General consulting conditions

§ 1 Scope of application

These General Terms and Conditions of Consultancy apply to contracts whose subject matter is the provision of advice and information by the Contractor to the Client in the planning, preparation and implementation of business or professional decisions and projects, in particular in the field of management and personnel consultancy.
These General Terms and Conditions of Consultancy (GTC) apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons who purchase goods or services for commercial or professional use. They also apply to persons under public law and special funds under public law.
The business relationship with our client, including information and advice, is governed exclusively by the following terms and conditions (GTC).
Deviating terms and conditions of the client shall only apply if and insofar as we expressly recognize them in writing. In particular, our silence with regard to such deviating terms and conditions shall not be deemed as acknowledgement or consent, not even for future contracts.
Our General Terms and Conditions shall also apply in place of any terms and conditions of purchase of the client if, according to these, acceptance of the order is intended as unconditional acceptance of the terms and conditions of purchase, or if we deliver after the client has indicated the validity of its General Terms and Conditions of Purchase, unless we have expressly waived the validity of our General Terms and Conditions. The exclusion of the client’s General Terms and Conditions of Business shall also apply if the General Terms and Conditions of Business do not contain a separate provision on individual points of regulation By accepting our order confirmation, the client expressly acknowledges that it waives its legal objection derived from the Terms and Conditions of Purchase.
If framework agreements or other contracts, in particular consultancy agreements, have been concluded with our client, these shall take precedence. They shall be supplemented by these GTC unless more specific provisions have been made therein.

§ 2 Subject matter of the contract; scope of services

1. The object of the contract is either the agreed consulting activity specified in the consulting contract and/or the associated achievement of a certain economic success and/or the preparation of expert opinions or other works. The Contractor’s services shall be 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. At the request of the client, we shall provide information on the status of the execution of the order or provide an account of the execution of the order in the form of a written or textual report, which shall reflect the essential content of the process and result of the consultation. If we are to prepare a comprehensive written or textual report, in particular for submission to third parties, this must be agreed separately.
3. In the surveys and analyses, we are obliged to reflect the situation of the company as accurately and completely as possible with regard to the questions posed. Data, details and information supplied by third parties or the client are only checked for plausibility. No further examination is owed.
4. Unless otherwise agreed, we may use suitable subcontractors to execute the order, whereby we shall always remain directly obligated to the client. We shall deploy employees with the necessary specialist knowledge to carry out the order. Otherwise, we shall decide at our own discretion which employees we deploy or replace.

§ 3 Changes to services; written form

If the client wishes to make changes to the order, it must inform us of this in writing or in text form. We shall then immediately examine the effects of the change request on the contractual structure and the existing service capacity for this and inform the client in writing or text form.
We shall only be obliged to implement the change request if the client has concluded an amendment to the consulting contract with us to this effect with regard to the scope of services, schedule and remuneration. Unless otherwise agreed, in this case we shall carry out the work without taking the client’s change requests into account until the contract is amended.
If an extensive examination of the additional work (= more than 3 working hours) is necessary, we can request a separate paid commission for this.
Amendments and additions to the order must be made in writing or in text form to be effective. § Section 305b BGB (priority of the individual agreement) remains unaffected.

§ 4 Confidentiality and data protection

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 client and designated as confidential that becomes known to us in connection with the order and not to pass it on to third parties. This obligation does not extend to facts that are obvious or generally known, the disclosure of which to third parties is necessary for the fulfillment of the contract by us and to employees who have been obliged to maintain confidentiality under labor law. It also does not apply if they have to be disclosed in state proceedings or to enforce or defend against claims arising from the contractual relationship.

This duty of confidentiality does not apply to the necessary cooperation with any funding institutions, banks, investors, tax consultants, auditors, lawyers and notaries of the client.
The provisions of the Act on the Protection of Business Secrets (GeschGehG) shall remain unaffected and, in the event of contradictions, shall take precedence over the provisions in Section 1.
We are authorized to process the personal data entrusted to us or to have it processed by third parties within the scope of the purpose of the order in compliance with the relevant data protection regulations.
The client may only pass on to us such information, documents and data that it lawfully holds and for which the passing on to us does not violate the relevant data protection regulations. The client shall indemnify us against all third-party claims based on a culpable breach of the aforementioned obligations in Section 3.
The client undertakes to use information and documents about third parties or studies on the market environment and the competitive situation made available to him by us exclusively within the scope of the assignment. The client shall only disclose this information and documents within his company or group of companies to the management and those employees or consultants who are professionally obliged to maintain confidentiality and who are involved in audit processes. The client shall not utilize the information and documents provided to it for other purposes, in particular not for competitive purposes, and shall not disclose them to third parties or make them public.
The client guarantees that this obligation will also be observed by its employees and consultants and, if applicable, by its affiliated companies. After completion of the assignment, the client shall return to us, destroy or – in the case of electronic storage – delete the documents provided by us, depending on the determination made at that time. At our request, the client shall provide us with written confirmation of the destruction or deletion.

§ 5 Obligations of the client to cooperate

1. The client is obliged to create all the conditions necessary for the proper execution of the order in its sphere of operation; in particular, it must provide us with all documents and information necessary or significant for the execution of the order in good time and in full.
2. The client warrants that information provided to us by the client or by third parties at the client’s instigation within the scope of this agreement is correct, complete and not misleading. The client shall inform us immediately if it becomes apparent that material information provided to us by the client is or becomes incorrect, incomplete or misleading, in particular if material changes in the economic situation of the companies occur.
3. At our request, the client must confirm the accuracy and completeness of the documents submitted by him as well as his information and verbal statements in writing or in text form.

§ 6 Remuneration; terms of payment; offsetting

The fee for our services is calculated according to the time spent on the work (time-based fee) or agreed in writing as a fixed price. Unless otherwise agreed, we are entitled to reimbursement of expenses in addition to the fee. Details of the method of payment are set out in the contract.

If the consultancy lasts longer than 4 months, we shall be entitled to increase the remuneration unilaterally after this period in the event of an increase in service procurement costs, 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 insofar as the cost increase for individual or all of the aforementioned factors is offset by a cost reduction for other of the aforementioned factors in relation to the total cost burden for the delivery(cost netting). If the aforementioned cost factors are reduced without the cost reduction being offset by an increase in other of the aforementioned cost factors, the cost reduction must be passed on to the client as part of a price reduction. If the new remuneration is 20% or more above the original net remuneration due to the exercise of our aforementioned right to price adjustment, the client shall be entitled to terminate the consultancy contract without notice. However, he may only assert this right immediately after notification of the increased price.
All claims are due upon invoicing and are payable immediately without deductions. The statutory value added tax at the time the payment is due shall be added to all prices and shown separately in the invoices. If a bank transfer has been agreed, the date of payment shall be the date on which the money is received by us or credited to our account or to the account of the paying agent specified by us.
Several clients (natural persons and/or legal entities) are jointly and severally liable.
Offsetting against our claims for remuneration and reimbursement of expenses is only permitted with undisputed, legally established claims. § Section 215 BGB (offsetting despite the statute of limitations) remains unaffected.

§ 7 Exclusion and limitation of liability

1. Our liability towards the client shall be governed by the statutory provisions, unless otherwise stipulated in the following clauses:
2. Subject to the following exceptions, we shall not be liable, in particular not for claims of the client for damages or reimbursement of expenses – irrespective of the legal grounds – in the event of a breach of obligations arising from the contractual relationship.
3. The above exclusion of liability pursuant to clause (2) shall not apply,
4. a) for our own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by our legal representatives or vicarious agents;
5. b) for the breach of material contractual obligations; “material contractual obligations” are those whose fulfillment characterizes the contract and on which the client may rely”;
6. c) in the event of injury to life, limb and health also by our legal representatives or vicarious agents;
7. d) in the event of default, insofar as a fixed delivery and/or fixed performance date was agreed;
8. e) insofar as we have assumed a guarantee for the quality of a product or the existence of a performance result, or a procurement risk within the meaning of § 276 BGB;
9. f) in the event of mandatory statutory liability, in particular under the Product Liability Act.
10. In the event that we or our vicarious agents are only guilty of slight negligence and there is no case of the above clause (3), lit. c), e) and f), we shall only be liable for the foreseeable damage typical of the contract, even in the event of a breach of material contractual obligations. § Section 254 BGB (contributory negligence remains unaffected).
11. Our liability shall be limited to a maximum liability amount of EUR 1,000,000 for each individual case of damage (an individual case of damage shall be deemed to exist if a damaging event constitutes a fact of life from an objective point of view). This shall not apply if we are guilty of malice, intent or gross negligence, for claims based on injury to life, limb or health or in the case of a guarantee assumed by us or the assumption of a procurement risk by us in accordance with § 276 BGB, or in cases of legally binding, deviating higher liability amounts. Any further liability on our part is excluded.
12. The exclusions or limitations of liability in accordance with the above clauses (2) to (5) and clause (7) shall apply to the same extent in favor of our executive bodies, executive and non-executive employees and other vicarious agents as well as subcontractors.
13. Insofar as we are not liable without limitation, claims for damages shall become time-barred one year from the beginning of the statutory limitation period pursuant to Sections 199 to 201 BGB.
14. A reversal of the burden of proof is not associated with the above provisions.

§ 8 Protection of intellectual property

The client guarantees that the reports, organizational 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 reproduced, edited, 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.
Insofar as work results are copyrightable, we shall remain the author. In such cases, the client shall receive the irrevocable, exclusive and non-transferable right of use to the work results, limited only by the rights set out in clause 1 sentence 1 and otherwise unlimited in terms of time and place.

§ 9 Duty of loyalty

The parties undertake to be mutually loyal. They shall inform each other immediately of all circumstances that may arise in the course of project execution and that may have a significant influence on the processing.

§ 10 Force majeure

If events of force majeure of not insignificant duration (i.e. with a duration of longer than 10 calendar days) occur, we shall inform the client 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 due to the unfulfilled part of the contract, provided that we have complied with our aforementioned duty to inform and have not assumed the procurement risk pursuant to Section 276 BGB or a performance guarantee. Force majeure shall include strikes, lockouts, official interventions, 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.
If a binding performance date has been agreed and the agreed performance date is exceeded due to events according to Clause 1, the client shall be entitled to withdraw from the contract due to the part not yet fulfilled after a reasonable grace period has expired without result. Further claims of the client, in particular claims for damages, are excluded in this case.
The above provision pursuant to Clause 2 shall apply accordingly if, for the reasons stated in Clause 1, it is objectively unreasonable for the client to continue to adhere to the contract even without a contractual agreement on a fixed performance date.

§ 11 Termination

Unless otherwise agreed, the consulting 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, retention of documents, contract language

Until our claims arising from the consultancy contract have been settled in full, 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 shall not apply to undisputed or legally established counterclaims.
After fulfillment of our claims arising from the consulting contract, we shall return all documents that the client or a third party has handed over to us in connection with the execution of the order. This shall not apply to correspondence between the parties and to simple copies or files of reports, organization charts, drawings, lists, calculations, etc. produced within the scope of the order, provided that the client has received the originals.
Our obligation to retain the documents and data from the consulting relationship shall expire six months after delivery of the written request for collection by us to the client, otherwise three years, in the case of documents retained in accordance with § 12 (1) five years after termination of the contractual relationship.
The contract language and document language is German.

§ 13 Assignment

Rights arising from the contractual relationship with us may only be assigned with our prior express consent. § Section 354a HGB (assignment of monetary claims) remains unaffected.

§ 14 Choice of law / place of jurisdiction

German law shall apply exclusively to all claims arising from the contract.
The exclusive place of jurisdiction for all disputes arising from the contract is our registered office if the order was placed by an entrepreneur, a legal entity under public law or a special fund under public law.

For the sake of clarity, this jurisdiction provision shall also apply to such matters 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 or become invalid/void or unenforceable in whole or in part for reasons of the law of general terms and conditions pursuant to Sections 305 to 310 BGB, the statutory provisions shall apply.

Should a current 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 in accordance with Sections 305 to 310 BGB, this shall not affect the validity of the remaining provisions of this contract, unless the performance of the contract – also taking into account the following provisions – would constitute an unreasonable hardship for one of the parties. The same applies if a gap requiring supplementation arises after conclusion of the contract.

Contrary to any principle according to which a severability clause should in principle only reverse the burden of proof, the validity of the remaining contractual provisions should be maintained under all circumstances and thus Section 139 BGB should be waived in its entirety.

The parties shall replace the provision that is invalid/void/unenforceable for reasons other than the provisions relating to the law on general terms and conditions in accordance with Sections 305 to 310 of the German Civil Code by a valid provision that corresponds in its legal and economic content to the invalid/void/unenforceable provision and the overall purpose of the contract. § Section 139 BGB (partial invalidity) is expressly excluded. If the invalidity of a provision is based on a measure of performance or time (deadline or date) specified therein, the provision shall be reconciled with a legally permissible measure that comes closest to the original measure.