General Terms and Conditions for Consultancy Services
§1 SCOPE OF APPLICATION
1.1 These General Terms and Conditions of Consultancy supplement contracts (hereinafter referred to as "contract"), the subject matter of which is the consultancy and provision of information by TMC Turnaround Management Consult GmbH (hereinafter referred to as "TMC") to the client, in particular, but not exclusively, in connection with the preparation, planning and implementation of entrepreneurial or professional decisions and projects. If and to the extent that individual provisions of these General Terms and Conditions of Consultancy contradict what TMC has agreed individually with the client, the individual agreements take precedence over the relevant General Terms and Conditions of Consultancy.
1.2 If TMC has once included these General Terms and Conditions of Consultancy in a contract with the client, they will also apply to all future contracts for consultancy services between the client and TMC, even if TMC should not refer to these General Terms and Conditions of Consultancy again in future contracts. This does not apply only if and to the extent that the parties agree on the validity of new General Terms and Conditions of Consultancy of TMC in the future contract.
1.3 The General Terms and Conditions of Consultancy of TMC apply exclusively. General terms and conditions of the client will only apply if this has been expressly agreed in writing.
1.4 Quoted §§ (paragraphs) in these Terms and Conditions of Contract are such of these General Terms and Conditions of Consultancy, unless otherwise designated in the text.
§2 SUBJECT MATTER OF THE CONTRACT, PERFORMANCE AND SCOPE OF SERVICES
2.1 The subject of the contract is the agreed consulting work specified in the contract, not the achievement of a certain economic success.
2.2 TMC renders its services with the diligence of a prudent businessman and always related to the individual situation and the needs of the client. The client is aware that every analysis of a company or market also implies imponderables.
2.3 TMC uses well-trained employees with the necessary expertise and experience for assignments and supervises and controls them. Unless otherwise agreed, TMC can use expert subcontractors for the execution of the order, whereby TMC always remains directly obliged to the client. Unless otherwise agreed, TMC decides at its own discretion which employees or subcontractors are used.
2.4 TMC does not owe and does not provide legal or tax advice or auditing.
§3 CHANGES IN PERFORMANCE
3.1 TMC will take into account change requests of the client related to the order, as far as this is possible within the framework of its operational capacities and its consulting offer and as far as the implementation of the change request is appropriate and reasonable for it.
3.2 TMC may carry out minor project changes without prior consent of the client, provided that these correspond to the presumed will of the client, are urgent and the client cannot be reached in time. TMC will inform the client immediately about such project changes and their effects.
3.3 Insofar as the effort of TMC is increased or the time frame of the project is extended as a result of a change request of the client, the contracting parties undertake to negotiate a corresponding reasonable adjustment of the contract and the remuneration. If the contracting parties cannot agree on a remuneration for the services, the remuneration due to TMC shall, in case of doubt, be increased in accordance with the additional time and costs.
3.4 If the examination of the project modification involves a considerable effort for TMC, TMC can demand the conclusion of a separate order for this purpose.
3.5 Clause 3.3 applies accordingly in case of a project modification according to § 3.2.
§4 COOPERATION OBLIGATIONS OF THE CLIENT
4.1 The success of the project requires close cooperation between the parties. Client will continuously support TMC in the project work to the best of its ability. Client will inform TMC comprehensively about the companies which are the subject of the order and about all aspects essential to the project, and will continuously provide significant documents and information or documents and information deemed necessary by TMC in due time and in full.
4.2 The Client shall:
» provide TMC with complete, accurate and prompt answers to all questions to the best of its knowledge which form an essential basis for TMC's work on the project.
» inform TMC without being asked and in good time - also in cases of doubt - about all circumstances which may be of importance for the project, including the subsequently arranged correction or updating of handed over documents.
4.3 In case of appointment of an Interim Manager provided or mediated by TMC, the agreed duties of cooperation of the client are also to be fulfilled towards the Interim Manager.
4.4 The client will immediately check interim results, documents, minutes of meetings etc. submitted by TMC as to whether the factual information contained therein is correct and complete to its knowledge. The client will inform TMC immediately in text form of any necessary or desired corrections or additions.
4.5 The client undertakes to assure TMC in writing of the completeness and correctness of the information provided to TMC at TMC's request prior to a presentation of the results by TMC to its knowledge (declaration of completeness).
4.6 At the request of TMC the client will create the necessary and reasonable organisational, legal and factual preconditions in the company which is the subject of the contractual consultancy and in particular bring about the declarations required for § 5.5. If required, he will provide TMC and its vicarious agents with suitable workplaces on site, which allow undisturbed and confidential work (incl. desk, office equipment, PC, telephone and, if necessary, integration into the company's internal communication system).
4.7 If and insofar as the client does not fulfil, does not completely fulfil or does not fulfil in time his obligations to cooperate agreed with TMC despite request by TMC, the following shall apply:
a) Additional expenses (time, costs) incurred by TMC as a result thereof will be reimbursed by the client at the general fee rates agreed between the parties;
b) In serious cases TMC has the right to terminate the contract extraordinarily after unsuccessful expiry of a reasonable period of time for the fulfilment of the duties to cooperate.
Further legal rights and claims of TMC remain unaffected.
§5 MAINTENANCE OF CONFIDENTIALITY BY TMC
5.1 TMC is obliged for 2 years from the time of conclusion of the contract to keep confidential all information or business and trade secrets of the client designated as confidential (hereinafter; "confidential information") which become known to it in connection with an order.
5.2 Unless an exception is regulated in this § 5, TMC may only hand over confidential information and reports, expert opinions and written statements on the course and results of its activities to third parties with the prior consent of the client.
5.3 The duty of confidentiality according to § 5.1 does not apply to confidential information if and as far as
a) these were already lawfully in the possession of TMC before disclosure and without any obligation of secrecy;
b) these were lawfully transmitted to TMC after conclusion of the contract by a third party without obligation of secrecy;
c) these have been published without the intervention of TMC or have otherwise become generally known through no fault of TMC;
d) TMC is obliged to provide information to authorities, the judiciary or other third parties due to mandatory legal provisions or official orders;
e) the client has agreed to TMC passing on the information.
5.4 TMC is entitled to disclose confidential information to the persons employed by it for the execution of the order, in particular its employees and subcontractors as well as persons professionally bound to secrecy, provided that TMC undertakes to bind these persons to secrecy and data protection.
5.5 TMC is authorised to process personal data entrusted to it by the client as well as its employees (e.g. details of name, address, date of birth, marital status, religious denomination, status of disability, length of service, salary, membership of works council, etc.) and financing partners, suppliers, customers, consultants as well as other persons or companies used by the client (e.g. address, telephone/fax number, e-mail address, etc.) within the scope of the intended purpose or to have them processed by third parties.
5.6 TMC is allowed to use the fact that a contractual relationship exists or has existed between the client and TMC as well as its concrete activity as a reference, in particular within presentations, events or in its company brochure.
§6 IMPEDIMENTS TO PERFORMANCE
6.1 In case of force majeure and other unforeseeable, extraordinary and non-culpable circumstances (e.g. in case of unforeseeable material procurement difficulties, operational disruptions, strikes, lockouts, lack of means of transport, official interventions, energy supply difficulties and similar), any performance deadlines of TMC will be extended to a reasonable extent. This does not apply if TMC is responsible for taking over, precautionary or preventive measures. If the performance becomes impossible or unreasonable for TMC due to the aforementioned circumstances, TMC will be released from the performance obligation.
6.2 TMC can only invoke the aforementioned circumstances if TMC informs the client thereof without delay.
6.3 §6.1 applies accordingly if an employee of TMC who is contractually designated for the project - unforeseeable at the time of conclusion of the contract and for which TMC is not responsible - is absent. If this employee is permanently or for a longer period prevented from providing the service, TMC is entitled to provide an employee with at least the same skills as a substitute.
6.4 If delays in performance according to § 6.1 to § 6.3 become unreasonable for the client, he can set TMC a reasonable deadline for the commencement and/or continuation of the contractual activities and after fruitless expiry of this deadline terminate the contract extraordinarily according to § 13. TMC's claim to remuneration for services already rendered remains unaffected by this.
6.5 As far as TMC is responsible for impediments to performance, it is only liable according to § 12.
§7 FIDUCIARY DUTY AND ASSURANCE OF INDEPENDENCE
7.1 The parties commit themselves to mutual loyalty. They shall inform each other without delay of all circumstances arising in the course of the execution of the project which may influence the processing.
7.2 The client vouches that the companies affiliated with him as well as his and their employees refrain from everything which could endanger the independence of the employees of TMC. In particular, the direct or indirect enticement of TMC's employees or former employees is to be refrained from within 24 months after termination of the cooperation with TMC.
7.3 For each case of violation of the prohibition according to § 7.2 the client has to pay a contractual penalty in the amount of 10.000,- Euro. In case of a continuous violation the contractual penalty shall be deemed to be newly forfeited for each month commenced.
TMC reserves the right to claim further damages or other rights (e.g. injunctive relief).
§8 USE OF RESULTS / PROTECTION OF INTELLECTUAL PROPERTY
8.1 The client guarantees that the reports, expert opinions, organisation plans, drafts, drawings, lists and calculations made by TMC within the scope of the order will only be used for the contractually agreed purposes and will not be edited, translated, reprinted, passed on or distributed without the express written consent of TMC in the individual case. The use of the consulting services rendered for companies affiliated with the client requires an explicit written agreement.
8.2 Insofar as work results are copyrightable, TMC remains the author. In these cases the client receives the irrevocable, exclusive and non-transferable right of use to the work results, which is only limited by § 8.1, sentence 1, otherwise unlimited in time and place.
§9 passing on of professional statements by tmc
9.1 The passing on of information and consulting services (hereinafter collectively "consulting contents") of TMC (including e.g. reports, expert opinions, organisation plans, drafts, drawings, lists, calculations, etc.) made within the scope of or in connection with the order by the client to a third party requires the written consent of TMC, as far as the consent to the passing on to this third party does not already result from the contents of the contract.
9.2 The use of consulting contents of TMC by the client for advertising purposes is inadmissible; a violation entitles TMC to extraordinary termination of the contractual relationship and all other orders of the client not yet completely executed. Further claims of TMC remain unaffected in this respect.
§10 FEE, ADDITIONAL COSTS, DUE DATE, DEFAULT
10.1 The amount and the kind of the fee will be regulated in principle by individual contract. In the event that no arrangement has been made, the following fee rates shall apply:
» GF 400,-- Euro / hour,
» Partner 312,50 Euro / hour,
» Principal 250,-- Euro / hour,
» Project Manager 225,-- Euro / hour,
» Senior Consultant 200,-- Euro / hour,
» Consultant 175,-- Euro / hour,
» Other (research, assistance, presentation preparation) 100,-- Euro / hour,
in each case plus statutory VAT and the flat rate for incidental expenses pursuant to § 10.3. The hourly rates apply to both working and travelling time. A detailed time sheet can be requested at short notice at any time if required.
10.2 If the term of the contract exceeds a period of 12 months and TMC invoices on a time and material basis, the fee rates will increase by 3 % at the beginning of each new contract year after conclusion of the contract.
10.3 Unless otherwise agreed, the ancillary costs amount to a flat rate of 15 % of the net fee turnover. The incidental costs include travel expenses in Germany as well as costs for the necessary access to research facilities (databases, fees for file inspections, etc.), communication and office management. Fees for travel time are not included and will be invoiced according to § 10.1 from the TMC office closest to the client. Furthermore, the agreed rental and use of electronic data rooms, specialised databases and/or other agreed external services are not included. Incidental costs will be invoiced together with the fees.
10.4 Agreed down payments are due immediately upon invoicing and before commencement of services and will be set off by TMC against the consulting services closest in time. Insofar as further down payments have been agreed, TMC will invoice these in good time in each case so that an interruption of consultancy services is avoided.
10.5 Other fee invoices are due upon receipt by the client and are payable within 7 calendar days. If the due date of an agreed fixed fee depends on the presentation of agreed results, the due date shall also occur if the Client no longer accepts results already prepared (e.g. as a result of termination of the contract at short notice) on the agreed date.
10.6 The statutory value added tax shall be added to all price quotations and shown separately in the invoices.
10.7 Several clients shall be jointly and severally liable.
10.8 A set-off of the client against claims of TMC is only permissible with undisputed or legally established claims.
§11 DEFECTS, STATUTE OF LIMITATIONS
As far as TMC owes an analysis or an expert opinion or any other defined work, the following applies in addition:
11.1 Insofar as the services are defective, the customer has a right to rectification by TMC in accordance with the statutory provisions.
11.2 In case of repeated failure of the rectification the client can also demand reduction of the remuneration or cancellation of the contract. The client can only demand cancellation of the contract if the service rendered is of no interest to him due to failure of the rectification. Section 12 shall apply to any further claims for damages.
11.3 The aforementioned warranty rights of the Principal shall become statute-barred, with the exception of claims for damages, 12 months after the statutory commencement of the limitation period.
§12 LIABILITY, LIMITATION
12.1 TMC is liable to the client, irrespective of the legal basis, for the damages caused by and for which TMC, its legal representatives and vicarious agents are responsible as follows:
12.2 TMC is liable according to § 12.1 for damages resulting from injury to life, body or health.
12.3 TMC is liable according to § 12.1 for other damages caused intentionally or by gross negligence. Liability for slight negligence exists in these cases only in case of violation of essential contractual obligations and is then limited to the compensation of the contract-typical and foreseeable damage.
12.4 In all other cases of damage and liability not covered by the above liability regulations, TMC's liability is excluded.
12.5 TMC is not liable for the improper application or implementation on the part of the client of the recommendations given within the scope of the services or in the working documents of TMC.
12.6 As far as the liability of TMC is excluded or limited according to this contract, the same applies to the personal liability of its legal representatives, employees and vicarious agents.
12.7 §§ 11 and 12 apply accordingly to any claims for compensation of futile expenses (e.g. § 284 BGB).
13.1 As far as nothing else has been agreed by contract and as far as TMC does not owe the creation of a work in the sense of § 11 (in this respect the legal regulations apply), the contract can be terminated by both parties with a notice period of 14 days to the end of the month. The right to extraordinary termination shall remain unaffected.
13.2 The following in particular shall be considered as extraordinary grounds for termination
- in the event of a lack of agreement on the remuneration in the event of necessary substantial changes to the project;
- in case of default of acceptance and delays in payment by the client, provided that TMC has unsuccessfully set a reasonable deadline for performance by the client;
- if a substantial deterioration or a substantial endangerment of the financial circumstances of the client occurs, in particular if the client stops or declares to stop payments, or if the client has filed for insolvency or if insolvency proceedings have been opened or rejected for lack of assets.
13.3 In the event of extraordinary termination by TMC due to conduct of the client in breach of the contract, the client shall owe TMC compensation for all damages caused by the premature termination of the contract, including loss of profit.
13.4 The termination must be in writing to be effective.
§14 RETENTION, STORAGE OF DOCUMENTS
14.1 Until full settlement of its claims TMC has a right of retention of the documents handed over to it, the exercise of which, however, is contrary to good faith if the retention would cause disproportionately high damage to the client which cannot be justified when weighing both interests.
14.2 After settlement of its claims under the contract, TMC shall, at the client's request, surrender all documents which the client has handed over to it (itself or via a third party) on the occasion of the execution of the order. This does not apply to the correspondence between the parties and to simple copies of reports, organisation charts, drawings, lists, calculations etc. made within the scope of the order, provided that the client has received the originals.
14.3 TMC's obligation to keep the documents expires six months after termination of the contractual relationship. Legal obligations to keep records remain unaffected.
§15 SUPPLEMENTARY PROVISIONS
15.1 This contract is exclusively governed by German law excluding the UN Convention on Contracts for the International Sale of Goods and excluding conflict of laws references to other legal systems.
15.2 Place of performance is the registered office of TMC. The place of jurisdiction for all disputes arising from or in connection with this contract is the registered office of the TMC branch concluding the contract, provided that (i) all clients are merchants, legal entities under public law or special funds under public law and there is no common place of jurisdiction with them, (ii) in all other cases only if the client or clients do not have a domicile in Germany.
15.3 The language of presentations, documents, reports, expert opinions, analyses, etc. shall be German.
15.4 Amendments or supplements to a contract referred to in § 1.1 as well as in individual cases to these General Terms and Conditions of Consultancy shall require text or written form, unless a stricter form is mandatory by law. The exchange of e-mails to notified e-mail addresses satisfies the form requirement agreed herein. This shall also apply to any amendment of this written form requirement.
15.5 The client may assign rights from the contractual relationship with TMC only after prior written consent by TMC.
15.6 Should individual provisions of this contract be or become invalid or unenforceable in whole or in part, this shall not affect the rest of the contract. Instead of the invalid or unenforceable provision, a provision shall be deemed agreed which objectively comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same shall apply in the event of the occurrence of a gap in the contract that needs to be filled.