The question
Which contract terms sustain a cooperation rather than merely governing performance?
In brief
Cooperative clauses govern the relationship: how the partners inform each other, decide, change course, resolve disputes and part ways. Many of them make explicit what good faith already requires under the statute and give it a workable form. The sample wordings below are illustrative. They show what matters and must be adapted to each cooperation.
The law
Preamble
Purpose. The preamble records the starting point, aims and shared understanding. It guides interpretation (Sections 133, 157 German Civil Code (BGB)) and shows what forms the basis of the transaction (Section 313 BGB).
Sample. “The partners intend to achieve [aim] together. They regard this agreement as the framework of a long-term cooperation in which each partner remains independent.”
Pitfall. Promotional prose without substance, or a preamble that contradicts the operative terms. Describing a “common purpose” may also point towards a partnership (GbR).
Cooperation and loyalty clause
Purpose. It makes the duty of consideration (Section 241(2) BGB) and the duty to cooperate developed by the courts for construction contracts explicit and concrete.
Sample. “The partners shall work together in a spirit of trust. They shall inform each other without delay of circumstances affecting the cooperation and, in case of disagreement, shall first seek an amicable solution under clause [escalation].”
Pitfall. A bare general clause without a procedure achieves little. Loyalty duties drawn too widely, such as sweeping non-compete obligations, may infringe competition law.
Information and inspection rights
Purpose. Those who can check need not rely on guesswork, and those who know they may be checked keep careful accounts. The statute provides duties to report, for instance for agency (Section 666 BGB) and in partnerships (Section 717 BGB); in a cooperation agreement they must be agreed.
Sample. “Each partner may, once every six months, inspect the records relating to joint costs and revenue and may involve a person bound by professional secrecy.”
Pitfall. Conflicts with trade secrets and data protection. Between competitors, exchanging sensitive information may infringe competition law, see Competition and cooperation.
Decision-making
Purpose. It sets out who decides what, by which majority and in what form.
Sample. “The steering group shall decide on [list] unanimously and otherwise by simple majority. Resolutions may be adopted in meetings on site, live online or in text form and shall be minuted within three working days.”
Pitfall. Unanimity without a way out of deadlock. Every unanimity rule needs an escalation clause.
Change procedure (change request)
Purpose. Requests for change will come anyway; the only question is whether as a proposal or as a reproach. The change procedure gives requests an orderly path, much as Section 650b BGB does for construction contracts.
Sample. “Either partner may request a change in text form. The other partner shall state within ten working days how it affects performance, timetable and remuneration. The change takes effect upon both partners’ consent in text form; until then work continues on the existing basis.”
Pitfall. Practice diverges and changes are made on request by phone. Form clauses in standard terms do not prevent valid oral agreements (Section 305b BGB).
Review clause
Purpose. It provides for a scheduled review before dissatisfaction builds up, the precautionary counterpart to what Section 313 BGB grants only in a crisis.
Sample. “The partners shall review this agreement every two years and upon [events]. If the basis of the cooperation has changed materially, they shall negotiate an adjustment in good faith.”
Pitfall. A duty to negotiate is not a duty to agree. The clause must say what happens if there is no agreement: a right to terminate, conciliation or a decision by an expert.
Escalation clause
Purpose. Disputes are passed up step by step before third parties decide.
Sample. “Disagreements shall first be discussed by the project leads. If no agreement is reached within ten working days, the management of both partners shall address the matter in a meeting on site or live online. If this too fails within a further ten working days, clause [mediation] applies.”
Pitfall. Without deadlines everything stalls. Urgent interim relief should be excluded. Limitation is suspended while negotiations are pending (Section 203 BGB), but the agreement should say so expressly.
Mediation clause
Purpose. The partners undertake to attempt mediation before going to court or arbitration, a confidential process with a neutral mediator (Section 1 Mediation Act (MediationsG)).
Sample. “Before either partner brings proceedings before a court or arbitral tribunal, the partners shall conduct a mediation, live online if either partner so wishes. If they cannot agree on a mediator within two weeks, [body] shall appoint one. Either partner may end the mediation after the first session.”
Pitfall. A claim filed prematurely may be dismissed as inadmissible for the time being if the other side invokes the clause [prüfen]. Vague wording such as “shall endeavour” breeds disputes about the dispute.
Arbitration clause
Purpose. An arbitral tribunal decides instead of the state courts, finally, confidentially and with good international enforceability. See Resolving conflicts.
Sample. “All disputes arising out of or in connection with this agreement shall be finally resolved under the Arbitration Rules of [institution] to the exclusion of the ordinary courts. The seat of arbitration is [place], the language [language]. Oral hearings may be held as video hearings.”
Pitfall. Form. Under Section 1031(1) Code of Civil Procedure (ZPO), the arbitration agreement must be contained in a document signed by the parties or in exchanged letters or other means of communication that provide a record of it. Where a consumer is involved, Section 1031(5) ZPO requires a document signed by hand, which may be replaced by the electronic form under Section 126a BGB and may contain no other agreements unless notarised. The government bill of June 2026 would make Section 1031(1) ZPO technology-neutral [prüfen: legislative status]. The arbitration objection must be raised before the oral hearing on the merits begins (Section 1032(1) ZPO).
Exit and winding-up
Purpose. An orderly ending protects the relationship and often future cooperation too.
Sample. “Either partner may terminate this agreement with six months’ notice to the end of a calendar year; the right to terminate for a compelling reason (Section 314 BGB) remains unaffected. Work packages already begun shall be completed. Documents, data and access belonging to the other partner shall be returned or deleted within 30 days.”
Pitfall. Often forgotten: rights in results after exit, administration of shared accounts and tools, and who owns the customer relationships.
Rights in joint results and Creative Commons licences
Purpose. The clause settles who owns results and who may use them. Without it, partners may be joint authors who can exploit the work only together. The statute itself demands cooperation here: a joint author may not refuse consent to publication, exploitation or alteration contrary to good faith (Section 8(2) Copyright Act (UrhG)). Copyright itself cannot be transferred (Section 29(1) UrhG); what is granted are rights of use (Section 31 UrhG).
Sample. “Each partner receives a non-exclusive right, unlimited in time and territory, to use the joint results in all known forms of use. The partners shall publish [results] under the CC BY 4.0 licence.”
Pitfall. A Creative Commons licence cannot be withdrawn for copies already distributed. All contributors, including employees and freelancers, must have granted the necessary rights. For software, Creative Commons itself recommends software licences.
Where the statute readjusts: Section 32a UrhG
Purpose. Section 32a UrhG, known as the “bestseller clause”, is a statutory fairness rule. If, taking the whole relationship into account, the agreed remuneration proves disproportionately low compared with the income and benefits from using the work, the author may demand an amendment granting further appropriate participation (Section 32a(1) UrhG). The claim also lies against third parties further down the licensing chain (Section 32a(2) UrhG) and cannot be waived in advance (Section 32a(3) UrhG). The statute formerly required a “conspicuous disproportion” [prüfen: 2021 amendment].
For drafting. The provision shows that the law judges a cooperation not only at signing but over its whole life. A share in success agreed from the outset takes up this idea.
Pitfall. A lump-sum buy-out does not exclude the claim.
Online
Cooperations that take place wholly or partly online benefit from a few additions: notices in text form (Section 126b BGB) rather than written form where the law allows; express permission for meetings and resolutions live online; rules on recordings; ownership and administration of shared workspaces; and, for partners in different time zones, deadlines in working days of a named place. Mediation and arbitration can be conducted entirely online.
Relevant phases
- Designing the cooperation: the architecture of the clauses follows that of the cooperation.
- Agreeing the cooperation: the clauses are negotiated and fixed.
- Developing the cooperation: change and review clauses come into play.
- Dealing with conflict: escalation, mediation and arbitration.
- Ending the cooperation: exit and rights in results.
Limits of this overview
The wordings are illustrative and based on German law; English-language contracts under German law need care in translation. In standard terms the additional limits of Sections 305 et seq. BGB apply.
As at 30 September 2026