General Terms and Conditions for the Provision of Consultancy, Planning and Other Services by BNP Paribas Real Estate GmbH, department Project Solutions
1 Subject Matter and Reaching of the Contract
1.1 Our present General Terms and Conditions underlie the provision of services (Dienstvertrag) and performance of works (Werkvertrag),that is, the fulfilment by us of a specified task and / or the provision by us of certain consultancy and support services.
1.2 A contract – the provisions of which will prevail over the content of these General Terms and Conditions – will be reached by its being signed by both the client and ourselves, no later, however, than at the time of the services being provided.
1.3 Additional conditions for the services to be provided may result from documents that may be made available by us and become constituent parts of the respective contract as annexes and contractual documents. An annex (if any) will be made a constituent part of the contract by reference (for instance in a contractual document).
2 Prices and Conditions of Payment
2.1 Payment for the services will be due either according to the progress of a respective phase / module or currently during the period of provision of such services or upon termination of such services, as may have been agreed.
2.2 With respect to services provided on a time-basis, the working and travelling hours accrued as well as waiting periods (if any) will be invoiced on the basis of the remuneration classes and rates current at the time. Other expenses, including, but not limited to, accommodation and travel expenses, will be invoiced additionally. Unless the parties have agreed otherwise, invoicing will be effected according to the progress of a respective phase / module or upon provision of the relevant service.
2.3 All invoices will be due and payable 14 days after the date of the invoice. If we have not received payment 30 days following the due date, we will be entitled to demand interest on arrears at a rate permitted by law. The sales tax will be invoiced at the rate current at the time of service provision. In the event that, within the contractual term, the sales tax rate should be modified, the periods to which different sales tax rates apply will be deemed to have been separately agreed upon. The client will not be entitled to offset any amounts due to him against our claims, unless his counter-claim is undisputed or has been declared legally valid.
3 Deployment of Personnel
We will be entitled to charge sub-contractors with the provision of the services or parts thereof.
4 Acceptance of Works Performed
The client will accept any works performed as per agreement immediately upon delivery. Insignificant deviations from the performance characteristics and acceptance criteria agreed upon will not entitle the client to refuse acceptance. Our obligation to correct any faults asper the provisions of the present General Terms and Conditions will remain unaffected.
5 Warranty
5.1 The warranty period for works performed will be twelve months, unless another period has been agreed upon. If the client is a consumer, at least the legal warranty period will apply as well as with respect to a structure or a work the success of which consists in the provision of planning or supervising services for a structure.
5.2 With respect to works performed, we warranty that the contractual features of performance will be met and that these meet the scope of performance agreed upon. The warranty period will start upon acceptance.
5.3 We will remedy any warranty-covered deficiencies of which we have been notified in writing by the client. In the event that we should not succeed in remedying a deficiency within a reasonable period, even after such period having been reasonably extended, the client – to the extent that the value or suitability of the work concerned is restricted – may demand either a reduction of the price or cancellation of the contract. Withdrawal from the contract will, however, be excluded in the case of minor deficiencies or deviations. As for the rest, Item 7 (Liability) will apply inasmuch as any deficiency is not of only insignificant nature.
5.4 There will be no claim for warranty or reduction of compensation with respect to services provided.
6 Proprietary Rights
6.1 Materials (work results) are written documents or other copyright protected works in written, machine-readable or other forms of representation, including, but not limited to, documentation, protocols, drawings, concepts, calculations, models and similar works. We will be entitled to keep copies of such materials created during the provision of our services, with respect to which we will acquire the irrevocable, nonexclusive, worldwide, free-of-charge right to use and perform such materials internally and externally, in particular the right to reproduce, display, exhibit, distribute, and create derived works from such materials, as well as the right to grant such rights to any third parties. To the extent that any work results should be created during the provision of any services or have already existed prior to such provision, in which we or any third parties have all rights of ownership and usage, the client will be provided with copies of such specified materials and the irrevocable, non-exclusive, worldwide, free-of-charge right to use, perform, reproduce, display, exhibit and distribute copies of such work results within his enterprise – subject to the condition precedent of full payment for all services provided by us under the contract.
6.2 Any changes to and modifications of materials provided by the client will be marked by the client as ‘edited’ in the respective document provided in connection with the order. The client will furnish us with the declaration of consent of the owner of the rights in the materials provided prior to editing.
6.3 The client will indemnify us and our affiliated companies and sub-contractors against any liability with respect to third party claims arising from any unauthorized provision of materials for processing as per the preceding paragraph.
7 Performance of the Contract, Terms, Deadlines
7.1 We will use out best efforts to adhere to the deadlines bindingly fixed by us in writing for the fulfilment of individual work tasks. We will, however, not be liable for any delays and missed deadlines resulting from any events of force majeure or from a failure to cooperate, or delayed cooperation, on the part of the client or of any third parties who have not been directly contracted by us as agents. In the events of any delays or missed deadlines, the client will collaborate with us in adjusting the previously fixed deadlines to the actual development, with due regard for the interests of both parties.
7.2 Proper performance of the contract is conditional on the client fulfilling his duty to cooperate in due time. Should the client fail to do so and should such failure result in any delays and / or extra expenditures, we may – without prejudice to any further legal rights – ask for an adjustment of the time schedule and stipulated prices. In addition, we may grant the client a reasonable grace period for fulfilling his duty to cooperate, upon the expiration of which we will be entitled to terminate the contract. The contract will, however, not be terminated automatically upon the expiration of such a grace period.
7.3 If the client should wish the provision of any additional services after conclusion of this contract, we will discuss such services and the resulting time and cost issues with the client. We will not be obligated to include any such additional services in the contract. We will, however, use our best efforts to meet the client’s requirements within the scope of our capacities, provided that the client consents to the delays and cost increases resulting from such additional services.
8 Use of the Documents as a Reference and for Advertising Purposes
8.1 The client agrees that we may use materials (especially photographs) as references and for advertising purposes.
9 Confidentiality
9.1 We agree to keep confidential all information, documents and knowledge obtained in connection with the processing of this contract. The confidentiality obligation does not extend to such information which has to be disclosed due to statutory or administrative provisions or is publicly known or has been received from a third party in a legally permitted way.
9.2 Upon written request by the client at any time, all documents and information received by us, including all data files or copies made or stored on data carriers, will be returned to the client or be destroyed.
9.3 The duty to return / destroy the confidential information does not apply to confidential information which is automatically stored by data backup systems and to which systematic access is not possible. Legal retention requirements shall remain unaffected as well.
9.4 This confidentiality obligation shall survive the termination of the contract by one year.
10 Termination
10.1 Unless otherwise agreed in the respective contract and / or as per agreement in the respective contract, the client or we ourselves may terminate a contract for cause by notifying the other party in writing, if the other party fails to fulfil its contractual obligations – even upon having been granted a reasonably extended period for fulfilment. Withdrawal from the contract will, however, be excluded in the case of a nonessential breach of the contract.
10.2 In the event of contract termination for convenience by the client, he will be obligated to pay for the services provided up to such termination and to reimburse to us any other expenses and receivables due to us as per the provisions of the contract or any legal provisions.
11 Liability
11.1 We will be liable with respect to any breach of essential contractual obligations as per legal provisions, inasmuch as such have not been, or are not, modified by contractual provisions to the extent legally permitted.
11.2 We will likewise be liable for any breach of secondary contractual obligations owing to gross negligence or intent. Any liability for a breach of secondary contractual obligations based on slight negligence will be excluded.
11.3 To the extent that liability is mandatorily prescribed by law, such liability will not be excluded or restricted by contractual arrangements.
11.4 In all other cases, our liability for indirect and consequential damage will be excluded and / or restricted to the remedy of any damage typical of the contract that could be reasonably foreseen at the time of occurrence of the damaging event.
11.5 To provide coverage for any reasonably foreseeable damage, we will maintain an adequate insurance policy with an insured sum of 7.5 million €. Our liability will in all cases be restricted to the above amount, as long as insurance coverage in such amount is maintained.
11.6 Should the client provide us with views or additional material concerning the object for use, the client assures that we are free to use the photographic material and that such material is free of third party rights. The client assures that he will indemnify us accordingly should he be sued for copyright or personality right infringement in connection with the aforementioned material.
11.7 We will not be liable with respect to any claim that has not been asserted in writing by the client within 6 months from the date when he has become aware of the basis of such claim.
11.8 Data communication as per the current state of the art cannot be guaranteed to be without errors and / or to be available without interruption. In this respect, we are not responsible for the continuous or uninterrupted availability of the website.
12 Other Rights and Obligations of the Parties
The client and we ourselves agree that
12.1 neither party is prevented from concluding similar contracts with any third parties;
12.2 each party will reasonably enable the other party to fulfil its obligations prior to taking any legal action on the grounds of non-fulfilment of any contractual obligation;
12.3 any claims arising from the contract are subject to a limitation period of three years – unless otherwise stipulated in Item 5 (Warranty) of the present General Terms and Conditions and unless a longer period is mandatorily prescribed by law;
12.4 with the exception of any payment obligations, neither party will be responsible for non-fulfilment of its obligations for reasons beyond such party’s sphere of influence, unless responsibility of the party concerned with regard to such reasons has been expressly agreed upon;
12.5 the assignment of any rights under a contract, with the exception of any claims for payment due to us, will require our previous written consent, unless such assignment is made within the client’s enterprise or to the client’s legal successor, provided that such consent must not be refused but for good cause;
12.6 the client will not be entitled to market any services and / or works under the contract, whether in whole or in part, or provide and / or deliver such in any other manner.
13 Data Protection
For information about the handling of your personal data, in particular about the purposes for which we process your data, your rights as a data subject and contacts, please see our Data Protection Notice at https://data-privacy.realestate.bnpparibas.
14 Client Identification
The client is aware that, pursuant to the German Anti Money Laundering Act (GwG), we are obliged to identify our clients. This Act also places the client under an obligation to provide us with all the requisite information and documentation and to inform us promptly of any changes which occur in the course of our business relationship.
15 Scope of Application / Governing Law / Miscellaneous
15.1 The client’s General Terms and Conditions (if any), to the extent that such are in contradiction with the present General Terms and Conditions and / or other contractual agreements, will not be accepted by us.
15.2 The general office for the settlement of consumer disputes (“Allgemeine Verbraucherschlichtungsstelle”) at the Zentrum für Schlichtung e.V., Strassburger Strasse 8 in 77694 Kehl am Rhein, Germany, is available to you at www.verbraucher-schlichter.de in accordance with the German act on alternative dispute resolution for consumer disputes (VSBG). In the event of a dispute with a consumer, we shall not submit to the alternative resolution of such dispute in accordance with the German act on alternative dispute resolution for consumer disputes (VSBG).
15.3 The legal relationship between us and the client will be exclusively governed by the law of the Federal Republic of Germany – including any non-contractual basis of a claim. The exclusive place of jurisdiction is Düsseldorf, Germany.
15.4 Any other modifications of, or amendments to, a contract will require the written consent of both parties. This also applies to any modification of, or deviation from, the written form stipulation.
15.5 Should any of the terms and conditions or parts of the contract be or become ineffective or unenforceable, the validity of the remaining terms and conditions and parts will not be affected. In this case, the parties agree to replace such ineffective or unenforceable provision by a provision that from an economic and legal point of view, and considering the parties’ legitimate interests, comes as close as possible to what the parties would have agreed upon had they been aware of such ineffectiveness or unenforceability.