GTC
General Terms and Conditions
§ 1 Exclusivity
These General Terms and Conditions of Contract shall apply to all agreements between Efficient Management Consultants (hereinafter referred to as "Contractor") and the client (hereinafter referred to as "Client").
Deviating general contractual terms and conditions of the client, regardless of how they are designated, shall not apply to the agreements with the contractor. Instead, these General Terms and Conditions of Contract of the contractor shall apply exclusively. Insofar as these do not provide any regulations for occurring circumstances, the statutory provisions shall apply in addition. Individual agreements can only be made bindingly between the contractor and the client in writing and in this case take precedence over these general contractual conditions. Oral agreements between the contractor and the client are not legally binding, in this respect the contractor's general contractual conditions take precedence.
§ 2 Service contract
The content of the contractor's activity is to advise the client according to the objectives set in the specific project. It is hereby expressly agreed between the client and the contractor that the contractor does not owe any work, but that the contractual agreement concluded between the client and the contractor constitutes a service contract. Any definitions of objectives are not legally binding for the contractor in this respect, but are merely intended to provide guidelines for the provision of the service. The content of the contract is the consulting activity, but not the achievement of a certain economic success.
§ 3 Subcontractor/Employees
The contractor may use independent subcontractors or freelancers to carry out the order. The client has no right to give instructions or direction in this respect. Furthermore, the contractor decides at his own discretion which employees he uses or exchanges during the projects. In this regard, the client has no right to give instructions and/or direction. Any persons specifically named in the order are, unless explicitly agreed otherwise, to be understood as legally non-binding suggestions only, to which the contractor is not bound within the framework of the project.
§ 4 Scope of services
If no other fee has been agreed upon, the contractor is entitled to invoice his services at man-day rates of € 2,000 each. Any estimated man-days or total sums for man-days performed in a specific project are only legally non-binding estimates or objectives. The contractor is entitled to invoice any man-days actually provided in addition to the above conditions. He will inform the client in advance in case of a foreseeable exceeding of the man-days by more than 10% and obtain instructions whether the complete scope of services is nevertheless desired. The contractor has the right to charge the client a flat-rate discount of 40% of the expected project volume for the man-days that are expected to be performed. This amount is due immediately and must be paid to the contractor within a period of seven days. In addition, the contractor has the right to invoice the client every 14 days for payments on account for services actually rendered, unless otherwise agreed in the specific project. All partial invoices must be paid by the client to the contractor within seven days of the invoice date. The Contractor has the right to start rendering the services only after the initial partial invoice issued according to the above rules has been paid in full and to suspend rendering its services until any further partial invoices issued according to the above rules have been paid in full.
§ 5 Reporting/Documentation
The Contractor undertakes to report to the Client, in accordance with the project and the progress of the work, at appropriate intervals on the course of the activity, its results and the further progress of the work at his own discretion. A claim of the client to certain elaborated documents of the contractor, documentation of the contractor and the like does not exist in principle, unless otherwise agreed in the project.
§ 6 Obligation of secrecy
The Contractor and the Customer are obliged to maintain secrecy towards third parties with regard to all business and order-related facts, also beyond the termination of the project, which they become aware of in connection with the project from the respective other party. This shall not apply to any disclosure by the Contractor to any subcontractors and/or freelancers it may have engaged and/or freelancers, insofar as they are involved in the project. However, the Contractor shall, for its part, obligate these persons in writing to maintain confidentiality. The contractor is entitled to use the name of the client and abstract objectives of the project for marketing purposes of the contractor, unless expressly agreed otherwise in writing. The contractor is further entitled to process the personal data entrusted to him or have them processed by third parties within the scope of the project's purposes and in compliance with the data protection regulations.
§ 7 Expenses
The contractor has the right to charge the client for his expenses in addition to the agreed project fee and/or the agreed man-day rates. At the request of the client, the contractor must provide evidence of these expenses. In this respect, the contractor is entitled to invoice the client for kilometer costs per kilometer of € 0.52, first-class rail and air travel and hotels in accordance with a 4-star standard within the framework of the project.
§ 8 Set-off/Retention
A set-off against claims of the contractor for remuneration and reimbursement of expenses is only possible with undisputed or legally established claims of the customer. Furthermore, the client can only assert a right to refuse performance and/or a right of retention if the claim of the contractor and the claim of the client are based on the same legal relationship and the claim of the client is undisputed or legally established.
§ 9 Interim employment
If employees and/or subcontractors of the Contractor are used as interim employees by the Client within the scope of the project, a separate agreement must be concluded between the Contractor and the Client. It is expressly agreed that, unless expressly agreed in writing, the interim assignments are not included in the project scope.
§ 10 Cooperation of the client
The Customer is obliged to support the Contractor to the best of his ability, in particular to make available all factual and legal information necessary for the execution of the order regarding the legal, organizational, technical and economic situation of his company and regarding the factual and legal relationships between the Customer and his business partners and competitors and to create in his business sphere and/or company sphere all conditions necessary for the proper execution of the order by the Contractor in factual and informative terms. If the client does not comply with this obligation and the contractor again sets a reasonable grace period for this in writing, the contractor is entitled to terminate the project with immediate effect after the fruitless expiry of the grace period. In this case, the contractor can charge the client a contractual penalty of 20% of the outstanding project volume. The client has the right to prove that the contractor did not suffer any damage or only a smaller damage.
§ 11 Obligations to inspect
The results and reports prepared by the contractor will be immediately checked by the customer to what extent the information contained therein about the customer, which was previously supplied to the contractor by him, is correct. Any necessary corrections as well as desired changes and/or additions will be communicated by the customer to the contractor immediately in writing. If this is not done, the contractor can assume that the findings made with regard to the customer correspond to the facts. At the request of the contractor, the customer shall confirm in writing the completeness and correctness of the documents submitted and the information provided.
§ 12 Work results / Warranty / Liability
The results developed by the contractor within the framework of the project are prepared by the contractor and his vicarious agents with due care and to the best of his knowledge and belief. However, they make no claim to completeness or to undeniable correctness. Any liability in this respect is excluded, unless the contractor is liable in accordance with the following paragraphs of this § 12.
Liability of the contractor is further excluded to the extent that the liability circumstances are caused by the fact that the client does not, not completely or not in time fulfil cooperation obligations. Claims for damages, regardless of their legal basis, are excluded, unless we can be accused of intent or gross negligence or it is a not only insignificant violation of essential contractual obligations (paragraph 2). Where we are liable for simple negligence, liability is limited to compensation for foreseeable, typical, direct damage. In particular, compensation for indirect damages such as loss of profit, loss of production and use and financial losses due to third-party claims is excluded.
Essential contractual obligations are such obligations which protect essential contractual positions of the orderer, which the contract has to grant him according to its content and purpose, as well as such contractual obligations, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the orderer regularly relies and can rely.
The aforementioned limitations of liability shall also apply in the event of breaches of duty by or in favour of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have fraudulently concealed a defect, in the case of guarantees granted as an exception, for claims of the customer under the Product Liability Act or due to injury to life, body or health.
Where we are liable according to the above rules, the liability per project is limited to a maximum liability amount of € 500,000.
§ 13 Property rights
All expert opinions, reports, organization charts, drafts, drawings, lists, calculations and the like prepared by the contractor as well as other know-how developed or contributed by the contractor within the scope of the order may only be used by the customer for his own purposes within the scope of the project and may not be made available to third parties without the express written consent of the contractor. The same applies to the use by companies affiliated with the customer.
§ 14 Employees
The Client undertakes not to recruit or approach employees of the Contractor with the intention of recruiting during the project and for a period of two years after the project. If the Customer intends to take on individual employees, he must obtain the prior written consent of the Contractor before contacting the employee concerned.
§ 15 Dates
All agreed deadlines are, unless expressly agreed otherwise in writing, non-binding performance deadlines and are furthermore subject to the timely fulfilment of the client's obligations to cooperate.
§ 16 Force majeure
Delays in performance due to force majeure and due to other unforeseeable events outside the contractor's sphere of business, which demonstrably make the delivery or performance of the service considerably more difficult and/or impossible for the contractor, in particular strike, lockout, pandemic, official orders, etc., even if they occur with subcontractors, shall not be the responsibility of the contractor, even in the case of fixed dates or contractually agreed deadlines. In this respect, any agreed dates shall be postponed by the corresponding period of time plus a reasonable start-up period for the project restart. Furthermore, in the event of such an impediment, the contractor is entitled to withdraw from the contract in whole or in part due to the unfulfilled services, unless it is only a temporary impediment of foreseeable duration not exceeding four weeks. In the event of final impossibility of performance, the contractor shall have a claim to remuneration corresponding to the actual work performed.
§ 17 Term of contract
Unless otherwise agreed in writing between the parties, the project is concluded for an indefinite period. If a project goal has been defined, the project is finished when the project goal has been reached according to the contractor's dutiful assessment. In addition, the contract can be terminated at any time for good cause by either party without notice. The ordinary termination of the project by the client is excluded. The ordinary termination of the project by the contractor can be made with a notice period of 14 days to the end of the month. All notices of termination must be in writing to be effective.
§ 18 Preclusive periods
All claims of the Customer against the Contractor arising from the project, regardless of their legal basis, must be asserted against the Contractor within a preclusive period of two months after they arise. If the Contractor rejects these claims or if there is no reaction from the Contractor within one month, a further exclusion period of three months shall run from the rejection or after the end of the month, within which the Client must assert the claims in court. If this does not take place, all claims of the client against the contractor are extinguished.
§ 19 Assignment
The partial or complete transfer of the client's rights from this contract to third parties is expressly excluded.
§ 20 Choice of law / Place of jurisdiction / Severability clause
All claims arising from this contract shall be governed exclusively by the law of the Federal Republic of Germany, excluding those provisions of German international private law which would lead to the application of foreign legal norms, and excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from this contract is Wiesbaden. Should the individual provisions of this contract be invalid, partially invalid or unenforceable, this shall not affect the validity of the remaining provisions. In place of the invalid, partially invalid or unenforceable provision, the parties undertake to agree on a provision which in a legally effective manner comes closest to the meaning and purpose of the invalid, partially invalid or unenforceable provision. Should the parties fail to reach such an agreement, the invalid, partially invalid or unenforceable provision shall be replaced by a statutory provision which comes as close as possible to the meaning and purpose of the invalid, partially invalid or unenforceable provision.