Updated date: 2024-07-12
The performance of contract requires a mutual trust between the Client (as defined below) and the Delegation of German Industry and Commerce Beijing/Shanghai/Guangzhou, China German Chamber of Commerce, German Industry and Commerce (Taicang) Co., Ltd. and/or its branches (hereinafter individually or collectively referred to as “AHK”) and requires a close mutual beneficial cooperation, so that AHK can effectively represent the interests of the Client. The following standard terms will apply to AHK’s provision of services to its Client except to the extent that both Parties mutually agree otherwise in writing. These standard terms shall also apply to all future business relations even if contract to such is not expressly repeated. These standard terms shall be deemed to have been accepted by the Client at the latest upon taking delivery of the services. Application of the terms of the Client is hereby contradicted. Any deviation from these standard terms shall only be effective if such are confirmed by AHK in writing.
For the purpose of these standard terms, references to “Client” are to the body corporate or other person (hereinafter referred to as “Entrusting Party”) originally instructing AHK in relation to a matter, or such other person as the Entrusting Party and AHK agree shall be treated as AHK’s Client, or the prospective Client. In the latter scenario, the original Entrusting Party shall nevertheless be bound by these standard terms until a replacement engagement letter or agreement is signed by that other person.
The Client and AHK are hereinafter referred to individually as a “Party”, and collectively as the “Parties”.
§ 1 Scope of Engagement
In the event that there are variations to the scope of AHK’s services, such variation must be mutually agreed between both Parties in writing, which may include a variation to AHK’s proposal, project timelines and the cost estimation.
§ 2 Obligations of AHK
AHK is obliged to perform the services as specified in this Contract between it and its Client in accordance with the generally recognized rules of technology and the principles of proper professional practice. As part of the agreed services, AHK is further obliged to inform the Client about all matters which are essential to the performance of the task to the necessary extent. Upon request, AHK will provide a cost estimation for each individual project/assignment of the Client to provide reasonable cost transparency and predictability.
§ 3 Obligations of the Client
The Client is obliged to support the provision of services, in particular, shall provide necessary cooperation and assistance to AHK in performing the services as agreed upon by both Parties, including, without limitation, providing necessary data, information, documents, texts, logs, pictures (hereinafter collectively referred to as the “Materials”) to AHK in a timely manner at the request of AHK. The Client warrants to own all rights of or be authorized to use such Materials handed over to AHK and guarantees all the Materials are free from any defect in ownership and free and clear from any infringement of third party rights. Otherwise, the Client shall bear all losses caused to AHK, including but not limited to legal fees, arbitration fees, attorney fees, investigation fees, travel expenses, etc.
§ 4 Fees, Expenses and Payment
4.1. The Client is obliged to pay the due service fee on time in accordance with the time limit indicated in the payment notices/invoices issued by AHK. If the Client fails to pay any amount due under this Contract and remains unpaid within a grace period of further thirty (30) days, AHK shall be entitled to claim an overdue fine of zero point four percent (0.4%) of the outstanding amount per day during the period between the payment due and the date of the actual payment, without prejudice to assert or use by AHK of any other claims or remedial measures, such as cessation providing further services to the Client for any matters engaged by the Client unless all outstanding payment has been duly settled.
4.2. In case the services are charged per hour, the Client shall be provided with a detailed summary which is agreed automatically if the Client does not protest with substantiated remarks within fourteen (14) days.
§ 5 Limitation of Liability
AHK will be liable without limitation for all acts committed on purpose or gross negligence, otherwise liability is limited to the amount of the value of this Contract. Liability for lost profit and indirect damages such as business interruptions is explicitly excluded.
§ 6 Termination of this Contract
6.1. Either Party may terminate this Contract with immediate effect by written notice to the other if:
a. the other Party ceases to carry on business or goes into liquidation (other than voluntary liquidation for the purpose of a bona fide solvent reconstruction or amalgamation, the terms of which have been approved in advance by the terminating Party in writing) or is dissolved or struck off;
b. the other Party is unable to pay its debts as they mature or suffers the appointment of a receiver, administrative receiver or administrator (or any similar official or process under the law of its domicile or place of incorporation) of the whole or any part of its assets or is the subject of any bankruptcy proceedings;
c. the other Party is in breach of any provision of this Contract materially and fails to remedy such breach (where it is capable of being remedied) within 30 days of written notice from the terminating Party specifying such breach;
d. the other Party is in breach of any provision of this Contract materially and such breach is incapable of being remedied; or
e. the other Party, or any employee of the other Party commit any illegal act, or act in such a way as is likely to adversely affect the reputation of the terminating Party.
6.2. Termination of this Contract shall not prejudice any right of either Party to claim damages for the breach of contract in accordance with the requirements of current relevant laws and regulations as well as this Contract.
6.3. Termination of this Contract shall not prejudice the right of AHK to receive due payment of the services provided according to this Contract and the expenses to offset any investment AHK has made in preparing to perform this Contract.
§ 7 Force Majeure
7.1. Neither Party shall be liable to the other Party for delay in or failure of performance of any obligation under this Contract when such delay or failure results from the occurrence of a Force Majeure Event, which is hereby defined as an unforeseeable event beyond the affected Party's reasonable control and which the Party could not reasonably be expected to have taken into account at the time of the conclusion of this Contract or to have avoided or overcome it or its consequences. Force Majeure Events under this Contract shall include but not be limited to: natural disasters, geographical change, lock out, war or warlike situation, riot, sabotage, fire, explosion, acts of government, and epidemic and similar social and public safety issues (such as but not limited to outbreaks, spread and control of disease; travel advisories issued by governmental agents or agencies or authorities restricting or curtailing travel; government issued restrictions concerning the execution of any events, fairs or exhibitions; related cities/districts turning into a high risk area under epidemic prevention measure).
7.2. If this Contract cannot be performed due to the Force Majeure Event, the Party unable to perform its obligations under this Contract shall immediately notify the other Party of the fact of failure to perform this Contract in a reasonable manner, and send the certificate/confirmation issued by the relevant government authorities and/or notary organ to the other Party in writing within fifteen (15) days after the occurrence of the Force Majeure Event, so as to confirm the existence of force majeure; If one Party's delay in giving notice causes the other Party's loss or expansion of loss, the Party delayed in giving notice shall be responsible for compensating the corresponding loss of the other Party.
§ 8 Intellectual Property Right
8.1. Unless otherwise agreed by both Parties, any intellectual property rights of the service results under this Contract shall belong to the exclusive intellectual property rights of the Client.
8.2. The service results provided by AHK shall not infringe the intellectual property rights and interests of any third party. Except for the purpose of performing this Contract, AHK shall not use or authorize others to use all or part of the service results in any form without the prior consent in writing from the Client.
8.3. Neither Party's trademark, trade name or brand shall be used by the other Party for purposes other than the performance of this Contract without the prior consent in writing from the other Party.
§ 9 Confidentiality
9.1. Neither Party may in any circumstances give access to or disclose the other Party’s confidential information to any person, without obtaining that Party’s prior written consent, except that this disclosure is necessary for purpose of performing its obligations under this Contract. And it will not use such information for any purpose other than performing its obligations under this Contract without the prior written consent of the other Party.
9.2. During the performance of this Contract, AHK may have access to proprietary information of the Client, including, but not limited to information regarding commercial and financial information, plans, or projects that are related to the Client’s performance of this Contract. The access to such information will be decided on a case-by-case basis. In the interest of facilitating AHK’s provision of services, the Client agrees that unless otherwise agreed by both Parties, communication can be done by regular email without encryption. The Client recognizes and accepts that AHK has no control over the unauthorized interception of these communications or transmissions once they have been sent, and consents to AHK’s use of these electronic devices during the performance of this Contract.
9.3. In some circumstances, AHK may use third parties to assist with an engagement. In order to enable these third parties to assist AHK in this capacity, the Client hereby consents to AHK’s disclosure of all or part of the Client’s confidential information to these third parties to the necessary extent and the Client agrees that AHK’s disclosure of such confidential information for such purposes shall not constitute a breach of the provisions of this Contract.
9.4. Both Parties acknowledge that either Party may be required to make its workpapers available to regulatory authorities or by court order or subpoena in a legal, administrative, arbitration, or similar proceeding in which it is not a party. Either Party shall seek alignment with the other Party about the provision of any workpapers to third parties. In any case, either Party must inform the other Party about any information provided to third parties. Disclosure of confidential information in accordance with requirements of regulatory authorities or pursuant to court order or subpoena shall not constitute a breach of the provisions of this Contract.
9.5. The confidentiality period shall be from the date when one Party receives the other Party’s confidential information to the expiration of five years after the expiration of this Contract.
§ 10 Data Protection
10.1. Either Party promises that the personal data provided to the other Party complies with the requirements of current relevant laws and regulations or has obtained the consent of relevant individuals to allow the other Party to use it. Otherwise, all responsibilities arising therefrom shall be borne by this Party.
10.2. Either Party shall take sufficient technical means and measures to protect the security of personal data obtained from the other Party and use it only within the scope authorized by the other Party. At the same time, in case of leakage, damage or loss of relevant personal data, either Party shall take remedial measures immediately. At the same time, either Party shall timely notify the other Party and notify the corresponding individuals and relevant competent departments in accordance with the requirements of relevant laws and regulations.
10.3. AHK will protect and use the personal data obtained from the Client in accordance with the requirements of current relevant laws and regulations, as well as the Privacy Policy as published at https://china.ahk.de/privacy-policy and the Data Retention Policy as published at china.ahk.de/data-retention-policy. The Client agrees to provide personal data to AHK for the purpose of performing this Contract and is aware of its rights and obligations.
§ 11 Anti-bribery and Anti-corruption
11.1. Both Parties to this Contract shall ensure that the performance and conduct of their obligations and behaviors under this Contract comply with the requirements of current relevant laws and regulations: they shall not directly or indirectly provide or pay economic or other improper benefits to the employees of the other Party or their families, relatives or other interested parties for the purpose of promoting or realizing the purpose of this Contract or any other purpose; under no circumstances shall it solicit any financial or other improper benefits from any other Party or the employees of the other Party.
11.2. Either Party agrees to allow the other Party or a third party auditor hired by the other Party to conduct an audit related to this partnership at the request of the other Party.
§ 12 Applicable Law and Dispute Resolution
12.1. This Contract shall be governed by and construed in all respects in accordance with the laws of the PRC.
12.2. Any dispute arising from or in connection with this Contract shall first of all be settled through mutual friendly negotiation. If no settlement is reached within thirty (30) days from the date one Party notifies the other Party in writing of its intention to submit the dispute to arbitration, then such dispute shall be submitted to Shanghai International Economic and Trade Arbitration Commission (“SHIAC”) for arbitration which shall be conducted in accordance with its arbitration rules in effect at the time of applying for arbitration. The arbitration seat shall be Shanghai. The arbitration language is English. The arbitral award is final and binding upon both Parties. The costs arising from arbitration shall be borne by the losing Party, including but not limited to arbitration fee, witness expenses, lawyer fee, travel expenses, etc. During the arbitration, this Contract shall be executed continually by both Parties except for matters in disputes.
§ 13 Miscellaneous
13.1. [When the Client is in the PRC.] This Contract shall come into force as of the date when it is signed and sealed by both Parties.
[When the Client is outside the PRC.] This Contract shall come into force as of the date when it is signed and sealed by both Parties. The scanned copy of this Contract has the same legal effect as the original one.
13.2. This Contract is written in Chinese, English and German. In case of any inconsistency, the English version shall prevail.
13.3. This Contract is made in duplicate, with each Party holding one copy, which has the same legal effect.
13.4. If a provision of this Contract should be or become ineffective or impracticable, the remaining provisions shall stay effective. Both Parties shall be bound to replace the ineffective or impracticable provision by such an effective one, by which the economic purpose intended with the ineffective or impracticable provision can be reached as far as possible in a permitted way.
13.5. Any matters not covered in this Contract shall be settled by both Parties through negotiation, and a written supplementary agreement or change agreement shall be signed. The supplementary agreement and change agreement shall have the same legal effect as this Contract.
