– Valid 1 January 2021 –
Section 1 Application
(1) These General Terms and Conditions apply to all transactions, contracts, pre-contractual obligations, goods, services and offers (especially of services and consultation) of PAP personal assistance partners with third parties (Customers) who are not consumers within the meaning of Section 13 of the German Civil Code [Bürgerliches Gesetzbuch (BGB)].
Only these General Terms and Conditions apply in any transactions, unless agreed otherwise in a separate contract.
Even if not expressly rejected by PAP personal assistance partners, other terms and conditions will not be part of the contract.
(2) Even if not referred to again when concluding similar contracts, the General Terms and Conditions of PAP personal assistance partners apply exclusively when issuing the respectively valid version, unless agreed otherwise between the parties in written or text form.
Section 2 Offers and Contract Conclusion
(1) Offers of PAP personal assistance partners are non-binding, unless expressly specified as binding.
(2) Offers specified as binding are valid for 6 weeks as of the offer date, unless specified otherwise in the offer.
(3) All parts of offers remain the intellectual property of PAP personal assistance partners and may not be transferred or used otherwise without the permission of PAP personal assistance partners.
(4) A contract between PAP personal assistance partners and the Customer is exclusively concluded as follows:
(a) A contract is concluded either through a contract entered into by both parties in at least written form or through PAP personal assistance partners confirming an order to the Customer in at least text form, and by PAP personal assistance partners starting the performance the order after it is placed. PAP personal assistance partners may require confirmation in written or text form (e.g., email) of verbal agreements.
Silence by PAP personal assistance partners in response to a statement of intent of the Customer does not represent consent to the conclusion of a contract.
(b) A contract may also be concluded through a statement of intent issued via video chat (e.g., Zoom, Skype, Microsoft Teams, etc.) if both parties’ statements of intent concerning the content, conclusion, conditions and consideration of the contract are issued verbally via chat or graphically or in text form on screen and recorded by the chat program as evidence of contract conclusion. This form of concluding and documenting the contract requires the consent and an expression thereof of both parties during the recording. If a contract is concluded in this manner, both parties will receive a copy as evidence of the content of the concluded contract.
(c) Offers of the customer require express acceptance by PAP personal assistance partners in text form or via video chat recording in accordance with the above Letter (b).
Section 3 Service Scope and Subsequent Performance
(1) The scope, type and quality of services and/or goods is determined by the contract concluded between the parties or by PAP personal assistance partners’ confirmation of the accepted offer of PAP personal assistance partners.
(2) Other services, information or requests will only be part of the contract if mutually agreed by the parties in at least text form or confirmed by PAP personal assistance partners in at least text form. Subsequent changes to the service scope require an agreement with or confirmation by PAP personal assistance partners in written or text form.
(3) Verbal agreements are only effective if confirmed by PAP personal assistance partners in written or text form.
(4) Project and product descriptions, representations, videos, layouts and graphics, etc., are service descriptions, but no guarantees. Guarantees require a written statement by the management of PAP personal assistance partners.
(5) PAP personal assistance partners provide all goods and services in accordance with the state of the art.
(6) If PAP personal assistance partners fail to perform a service as required by the contract and are reprimanded for this by the Customer without undue delay, PAP personal assistance partners may perform the service within an appropriate grace period (subsequent performance).
Section 4 Period, Delay and Place of Performance
(1) Stated delivery, service and completion dates are non-binding, unless specified as binding by PAP personal assistance partners in written or text form. PAP personal assistance partners may perform parts of services if expedient for the Customer.
(2) Delivery and service dates will be postponed by the period of default of the Customer and by the period for which PAP personal assistance partners cannot provide the delivery or services due to circumstances for which PAP personal assistance partners are not responsible and by an appropriate grace period after the hindrance ends. Such circumstances include force majeure, epidemics/pandemics and labor disputes. Delivery and service dates will be postponed by the period for which the Customer fails to comply with contractual obligations, e.g., providing information, items or staff or making payments.
(3) If the parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines will be appropriately postponed.
(4) Reminders and deadlines of the Customer must be confirmed in written form to be effective. Grace periods must be appropriate. Grace periods of less than 2 weeks are only appropriate in case of special urgency.
(5) The place of performance of any service is the place where the service must be performed. Apart from that, the place of performance under or in relation to the contract is the registered office of PAP personal assistance partners.
Section 5 Contractual Obligation and Termination
(1) The terms of a contract are specified by the respective contract.
(2) Termination rights are established as provided by law. Notice of termination must be given in written form.
(3) For fixed-term or project contracts, notice of termination of further exchange of services (e.g., in case of withdrawal, reduction, termination for good cause, damages instead of performance) must state the reason and offer an appropriate grace period for rectification (normally, at least 2 weeks) and may only be given within 2 weeks after this period. In cases required by law (e.g., Section 323(2) of the German Civil Code), a grace period may be waived. Contracts may not be canceled by the party responsible or primarily responsible for the disruption.
(4) Any statements in this regard must be made in written form to be effective.
Section 6 Payment and Prohibition on Offsetting
(1) Unless contractually agreed otherwise, the following applies:
(a) Agreed payments are due without deduction and must be paid within 14 days of completion of the contracted service and receipt of the invoice by the Customer. If services (e.g., support, consultation, layout design/creation for advertisement, etc.) are owed for a specified period of more than 4 weeks, these services will—unless contractually agreed otherwise—be billed proportionately per calendar month with a payment target of 30 days. The same applies to project and service contracts.
(b) In framework or individual agreements, PAP personal assistance partners may differ from Sentence 2 of Section 6(1)(a) and require the Customer to pay installments in accordance with a payment schedule which defines certain performance levels and milestones. Each installment will correspond to the value of the performance level or milestone. Installments will be due upon the achievement of the performance level or milestone and must be paid by the Customer without deduction within 14 days of receipt of the invoice.
(2) If the Customer defaults on a payment or installment, PAP personal assistance partners may refuse further performance of contracted services until all payments are made.
(3) Travel costs, expenses, accessories, shipping costs and telecommunication costs must be paid as incurred. Additional services requested by the Customer (e.g., consultation, support, training and other services) will be invoiced as contractually agreed.
(4) VAT (of currently 19%) must be added to all prices.
(5) The Customer may only offset with claims that are acknowledged by PAP personal assistance partners or legally established. Except in case of Section 354a of the German Commercial Code [Handelsgesetzbuch (HGB)], the Customer may only assign claims under the contract to third parties with the prior written permission of PAP personal assistance partners.
The Customer is only entitled to rights of retention or the defense of non-performance within the contractual relationship.
Section 7 Acceptance
(1) If acceptance is required or agreed for the type of contracted service (e.g., under a service contract), PAP personal assistance partners will give notice of completion to the Customer after completing the work. Unless required otherwise contractually, the Customer must review and accept the service within 6 business days of receipt of the notice of completion.
(2) Acceptance may not be refused based on insignificant defects. Incomplete documentation especially is deemed insignificant.
(3) PAP personal assistance partners may require formal acceptance.
(4) Apart from the above, Section 640 of the German Civil Code applies.
Section 8 Obligations of the Customer
When delivered or made available, any items delivered and contractually provided to the Customer by PAP personal assistance partners (e.g., concepts, (motion picture and still image) marketing material/recordings or software/data) must be properly inspected by the Customer in compliance with commercial law (Section 377 of the German Commercial Code) and any defects must be precisely described in writing without undue delay.
Section 9 Guarantees
The legal provisions concerning guarantees apply.
Section 10 Liability
(1) Damages or compensation for wasted expenditure will, irrespective of the legal grounds (e.g., obligations under legal transactions or statements of intent, material defects, defects of title, breaches of duty or unlawful acts), be paid by PAP personal assistance partners only to the following extent:
a) Claims of the Customer against PAP personal assistance partners or PAP personal assistance partners’ representatives or vicarious agents for damages, especially due to default, non-performance, poor performance or unlawful acts, are only established in case of violations of essential contractual obligations, i.e., obligations on whose fulfillment proper contract performance depends and on compliance with which the other party relies and may rely.
b) In case of gross negligence, PAP personal assistance partners will only be liable for the typical damages that are foreseeable when concluding the contract.
c) Liability is not limited for intent, fraud or in case of a guarantee.
(2) This liability exclusion does not apply to liability for intent, gross negligence, injuries to life, limb or health or for assured qualities. If essential contractual obligations are violated with intent within the above meaning, liability is limited to damages typical to the contract.
(3) PAP personal assistance partners may raise the defense of contributory negligence.
Section 11 Limitation
(1) The limitation period lasts:
a) For claims to refunds due to cancelations or reductions based on material defects, 1 year following the delivery of the digital work (in form of a digital file), decoration or print media to the Customer.
b) For other claims based on material defects, 1 year.
c) For claims based on defects of title, 2 years if the defect is not in a third-party right due to which the third party may obtain the surrender or cessation of use of the software.
d) For claims to damages or compensation of wasted expenditure not based on material defects or defects of title, 2 years. This limitation period will commence when the Customer learns or, without gross negligence, should have learned of the circumstances establishing the claims.
(2) Claims will expire, at the latest, at the end of the period specified in Section 199 of the German Civil Code. Subsection (1) does not apply to compensation for intent, gross negligence, guarantees or fraud.
Section 12 Confidentiality and Data Protection
(1) The parties agree to treat any objects (e.g., marketing items, photographs, movies, props, software, documents, information) received from the other party and that are legally protected or contain trade or industrial secrets or are labeled as confidential and of which the parties learn before or during the performance of the contract confidentially even after the contract expires, unless such objects become or became public knowledge without violations of these confidentiality obligations. The parties must store and secure such objects to prevent access by third parties.
(2) The Customer may only make contractual objects available to employees and other third parties who require access for the performance of their tasks. The Customer must inform these persons about the confidentiality of these objects.
(3) Data of the Customer necessary for completing the order will be processed by PAP personal assistance partners in compliance with data protection law.
(4) After completing the service, PAP personal assistance partners may refer to the Customer as a reference customer.
Section 13 Rights to Commissioned Work Results
Any rights to marketing concepts, material and digital or analog work, e.g., 3D visualizations, company, logo or website designs, web videos, trailers, prints, etc., prepared for the Customer will remain with PAP personal assistance partners and will only be transferred to the Customer to the contractually-agreed extent if the service is paid for as required by and a transfer or licensing of these rights is expressly agreed in the contract. If the Customer defaults on a contractually-agreed payment for a service, PAP personal assistance partners have a right of retention.
Section 14 Force Majeure Clause
(1) In case of force majeure, especially war, sabotage, geologic change, interference, fire damage, floods, strikes, lawful lockouts or plagues (including epidemics and pandemics) with a risk level classified as at least “medium” by the Robert Koch Institute, the affected party will be exempt from its performance obligations for the period and extent of the effects on the contractual obligations.
(2) If performance is fully and permanently prevented by force majeure, the parties may terminate the contract with 1 month’s notice. If the hindrance ceases to apply during this notice period, the contract will not be terminated.
(3) Claims for damages based on force majeure are excluded.
(4) Each party must inform the other party about all specifics of the force majeure without undue delay upon its occurrence. Furthermore, the Parties must discuss appropriate measures to be taken.
Section 15 Text Form Requirement, Place of Performance, Place of Jurisdiction and Arbitration
(1) To be effective, contracts must be concluded or amended in at least text form or via video chat in accordance with Section 2(4)(a) and (b). The text form requirement may expressly be satisfied via fax or email.
(2) The law of the Federal Republic of Germany applies under exclusion of conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.
(3) For contracts with merchants, the place of performance and place of jurisdiction for any disputes under or in relation to the contract is the registered office of PAP personal assistance partners.
(4) PAP personal assistance partners are expressly not required to participate in arbitration.