On request, a personal conversation, telephone or video conference will take place between the Contractor and C&C and/or a Customer.
(4) If C&C and/or a Customer intends to cooperate with the Contractor, C&C will offer the Contractor an offer to conclude a single service or work contract by means of an individual order, which the Contractor can accept within 5 working days, otherwise it will no longer be valid. Offer and acceptance must be made at least in text form.
(5) A legally binding individual contract is only concluded by the timely acceptance of C&C's offer by the Contractor. The conclusion of the contract can be subject to the condition precedent that the Customer, in whom the Contractor is to be used, agrees to the contract. In this case, C&C must notify the Contractor of the Customer's consent within 5 calendar days at least in writing, otherwise the Contractor's acceptance shall lose its validity.
3. Provision of the service
(1) The services that would be provided by the contractor usually include the tasks listed in the order.
(2) Each of the Contracting Parties may request changes to the agreed scope of services from the other contracting party in text form. Upon receipt of an amendment, the recipient will check whether and under what conditions the change is feasible and immediately inform the applicant of the consent or rejection in text form and, if necessary, justify it. If an amendment from C&C requires an extensive review, the inspection effort for this can be calculated by the Contractor, with prior notice, provided that C&C nevertheless insists on the review of the change request. If necessary, the contractual adjustments to the agreed conditions and services required for the review and/or a change will be specified in a change agreement in text form and shall be concluded in accordance with these GTC.
(3) The Contractor undertakes to comply with the applicable legal provisions (copyright, data protection law, competition law, etc.) and guarantees that its results are free of third-party property rights that exclude or may impair the use of the results by C&C and that it is entitled to transfer the agreed rights of use to C&C.
(4) The Contractor must execute individual orders on his own responsibility. Where, when and how tasks are fulfilled is decided solely by the Contractor; the Contractor is not subject to the specifications and instructions of C&C and the Customers. However, the Contractor must observe the technical specifications of C&C and the Customer to the extent that this requires the proper execution of the individual order.
(5) All investments, operating resources and employees that are necessary to carry out a commissioned service and/or work performance (hardware, software, etc.) shall be provided by the Contractor themself for their own account.
(6) The Contractor shall inform C&C at regular periodic intervals of the result of its services if the term of an individual contract lasts longer than one month. At the request of C&C or a Customer, the Contractor must provide information about the current processing status at any time free of charge.
(7) In the event that it is not possible for the Contractor to provide the work and/or service for any reason, the Contractor shall inform C&C and the Customer immediately.
4. Acceptance and warranty for work services
(1) Only in the event that the Contractor has to provide work services in accordance with §§ 631 ff. BGB, the Contractor shall immediately notify C&C of the readiness for acceptance of the total service.
(2) C&C will check the performance immediately. It shall be deemed to have been accepted if C&C does not notify the Contractor of the defects it has discovered within a period of 30 days after notification of completion. In this case, C&C will set the Contractor a grace period for remedying the defect. After the expiry of this grace period, C&C is entitled to refuse the rectification by the Contractor and to carry out the replacement at the expense of the Contractor.
(3) At the request of both Contracting Parties, partial acceptances may also take place, which must be agreed in text form. The procedure according to the above para. 4.1 and 4.2.
(4) Reservations at the time of acceptance due to known defects must be made in writing.
(5) Unless agreed differently in the order or offer the statutory provisions shall apply to any warranty claims of C&C against the Contractor.
5. Granting of rights
(1) The services and/or works include the results created by the Contractor's activity, regardless of whether they are eligible for protection or not.
(2) All results arising from and in connection with the activity of the Contractor and/or the aforementioned subcontractors, from and in connection with the performance of this contract and orders based on it, are already available to C&C as property at the time of creation.
(3) If these results are works eligible for copyright protection, the Contractor irrevocably grants C&C the exclusive, content-related, temporally and spatially unlimited right of use for all known types of exploitation. This includes, in particular, the right to:
- make changes, translations, edits or other transformations,
- store, reproduce, exhibit, publish, distribute in physical or intangible form the results in the original or in modified, translated, edited or redesigned form on any medium, digitally or in any other way, in particular
- to be reproduced non-publicly and publicly, including by means of image, sound and other information carriers,
- the right to use, make available and exploit data networks and online services, including the right to make the results available to users of the aforementioned networks and services for retrieval and download, and
- the right to use the results on computers and other data-processing machines and to have them used by third parties.
However, C&C is not obliged to exercise the rights of use granted to it above.
(4) The Contractor also transfers to C&C all trademark rights, registered designs, utility models or other property rights that arise from the results that he creates on the basis of an individual contract and which have a connection to his tasks, respectively to the consulting projects of Customers.
(5) The aforementioned regulations apply accordingly to protectable new developments and/or technical suggestions for improvement as well as other services eligible for intellectual property rights.
(6) The Contractor's granting of rights with regard to the right of ownership and the rights granted in accordance with paragraph 5 of the GTC extends to all results, documents and their preliminary stages to the respective versions or the description in all forms (written or electronic, handwritten or technically produced, whether finished or not).
(7) C&C is entitled to exercise its rights under this para. 5 of the GTC without any further involvement of the Contractor or to transfer these rights in whole or in part to others or to grant other rights of use thereto. C&C is also entitled to register and exercise unlimited property rights to the Contractor's results in terms of content, time and space.
(8) Unless otherwise agreed in individual cases, the Contractor waives the naming as the author and obliges the subcontractors (clause 3 para. 2) to also waive the mention. In all other respects, he also waives the exercise of his other copyright personal rights, in particular his right of recall and inspection.
(9) The granting of rights remains unaffected by the termination of the contractual relationship.
(10) The rights to the results referred to in the preceding paragraphs are settled by payment of the agreed remuneration by C&C.
(11) The Contractor is liable to C&C for ensuring that all work results created by him are free of third-party rights. In this respect, he indemnifies C&C from any claims for damages.
6. Remuneration, travel expenses
(1) The Contractor receives remuneration in accordance with the provisions of the individual contract.
(2) Should the Contractor commission subcontractors, he may only receive remuneration for their activities in accordance with para. 6.1 if the subcontractors are comparably qualified and experienced with the Contractor. If the subcontractors do not have comparable qualifications and experience, the Contracting Parties must agree on the remuneration owed before the subcontractor provides services, otherwise a claim to remuneration for the services of the subcontractor is forfeited.
(3) The Contractor can recommend further projects for C&C with this client and receives a tipster's commission of 4% on the net turnover paid by the client. Excluded from this is the extension of one's own project.
(4) The remuneration must be stated in the individual orders in EUR or USD (plus statutory value added tax if applicable).
(5) If it is a service contract within the meaning of §§ 611 ff. BGB (German Civil Code) and nothing else has been agreed, the Contractor shall issue a formally effective invoice under German law at the end of each month, which, if necessary, shows the value added tax, including a time sheet. C&C has 7 days to check the invoice as well as the times listed. If these are not objected to, the invoice is deemed approved and is due within 30 days. C&C shall pay the Contractor the agreed remuneration within seven working days at the latest after payment of the remuneration for the work and/or services by the Customer.
(6) The remuneration of work services within the meaning of §§ 631 ff. BGB (German Civil Code) takes place after acceptance of the service and the final invoice has been issued. Partial acceptances and advance payments that can be equated with this can be agreed.
(7) Transaction fees for transfers to a country or currency outside the European Economic Area (EEA) are borne equally by the Contractor and C&C. The place of performance for all payment obligations arising from this contract is the respective principal place of business of C&C.
(8) C&C shall reimburse the Contractor for the expenses necessary and proven for the performance of the services (e.g. travel expenses, system costs, etc.), but not for the costs of investments, operating resources and personnel to be borne by the Customer pursuant to Section 3.5 of the GTC. An expense must be agreed with C&C and/or the Customer in each case before it is incurred (e.g. before the start of a trip) in order to be reimbursable. The Contractor shall invoice the costs monthly upon presentation of the respective original receipts.
7. Liability and warranty
(1) C&C is liable without restriction for damages in cases of intent or gross negligence on the part of itself or its vicarious agents - regardless of the legal grounds as well as in cases of legally unlimited liability (e.g. in accordance with German Product Liability AcT) or liability for a guarantee assumed, insofar as the guarantee should protect the Customer from the damage that has occurred.
(2) In the event of slight negligence on its part or on the part of vicarious agents, C&C shall only be liable (i) for damages resulting from injury to life, limb or health or (ii) for damage resulting from the breach of a material obligation (obligation the fulfillment of which is the proper execution of the order and which C&C can and does regularly trust); in this case, however, C&C's liability is limited to compensation for the foreseeable, typical damage.
(3) The Contractor shall be liable to C&C for defects of title in the services provided by him, in particular for such defects of title that are due to a breach of obligations according to para. 4.3 of these GTC for a period of five (5) years after termination of the individual contract.
(4)The Contractor shall indemnify C&C against any claims of third parties asserted against C&C and/or its Customers due to the use of the Contractor's work and/or service results. If they detect an imminent violation, the contractor will inform C&C immediately.
(5) C&C is not liable for damages incurred by the Contractor by the Customer.
(6) The Contractor is obligated to take out professional and public liability insurance for possible damages caused by him with a coverage amount of at least EUR 250,000.00 lump sum for personal injury, property damage and financial loss per damage event, EUR 2,000,000.00 for the sum of all damages of one year and to maintain this insurance at least until the fulfillment of his services under the respective order, this also includes the warranty period.Upon request, he shall provide C&C with appropriate proof of the existence of the required insurance coverage at any time until the fulfillment of his services under the respective order.
8. Restriction of competition
(1) The Contractor undertakes not to provide direct and indirect services for direct competitors of that Customer during the execution of an individual order for a Customer and to participate in direct competitors. If the Contractor intends to act for such companies, it shall notify C&C in advance and obtain prior consent from C&C. C&C will only refuse consent if there is a legitimate interest of C&C and/or the Customer. In all other respects, the Contractor is also free to work for other companies.
(2) If the Contractor violates the obligations arising from the preceding para. 8.1 of these GTC, he undertakes to pay C&C a contractual penalty of EUR 5,000.00 for each violation, in no case more than the annual remuneration agreed in the individual contract per contract year. C&C reserves the right to reduce the contractual penalty appropriately in the event of a breach that only slightly violates C&C's legitimate interests.
(3) The assertion of further claims by C&C remains unaffected. The contractual penalty will be offset against a further claim for damages.
(1)The Contractor undertakes to comprehensively safeguard the interests of C&C in its Customers and the Customer base and to the same extent the interests of C&C's Customers during the term of the individual contract and for 12 months after its termination.
(2) The Contractor shall not, directly or indirectly:
A. induce employees or other contractors (freelancers) of C&C to terminate the cooperation with C&C;
B.not to enter into an employment or other contractual relationship with respect to all Customers presented to the Contractor by C&C or of whom he has learned through C&C communication channels without the prior consent of C&C,
C. act as a recruiter or recommender for employees or contractors (freelancers) of any kind;
D. make alternative offers to Customers presented by C&C directly or through an intermediary (e.B. headhunters, recruitment agencies, etc.);
E. Not to use the names and data of C&C's Customers as well as other documents relating to C&C's Customers and the associated Customer data that they receive in connection with the execution of individual contracts and the knowledge gained in this way about the Customer, his needs and his individual character in any way neither for himself nor for third parties.
The Contractor must inform C&C of all intended and concluded contracts
(3) The Contractor will not accept any additional remuneration from third parties in connection with the project call-off. During an individual contract, he accepts other orders for which he is foreseeable to have a conflict of interest due to the nature of the order or his personal or economic connection to a third party only with the prior written consent of C&C. If a conflict of interest arises in the course of an individual contract, the Contractor will immediately disclose this to C&C and coordinate the further course of action with C&C. If the Contracting Parties cannot agree in this case, C&C is entitled to terminate the individual contract without notice
(4) If the Contractor violates the provisions in section 9, he undertakes to pay C&C a contractual penalty of EUR 5,000.00 for each violation, in no case more than the annual remuneration agreed in the individual contract per contract year. C&C reserves the right to reduce the contractual penalty appropriately in the event of a breach that only slightly violates C&C's legitimate interests. In addition, the Contractor undertakes to provide C&C with all necessary information.
(5) The assertion of further damages by C&C remains unaffected. The contractual penalty will be offset against a further claim for damages.
(6) In the event of a violation of Section 9, C&C expressly reserves the right to claim damages in the amount of the lost profit (i.e.. the lost individual order).
(7) The Contractor is permitted at any time to act for Contractors, customers or other third parties that he has recommended to C&C.
(1) An individual contract begins and ends at the time individually agreed in the individual contract.
(2) If the individual contract concluded between the Contracting Parties is a contract for work within the meaning of §§ 631 ff. BGB, C&C shall be entitled to the ordinary right of termination at any time in accordance with § 648 sentence 1 BGB. The Contractor may invoice a maximum of 5% of the services not yet rendered. In the event of the applicability of §§ 631 ff. BGB, the Contractor is only entitled to terminate the contract in the cases regulated by law.
(3) If the Contracting Parties have concluded a service contract within the meaning of §§ 611 ff. BGB, the ordinary notice period for this individual contract is
A. within the first 10 working days after the start of the individual contract 1 calendar day and
B. from the 11th working day after the start of the individual contract 14 days.
In the event of ordinary termination, the Contractor shall only be entitled to remuneration for the services rendered up to the time the termination takes effect. In addition, there are no claims to remuneration.
(4) The possibility of terminating individual contracts for good cause remains unaffected. An important reason exists, among other things, if (i) an application for the opening of insolvency proceedings has been filed against the assets of a Contracting Party or (ii) one Contracting Party does not fulfill its obligations within a reasonable period of time at the request of the other party or (iii) if a Customer for whom services are provided does not meet his payment obligations.
(5) Any termination must be made at least in text form (e.g. by email).
11. Storage and return of documents, contractual penalty
(1) The Contractor undertakes to always take state-of-the-art security measures to protect the materials provided from unauthorized third-party access (e.g. in an unencrypted cloud storage) and to comply with the relevant legal provision on data protection (i.e. the GDPR).
(2) All documents and materials made available to the Contractor by C&C or the Customer shall remain their property and shall be returned to C&C or the Customer upon termination of the activity without request. C&C or Customers may also request the deletion and/or destruction of the materials instead of the return.
(3) At the request of C&C, in particular if a return is impossible, the Contractor must assure in writing, if necessary in the form of an affidavit, that the materials have been completely returned, transferred or deleted.
(4) The Contractor is not entitled to exercise a right of retention with regard to the material provided.
(5) If the Contractor intentionally or grossly negligently violates the obligation to surrender in accordance with para. 11.2 and 11.3, he undertakes to pay a lump-sum contractual penalty in the amount of EUR 5,000.00. C&C may also assert further damages against the Contractor. The contractual penalty is to be offset against the total damage incurred.
12. Confidentiality, contractual penalty
(1) The Contractor undertakes to treat as confidential all information, business and trade secrets (for the definition of trade secrets see also § 2 of the German Act on the Protection of Trade Secrets (GeschGehG)) that he receives from C&C, Customers or third parties associated with them (e.g. employees of C&C or the Customer, contractors, etc.) and not to exploit this information directly or indirectly or to disclose it to third parties. The duty of confidentiality also extends to other circumstances that have been expressly disclosed to him by the management of C&C and/or the Customer as confidential or whose need for secrecy is otherwise recognizable to him. Confidential matters, even without express identification, are in particular matters whose disclosure may bring business disadvantages to C&C, C&C's Customers or cooperating companies. This is to be assumed in particular for data from the operational, financial and personnel management and design and manufacturing processes.
(2) This also includes, but is not limited to, any information about an order (including the work or services to be performed, the identity of the Customer, including its Customers, contractors, suppliers and partners). It is also confidential that the Customer is looking for Contractors and that C&C supports this search.
(3) In case of doubt, the Contractor is obliged to obtain instructions from C&C or the Customer as to whether a particular matter or fact is to be treated as confidential or as a business or trade secret or may be disclosed or discussed.
(4) The confidentiality obligation does not apply to information that (i) was already publicly known at the time of disclosure or became known thereafter, without non-compliance with the foregoing provisions contributing to (ii) being expressly disclosed by C&C or a Customer on a non-confidential basis, (iii) already in the legal possession of the Contractor prior to disclosure, or (iv) the Contractor by a third party without violating any Confidentiality obligation is disclosed. The burden of proof for the existence of one of the aforementioned exceptions shall be borne by the Contractor.
(5) So far in this para. 12 unless otherwise regulated, the GeschGehG applies in addition.
(6) The confidentiality shall also apply beyond the termination of the cooperation until the relevant information has been made public.
(7) In the event of breaches of this confidentiality obligation, the Contractor shall pay C&C a contractual penalty of EUR 5,000.00 for each breach. The assertion of further damages by C&C remains unaffected.
13. Commissioning of subcontractors
(1) Commissioning of subcontractors is only permitted with the express consent of C&C, which must be submitted at least in text form.
(2) Should the Contractor obtain the consent of C&C and the Contractor a subcontractor in the course of its activity with the provision of work and / or services, he guarantees that the agreement with the subcontractor meets all the requirements of the individual contract and these GTC.
(3) The Contractor undertakes to engage only subcontractors who are capable of performing the contractual services carefully and professionally. The Contractor shall ensure that the subcontractor and the personnel used have sufficient professional qualifications and conduct themselves towards C&C and the Customer at all times in a manner that is free of objections and in accordance with their professional standards.
(4) C&C is entitled to prohibit the engagement of (certain) subcontractors and/or the use of certain employees of the subcontractor for good cause, in particular if the requirements set forth in the foregoing Section 13.3 of the GTC are not met. C&C shall not be obliged to reimburse any costs incurred by the Contractor due to the rejection of subcontractors.
14. Compliance with legal regulations when using personnel
(1) Against the background of the provisions of § 14 of the Posting of Workers Act (AEntG) and § 13 of the Minimum Wage Act (MiLoG), the Contractor undertakes directly to C&C
A. existing rights of its employees to payment of the minimum wage/minimum wage, and
B. Contribution rights of the joint institutions of the parties to the collective agreement (supplementary pension fund of the construction industry – ZVK or SOKA Bau -, joint holiday fund – ULAK – etc.)
at the due date and to prove this at any time by appropriate evidence at the request of C&C.
(2) Paragraph 14 of the AEntG states that an entrepreneur who commissions another entrepreneur to provide work or services is liable as a guarantor for the obligations of that entrepreneur, a subcontractor or a lender commissioned by the entrepreneur or a subcontractor to pay the minimum wage to an employee or to pay contributions to a joint institution of the parties to the collective agreement pursuant to § 8 AEntG, who has waived the defense of the advance action. According to § 13 MiLoG, this also applies to compliance with the statutory minimum wage. Upon immediate request, the Contractor undertakes to indemnify C&C against any financial obligations under § 14 AEntG and § 13 MiLoG.
(4) For foreigners employed by it, the Contractor must ensure that they have a valid residence and work permit.
15. Final provisions
(1) Rights and obligations arising from a contractual relationship between the Contracting Parties may not be transferred from the Contractor to third parties without the consent of C&C.
(2) These GTC and the individual contracts shall be governed exclusively by German law to the exclusion of all international and supranational contracts or other contractual and legal systems, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) If the meaning of an English term differs from the corresponding German term, only the German term shall apply.
(4) Verbal ancillary agreements do not exist. Changes and additions to this contract must be made in text form (e.g. e-mail) in order to be effective. The same applies to the waiver of the text form requirement.
(5) Should any provision of these GTC be or become invalid in whole or in part, the validity of the remaining GTC shall remain unaffected. The Contracting Parties are obliged to replace the invalid provision with an effective provision that is as close as possible to its economic success.