1. general principles / scope of application
1.1 These General Terms and Conditions shall apply exclusively to all legal transactions between the Client and the Contractor. The version valid at the time of the conclusion of the contract shall apply in each case. Conflicting General Terms and Conditions of the Customer shall be invalid unless expressly acknowledged in writing by the Contractor.
1.2 These General Terms and Conditions shall also apply to all future contractual relationships, thus even if not expressly referred to in supplementary contracts.
1.3 In the event that individual provisions of these General Terms and Conditions should be and/or become invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof.
2. scope of the consulting assignment / service provision
2.1 The scope of a specific consulting assignment shall be contractually agreed in each individual case. Unless otherwise agreed for the individual case, the minimum consulting time is 24 hours (or 3 days) per consulting project. If the actual amount to be performed is less, 24 hours will be charged.
2.2 The Contractor shall be entitled to have the tasks incumbent upon it performed in whole or in part by third parties. Payment of the third party shall be made exclusively by the Contractor itself. No direct contractual relationship whatsoever shall arise between the third party and the client.
2.3 The Client undertakes not to commission any persons or companies with such or similar consulting services that are also offered by the Contractor for the duration of the contractual relationship and until the expiry of three years after termination. The Client shall compensate the Contractor for any damage resulting from a breach of this obligation, unless the Contractor is not responsible for the breach of obligation. Reference is made to the provision of § 276 BGB.
3. duty of the customer to provide information / declaration of completeness
3.1 The Client shall ensure that the organizational framework conditions for the performance of the consulting assignment at its place of business permit work that is as undisturbed as possible and conducive to the rapid progress of the consulting process.
The Client shall also inform the Contractor comprehensively about previously performed and/or ongoing consultations in the subject area of the commissioned consulting and related subject areas.
3.3 The Principal shall ensure that the Contractor is provided with all documents necessary for the fulfillment and execution of the consulting order in a timely manner, even without the Contractor’s special request, and that the Contractor is informed of all processes and circumstances that are of importance for the execution of the consulting order. This also applies to all documents, processes and circumstances that only become known during the consultant’s work.
3.4 The Customer shall ensure that its employees and any employee representation (works council) that may have been established are informed by the Contractor prior to the commencement of the Contractor’s activities.
4. safeguarding independence
4.1 The contracting parties undertake to be loyal to each other.
4.2 The contractual partners mutually undertake to take precautions suitable to prevent the independence of the commissioned third parties and employees of the Contractor from being jeopardized. The Client shall refrain from making offers to these persons for employment or the assumption of its own orders.
5. reporting / reporting obligation
5.1 The Contractor undertakes to regularly report to the Client on its work, that of its employees and, if applicable, that of commissioned third parties in accordance with the progress of the work.
5.2 The Client shall receive the final report within a reasonable period of time, i.e., depending on the type of consulting assignment, after two to four weeks from the completion of the assignment.
5.3 The Contractor shall be free from instructions in the production of the agreed work and shall act at its own discretion and on its own responsibility. He is not bound to any particular place of work or working hours.
6. protection of intellectual property
6.1 The copyrights to the works created by the Contractor and its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organizational plans, programs, performance specifications, drafts, calculations, drawings, data carriers, etc.) shall remain with the Contractor. They may be used by the client during and after termination of the contractual relationship exclusively for purposes covered by the contract. In this respect, the Client shall not be entitled to reproduce and/or distribute the Work(s) without the Contractor’s express consent, unless the purpose of the Agreement so provides.
6.2 The Client’s violation of these provisions shall entitle the Contractor to immediately terminate the contractual relationship prematurely and to assert other statutory claims, in particular for injunctive relief and/or damages.
7.1 The contracting parties shall be entitled and obligated, without regard to fault, to correct any inaccuracies and defects in their performance that become known. You are obliged to inform the contractual partner of this without delay.
7.2 This claim of the Client shall become statute-barred within one year from the end of the year in which the claim arose and the Client obtains knowledge of the circumstances giving rise to the claim and the person of the debtor or fails to obtain such knowledge due to gross negligence.
8. liability / compensation
8.1 If the Contractor is liable for damage caused by slight negligence on the basis of applicable law, liability shall only exist in the event of a breach of material obligations arising from the contractual relationship (cardinal obligations) or the fulfillment of which makes the proper performance of the contract possible in the first place and on the observance of which a Customer can and may regularly rely. This liability is limited to the typical damage foreseeable at the time the terms and conditions become effective. The Contractor shall be liable for personal injury and for damage due to gross negligence (gross negligence and intent) in accordance with the statutory provisions. This shall also apply mutatis mutandis to damage caused by third parties engaged by the Contractor.
8.2 Claims for damages by the Client shall become statute-barred within one year from the end of the year in which the claim arose and the Client learned of the circumstances giving rise to the claim and the person of the debtor or did not learn of them through gross negligence. Claims for which liability is assumed in accordance with 8.1 shall be excluded from this.
8.3 If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Client. In this case, the Customer shall seek satisfaction from these third parties as a matter of priority and shall only be entitled to demand satisfaction from the Contractor after the unsuccessful expiry of a reasonable deadline set by the Customer.
8.4 If the client uses the work results of Mark Haacke Training & Consulting GmbH in combination with work results of other parties involved to create an overall work result, for example vis-à-vis a third party to the contract, the client shall be obliged to mark the origin of the relevant sections in a comprehensible form and to fully indicate the originator.
In this context, a clear demarcation from the work results of other parties must be made.
Mark Haacke Training & Consulting GmbH is only liable for damages that can be proven to be due to the work results of Mark Haacke Training & Consulting GmbH.
8.5 If the client continues to use the work results of Mark Haacke Training & Consulting GmbH unchanged, Mark Haacke Training & Consulting GmbH shall be notified of the recipient of the work performance. In this case, the work result may not be changed by the client in terms of content or form.
8.6 Verbally expressed considerations, for example in the course of meetings, shall not constitute a usable work result and shall be regarded as non-binding. This is not changed by written or electronic records of the oral statements.
8.7 The scope and content of the consulting services shall be determined by the specifications provided by the Client, which shall contain all relevant details. The client is obliged to provide all information relevant to the processing if this information is accessible to him.
The scope of the order shall be described by the Contractor in the form of an offer specifying the essential contents and scope. The client will be provided with a breakdown of the relevant individual items.
The client is obliged to check the scope of the offer and confirm it in writing.
Furthermore, the client is obliged to name a specific invoice recipient and his contact details. This may be deviated from if the invoicing is done electronically and the contractor has access to the system.
9. secrecy / data protection
9.1 The Contractor undertakes to maintain absolute silence about all business matters coming to its knowledge, in particular business and trade secrets as well as any information it receives about the nature, scope of operation and practical activities of the Client.
9.2 Furthermore, the Contractor undertakes to maintain secrecy vis-à-vis third parties regarding the entire content of the Work as well as all information and circumstances that it has received in connection with the creation of the Work, in particular also regarding the data of the Client’s clients.
9.3 The Contractor shall be released from the duty of confidentiality vis-à-vis any assistants and substitutes it uses. However, he shall transfer the duty of confidentiality to them in full and shall be liable for their breach of the duty of confidentiality as for his own breach.
9.4 The duty of confidentiality shall also extend beyond the end of this contractual relationship. Exceptions exist in the case of legally required statements.
9.5 The Contractor shall be entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The Customer warrants to the Contractor that all measures required by law have been taken for this purpose.
10.1 Upon completion of the agreed work, the Contractor shall receive a fee in accordance with the agreement between the Client and the Contractor. This fee is payable within 30 days from the date of invoice, unless otherwise stated on the invoice.
10.2. The Contractor shall be entitled to submit interim invoices in accordance with the progress of the work and to demand payment on account in accordance with the respective progress. The fee shall be due in each case upon invoicing by the Contractor. Unless otherwise agreed, the invoice must be paid within 7 days.
10.3 The Contractor shall in each case issue an invoice entitling to input tax deduction with all legally required features.
10.4 Any cash expenses, out-of-pocket expenses, travel expenses, etc. incurred shall be reimbursed additionally by the Principal against invoicing by the Contractor.
10.5 If the agreed work is not performed for reasons on the part of the Customer or due to a justified premature termination of the contractual relationship by the Customer, the Customer shall be entitled to terminate the contract.If the Contractor fails to meet its obligations under the contract, the Contractor shall be entitled to payment of the entire agreed fee less any expenses saved as well as less what the Contractor acquires through other use of its labor or maliciously fails to acquire.
In the case of an hourly fee, the number of hours to be expected for the entire work shall be taken as a basis. The expenses saved are agreed as a lump sum of 40 percent of the fee for those services which the Contractor has not yet performed by the date of termination of the contractual relationship. The parties shall be entitled to prove that the actually saved expenses or the earnings were higher or lower due to the use of the manpower elsewhere or possible but maliciously omitted…
10.6 Unless otherwise agreed, the following provisions shall apply in the event of shortfall: Any discount granted on the daily/hourly rate shall not apply if the project is completed before less than 75% of the contingent agreed in the order is exhausted. If the order volume is reduced by less than 10%, the discount granted shall apply unchanged.
If the scope of the order is reduced by at least 10% but less than 25%, the discount shall be reduced accordingly by the proportion by which the scope of the order is proportionately reduced.
Deviations from this provision require express agreement.
10.7 The Contractor may refuse further performance with respect to the same order and any other existing orders with the Client if any interim invoices are not paid within the agreed period. This shall not affect the assertion of further claims resulting from non-payment.
11. electronic invoicing
The Contractor is entitled to send invoices to the Client in electronic form. The Client agrees to the sending of invoices in electronic form by the Contractor.
12. duration of the contract
12.1 This Agreement shall generally end upon completion of the Project.
12.2 Notwithstanding the foregoing, the contract may be terminated by either party at any time for good cause without notice. In particular, good cause shall be deemed to be,
– if a contractual partner violates essential contractual obligations or
– if a contracting party defaults on payment after insolvency proceedings have been opened, or
– if there are justified concerns regarding the creditworthiness of a contracting party in respect of which no insolvency proceedings have been opened and the contracting party, at the request of the Contractor, neither makes advance payments nor provides suitable security prior to performance by the Contractor and the reduced creditworthiness was not known to the other contracting party at the time the contract was concluded.
13. final provisions
13.1 The contracting parties confirm that they have provided all information in the contract conscientiously and truthfully and undertake to notify each other of any changes without delay.
13.2 German law shall apply to this contract. The place of performance shall be the place of the Contractor’s professional establishment. The court at the Contractor’s place of business shall have jurisdiction over disputes.
14. dispute resolution
In the event of disputes that cannot be settled by mutual agreement, the contracting parties may, if they separately declare their willingness to do so, call in a certified mediator within the meaning of the ZMediatAusbV.
If no agreement can be reached, legal action will be taken at the earliest one month after the failure of the negotiations.