General Terms and Conditions 

of THE ARC GmbH, Mathiesstraße 16, 44147 Dortmund

1. Scope of application, conclusion of contract

These General Terms and Conditions (hereinafter referred to as "GTC") apply to all our services to companies that commission us and are companies within the meaning of Section 14 of the German Civil Code (BGB) and also apply to our future services from THE ARC, even if their validity is not expressly agreed again. Deviating and/or supplementary general terms and conditions of the commissioning company shall not apply. They shall only apply if and insofar as we have expressly agreed to them or parts thereof.

2. Offers, scope of services, remuneration

1. Our offers are subject to change and non-binding, unless expressly agreed otherwise. 

2. The specific scope of the services and the remuneration to be paid by the commissioning company is set out in our respective service description/offer. If success is not expressly owed according to the individual agreement (see sections 7. and 8.), we shall provide the contractually owed services as a service.

3. Any additional expenses incurred due to requests for changes or additions as well as incomplete or subsequently corrected information from the commissioning company shall be borne by the commissioning company and - unless otherwise expressly agreed - shall be invoiced separately.

4. Without prior express agreement, we shall not be responsible for the legal admissibility (in particular, but not exclusively, with regard to patent, design, competition, trademark, food, pharmaceutical or data protection law) of the use/application of the service provided. If a review of the legal admissibility by us is expressly agreed, we shall involve external third parties (lawyers, authorities, etc.) for this purpose and the costs incurred in this respect shall be borne by the commissioning company, unless expressly agreed otherwise in individual cases.

5. The registrability or protectability of the services provided by us for the commissioning company shall only be owed by us if this has been expressly agreed in advance. Unless otherwise expressly agreed, we are not obliged (but entitled) to make the services the subject of our own applications for industrial property rights.

6. If the commissioning company has approved a draft, a concept, an offer or similar, it thereby confirms the correctness and completeness of the conditions, services, statements, sounds, etc. contained in the draft, concept, offer or similar.

   
   

3. Subcontractors, assignment, offsetting, retention

1. We are entitled to decide at our own discretion which employees we deploy to provide services for the commissioning company. We reserve the right to replace employees at any time, provided that this does not impair the contractual and timely performance of the services agreed with the commissioning company. The employees deployed by us for the performance of the agreed services are exclusively subject to our right of direction under labor law, even if they are temporarily employed by the commissioning company.

2. We generally provide the agreed services with our own employees, but we are also entitled to use the support of third parties and to commission subcontractors to perform the agreed services.

3. Offsetting against or asserting a right of retention against our claims is only permitted if and insofar as the counterclaim has been legally established or is not disputed. We shall be entitled to the statutory rights of set-off and retention without restriction.

4. An assignment of the claims of the commissioning company against us is only permitted with our prior and express consent. We shall only refuse this consent for good cause.

   
   

4. Deadlines, force majeure, delay

1. Agreed deadlines are non-binding unless their binding nature has been expressly agreed.

2. If we are hindered in the execution of the order due to disruptions as a result of strikes, lockouts, force majeure, loss of employees, delays on the part of upstream suppliers, pandemics, official intervention and similar circumstances or due to the fact that the necessary information or cooperation of the commissioning company in accordance with sections 6.1 to 6.3 is outstanding, agreed dates and deadlines shall be deemed extended by the duration of the hindrance and by a reasonable start-up time after the end of the hindrance. We shall notify the contracting company of the impediment.

3. If we are in default with the execution of a commissioned service, the commissioning company may, after setting a reasonable grace period, terminate the contract for services in whole or in part in compliance with the statutory provisions. The period of grace set by the commissioning company must be at least 14 calendar days. In the event of premature termination by the commissioning company, we shall be entitled to invoice the commissioning company for services already rendered, taking into account any remuneration agreements made. Our entitlement to assert further claims (in particular claims for damages) remains unaffected.

   
   

5. Payments, due dates, deductions, etc.

1. All invoice amounts are due for payment within 10 calendar days, calculated from receipt of the invoice, by bank transfer to one of our accounts specified in the invoice without deductions.

2. In the event of non-payment despite the due date of an invoice, we shall be entitled to interest on arrears at a rate of five percent on the invoice amount due from the due date (Section 353 HGB). Our entitlement to claim default interest at the statutory rate (nine percentage points above the base interest rate) in the event of default shall remain unaffected.

3. In the event of default in payment and in the event of justified doubts as to the solvency or creditworthiness of the company placing the order, we shall be entitled - without prejudice to our other rights - to demand advance payment for services not yet performed and to declare all claims arising from the business relationship immediately due and payable. Our obligation to perform shall be suspended as long as the commissioning company is in arrears with a due payment.

   
   

6. Duties to cooperate

1. The commissioning company is obliged to support us in the provision of the agreed services to the extent reasonable, necessary and expedient. Among other things, the commissioning company must always ensure that we receive all necessary information and documents in good time and in full, that the requirements necessary for the provision of services are met and that the commissioning company's specialist personnel are available to an appropriate extent in order to ensure the exchange of information necessary for the provision of services.

2. If services are agreed via remote access to the commissioning company's digital infrastructure, the commissioning company is obliged to create the technical conditions necessary for a remote connection and to maintain these without restriction for the entire duration of the service provision by us.

3. In addition, the commissioning company undertakes to confirm the performance of an agreed service to us immediately upon request by signing the proof of activity submitted by us or our employees.

4. We shall be entitled to invoice the commissioning company for any additional costs arising from the non-fulfillment of the obligations to cooperate incumbent upon it in accordance with Sections 6.1 and 6.3 at the agreed fee rates or - at our discretion - in the actual amount to be proven by us. This shall apply mutatis mutandis to our hindrance in the execution of the order due to circumstances for which the commissioning company is responsible, unless the commissioning company takes appropriate remedial action immediately after a notification of hindrance from us.

   
   

7. Work performances: Acceptance

1. If we have expressly agreed with the commissioning company to provide a service by way of a contract for work and services, the provisions agreed here in Clauses 7 and 8 shall apply.

2. The commissioning company is obliged to accept the properly produced work. Acceptance shall be effected by taking receipt of the work without complaint. Acceptance shall be deemed to have taken place if the commissioning company does not give notice of any defects within 10 calendar days of handover of the work. The notification of defects must be made in writing.

   
   

8. Warranty (for contracts for work and services)

1. If we have agreed with the contracting company that we will provide a work performance, we shall assume the warranty in accordance with the statutory provisions, taking into account the modifications agreed here.

2. We guarantee that the work corresponds to the agreed quality (and, in the absence of such, to the usual quality). The warranty shall initially be provided at our discretion either by rectification - if possible also by remote data transmission - or by replacement delivery/service. If the subsequent performance fails or is unreasonable or dispensable for other legal reasons, the commissioning company shall be entitled to the statutory rights. Our liability for damages is limited in accordance with clause 11.

3. Claims for subsequent performance shall become time-barred one year after the commencement of the statutory limitation period. The same applies to withdrawal and reduction as well as compensation. This period shall not apply if the law prescribes longer periods in accordance with Section 634a (1) No. 2 BGB (construction defects) and also not in the event of intent, fraudulent concealment of a defect or non-compliance with a guarantee of quality and not in the event of a breach of material contractual obligations (cardinal obligations, see Section 11.1). In such cases, the statutory limitation periods shall apply. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.

   
   

9. Granting of rights (incl. drafts or similar/property rights)

1. We reserve all property rights, intellectual property rights and copyrights of use and exploitation rights to cost estimates, drafts, drawings, illustrations, source codes, concepts, market reports, models and other documents / elaborations without restriction. These documents may not be made accessible to third parties without our express and prior consent. They must be returned to us if the order is not placed. In this case, any copies of the documents must be destroyed and proof of their destruction must be provided to us at our request.

2. Upon full payment of the agreed remuneration by the commissioning company, we shall grant the commissioning company a simple, non-transferable, non-sublicensable right of use to the work results, limited to Germany but unlimited in time.

3. The following also applies to computer programs: The source code is not handed over. Decompilation or reverse engineering is not permitted.

4. If registered or registrable property rights are the object of our activity for the commissioning company, these (or the authorization to register/register in our own name) shall also remain with us.

5. Editing or changing the content of the work results designed by us is only permitted with our prior and express consent.

6. We may use the work results designed by us (in particular advertising material) for self-promotion on its Internet website and on data carriers or cloud systems regularly created by it for the purposes of self-promotion for an unlimited period of time.

7. Rights of use for designs rejected or not executed by the commissioning company shall remain with us (taking into account the trademark and name rights of the commissioning company). This also applies to our services that are not subject to special statutory rights (e.g. copyright).

   
   

10. Reservation of title

1. We reserve title to all delivered, embodied delivery items (hereinafter: reserved goods) until all claims have been settled, regardless of their legal basis, including future or conditional claims arising from contracts concluded at the same time or later. This shall also apply if payments are made on specially designated claims.

2. If there are indications which justify the assumption of the insolvency of the contracting company or the threat of such, we are entitled to withdraw from the contract without setting a deadline and to demand the return of the reserved goods.

3. We reserve title to the delivered goods to secure all claims to which we are entitled from the business relationship with the commissioning company. The retention of title shall also extend to the new products created by processing, mixing or combining the goods, whereby we shall be deemed to be the manufacturer without any obligation on our part. In the event of processing, combining or mixing with items that do not belong to the commissioning company, we shall acquire co-ownership in the ratio of the invoice value of the goods subject to retention of title to the invoice values of the other materials.

4. The contracting company hereby assigns to us as security all claims arising from the sale of goods subject to retention of title in total or in the amount of our possible co-ownership share. As long as the commissioning company is willing and able to properly fulfill its obligations to us, it may dispose of the goods in our ownership or co-ownership in the ordinary course of business and collect the claims assigned to us itself. Assignments by way of security, pledges and assignments of claims, including by way of sale of claims, may only be carried out by the contracting company with our prior express consent. The commissioning company must inform us immediately of any access by third parties to the goods and claims belonging to us. If the value of the securities exceeds the claims to be secured by more than 10%, we shall release securities of our choice at the request of the commissioning company. The exercise of the retention of title does not mean withdrawal from the contract.

11. Liability

1. Any claims for damages on the part of the commissioning company - regardless of the legal grounds - are excluded. This shall not apply in the event of fraudulent concealment of a defect, non-compliance with a guarantee of quality, injury to life, limb or health and/or in the event of an intentional or grossly negligent breach of duty by us or in the event of a breach of obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the commissioning company may regularly rely (so-called essential contractual obligations / cardinal obligations). Claims under the Product Liability Act are also not affected by this limitation of liability. This limitation of liability applies equally to breaches of duty by our executive bodies and vicarious agents.

2. The claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, limb or health.

3. The above limitations of liability apply equally to claims for compensation for futile expenses (§ 284 BGB). A change in the burden of proof to the detriment of the commissioning company is not associated with the above provisions.

4. We shall only be liable for loss of data, taking into account the limitations contained in this clause 11, if the loss could not have been avoided or reduced by the usual security measures to be taken by the commissioning company (regular backup, redundant systems).

12. Data protection

1. The contracting company is informed and permitted to process and store data by means of EDP in the context of order processing and invoicing. 

2. Proof of performance and invoices are also deemed to be notification within the meaning of Section 33 (1) of the German Federal Data Protection Act (Bundesdatenschutzgesetz) and we refer you to our data protection declaration (available at www.thearc.de/gdpr).

13. Reference advertising

1. We are entitled to name the commissioning company and the services provided for the commissioning company as a reference and to advertise them (including on the Internet).

14. Final provisions

1. These terms and conditions and the entire business relationship with the commissioning company and all claims arising therefrom or in connection therewith shall be governed by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
2. The place of performance for all our services and for payment by the commissioning company is Dortmund, Germany.
3. The exclusive place of jurisdiction for all legal disputes arising from the business relationship with the commissioning company is Dortmund, Germany.
4. Should a provision in these terms and conditions or a contractual agreement be or become invalid, this shall not affect the validity of all other provisions and agreements.

Status: October 2022