General terms and conditions .

1. Scope of application

1.1

These General Terms and Conditions (GTC) shall apply to all contracts concluded between talsand GmbH & Co. KG (hereinafter: talsand) and the client, unless these contracts expressly provide otherwise with regard to the application of supplementary GTC. The GTC shall be included if the client does not object to them immediately. 

The contractual partner is always: 

talsand GmbH & Co. KG 

Kesselstraße 3 

40221 Düsseldorf 

Commercial register: HRA 26368 

Register court: Amtsgericht Düsseldorf 

Tel.: +49 175 5339786 

E-Mail: simon.schleifnig@talsand.eu

Represented by the general partner:  

talsand Verwaltungs GmbH, Herderstraße 20F, 40237 Düsseldorf 

Commercial register: HRB 92815, Register court: Amtsgericht Düsseldorf 

Represented by the Managing Director Mr. Simon Schleifnig  

3. Offer, conclusion of contract, subject of matter of contract 

3.1

The offers of talsand are subject to change and non-binding.

3.2

The contract shall be concluded by a clear declaration in text form by which talsand accepts the order (order confirmation).

3.3

The subject matter of the contract shall be determined by the individual agreements of the parties on the services to be provided. Talsand shall not owe any services that have not been expressly agreed in text form. 

4. Prices, payment, due date 

4.1

Unless expressly agreed otherwise, all prices quoted in offers, price lists, websites, LOIs and all other documents in which prices are quoted by talsand are exclusive of statutory value-added tax ex talsand’s registered office. We reserve the right to make price changes and price updates.  

4.2

Additional services shall be charged separately. Additional services are those that go beyond the agreed scope of services and are requested by the client. Additional services which are not agreed in the scope of services but which are necessary for the fulfilment of the order may be charged separately by talsand. Insofar as this is possible, talsand shall inform the client of such necessary additional services prior to their execution and await the client’s approval.  

4.3

Unless expressly agreed otherwise, 75% of the total amount of the order shall be paid upon acceptance of the order. The remaining outstanding remuneration shall be due upon delivery of the work/completion of the order. If talsand is aware of or becomes aware of circumstances which call into question the creditworthiness of the client, talsand shall be entitled to demand advance payments in the amount of the remaining outstanding remuneration.

4.4

Invoices are due immediately and payable without deduction. 

4.5

The client shall only be entitled to rights of set-off and retention if its counterclaims have been legally established, are undisputed or have been recognised by talsand. Rights of retention may only be asserted insofar as the counterclaim is based on the same contractual relationship.

5. Rights of performance and use 

5.1

Unless expressly agreed otherwise, after full payment of the agreed remuneration the Client shall receive a limited, non-exclusive right of use for the agreed contractual purpose, unlimited in terms of time and space, in respect of the contractually provided services.  

5.2

All pictures, drawings, plans, designs, models or other documents and objects created by talsand or its subcontractors within the framework of the performance of the contract are protected by copyright or are subject to other intellectual property rights or rights to the protection of intellectual property. The client shall not be entitled to reproduce, publish, process or otherwise exploit the aforementioned documents, objects and items without the prior express consent of talsand. 

5.3

Unless expressly agreed otherwise, in the case of software services the source code is not part of the performance owed.  

5.4

Unless expressly agreed otherwise, talsand shall be entitled to use the programming, images, drawings, plans, designs, models or other documents and objects itself, to apply for property rights for them and also to use and exploit them in contractual relationships with third parties, insofar as the rights of the client are not affected thereby. 

5.5

If documents, papers and objects are handed over to the client on loan only for the performance of the contract, the client shall return them at its own expense after termination of the contract, but no later than two weeks after being requested to do so by talsand. The client shall not acquire ownership or any further right of possession or use, unless expressly agreed otherwise. In the event of damage, destruction or loss of the documents, papers and objects, the client shall reimburse all costs necessary for their restoration. Further claims for damages remain reserved.  

6. Deadlines und force majeure

6.1

Unless expressly agreed otherwise, no binding deadlines and dates for the performance of the contractual service shall apply to talsand.

6.2

Failure to meet a performance deadline shall only entitle the Client to withdraw from the contract if it has been expressly pointed out by the Client, at the latest at the time of conclusion of the contract, that performance thereafter no longer makes sense for him and that performance thereafter no longer constitutes performance of the contract.  

6.3

In the event of non-compliance with a performance deadline, the client shall set talsand a subsequent delivery deadline of 14 days. The client shall only be entitled to withdraw from the contract after the fruitless expiry of this period. 

6.4

Delays in performance due to force majeure (e.g. Invasion, war, full-scale military mobilisation, civil war, riot, rebellion and revolution, military or usurped power, insurrection, acts of terrorism, sabotage or piracy, foreign exchange and trade restrictions, embargo, sanctions, official acts, whether lawful or unlawful, compliance with laws or official orders, expropriation, confiscation of works, nationalisation, epidemic, natural disaster or extreme natural event, explosion, fire, destruction of installations, prolonged failure of transport, telecommunications, information systems or energy, general labour unrest such as boycotts, strikes and lock-outs) and circumstances within the Client’s sphere of responsibility, e.g. failure to provide services on time. talsand shall not be responsible for e.g. untimely provision of cooperation services. In this case, talsand shall be entitled to make up for the performance of the affected services for the duration of the hindrance plus a reasonable start-up period.  

If the aforementioned events make performance impossible for talsand, talsand shall be released from its performance obligation without the client being entitled to withdraw from the contract or claim damages. If the aforementioned impediments occur at the client’s premises, the same legal consequences shall also apply to the client’s obligation to take delivery.  

The contracting parties shall be obliged to notify the other party of any impediments of the aforementioned kind without delay.

7. Subcontractors 

Talsand shall be entitled to engage subcontractors in whole or in part for the performance of the agreed service.

8. Warranty and deficiency 

8.1

The warranty period shall be governed by the statutory provisions.

8.2

In the event of a defect, the Client’s claims shall be limited to rectification of the defect. If the rectification fails even after setting a reasonable deadline for a further rectification, the client shall be entitled to the further statutory warranty rights. With regard to withdrawal, the following shall apply: If only part of the service provided is defective, the Client may only withdraw from the entire contract if, after weighing the interests of both parties, he can no longer have any interest in the other part of the service.  

8.3

If the client is a merchant within the meaning of the German Commercial Code (HGB), it shall be obliged to inspect the services rendered after delivery or handover and, if a defect becomes apparent, to notify talsand without undue delay, but no later than one week after receipt. If the client fails to notify talsand, the service shall be deemed to have been approved, unless a defect is involved which was not recognisable during the inspection. If such a defect is discovered later, the notification must be made immediately after discovery; otherwise the performance shall be deemed approved also in view of this defect. The foregoing shall not apply insofar as talsand has fraudulently concealed the defect and/or has assumed a corresponding guarantee. 

9. Limitation of liability 

9.1

Talsand shall be liable without limitation for damages if talsand is guilty of intent or gross negligence. 

9.2

talsand shall only be liable for simple negligence in the event of a breach of an obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the client may regularly rely (cardinal obligation). Otherwise, liability is excluded in the case of simple negligence. 

9.3

Insofar as talsand is liable for simple negligence pursuant to section 9.2, liability shall be limited to the damage that could typically be expected to occur under the circumstances known at the time of conclusion of the contract. 

9.4

Talsand shall not be liable for the infringement of industrial or intellectual property rights, ancillary copyrights or competition infringements insofar as the actions leading to such infringements are part of the order by the client. In this respect, the client undertakes to indemnify talsand against all actual or threatened claims of third parties. This shall also include claims asserted against employees, subcontractors and vicarious agents. The indemnification shall also include the costs of reasonable legal defence as well as all reasonable court and out-of-court costs incurred by the indemnified party or its respective employees and subcontractors arising from or in connection with the actual or threatened claim. Insofar as talsand becomes aware that one of the aforementioned infringements of third party rights may be associated with the provision of services, talsand shall inform the client thereof. 

9.5

The aforementioned exclusions and limitations of liability shall not apply if a guarantee for the quality of the performance has been assumed or a defect has been fraudulently concealed. Furthermore, Talsand shall be liable without limitation for damage to life, body and health in accordance with its responsibility. 

10. Termination

10.1

The parties have the right to terminate the contract for good/important cause. 

10.2

Before issuing a notice of termination, the parties shall try to avoid termination or give the other contracting party the opportunity to eliminate the reason for termination within a reasonable period of time, provided this is possible and reasonable. 

10.3

Notice of termination must be given in writing. 

10.4

If, at the time of termination, the services owed by talsand have not yet been provided, talsand shall be released from its further obligation to perform, unless the parties agree on the scope of the service still to be provided. 

10.5

If the contract is terminated for a reason for which the client is responsible or if the client terminates the contract for a reason for which neither party is responsible, talsand shall receive the agreed remuneration.  

10.6

If talsand is responsible for the reason for termination, talsand shall be entitled to the remuneration insofar as the service has already been rendered by talsand in whole or in part. 

11. Confidentiality

11.1

The contracting parties undertake to maintain secrecy with regard to all confidential information that comes to their knowledge from and about the other contracting party during the initiation of the contract or during the term of the contract. Confidential information is all information of a technical, scientific, economic and financial nature, such as, for example, persons acting, customer information, potential financial partners, analyses, information about products, manufacturing processes, strategies and cooperations, as well as all other information which one of the contracting parties has communicated to the other orally or in writing as confidential. 

11.2

The confidentiality obligation does not apply to information that has become public knowledge as well as information that a contractual partner is obliged to disclose due to mandatory legal provisions, a legally binding court decision or an official order.   

11.3

The confidentiality obligation shall also apply to and vis-à-vis any subcontractors and legal successors. 

12. Final clauses

12.1

The contractual language is German. 

12.2

Amendments and supplements to this contract must be made in text form to be effective.

12.3

Should a provision of this contract be or become invalid or unenforceable or should this contract contain a loophole, the legal validity of the rest of the contract shall not be affected thereby. The parties are obliged to replace an invalid or unenforceable provision with a valid one or to agree to the inclusion of a provision filling the gap which comes as close as possible to the economic sense and purpose of the invalid or missing provisions.

12.4

Düsseldorf shall be the place of jurisdiction and performance. 

12.5

The law of the Federal Republic of Germany shall apply.