I. Subject matter and scope of application
1. The following General Terms and Conditions of Business (T&Cs) shall apply to all consultancy agreements concluded and any other services provided by Romania Company. They shall also apply in cases in which Romania Company assumes the role of an external data protection agent.
2. These T&Cs shall form a material part of any agreement concluded unless such agreement specifically stipulates otherwise. They shall also apply to any future business relationships entered into with the Customer, without any renewed express incorporation thereof is necessary in this regard.
3. Any divergent terms and conditions of business of the Customer and any amendments or addenda to these T&Cs shall only be valid where they have been acknowledged in writing by Romania Company. This shall also be the case where no objection to the application of the terms and conditions of business and/or delivery of the Customer has expressly been made.
II. Content of the contract
1. Romania Company shall be obligated to provide the services specified in the individual agreement and/or confirmation of the award of the contract. It shall not be obligated to bring about any particular outcome, in particular the realization of any projections.
2. Where the performance of the consultancy services is to be effected in written form, the written statements in question shall be binding. Any oral statements made by employees of Romania Company that are not in relation to the contract awarded shall be non-binding in all cases.
3. Romania Company may avail itself of the services of third-party experts in fulfilling its obligations.
4. Should there be any change in actual circumstances following the performance of the consultancy services, and should Romania Company become aware of such change, Romania Company shall not be obligated to inform the Customer of such change or the consequences thereof.
5. Unless the Parties stipulate otherwise, Romania Company shall be entitled to use the Customer’s name and logo in the context of its own advertising endeavors (e.g. on its website, in sales materials, and in other presentations).
III. Activities in the capacity of an external data protection agent
1. Should Romania Company be contracted to act in the capacity of an external data protection agent, Romania Company shall provide the services specified pursuant to the statutory provisions contained in GDPR. Romania Company warrants that it possesses the degree of expertise and reliability required in this regard. Romania Company shall work, in the capacity of an independent data protection agent, to ensure the protection of data and compliance with data protection legislation and other regulations relating to data protection. Furthermore, Romania Company shall act as a point of contact for all matters relating to data protection and shall, upon request, assist the Customer in the implementation of measures in the data protection context.
2. Romania Company shall, upon its own initiative and on a regular basis, provide the Customer with information on current developments with regard to data protection legislation and the various national and international organizations.
3. Romania Company shall prepare the annual audit report required by statute upon request. Furthermore, Romania Company shall, upon request, act in an advisory capacity with regard to the implementation of an optimized data protection management system. Romania Company shall moreover provide consultancy and support services in the context of the coordination and monitoring of any data protection and data backup measures undertaken pursuant to the GDPR.
4. In addition, Romania Company shall, upon request, conduct training sessions on data protection requirements for employees responsible for the processing of personal data.
5. Romania Company shall draw up the index of procedures required pursuant to the GDPR and ensure that the Customer is able to provide the information on the responsible administrative body and the index of procedures to be disclosed to the public pursuant to statute.
6. Romania Company undertakes to place an employee who has been bound to secrecy and is in possession of the necessary expertise at the Customer’s disposal in this regard. Romania Company shall be entitled to replace this employee with another equally suitable individual at any time.
IV. Stipulated dates; warranty
1. Unless they have expressly been confirmed in writing, any stipulated dates shall generally be nonbinding and shall merely indicate an approximate period of time for the performance of the services in question. Should the performance by Romania Company of a service that has been confirmed in writing be subject to delay extending beyond the said period for performance, any rights arising as a result of such delay shall only become enforceable upon the expiration of a grace period, stipulated in writing, of at least three weeks and the issuance of a warning of non-acceptance of performance.
2. Should Romania Company perform work in the context of the Romanian Company fulfillment of its contractual obligations, the Customer must inspect the items in question immediately upon the delivery/commissioning thereof and notify Romania Company in writing of the existence of any obvious defects within 14 days and of any hidden defects without delay upon discovery. In such a case, Romania Company’s warranty obligations shall be
governed by the relevant statutory provisions.
3. Romania Company shall be entitled to rely upon the Customer’s depiction of the factual circumstances as being complete and accurate. It shall only verify such depiction where it is obvious that inaccuracies exist.
4. The performance by Romania Company of the consultancy services shall not give rise to any protective effect for the benefit of third parties. Should a third party nevertheless bring a claim for damages against Romania Company, Section IX shall apply.
5. Romania Company shall be obligated to maintain the confidentiality of all business secrets of the Customer of which it becomes aware in the context of its collaboration with the latter.
V. Copyright and rights of use, ownership
1. All drafts, concepts, and works prepared by Romania Company shall be deemed to be works protected by copyright within the meaning of the Romanian Copyright Act (Law 8/1996), even where these do not meet the requirements imposed by it. Therefore, none of the work performed by Romania Company may be used or processed for any purpose other than the contractual purpose without Romania Company’s consent.
2. In the event of a transfer of title, the scope of such transfer in geographical, temporal, and substantive terms shall be governed exclusively by the contractual stipulations or the contractual purpose, as the case may be; the Romanian Copyright Act shall apply correspondingly. Title shall only pass to the Customer once the total amount of remuneration payable for the performance of the contract has been paid in full.
3. Romania Company shall be identified as creator/developer in a customary manner in any publications, in particular in the context of Internet domains.
4. Ownership of the work product generated by Romania Company shall only pass to the Customer once the amount of remuneration payable for the performance of the contract has been paid in full.
VI. Non-competition undertaking; confidentiality
1. Romania Company undertakes to inform the Customer of any potential conflicts of competitive nature with other companies and shall, upon request, agree to a non-competition undertaking in favor of Romania Company with regard to product and service ranges to be determined on an individual basis.
2. Romania Company undertakes to maintain the secrecy of all confidential data of which it becomes aware in the context of its implementation of the agreement.
3. The Customer shall be obligated to refrain from taking any action that could compromise the independence of the employees of Romania Company. The Customer, therefore, undertakes not to recruit or otherwise employ any employees of Romania Company entrusted with the development of the project forming the subject matter of the consultancy agreement concluded with Romania Company or make any corresponding offers of employment to such employees, for the duration of the term of the said agreement and for a period of 24 months thereafter.
VII. Invoices; setting off
1. The stipulated prices shall be subject to the statutory rate of VAT.
2. Invoices shall be payable in full immediately upon receipt. Interest in the amount stipulated by statute shall be charged after 14 days from the invoice date.
3. The offsetting of any counterclaims or the enforcement of any right of retention shall only be permissible where the Customer’s claims are uncontested or have been established in a legally binding manner.
VIII. Remuneration
1. Where the Parties have not agreed upon a fixed amount of remuneration, invoices shall be calculated on the basis of Romania Company’s daily rates and according to the amount of work actually performed. The daily rate shall be calculated on the basis of a man-day of 8 working hours. Each hour or part of an hour shall be invoiced at 1/8th of the daily rate. Each hour of overtime shall be subject to a surcharge.
2. Any and all expenditure incurred in connection with the performance of the contract shall be borne by the Customer, provided it was approved by the latter in advance. Romania Company shall, where possible, avail itself of the most favorably priced means of transportation.
IX. Third-party costs
1. Where the Parties do not agree upon the payment of a lump-sum amount in this regard, Romania Company shall be reimbursed for any third-party and ancillary costs, such as costs relating to the commissioning of the services of third-party experts and telephone-, fax- and courier-related expenditure, etc. on a separate basis.
2. Romania Company shall also be entitled to contract out the provision of all services that are necessary for the performance of the contract to third parties on behalf and for the account of the Customer. However, any such outsourcing shall be subject to the prior consent of the Customer.
X. Liability and consignment
1. In the event of damage resulting from ordinary negligence, Romania Company shall only be liable for an amount representing the total value of the contract. An event of damage shall be deemed to comprise the sum of all of the claims of all claimants arising out of the performance of one and the same service. Romania Company shall not be liable for any damage, resulting from ordinary negligence, which was neither foreseeable nor typical for the type of contractual agreement concerned. Should the Customer wish more extensive insurance coverage to be obtained from a third-party liability insurer, it must notify Romania Company accordingly. In such a case, the Customer shall bear the costs relating to the more extensive insurance coverage, to the extent that any such coverage can be obtained.
2. The Customer shall bear the risk involved in any consignment of original documents. This shall also be the case where the consignment is effected within the same area in which Romania Company is located, or by employees or vehicles of the latter. Romania Company shall be entitled, but not obligated, to obtain insurance coverage for any deliveries effected on behalf and for the account of the Customer.
3. All claims for damages shall become time-barred after a period of 2 years from the date on which knowledge of the damage in question is attained.
4. Should Romania Company draw up any legal opinions or award or assist in the award of any seals of approval in the data protection context on behalf of the Customer, the Customer hereby expressly acknowledges that, while the views expressed in those legal opinions reflect Romania Company’s professional opinion, they do not constitute any warranty to the effect that a court called upon to address the legal matter in question, or a (data protection) agency or comparable institution would come to the same conclusions. Rather, the possibility cannot be ruled out that, given the scope of the discretion conferred upon such institutions, these could come to different conclusions. Should this prove to be the case, Romania Company shall not bear any liability in this regard, in particular not for any financial loss incurred by the Customer as a result.
XI. Contractual term, termination
1. The duration of the contractual term shall be governed by the stipulations contained in the individual agreement and/or confirmation of the award of the contract.
2. Any termination must be effected in writing.
3. Should the Parties agree upon a fixed contractual term, termination of the agreement on ordinary grounds prior to the expiration of said contractual term shall be excluded. The possibility of terminating an agreement for good cause shall remain unaffected hereby.
XI. Final provisions
1. The place of performance for the purposes of delivery and payment and the place of jurisdiction for any and all disputes between the contractual Parties shall be Cluj Napoca, Romania, insofar as the contractor is a business person, a legal entity under public law, or a special fund under public law. The place of jurisdiction shall also apply in the case of persons other than those specified in the foregoing where the Customer does not have any place of general jurisdiction within Romania, moves his domicile and/or place of business abroad immediately following the conclusion of the agreement, or his domicile and/or place of business or usual place of residence is unknown at the date of the bringing of the action in question.
2. The invalidity of individual provisions shall not affect the validity of the rest of the agreement. An invalid clause shall, to the extent possible and by way of supplementary contractual interpretation, be replaced with a provision that most closely reflects its original purpose.
3. Unless the Parties stipulate otherwise, any contractual relationships entered into with foreign contractors shall also be subject to Romanian law.
