terms and conditions
This translation serves information purposes only
Section 1 (Scope)
1. These General Terms and Conditions of Consulting apply to contracts whose object is the provision of advice and information by the Contractor to the Client in the planning, preparation and implementation of business or technical decisions and projects, in particular in the field of business and personnel consulting.
2. These General Terms and Conditions of Consulting (GTC) shall apply exclusively to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), i.e. natural or legal persons who purchase a product or service for commercial or professional use. They shall continue to apply vis-à-vis persons under public law and special funds under public law.
3. The following terms and conditions (AGB) shall apply exclusively to the business relationship with our customer, including information and advice.
4. Deviating terms and conditions of the customer shall only apply if and insofar as we expressly accept them in writing. In particular, our silence with regard to such deviating terms and conditions shall not be deemed to be recognition or consent, even in the case of future contracts.
5. Our General Terms and Conditions of Business shall apply instead of any purchasing conditions of the Customer, even if the acceptance of the order is intended as unconditional acceptance of the purchasing conditions, or if we deliver after the Customer has pointed out the validity of his General Terms and Conditions of Business, unless we have expressly waived the validity of our General Terms and Conditions of Business. The exclusion of the Customer’s General Terms and Conditions of Business shall also apply if the General Terms and Conditions of Business do not contain a separate regulation on individual points of regulation By accepting our order confirmation, the Customer expressly acknowledges that he waives his legal objection derived from the conditions of purchase
6. if framework contracts or other contracts, in particular consultancy contracts, have been concluded with our client, these shall have priority. They will be supplemented by the present General Terms and Conditions, unless more specific provisions are contained therein.
Section 2 (subject matter of the contract; scope of services)
1. the subject of the order is the agreed consultancy activity described in the consultancy contract, not the achievement of a specific economic success or the preparation of expert opinions or other works The contractor’s services are deemed to have been rendered when the necessary analyses, the resulting conclusions and the recommendations have been prepared and explained to the client. It is irrelevant whether or when the conclusions or recommendations are implemented.
2. Upon request of the client, we will provide information on the status of the execution of the order or, after the execution of the order, we will give an account in the form of a written or textual report, which will reflect the essential content of the course and result of the consultation. If we are to prepare a comprehensive written or textual report, in particular for presentation to third parties, this must be agreed separately.
3. we are obliged to reflect the situation of the company as accurately and completely as possible in the surveys and analyses with regard to the issue at hand. Data, statements and information provided by third parties or by the client are only checked for plausibility. A more extensive examination is not owed.
4. unless otherwise agreed, we may use suitable subcontractors for the execution of the order, whereby we shall always remain directly obliged to the client. We shall use employees with the necessary expertise for the execution of the order. Otherwise, we shall decide at our own discretion which employees we shall deploy or replace.
Section 3 (performance changes; written form)
1. If the client wishes changes to the order, he must inform us of these changes in writing or in text form. We will then immediately examine the effects of the request for change on the contractual structure and the existing service capacity for this and inform the client in writing or text form.
2. We shall only be obliged to implement the request for change if the client has concluded a corresponding change to the consultancy agreement with us with regard to the scope of services, schedule and remuneration. Unless otherwise agreed, we will in this case carry out the work without taking into account the client’s change requests until the contract is adjusted.
3. If an extensive examination of the additional expenditure (= more than 3 working hours) is necessary, we can demand a separate paid assignment for this.
4. Changes and additions to the order must be made in writing or in text form to be effective. § 305b BGB (precedence of the individual agreement) remains unaffected.
Section 4 (obligation of silence; Data protection)
1. for the duration of the contractual relationship and for a period of 4 years thereafter, we are obliged to maintain secrecy about all information or data provided by the customer and designated as confidential, which we become aware of in connection with the order, and not to pass this on to third parties. This obligation does not extend to facts which are obvious or generally known, the disclosure of which to third parties is necessary for the fulfilment of the contract by us and to employees who have been obliged to secrecy under labour law. It shall also not apply if they must be disclosed in state proceedings or for the enforcement or defence of claims arising from the contractual relationship.
2. the regulations of the law for the protection of business secrets (GeschGehG) remain unaffected and take precedence over the regulations according to No. 1.in case of contradictions.
3. We are authorized to process the personal data entrusted to us within the scope of the purpose of the order in compliance with the relevant data protection regulations or to have them processed by third parties.
4. the client may only pass on to us such information, documents and data as he lawfully holds and where the passing on to us does not violate the relevant data protection regulations. The customer shall indemnify us against all claims of third parties which are based on a culpable violation of the aforementioned obligations in Section 3.
Section 5 (Contractor’s obligations to cooperate)
1. the client is obliged to create all the conditions necessary for the proper execution of the order in his business sphere; in particular, he must provide us in good time and in full with all the documents and information necessary or significant for the execution of the order.
2. At our request, the customer shall confirm the correctness and completeness of the documents submitted by him as well as his information and oral statements in writing or in text form.
Section 6 (remuneration; Terms of payment; offsetting)
1. the remuneration for our services is calculated according to the time spent on the activity (time fee) or agreed in writing as a fixed price. A fee to be paid according to the degree of success or only in case of success is always excluded. Unless otherwise agreed, we are entitled to reimbursement of expenses in addition to the fee. Details of the method of payment are regulated in the contract.
2. if the consultancy lasts longer than 4 months, we shall be entitled, after expiry of this period, to unilaterally increase the remuneration accordingly in the event of an increase in the costs of procurement of services, wage and ancillary wage costs, social security contributions or other costs of our contractually agreed services, if the procurement costs have a direct or indirect influence. An increase in the aforementioned sense is excluded if the cost increase in individual or all of the aforementioned factors is offset by a cost reduction in other of the aforementioned factors in relation to the total cost burden for the delivery (cost netting). If the above-mentioned cost factors are reduced without the cost reduction being offset by an increase in other of the above-mentioned cost factors, the cost reduction shall be passed on to the Customer within the scope of a price reduction.
If the new remuneration is 20% or more above the original net remuneration due to the exercise of our aforementioned price adjustment right, the client is entitled to terminate the consultancy contract without notice. However, he can only assert this right immediately after notification of the increased price.
3. all claims shall become due upon invoicing and are payable immediately without deductions. The statutory value added tax at the time of payment is to be added to all price quotations and shown separately on the invoices. In case of agreed bank transfer, the date of payment shall be the date of receipt of the money by us or the date of crediting to our account or to the account of the paying agent specified by us.
4. several clients (natural and/or legal persons) are jointly and severally liable.
5. a set-off against our claims for remuneration and reimbursement of expenses is only permissible with undisputed, legally established claims. § 215 BGB (offsetting despite statute of limitations) remains unaffected.
Section 7 (Liability)
1. our liability towards the customer is determined in accordance with the statutory provisions, unless otherwise provided for in the following paragraphs:
2. Subject to the following exceptions, we shall not be liable, in particular not for claims of the customer for damages or reimbursement of expenses – irrespective of the legal grounds – in the event of breach of obligations arising from the contractual relationship.
3. the above exclusion of liability according to item (2) does not apply,
a) for own intentional or grossly negligent breach of duty on our part and intentional or grossly negligent breach of duty by legal representatives or vicarious agents on our part
b) for the breach of essential contractual obligations; “essential contractual obligations” are those whose fulfilment characterises the contract and on which the customer may rely”;
c) in the case of injury to body, life and health, also by our legal representatives or vicarious agents
d) in case of delay, insofar as a fixed delivery and/or fixed performance date was agreed;
e) insofar as we have assumed a guarantee for the quality of a product or the existence of a performance success, or a procurement risk in the sense of § 276 BGB;
f) in the event of legally binding liability, in particular under the Product Liability Act.
4. In the event that we or our vicarious agents are only guilty of slight negligence and no case of the above item (3), there lit. c), e) and f), exists, we are only liable for the contract-typical and foreseeable damage, even in the event of a breach of essential contractual obligations. § 254 BGB (contributory negligence remains unaffected).
5. Our liability is limited to a maximum liability amount of EUR 300,000 for each individual case of damage (a single case of damage exists if a damaging event constitutes a life event when viewed objectively). This does not apply if we are charged with malice, intent or gross negligence, for claims due to injury to body, life or health as well as in the case of a guarantee assumed by us or the assumption of a procurement risk by us according to § 276 BGB, or in cases of legally mandatory, deviating higher liability sums. Any further liability on our part is excluded.
6. The exclusions or limitations of liability in accordance with the above items (2) to (5) and item (7) apply to the same extent in favour of our executive bodies, executive and non-executive employees and other vicarious agents and subcontractors.
7. Unless we have unlimited liability, claims for damages shall become statute-barred one year after the beginning of the statutory limitation period pursuant to §§ 199 to 201 BGB.
8. a reversal of the burden of proof is not associated with the above provisions.
Section 8 (Protection of intellectual property)
1. the client guarantees that the reports, organisation plans, drafts, drawings, lists, calculations etc. produced by the contractor within the scope of the order will only be used for the contractually agreed purposes and will not be copied, processed, translated, reprinted, passed on or distributed without express consent in individual cases. The use of the consulting services provided for companies affiliated with the client requires an express written agreement with us.
2. Insofar as work results are copyrightable, we shall remain the copyright holder. In such cases, the client shall receive the irrevocable, exclusive and non-transferable right to use the work results, which is limited only by the right of use set out in clause 1, sentence 1, and is otherwise unrestricted in terms of time and place.
Section 9 (Loyalty obligation)
The parties commit themselves to mutual loyalty. They shall inform each other immediately of all circumstances that occur in the course of the project execution and that may have a significant influence on the processing.
Section 10 (Higher Violence)
1. if events of force majeure of not inconsiderable duration (i.e. with a duration of more than 10 calendar days) occur, we shall inform the customer immediately in writing or in text form. In this case, we shall be entitled to postpone performance for the duration of the hindrance or to withdraw from the contract in whole or in part with regard to the part not yet performed, provided that we have complied with our above duty to inform and have not assumed the procurement risk pursuant to § 276 BGB (German Civil Code) or a performance guarantee. Force majeure is equal to strike, lockout, official intervention, operational hindrances through no fault of our own – e.g. due to fire, water and machine damage – and all other hindrances which, from an objective point of view, have not been culpably caused by us or our vicarious agents.
2. If a binding performance date has been agreed and if the agreed performance date is exceeded due to events according to item 1, the customer is entitled to withdraw from the contract with regard to the unfulfilled part of the contract after a reasonable grace period has expired without result. In this case, any further claims of the client, in particular claims for damages, are excluded against us.
3 The above provision according to item 2 shall apply accordingly if, for the reasons stated in item 1, it is objectively unreasonable for the customer to continue the contract even without a fixed date of performance being contractually agreed.
Section 11 (Cancellation)
Unless otherwise agreed, the consultancy contract can be terminated by the client at any time, by us with a notice period of 14 calendar days to the end of the month in text or written form.
The right to extraordinary termination without notice for good cause remains unaffected.
Section 12 (Right of retention; storage of documents)
1. until complete settlement of our claims arising from the consultancy contract, we shall have a right of retention to documents and data to be provided, unless we are obliged to make advance payment. The right of retention does not apply to undisputed or legally binding counterclaims.
2. after fulfilment of our claims arising from the consultancy contract, we shall surrender all documents which the client or a third party has handed over to us for the purpose of executing the order. This does not apply to the correspondence between the parties and to simple copies or files of the reports, organization charts, drawings, lists, calculations etc. produced within the scope of the order, provided that the client has received the originals.
3. Our obligation to store the documents and data from the consultancy relationship shall expire six months after delivery of the written request to the client to collect them, otherwise three years; in the case of documents retained in accordance with § 12 Para. 1 five years after termination of the contractual relationship.
4. the language of the contract and documents shall be German.
Section 13 (Assignment)
Rights from the contractual relationship with us may only be assigned with our prior express consent. § 354a HGB (assignment of monetary claims) remains unaffected.
Section 14 (Choice of law / Place of jurisdiction)
1. The law of the Federal Republic of Germany shall apply exclusively to all claims arising from the contract.
2. The exclusive place of jurisdiction for all disputes arising from the contract is our registered office, provided the order was placed by an entrepreneur, a legal entity under public law or a special fund under public law.
For the sake of clarification, this jurisdiction regulation also applies to such circumstances between us and the customer which may lead to non-contractual claims within the meaning of EC Regulation No. 864 / 2007. However, we are also entitled to sue the customer at his general place of jurisdiction.
Section 15 (Severability clause)
Should any provision of this contract be invalid for reasons of the law of the General
Terms and conditions according to §§ 305 to 310 BGB (German Civil Code) be or become completely or partially ineffective/void or impracticable, the statutory provisions shall apply.
Should a present or future provision of the contract be or become invalid/void or unenforceable in whole or in part for reasons other than the provisions relating to the law of the General Terms and Conditions of Business in accordance with §§ 305 to 310 BGB, the validity of the remaining provisions of this contract shall not be affected by this, unless the execution of the contract – also taking into account the following provisions – would represent an unreasonable hardship for one party. The same shall apply if a gap requiring supplementation arises after conclusion of the contract.
Contrary to a possible principle according to which a severability preservation clause should in principle only reverse the burden of proof, the validity of the remaining provisions of the contract shall be maintained under all circumstances and thus § 139 BGB shall be waived in its entirety.
The parties shall replace the provision which is ineffective/void/unenforceable for reasons other than the provisions relating to the law of the General Terms and Conditions of Business in accordance with §§ 305 to 310 BGB (German Civil Code) or a gap which needs to be filled by an effective provision which corresponds in its legal and economic content to the ineffective/void/unenforceable provision and the overall purpose of the contract. § 139 BGB (partial invalidity) is expressly excluded. If the invalidity of a provision is based on a measure of performance or time (period or deadline) specified therein, the provision shall be agreed to a legally permissible measure that comes closest to the original measure.