General Terms and Conditions of Unternehmensberatung H & D GmbH for Consulting and Other Services (General Terms and Conditions [GTCs])

§ 1 Application of Contractual Conditions

  1. The following Conditions shall form an element of the Contract. Conditions of the Customer shall not apply unless the Customer's conditions have been explicitly and demonstrably accepted.
    These Conditions shall also apply to subsequent consulting and services by
    Unternehmensberatung H & D GmbH (hereinafter referred to as "H & D") on the basis of written or oral order.
  2. Specifically, "Services" within the meaning of Section 1 shall include:
    • Organizational and business consulting
    • Technical consulting and support, either on site or by means of any manner of remote communication
    • Services under maintenance agreements
    • Changes in and additions to standard software and other software, or support therewith
    • Installation of standard software and other software and programming of necessary interfaces or support therewith
    • Training of employees of the Client at the Client's premises, in accordance with the agreed prices and conditions
    • All manner of services

§ 2 Conclusion of Contract, Written Form

  1. Any objects surrendered by H & D to the Client prior to the conclusion of Contract (e.g. proposals, test programs, concepts) shall be the intellectual property of H & D. These objects may not be reproduced or made available to third parties. If no agreement is reached, they shall be returned or deleted and may not be used.
  2. Unless otherwise agreed, offers by H & D shall be subject to change without notice. In case of doubt, the offer or the confirmation of order by H & D shall be dispositive with regard to the content of Contract.
  3. Conclusion of the Contract, along with any subsequent contractual amendments or addenda, shall be deemed valid only if executed in writing. This also applies to any waiver of this written form requirement. No ancillary verbal agreements have been entered into.
  4. Any notices, reminders and deadlines on the part of the Client shall be deemed valid only if executed in writing.
  5. Warranties shall be deemed valid only if explicitly affirmed, in writing, by H & D.

§ 3 Contractual Obligations

Collaboration requires a high degree of trust, cooperation and willingness to come to an agreement. Any deadlines provided by the Client, whether by law or by Contract, must amount to at least ten working days.

§ 4 Performance of Service

  1. The Client shall specify the specific tasks to be performed. Performance of these tasks shall be planned by the Parties, working together, on this basis. Where appropriate, H & D may submit a written concept.
  2. Where the services are provided at the Client's premises, H & D alone shall have authority to issue instructions to its own employees. Employees of H & D employees shall not be integrated into the Client's operation. The Client may issue specifications only to the project coordinator of H & D, not directly to the individual employees of H & D.
  3. The Client shall bear the risk of seeing to it that the services commissioned lead to the outcomes sought by the Client. In case of doubt, the Client shall seek the advice of employees of H & D, or of third-party experts, in a timely fashion.
  4. H & D shall have the right to generate memoranda of consultations devoted to clarifications or modifications of contractual conditions, and specifically of consultations devoted to the object of the Contract. If H & D makes these memoranda of consultations available to the Client, the content of said memoranda shall be deemed correct and complete absent an objection on the part of the Client within 5 working days of their receipt. H & D shall draw the Client's attention to this deadline in the memoranda of consultations themselves.
  5. The decision of which employees it will enlist, and the right to replace these employees at any time, shall remain with H & D. It may enlist the services of freelance staff and of other companies in fulfillment of the order.
  6. If, with the consent of the Client, H & D provides services beyond the scope of the Contract, the provisions and conditions of the individual Contract shall apply as if agreed for said services.

§ 5 Participation by the Client

  1. The Principal shall provide, free of charge, the working environment required to perform the services constitutive of the object of the Contract by making e.g. employees, offices, IT systems, data and telecommunications facilities available to H & D, free of charge, in accordance with the requirements. The Client shall provide H & D access to the software and to the relevant IT systems, both directly and via remote data transfer. The Client shall reply to questions and verify results. It shall be the Client's responsibility to ensure proper operation of the necessary IT systems, where appropriate through maintenance contracts, service framework agreements or service level agreements with H & D or with third parties.
  2. The Client shall designate, in writing, a contact for H & D along with an address and an e-mail address under reachability of the contact is ensured. The contact must be in a position to make the necessary decisions for the Client, or to bring such decisions about without delay. The contact shall ensures good cooperation with the contact at H & D. Such of the Client's employees whose work is required shall, to a reasonable extent, be released from other tasks.
  3. The Client shall thoroughly test work results for any defects and for their usability in the specific situation before putting these results to operational use. This shall also apply to services that the Client receives within the scope of subsequent fulfillment and maintenance.
  4. The Client shall take adequate measures to provide for the event that the work results are affected by faults (e.g. through backups, fault diagnosis, regular review of results). In the absence of an explicit, written notice in the individual case, employees of H & D may always assume that all of the data with which they may come into contact have been backed up.
  5. In addition, the Client shall provide, free of charge, all participation services necessary and essential to execution of the Contract.
  6. In the event, the Client may separately delegate portions (IT systems, data backup) of its participation obligations to H & D through conclusion of a service agreement with H & D.

§ 6 Performance Period

  1. Dates shall be deemed to be non-binding unless agreed, expressly and in writing, as binding. The realization obligation incumbent upon H & D shall be deemed to commence only upon the Client's written acceptance of the concept.
  2. If H & D must wait for participation by or information on the part of the Client, or if it is hampered in its fulfillment of the order by strikes, lockouts, official intervention or other circumstances for which it is not responsible, then the delivery and performance deadlines shall be deemed extended by the duration of the hindrance, plus a reasonable start-up period following the end of the hindrance. H & D shall inform the Client of the hindrance.
  3. Working days shall be deemed to be the weekdays from Monday to Friday (08:00 to 17:00 CET), with the exception of public holidays.

§ 7 Remuneration, Payment, Retention of Title

  1. Remuneration shall be paid pursuant to the agreed prices and conditions.
  2. All prices are exclusive of the applicable statutory value-added tax, unless the sale is VAT-exempt. H & D shall be entitled to bill the Client for partial performance. Payments shall fall due for payment 10 days after invoicing. No cash discount shall be granted.
  3. Travel time, travel expenses and subsistence expenses shall be invoiced at cost and as a function of the office location of the employee of H & D. Travel times and expenses are incurred during travel between the employee's office location and the Client's work site or between multiple work sites of the Client.
  4. H & D may require down payments or advance payment in full if no business relationship exists yet with the Client, if the service is to be performed abroad, if the Client is domiciled abroad, or if reasons exist to doubt punctual payment on the part of the Client.
  5. The Customer may offset only undisputed or legally established claims against amounts due.
  6. H & D retains ownership of and the rights to the objects of Contract pending payment in full of its claims under the Contract. In the event of third-party access to the objects of Contract, the Client shall immediately provide written notification hereof to H & D and apprise the third party of the rights of H & D.

§ 8 Change-Request Process

  1. During the term of a project, both Parties may, at any time, submit written request of changes, particularly with regard to agreed services, methods and deadlines.
  2. If the Client proposes a change, within 10 working days H & D shall indicate whether the change is possible, and what impact it would have on the Contract, particularly where the time frame and remuneration are concerned. Thereafter, within five working days the Client shall inform H & D in writing whether it wishes to adhere to its change proposal under these conditions, or whether it intends to continue the Contract under the previous conditions. If the review of a proposed change represents a not inconsiderable effort, H & D shall be entitled to invoice the Client separately for expenses incurred as a result of its review.
  3. In the event of a change request by H & D, the Client shall provide written notification, within 10 working days, of whether it agrees to the change.
  4. As long as acceptance of the proposed change is outstanding, work shall continue and be invoiced under the existing Contract. In lieu of this, the Client shall be entitled to require that work be interrupted, in whole or in part, or permanently suspended in accordance with the requirements of § 3. In the event of suspension, remuneration shall fall due in the amount of the agreed rate per working day and H & D project employee whose work has come to a halt.
  5. Should the Client opt to terminate the Contract, H & D shall be entitled to payment of the agreed remuneration in proportion to work performed to date. For work not carried out, H & D shall be entitled to a lump-sum payment equal to 30% of the remuneration still outstanding (e.g. for resources provided). Both parties shall be free to assert damages in higher or lower amounts.

§ 9 Acceptance

  1. Is the service to be provided by H & D has been agreed as service or work, then H & D shall be entitled to require a written declaration of acceptance by the Client for all services susceptible of acceptance. The Client shall issue its acceptance of services without delay in accordance with this § 9. To this end, at the request of H & D, an acceptance report shall be drawn up and signed by both Parties.
  2. If the object of a work contract consists of several individual tasks susceptible of use by the Client independently of one another, upon request these individual tasks shall be accepted separately.
  3. If a work contract is divided up into partial work, H & D shall be entitled to submit these parts individually for acceptance. Later acceptances shall be confined to consideration of the functioning of the new part and to the correct interaction of parts previously accepted with the new part.
  4. If the Contract entails creation of a concept, particularly relative to the form, modification or extension of standard software, H & D shall be entitled to require separate acceptance of the concept.
  5. The Client shall inspect performance within 15 working days, and its contact shall provide a written statement either of the Client's acceptance or of the deficiencies identified, along with a detailed description and specification of the error symptoms. If the Client fails to issue a statement within this period or avails itself of the service without complaint, the service shall be deemed duly rendered and accepted. Minor defects shall not give rise to a right to refuse acceptance. In any case, productive use or productive commissioning of (partial) services by the Client shall be deemed to constitute acceptance of the respective service of which productive use is made.
  6. H & D shall rectify the defects at the source of the complaints issued under Paragraph 5 within a period of time that is commensurate with the severity of the defects in question. Upon notification of the corrective action, the Client shall verify performance result within five working days. For the remainder, Paragraph 5 shall apply accordingly.

§ 10 Material and Legal Defects; Other Faults

  1. Within the time frame for examination specified in § 9 Paragraph 5, the Client shall provide H & D with prompt notification of any defects, together with an exact description of the problem and any information useful in troubleshooting. If the Client should fail to provide notification, the work result shall be deemed approved, except in the case of a defect that escaped notice during careful inspection. If such a defect should emerge at a later point in time, notification of this defect shall be forthcoming immediately following discovery; otherwise, the work result shall be deemed approved in spite of this defect. Timely issuance of notification shall be deemed sufficient to preservation of the Client's rights in this respect. Claims of material and legal defects shall expire within one year from performance of the service. If H & D has fraudulently concealed the defect, H & D shall have no recourse to the provisions of clauses 2-5 above.
  2. Upon demonstration of material defects, H & D shall perform subsequent fulfillment such that H & D, at its option, provides new, defect-free performance or remedies the defect(s) in question. A remedy of defects shall also be construed to consist in a demonstration to the Client by H & D of reasonable means of avoiding the effects of the defect in question. Upon demonstration of legal defects, H & D shall provide subsequent fulfillment by securing for the Client either a legally sound way of utilizing the service delivered or, at the discretion of H & D, a substituted or modified, equivalent service. If a defect can be eliminated only through acceptance of a new software version, the Client shall accept this, provided the contractual functionality is preserved and the acceptance is not unreasonable. The urgency of troubleshooting shall be based on the degree of the operational hindrance posed by the defect in question. The rules of the present Conditions, particularly § 5 shall apply accordingly.
  3. If, following a reasonable grace period to be specified by the Client, subsequent fulfillment should ultimately fail, The Client shall be entitled to reduce the remuneration, withdraw from the Contract or terminate the continuing obligation. Any grace period specified shall be compliant with the requirements of § 3 of these GTCs. H & D shall compensate for damages or provide reimbursement of expenses rendered futile due to defect within the limits specified in § 11.
  4. If, in the context of troubleshooting or remedy of defects, H & D should perform services without being obliged to do so, H & D shall be entitled to invoice the Client for the additional expense involved in accordance with § 7. This shall be the case particularly if a reported defect proves unverifiable or not attributable to H & D. Particularly eligible for remuneration shall be the extra effort incurred by H & D in its attempt to remedy defects that have arisen because the Client fails, or fails to properly, meet its participation obligations, makes improper use of software or work results, or refrains from availing itself of H & D services recommended by H & D.
  5. If a third party asserts claims that conflict with the exercise of the contractually granted right of use, the Client shall, without delay and in writing, bring this fact to the attention of H & D. Should the Client suspend its use of the work results in order to limit damage or for other important reasons, it shall have an obligation to inform the third party that its suspension of use does not represent an acknowledgment of the alleged violation of intellectual property rights. The Client hereby authorizes H & D to pursue the dispute with the third party on its own, both in and out of court. If, at its discretion, H & D opts to exercise this authorization, the Client shall not recognize the claims of the third party without the consent of H & D, and H & D shall have an obligation to defend the claims at its own expense. H & D hereby exempts the Client from costs and damages on the part of H & D that are due solely to defense against claims.
  6. If, beyond the realm of liability for material and legal defects, H & D should fail to, or fail to properly render services, or if H & D should commit any other breach of obligation, in all cases the Client shall provide H & D with a written complaint to this effect and shall grant H & D a grace period within which H & D shall have the opportunity either to provide proper performance of the service or to provide a remedy by some other means. § 3 shall apply accordingly. The limits set forth in § 11 shall apply in the case of damages or reimbursement of futile expenses.

§ 11 Liability

  1. In all cases of contractual and non-contractual liability, H & D shall provide damages or compensation for futile expenses only:
    • in full for claims owing to non-accidental conduct, gross negligence and absence of a quality for which the H & D has assumed a warranty, only in the amount of the order value yet always limited to EUR 75,000 per damage event and to not more than EUR 150,000 under the Contract
    • in all other cases: only for breach of a material obligation, if this jeopardizes the purposeof the Contract, and only up to the amount of the order value yet always limited to EUR 75,000 per damage event and to not more than EUR 150,000 under the Contract
  2. The defense of contributory negligence (e.g. under § 5) shall remain available. The liability limitations pursuant to Paragraph 1 shall not apply to liability for personal injury (injury to life, body or health) or if, by law, liability cannot be limited (e.g. under the German Product Liability Act). Under contractual and extra-contractual liability, all claims against H & D for damages or for reimbursement of futile expenses shall be subject to a period of limitation of one year. The foregoing shall not apply to liability for damages owing to nonaccidental conduct or gross negligence, to liability for personal injury, or where liability cannot be limited as a matter of law (e.g. under the German Product Liability Act). In any event, the period of limitation shall begin at the time specified by law. Liability shall come under the statute of limitations not later than upon completion of five years following the date on which the claim arises.

§ 12 Confidentiality and Data Protection

  1. The Parties to the Contract hereby covenant to treat as confidential, for an indefinite period of time, the contents of agreements concluded between them, along with any knowledge of confidential information and company secrets of the Party of the opposite part as come to their attention within the framework of order fulfillment, and to utilize such information only in the context of order fulfillment. The company secrets of H & D shall be construed to include work results and services performed.
  2. The Client hereby assures that it has created all the conditions required (e.g. by obtaining declarations of consent) to place H & D in a position to provide the agreed services without violating regulations on data protection.
  3. H & D observes the legal rules pertaining to data protection. Insofar as H & D is provided with access to the Client's hardware and software (e.g. for remote servicing), the intent of this access is not the commercial processing or use of personal data by H & D. Rather, personal data are transferred only in exceptional cases as a secondary consequence of the contractual services of H & D. H & D shall approach these personal data in accordance with relevant provisions of the law of data protection and other relevant protection provisions.
  4. H & D shall be entitled to include the Client in its reference list of clients.

13 Concluding Provisions

  1. If the Client is a business operator, a legal person under public law or a special fund under public law, all disputes arising hereunder and in connection therewith shall be resolved before a competent Munich, Germany, court of law.
  2. These General Terms and Conditions shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and of the International Private Law Act.

§ 14 Consumer arbitration according to consumer quarrel settlement law (VSBG)

The H & D does not take part in the consumer arbitration procedure according to the consumer quarrel settlement law.

Last revised: March 2017