1.1 The following General Terms & Conditions apply to all quotes issued, all services rendered and all contracts concluded by EMIRAT AG, Elisabethplatz 1, 80796 Munich (“EMIRAT“) in the context of its relations with enterprises (“Clients”). Enterprise is a natural person or legal entity or joint partnership which is concluding a legal transaction by acting in exertion of its commercial and professional function.
1.2 The Client’s general terms and conditions are not recognised, unless otherwise agreed in writing. These General Terms & Conditions shall also apply even if EMIRAT conducts business without reservation, despite being aware of the fact that the Client’s terms conflict with or diverge from these General Terms & Conditions.
§2 Rendering of Services
The content and scope of the individual services can be gathered from the quote and/or contract documents of EMIRAT.
§3 Legal Review
3.1 Irrespective of § 5 below, EMIRAT shall not be liable for the legal admissibility of an EMIRAT promotion. EMIRAT is under no obligation to perform any verification to this effect.
3.2 In particular, neither the implementation of the concept by the Client, nor any statements about products and services provided by the Client or third parties that may be made in the Client’s advertising materials shall be checked.
3.3 Insofar as EMIRAT suggests advertising slogans, logos, images or other means of advertising, it shall neither verify nor guarantee their entitlement to legal protection, nor check whether they are freely usable or admissible.
§4 Quotation, Preliminary Agreement, Conclusion of Contract
4.1 EMIRAT’s quotations are not binding. EMIRAT reserves the right to alter its quotations until such time as they are accepted by the Client. Quotations are also subject to these General Terms & Conditions.
4.2 Provided the quotation is accepted by the Client in good time, a preliminary agreement is brought about with EMIRAT on the basis of which EMIRAT specifies the actual risk management and provides relevant preliminary services.
4.3 Until the main contract is concluded, EMIRAT is entitled to rescind the preliminary agreement if there is any substantial deterioration in the Client’s assets, or if EMIRAT subsequently gains knowledge of a poor financial position jeopardising EMIRAT’s receivables, or if the lack of an appropriate offer from the re-insurer means that EMIRAT is unable to cover the transaction or only able to cover it to a certain extent, or if laying down the rules for the risk management is not possible under the terms of the preliminary agreement.
4.4 If, despite acceptance of the quotation, the main contract on risk management between EMIRAT and the Client is not brought about due to the Client’s fault, or if the Client terminates or rescinds the preliminary agreement, EMIRAT may demand compensation in accordance with the amount stated in § 7.2 below. If a main contract is not concluded despite a reminder from EMIRAT, EMIRAT – after giving reasonable advance warning – shall be entitled to give immediate notice terminating the preliminary agreement brought about on acceptance of the quotation. § 7.2 shall apply mutatis mutandis.
5.1 EMIRAT shall be liable – without any contractual restrictions applying – in accordance with statutory regulations:
(i) for loss and damage resulting from an infringement of a guarantee assumed by EMIRAT;
(ii) for intent;
(iii) for loss and damage resulting from mortal injury, physical harm or health damage caused by wilful or negligent breach of duty by EMIRAT or in any other way wilful or negligent behaviour of a legal representative or agent of EMIRAT.
(iv)for all other damages not listed under (iii), which are caused by a wilfull or grossly negligent breach of duty by EMIRAT or in any other way wilful or grossly negligent behaviour of a legal representative or agent of EMIRAT;
5.2 In cases other than those listed in § 5.1 EMIRAT’s liability shall be limited to compensation for foreseeable loss and damage typical for the type of contract, insofar as the loss of damage is due to a negligent breach of cardinal duty by EMIRAT or by a legal representative or agent of EMIRAT. Cardinal duties shall be those which are essential to due implementation of the contract and which the Client can always rely on being performed.
5.3 In cases other than those listed in § 5.1 and § 5.2, EMIRAT’s liability for negligence shall be excluded.
5.4 The defense of contributory negligence remains unaffected.
§6 Remuneration, Terms of Payment
6.1 The payment to be made by the Client shall depend on the written quotation or the main contract, or alternatively on the price given for the service concerned in the pricelist in force at the time. Statutory taxes (e.g. turnover tax) shall be added to all prices at the rate in force at the time.
6.2 Invoices shall fall due for payment within 14 days of receipt, unless otherwise provided in individual cases. In any event, the invoiced amount must be settled in total prior to commencement of the EMIRAT promotion. If no justified objections (at least in textform) to the invoice are made by the Client before the due date, then the invoice shall be deemed accepted.
6.3 If the Client defaults in payment, then EMIRAT may demand default interest at a rate of 9percentage points p.a. over and above the respective base rate of the ECB in force at the time. If the Client defaults in payment, EMIRAT shall be entitled to suspend or cease performance of the on-going transaction until such time as all the outstanding amounts have been paid. The right is reserved to prove that damages are higher. § 7.2 shall remain unaffected.
6.4 All manner of risk coverage by EMIRAT, and all manner of the Client’s claims vis-à-vis EMIRAT, shall be contingent upon punctual payment of the fee.
§ 7 Termination
7.1 In the event of default in payment, EMIRAT shall have the right to terminate the contractual relationship with the Client without notice, on expiry of the deadline given in the first reminder.
7.2 In any such case, EMIRAT shall be entitled to claim compensation for the losses thus sustained, amounting to 25% of the contractual fee. The Client is granted the right to prove that no losses or only smaller losses have been sustained.
7.3 The right to give extraordinary notice for important cause remains unaffected.
7.4 Any notice of termination must be done in writing.
§ 8 Confidentiality, Data Protection
8.1 Even beyond the term of the contract, the parties undertake to keep secret all and any information made accessible to them in connection with their cooperation such as is termed confidential or obviously constitutes business or trade secrets under other circumstances. Furthermore, the parties undertake not to record, disclose or otherwise exploit such information other than is required in order to achieve the purpose of the contract.
8.2 Insofar as personal data are processed on behalf of the business relationship, the parties will conclude a separate agreement in accordance with the data protection regulations in force at that time.
§ 9 Final Provisions
9.1 If any provision in these General Terms & Conditions is invalid, this shall not affect the validity of the remaining provisions. In any such case the parties shall substitute the invalid provision with a legally effective one approximating as nearly as possible the business purpose of the invalid provision.
9.2 Amendments and supplements to these General Terms & Conditions, and all statements, agreements, alterations and other particulars and arrangements must be done in writing. This applies in particular to any commitments made by EMIRAT’s employees or representatives, or others assisting it in performing its obligations. Ancillary agreements reached verbally or by telephone, reservations, amendments and supplements shall only be valid subject to written confirmation from EMIRAT. This shall also apply to any waiver of this requirement for written form.
9.3 Set-off by the Client is only permitted in respect of claims that are undisputed or have been established res judicata.
9.4 Munich shall be exclusive place of performance for all EMIRAT’s obligations.
9.5 The rights and obligations between EMIRAT and the Client shall be determined exclusivly by German law.
9.6 Venue for all and any disputes shall be Munich. However, EMIRAT may also sue the Client before any other court having jurisdiction.