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General Terms of Trade
§ 1 Coverage
1. 1 These Consulting Services General Terms of Trade apply to all and every consulting services, information and advice provided by the Vendor to the Party Ordering on cultural differences related to the conduct of negotiations applied by Chinese business partner.
1.2 The terms of trade of the Party Ordering shall only apply if and to the extent this is expressly agreed in writing between the Party Ordering and the Vendor.
§ 2 Subject matter of the agreement / Scope of services provided
2.1 Subject matter of the Agreement shall be the consulting activities and services to be provided by the Vendor and to be specified and agreed in writing by the Party Ordering and the Vendor in the form of a separate Consulting Agreement; the said subject matter shall not, however, be construed or deemed to include and/or cover – be it as promise, pledge or claim - the realisation or the effecting of any or any specific business and/or economic success or benefit or profit. The services by the Vendor shall be considered as supplied and provided in full once the required trainings have been conducted, the required analyses have been carried and the resulting conclusions have been drawn, as well as once the recommendations have been worked out and presented to the Party Ordering. Concerning the fulfilment of the contractual obligations pertaining to the Vendor on the basis of theses Terms of Trade and the Consulting Agreement to be concluded it shall be deemed irrelevant whether or not and/or when and/or how these conclusions and recommendations respectively worked out by the Vendor may be implemented, applied or put into action and/or practice by the Party Ordering.
2.2 The Vendor shall pursue and carry out all his works and activities under the Agreement with adequate care and by always relating them to and taking into account the specific situation and needs of the Party Ordering.
2.3 The Vendor shall be obliged to properly take into account the situation of the company in his consulting. Data provided by the Party Ordering and/or any third party shall be checked by the Vendor only with respect to plausibility. The conclusions and recommendations worked out on the basis of the analyses by the Vendor shall be done so to the best of the Vendor’s knowledge.
§ 3 Secrecy / Protection of privacy
3.1 Without any limitation to time, the Vendor shall be obliged to secrecy with respect to all and every information and/or business and/or trade secrets and/or proprietary data of the Party Ordering disclosed to the former during the execution of the Agreement. Any disclosure of the said information, secrets and/or data to any third party not involved in the works pertaining to the execution of the Agreement shall be subject to written consent given by the Party Ordering.
3.2 The Vendor shall undertake to oblige to secrecy and to the observation of the provision herein before mentioned all persons and parties involved and deployed by the Vendor for the execution of the order.
3.3 Within the scope and the intended purpose of the order the Vendor shall have the right to process and/or have processed all personal data provided and/or made available and/or accessible to him thereby adhering to the regulations on data protection.
3.4 The Vendor shall have the right to name the Party Ordering as reference.
§ 4 Duty of the Party Ordering
The Party Ordering shall be obliged to support the Vendor to the best of their ability and to provide the latter with all means as required by him for the due and proper execution of the order; in particular, this means the timely provision of all relevant data, information and documents as required for the execution of the order by the Vendor.
§ 5 Remuneration / Terms of Payment / Setoff
5.1 The fees and remuneration agreed for the services provided by the Vendor shall be either calculated on the basis of the time spent by the Vendor on the activities and services agreed (time-based fee) or agreed in writing in the form and to the effect of a fixed price to be paid for the services by the Party Ordering. Consulting fees calculated and to be paid to the Vendor on the basis of the extent of success obtained by the Party Ordering or to be paid exclusively depending on success shall be precluded at all times. Unless otherwise agreed, the Vendor shall be entitled to reimbursement of his expenses incurred and to be paid in addition his consulting fees. Details of the terms of payment shall be agreed in the Agreement to be concluded between the parties.
5.2 All amounts receivable shall fall due on invoice date and shall be payable immediately net and free from all deductions. Statutory value-added tax shall be added to the prices quoted and shall be itemized and charged separately in the invoices presented.
5.3 In case of termination of the order prior to its full completion the entitlement and claim of the Vendor to remuneration and compensation shall be on a pro rata basis with respect to the order as a whole.
5.4 Setoff of the Vendor’s claims against any counterclaims presented by the Party Ordering or the assertion or exercise of any right of retention shall only be admissible in case of undisputed and legally decided and binding claims.
§ 6 Correction and remedy of faults
6.1 If and to the extent the services provided by the Vendor are capable of being remedied the Vendor shall remedy such faults he is liable for provided this is possible for him in terms of reasonable expenditure required. The Party Ordering shall inform the Vendor of and name such faults immediately and in writing, however not later than 6 months after the provision of the services contractually agreed.
6.2 In case of failure of correction and/or remedy of faults the Party Ordering shall have the right to demand either a reduction of the remuneration originally agreed or the rescission of the Agreement.
§ 7 Liability
The Vendor shall be liable for faults attributable to himself and/or to his vicarious agents. If and to the extent a claim for damages presented by the Party Ordering is not subject to a statutory period of limitation shorter than one year, any such claim for damages shall come under the statute of limitations after the lapse of one year.
§ 8 Intellectual property
8.1 The Vendor shall remain the owner of the copyright of the services provided by him.
8.2 The Party Ordering shall warrant that all and every reports, organisational charts, drafts, sketches, drawings, lists, tables and calculations made under and in execution of the Agreement by the Vendor will only be used for the purposes contractually agreed by the parties of the Agreement and that they will not be copied, edited, translated, reprinted, passed on, published or disseminated in any way or form without the express consent as may be granted by the Vendor from case to case and at his sole discretion. The use of the consulting services by or for any enterprise affiliated with the Party ordering is subject to a written agreement to expressly this effect and to be concluded with the Vendor.
8.3 To the extent the results of the works provided by the Vendor have legal capacity with respect to providing grounds for the creation of copyright or any other intellectual property rights the Vendor shall remain the owner of such copyright and any other intellectual property rights. In such cases the Party Ordering shall be granted the right of use pertaining to the results of the work, whereby such rights of use shall be limited and restricted by the provisions as laid down in § 8.2 hereinabove, and such rights of use shall be unlimited with respect to time and place of exercise, irrevocable, and non transferable.
§ 9 Fiduciary duties
9.1 The parties shall be pledged to mutual loyalty. They shall inform the respective other party immediately of any circumstances that may arise in the course of the execution of the project and may have an adverse effect on the execution of the work contractually agreed and its completion.
9.2 In particular and for a period of 12 months after the completion and/or termination of the cooperation of the contracting parties, the parties hereto undertake to refrain from any hiring and/or any other form of employing or contracting of one or several employees or former employees currently or formerly involved in the execution of the order.
9.3 The Party Ordering warrants to immediately report to the Vendor all and every information on intentions he has gained of and expressed in connection with the termination of employment or the transfer of employees deployed by the Vendor in and/or for the execution of the order.
§ 10 Force majeure
Acts of force majeure capable of rendering the execution and provision of the works and services agreed significantly more difficult or capable of making their execution temporarily impossible shall entitle either of the parties to postponement of the execution of their service for the period of actual duration of the said act of force majeure plus a reasonable period of time that may be deemed additionally required for the establishment of normal business and working conditions. Industrial disputes and similar circumstances shall also be considered acts of force majeure to the extent they are unpredictable and serious and beyond control of either of the contracting parties. The parties shall inform each other immediately about the occurrence of such act, event or circumstance.
§ 11 Termination of agreement
The Agreement shall terminate upon and by the rendering and fulfilment of the services and works agreed, upon the lapse of the agreed term, or, in a legitimate case, by notice given with a period of 4 weeks before the end of a month. Such notice of termination shall require written form to take legal effect.
§ 12 Right of retention / Safekeeping of documents
12.1 Until the full settlement of his claims the Vendor shall be entitled to retain the documents entrusted to him; however, the exercise of this right of retention shall be deemed done in bad faith if such retention causes loss and/or damage to the Party Ordering considered to be disproportionate or unreasonably severe or high and not justified on weighing the interests of each of the parties.
12.2 Upon settlement and compensation of all of his claims arising from the Agreement the Vendor shall restitute all and every document provided and entrusted to him by the Party Ordering and/or by any other third party at the instance and in connection with the execution of the order by the Vendor. This shall not apply to any documents that may be used in and/or for any follow-up and/or future project, to any correspondence between the parties, and to simple copies of any reports, organisational charts, drawings, lists, tables, calculations, etc. produced within the framework of this order, provided the Party ordering has received the originals of them.
12.3 The duty of the Vendor concerning the safekeeping of documents shall expire six months after delivery of the notice demanding the Party Ordering to collect the documents; in all other cases it shall expire after 3 years, and, in case of documents retained according to § 12.1 hereinabove, after 5 years following the termination of the contract.
§ 13 Miscellaneous
13.1 Any rights arising from the contractual relationship with the Vendor may only be assigned to any third party subject to prior written consent granted by the Vendor.
13.2 In case of one or several of the provisions of this Agreement being or becoming inoperative, this shall not affect the operative effect of the remaining provisions. The provision being or having become inoperative shall then be replaced by an operative one the effect of which is as close as possible to the effect originally intended by the one being or having become inoperative.
13.3 All claims arising from and/or in connection with this Agreement shall exclusively be governed by and subject to the laws of the Federal Republic of Germany. Place of fulfilment shall be the place of the Vendor’s business. The competent court of jurisdiction shall be Bad Homburg v. d. H. (Germany).
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